I. INTRODUCTION
In the past five years, astounding numbers of unaccompanied children have migrated across Europe and North America, fleeing from social and economic instability, gang violence, armed conflict, and other intolerable circumstances. (1) Governments including ours have struggled to respond to this wave, or surge, or flood, or "influx" of children, both in highly practical terms and as a policy matter. (2) It has not been easy to strike a balance between prevention and protection, and between the goals of controlling immigration on one side and preserving families or protecting children on the other. (3)
Recognizing that nations have sovereign rights to define their citizenship, to control their borders, and to determine when and on what terms non-citizens may enter, we can nevertheless affirm that children are entitled to special consideration, particularly when they have no parent or legal guardian present or available to assist them. The United States has taken significant steps toward extending this protection, following both our own constitutional principles and international human rights law. My thesis this afternoon is that we can and should do better.
Ten years ago, Congress signaled its intention to improve our treatment of unaccompanied minors entering the United States when it enacted the Trafficking Victims Protection Reauthorization Act. (4) Since 2008, the federal agencies charged with implementing the Trafficking Act have made some important progress, but the tasks remain unfinished. At the same time, the numbers of children in the system have increased, and the problems have grown worse.
In evaluating the current situation, I want to distinguish between several sets of concerns, which correspond roughly with the division of responsibility within the federal government. First, one important objective is to provide children with more effective access to the different forms of humanitarian immigration relief that are available to them under U.S. statutes, as well as a safe pathway home if they are ultimately not permitted to remain in the United States. This falls within the jurisdiction of the Department of Homeland Security (and the immigration courts in the Department of Justice) and is primarily the business of immigration lawyers.
A separate objective is to assure that the federal agencies who take custody of unaccompanied minors are adequately addressing children's needs for care and protection as the process unfolds, including their need for legal representation. These responsibilities have been assigned to the Department of Health and Human Services.
Finally, there are policy questions as to how difficult or dangerous conditions in children's home countries might be improved, to help them remain safely at home. These are foreign relations issues, addressed primarily by the State Department.
As a family lawyer, my main interest is with the second set of questions, where the traditional child welfare concerns are most pronounced. These are also issues that often fall to the side when we read about and discuss immigration policy, and my goal is to help bring these concerns back into the conversation.
II. FRAMEWORKS
Beyond the Trafficking Act, our obligation to protect unaccompanied minors can be grounded in three sources:
* Constitutional values of due process and equality;
* The parens patriae tradition and best interests principle, familiar from family law, and
* International human rights law, including the U.N. Convention on the Rights of the Child.
A. Due Process and Equality
In constitutional terms, undocumented adults and children who are present within the United States have Due Process and Equal Protection rights under the Fourteenth Amendment. This is clear from the text, which says that a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." For well over a century, the Supreme Court has read this language to include noncitizens who are present within the United States. (5)
At a minimum, the right to due process includes the right to fair procedures, including notice and an opportunity to be heard. These rights extend to children as well as adults, (5a) and are particularly important for children whose parents are not available to assist in their protection. Similarly, the right to equal protection has particular importance for children, who may have little control over the circumstances in which they find themselves. (5c)
In 1982, the Court's landmark ruling in Plyler v. Doe (6) reaffirmed this reading and held that undocumented minors in Texas had a right to attend local public schools. In constitutional terms, however, Plyler is a bit unusual. Writing for the majority, Justice Brennan worried about the risk that our policies would create "a permanent caste of undocumented resident aliens," noting: "The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under the law." (7) But he rejected the claim that "illegal aliens" were a suspect class, (8) or that access to public education was a fundamental right. (9) The opinion drew analogies to the Court's Equal Protection cases regarding nonmarital children, where it had applied intermediate scrutiny, and the majority ultimately concluded that the Texas policy of excluding undocumented children from its schools was "irrational" because it did not further any "substantial state interest." (10) This amounts to a type of intermediate scrutiny, an example of what Kerry Abrams and Brandon Garrett call a "cumulative" constitutional right. (11) Four justices dissented in Plyler, applying traditional rational basis review and finding that the policy was rational as a means of conserving financial resources.
Plyler stands as the high-water mark of constitutional protection for undocumented immigrants. The majority emphasized the special circumstances of children who had been brought by their parents to the United States, arguing that their immigration status was a characteristic over which they had little control and for which they should not be penalized. (11b) The case reflects strong support for the values of fairness and equality, but the Court has not extended its holding in Plyler beyond what the Justices viewed as a unique situation. (11c) In light of their analysis, and the changes in the Supreme Court over the past generation, unaccompanied and undocumented minors appear to have very little hope of further constitutional protection from the courts. This makes the statutory framework of the Trafficking Act especially important.
B. Best Interests and Measures of Protection
In the U.S. tradition, children have many of the constitutional rights that adults enjoy, but they do not have any rights as children. In international law, however, the International Covenant on Civil and Political Rights (ICCPR), (12) and the U.N. Convention on the Rights of the Child (CRC) (13) recognize children as having special rights. (14)
In the ICCPR, which the United States ratified in 1992, Article 24 mandates that "[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the state." The CRC goes even further, providing in Article 3(1) that: "In all actions taken concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (15) This is a powerful directive, with broad implications.
In the United States, family laws emphasize the child's best interests when courts act to assign parental responsibilities after a divorce, approve adoptions, and protect child welfare. A wide range of state and federal statutes and policies reflect the government's role in protecting children as parens patriae. In constitutional cases, the government interest in child protection is often characterized as compelling, serving as a counterweight to balance other interests, such as parental rights, which are protected by the Constitution. (16) But our constitutional tradition has not required the state or federal government to act to protect children's interests. In DeShaney v. Winnebago County, local child welfare authorities were aware that a child was at serious risk of injury from his father and failed to intervene, but the Supreme Court rejected a claim on the child's behalf, concluding that the Due Process Clause does not confer any affirmative right to protection by the government.
What does it mean to say that the best interests of the child must be "a primary consideration"? According to the U.N. Committee on the Rights of the Child, the best interests principle operates on multiple levels: as a substantive right, as a procedural rule, and as a principle for interpreting provisions of the law. (18) Children's interests may be balanced against other interests or rights, but the use of the word "primary" means "that the child's interests have high priority and [are] not just one of several considerations." (19) The language of Article 3 sweeps well beyond the scope of family law proceedings, to include all actions taken by "administrative authorities and legislative bodies." The Committee has made clear in several of its "General Comments" that this includes immigration and asylum laws and proceedings.
Beyond the general obligation to consider a child's best interests, the CRC articulates a more specific duty to provide protection and humanitarian assistance to children seeking refugee status. Thus, in cases "where no parents or other members of the family can be found," Article 22 states that "the...
