DHS Watchdog Slams ICE Handling of Alien Children

The DHS Office of Inspector General (OIG) issued a “management alert” this week with the anodyne header: “ICE Cannot Monitor All Unaccompanied Migrant Children Released from DHS and U.S. Department of Health and Human Services' Custody”. Read past the title and it’s a harsh indictment of a system created by advocates nearly 16 years ago to protect alien children that has instead fostered their abuse. I warned about many of the issues OIG raised back in March 2023, but without access to OIG’s statistics and analysis, I had no idea how bad things were. If you care about kids, brace yourself.

A Brief History of Well-Intentioned Congressional Mishandling of Alien Children. The term “unaccompanied alien child” (UAC) is defined in statute as:

a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

As that definition shows, only alien minors without parents or legal guardians in the United States are considered UACs. Nonetheless, the federal government — and DHS in particular — lumps plenty of kids with parents and guardians here illegally in as UACs.

That definition was added to federal law by section 462 of the Homeland Security Act of 2002 (HSA), the starting point in a brief history of well-intentioned federal government mishandling of UACs.

The HSA was the law that created DHS, and before that department existed, the former Immigration and Naturalization Service (INS) had responsibility for detaining, caring for, and releasing alien children.

I call it the “former INS” because it was abolished in section 471 of the HSA, with its immigration duties dispersed among various other agencies at DHS, including CBP, ICE, and USCIS.

The detention, care, and release of UACs wasn’t retained by any agency within the newly created DHS, however. A Democratic amendment to the HSA sent authority over those children to the Office of Refugee Resettlement (ORR) at the Department of Health and Human Services (HHS).

There was little discussion about the amendment itself, and no explanation for why ORR was a better fit than ICE, which retained jurisdiction over the detention of aliens generally. Notably, the legacy INS units ICE inherited did, in fact, have experience detaining, caring for, releasing, and tracking alien children.

Many alien advocates, however, had been critical of how INS dealt with alien children, so the sponsors of that amendment likely assumed that placing those children with anyone other than ICE was a better choice. History has not vindicated that assumption.

Initially, few UACs were affected by the switch. According to the Congressional Research Service (CRS), the number of UACs apprehended by DHS who were referred to ORR in the early 2000s “averaged 6,700 annually and ranged from a low of about 4,800 in FY 2003 to a peak of about 8,200 in FY 2007”.

That changed quickly after a Democratically controlled Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA divided UACs into two separate groups: (1) those from “contiguous” countries (Canada and Mexico); and (2) nationals of "non-contiguous" countries (everywhere else).

Under that provision, contiguous UACs could be sent home if they hadn’t been trafficked and didn’t have a credible fear of return.

UACs from non-contiguous countries, however, had to be transferred to the care and custody of ORR within 72 hours, usually to be placed into formal removal proceedings (UACs aren’t amenable to expedited removal), even if they hadn’t been trafficked and had no fear of return. ORR was then directed to place most of those children with “sponsors” in the United States.

Not surprisingly, the number of UACs from non-contiguous encountered by DHS countries soared, as parents (and more importantly smugglers) realized section 235 of the TVPRA all but guaranteed that any child who got here illegally would be released into this country to rejoin his or her family.

Look at the stats: CRS reports that in FY 2008, before the TVPRA was passed, CBP encountered fewer than 10,000 UACs at the Southwest border.

By FY 2009, when that bill was signed, that grew to around 20,000 UACs, 82 percent Mexican nationals, and just 17 percent from the non-contiguous “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

The number of UACs entering illegally kept growing thereafter, with Border Patrol apprehending more than 68,500 of them in FY 2014. By that point, however, just 23 percent of UACs came from Mexico and 77 percent from the Northern Triangle.

Even the Washington Post editorial board had to admit in 2014 that: “Inadvertently, [TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”

“Access to Immigration Courts”. Keep that UAC “access to immigration courts” — which is at the heart of this week’s inspector general’s report — in mind as I explain that the biggest flaw in that TVPRA UAC scheme is that nobody in the federal government is responsible for those kids once they are placed with sponsors.

ORR attempts to reach those children and their sponsors through follow-up calls after UAC releases, but they are not required to do so by law, and in nearly 20 percent of all those cases (some 85,000 UACs under Biden-Harris as of April 2023), ORR was unsuccessful in contacting either or both the child and the sponsor.

In that vein, the otherwise poorly conceived TVPRA does allow DHS to place UACs into removal proceedings, at which both ICE attorneys and immigration judges (IJs) can assess the welfare of those children and keep track of them. If they fail to appear or are otherwise ordered deported, ICE officers can then notify HHS and take those children back into custody and remove them.

Each time ICE fails to place those children into removal proceedings or doesn’t notify HHS when they fail to appear, therefore, is a lost opportunity to keep track of — and thus protect — the kids. Which brings me to the significant issues identified in the OIG report.

OIG explains that between FY 2019 and FY 2023, ICE transferred nearly 450,000 UACs to HHS under the HSA and TVPRA.

ICE, however, failed to place more than 291,000 of those UACs into removal proceedings before IJs, and more than 32,000 of the UACs who were sent to immigration court failed to appear — facts that ICE often failed to share with HHS, according to OIG.

Although I had no insight into that lack of communication between ICE and HHS, my March 2023 piece did highlight how few UACs were appearing on IJs’ dockets and the large number who failed to appear in court, based solely on DOJ’s published statistics. If I’d had access to the same facts and stats OIG dug up, I’d have been even more alarmist than I was then.

Given how little authority the TVPRA and HSA otherwise give federal officers to monitor the welfare of UACs once they leave ORR shelters, immigration court offered the best opportunity to keep tabs on them once they were out.

https://cis.org/Arthur/DHS-Watchdog-Slams-ICE-Handling-Alien-Children

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