By Eric Hershberg*

The lack of a “best interests” standard in the U.S. Government’s handling of child migrants subjects the children to enduring harm and skews their chances of fair adjudication of their immigration cases. Its absence is aggravated by recent U.S. policies under which a majority of children and families are unable to present protection claims which they are legally entitled to make.

• The best interests principle is nearly universally accepted. It is enshrined in a vast body of domestic law, such as when determining the home in which to place a child, and in various international human rights instruments. The UN Convention on the Rights of the Child (CRC), which has the force of law in the 196 countries that have ratified it, states that “in all actions concerning children … the best interests of the child shall be a primary consideration.”

The United States is the sole country not to ratify the CRC, but – as a signatory – it pledged not to act in a manner that undermines the best interests principle. Since the late 1990s, the U.S. Government has, on the whole, allowed practices incorporating best interests principles to gain considerable momentum – until the Administration of President Donald Trump brought such efforts to an abrupt halt. Soon after taking office in 2017, the Administration began stripping away the limited safeguards that leaders of both political parties had, albeit sometimes reluctantly, allowed to emerge over the previous two decades.

• Trump Administration policies have aimed to deter child and family migrants by forcing them either to suffer confinement in increasingly inhumane conditions in detention facilities or await their case outcomes in Mexico. The Administration has steadily sought to erode the baseline protections in the 1997 “Flores Settlement,” which set standards for the detention, release, and treatment of minors. It has ignored the Flores provisions that detained children be held only in “safe and sanitary” facilities and within strict time limits. (U.S. courts having stymied the Administration’s efforts to detain children and families indefinitely.) Other policies have limited the number of migrants allowed to enter the United States each day and have forced families to wait out the immigration process in Mexico rather than be released into local communities.
• For those children and families undeterred by these obstacles, another set of policies has stacked on requirements that effectively zero out their ability to prevail on their claims for protection. The effort began as a narrowing of the substantive criteria for asylum but, over the last year, has become a de facto ban on asylum for Central American children. Though courts again have played a critical role in thwarting many Administration’s efforts, one failed policy is quickly replaced with another even more drastic attempt to shut off all avenues for relief.

While the Trump Administration has taken rejection of the best interests principle to an extreme, no U.S. President has been willing or able to provide strong leadership in guaranteeing the protections to migrant children that U.S. domestic law affords citizens and residents. Widespread perceptions fed by the Administration that migrants are gaming the system make serious discussion of solutions extremely difficult. Policymakers and immigration officials often claim that embracing the best interests principle would create an open border. But respect for children’s best interests can co-exist with a full and fair adjudicative process. It simply guarantees children’s protection, family integrity, and wellbeing during and after a just determination process – even in the face of rejection of their petitions. Rather than updating the U.S. immigration infrastructure and building regional cooperation ensuring children’s well-being, the Trump Administration has further widened the divide between international and domestic child protection laws and U.S. immigration policy.

• With the underlying drivers of migration remaining strong and likely to spike as the economic impact of the COVID-19 pandemic hits Central America, the gap between principle and policy will have ever greater consequences for children, whose best interests are increasingly trampled. The repercussions are enormous, according to numerous studies. For children who are already vulnerable, ongoing family separations are traumatic experiences with potentially long-term implications for their physical and mental health. Unsanitary conditions in detention centers were dangerous even before the pandemic. Inadequate access to food, drinking water, clean clothing, and daily necessities – soap, toothbrushes, and towels – has been well documented. Psychologists fear that these children will struggle throughout their lives, be it in the United States or in their native countries.

July 6, 2020

* Eric Hershberg is the Director of CLALS. The report In Children’s Best Interests: Charting a Child-Sensitive Approach to U.S. Immigration Policy (click here for the full report), based on a joint symposium held in February with over 300 participants. The full program and video recordings are here.