DOJ Sues Migrant Child Center for ‘Sexual Abuse and Harassment’

On July 18, the Department of Justice (DOJ) announced it’s suing Southwest Key Programs Inc., “a Texas-based nonprofit that provides housing to unaccompanied children [UACs] who are encountered at” the Southwest border, for engaging in “a pattern or practice of sexual abuse and harassment of” children trusted to its care. Such a shocking claim — while inevitable — is emblematic of the issues inherent in the federal government’s UAC system, which has never worked and is now breaking down under its own weight as migrant children continue to surge across the U.S.-Mexico line.

How We Got Here. The term “unaccompanied alien child” 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.

Under that definition, only alien minors without parents or legal guardians here are considered UACs, but nonetheless the federal government — and DHS in particular, lumps plenty of kids with parents and guardians here illegally in as UACs, too.

That definition was added to federal law by section 462 of the Homeland Security Act of 2002 (HSA), as good a starting point as any in explaining why Border Patrol has apprehended nearly 82,000 UACs in just the first nine months of FY 2024.

As its name suggests, the HSA was the law that created DHS. Prior to the establishment of that department, the former Immigration and Naturalization Service (INS) was responsible for detaining, caring for, and releasing alien children.

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

Responsibility over the detention, care, and release of UACs wasn’t retained by any of those agencies, though. A hasty Democratic amendment to the HSA transferred authority over those children to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS).

As I’ve explained repeatedly in the past, even though I was present when that amendment was adopted, I have no idea why jurisdiction over UACs was transferred to ORR, an office that to that point had no experience in detaining, caring for, or releasing anyone, let alone children.

There was no discussion about the amendment itself, nor any as to why ORR was a better fit than ICE, which retained jurisdiction over the detention of aliens generally for immigration purposes.

Notably, legacy INS units that ICE inherited did, in fact, have experience in the care and placement of such children.

Immigrants’ advocates, however, had long been critical of how INS dealt with alien kids, so the sponsors of that amendment likely assumed placing those children anyplace else was a better choice. History has not vindicated that assumption.

At least initially, there weren’t that many UACs showing up at the border. According to the Congressional Research Service (CRS), the number of UACs apprehended by DHS and 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 quickly changed after a now-Democratically controlled Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA divided UACs into two separate groups based on nationality: (1) children from “contiguous” countries (Canada and Mexico); and (2) minors from “non-contiguous” countries (everywhere else).

Under that provision, UACs from a contiguous country can be returned home if they haven’t been trafficked and don’t have a credible fear of return.

UACs from non-contiguous countries, however, must be transferred to ORR within 72 hours and placed into formal removal proceedings (UACs are not subject to expedited removal), even if they haven’t been trafficked and have no fear of return. By statute, ORR then places most of those children with “sponsors” in the United States — usually the children’s own parents or guardians.

Not surprisingly, the number of UACs from non-contiguous countries soared after that provision took effect as parents (and, more importantly, smugglers) realized the TVPRA all-but guaranteed any child who could make it illegally into the United States would be released into this country to rejoin his or her family.

https://cis.org/Arthur/DOJ-Sues-Migrant-Child-Center-Sexual-Abuse-and-Harassment

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