By Patrick M. Higgins*
When the United States Congress departed for its five-week summer recess on August 1st, it left important work unfinished—a response to a humanitarian crisis. The magnitude of the influx of child migrants has resulted in rights concerns that connect the Global South and North by spanning from the Northern Triangle of Central America to the detention centers in which many of these migrants are being held. Reports of overcrowding and lengthy detentions reveal only a small part of the injustice that spans multiple nations. From this injustice rises moral, ethical, and legal imperatives to address immediate concerns and their much more deeply-rooted causes.
A recent influx in unaccompanied child migrants— a 106% increase from the same period in the last fiscal year year—has inundated the detention centers operated by U.S. Customs and Border Protection (CBP). CBP reports the number of apprehensions in the fiscal year of 2014 to date (1 October 2013 to 30 June 2014) has numbered 57,525. Projections suggest that this number will continue to increase in coming years.
The Office of the United Nations High Commissioner for Refugees (UNHCR) reports that, “since 2009, [it] has registered an increase in the number of asylum seekers—both children and adults—from El Salvador, Honduras, and Guatemala lodging claims in the Americas region.” The organization also traces “the surge” in the number of unaccompanied minors back to the year 2011. By interviewing children arriving from El Salvador, Honduras, Guatemala, and Mexico, the UNHCR discovered that “no less than 58% of the 404 children interviewed were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.” What dictates who needs international protection? As the 58% above have expressed, targeted threats and danger push many of these children across the threshold required to be granted such a status. Most of these children are facing violence that outweighs the danger of the treacherous trip to the U.S. border. However, the requirements to obtain asylum status after entering the United States can be quite stringent. In a personal interview Lisa Splawinski, legal intern at San Antonio’s Equal Justice Center and former volunteer with RAICES, she expressed, “I am extremely concerned about the options for the children who do not receive immigration relief because returning to their countries of origin in Central America is truly not a viable option.” She added, “asylum relief is a narrowly-defined remedy in immigration, both for the minors in this situation and other immigrants who are fleeing persecution but, unfortunately, I am not sure that [an expansion of the criteria] will be the outcome.”
What other legal bodies and documents protect these children? One might propose the Convention on the Rights of the Child (CRC) but, unfortunately, the U.S. remains one of two countries—the other being Somalia—not to ratify the CRC. As a signatory party (instead of a ratifying party) to the CRC, the U.S. has endorsed the statements found in the convention but is not bound to uphold them. Clearly, such an endorsement was not pressing upon those members of the House that put together a couple of unworkable bills before their departure.
The failure of the United States to address this situation has become evident through existing laws as well. According to Human Rights Watch, “U.S. law allows Customs and Border Protection (CBP) to detain children for a maximum of 72 hours. Prior to the current surge, children were held for only about 12 hours, but recent reports indicate CBP is holding children for periods closer to 10 days or 2 weeks. The children are then transferred to the Office for Refugee Resettlement (ORR) in the Department of Health and Human Services, where they again may be detained.”
As finger pointing continues, some attribute the crisis to the 2008 enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. While the implications of the Act for the current crisis are disputed, focusing efforts on such a debate seem to miss the mark appropriate for addressing the impetus of unaccompanied child migration. Some argue that this influx can be traced back to Eisenhower era policy in Latin America. Others trace the increase in violence to United States and Colombian efforts that resulted in the relocation of drug trafficking corridors to inland routes through countries such as those from which the children are departing. As those with the capability to address this crisis polarize in preparation of midterm elections, it seems as though comprehensive, bipartisan immigration reformed targeted toward addressing this crisis will become less and less likely.
With the above in mind, it seems only fitting that the resolution to this crisis will not be found in simple superficial efforts such as sending National Guardsmen to the border or airing warning messages that highlight dangers that are arguably outweighed by those of everyday life in the children’s countries of origin. Regional cooperation and collaboration outside of politicized agendas will be imperative to addressing the immediate humanitarian concerns through realistic investment into improving the conditions for these children while in US custody and by providing sufficient resources to facilitate fair, expedited judicial proceedings to ensure that those that qualify for asylum status are accommodated and those that don’t are addressed through other humanitarian cooperation with Central and South America. From this point, the US may begin to explore initiatives in eliminating the roots of the crisis with the help of its Latin American counterparts. Fortunately enough, talks regarding international cooperation and responsibility in the Americas have begun. However, until appropriate action is taken, child migrants will lie within the purgatory of political inaction in the face of crisis.
 Interview with Lisa Splawinski. August 4, 2014.
*Patrick M. Higgins is an Arthur Russell Morgan Fellow in Human Rights at the University of Cincinnati College of Law and an intern at Dejusticia (the Center for the Study of Law Justice and Society).