DEATH BY A THOUSAND CUTS

THE TRUMP ADMINISTRATION’S SYSTEMATIC ASSAULT ON THE PROTECTION OF

UNACCOMPANIED CHILDREN

MAY 2018

Death by a Thousand Cuts 1

DEATH BY A THOUSAND CUTS

THE TRUMP ADMINISTRATION’S SYSTEMATIC ASSAULT ON THE PROTECTION OF

UNACCOMPANIED CHILDREN

ACKNOWLEDGEMENTS

This report was written by Jennifer Podkul and Cory Shindel, edited by Megan McKenna and Cory Smith,

and designed by Alex Pender.

Kids in Need of Defense (KIND)

KIND was founded by the Microsoft Corporation and UNHCR Special Envoy Angelina Jolie, and is the

leading national organization that works to ensure that no refugee or immigrant child faces immigration

court alone. We do this in partnership with over 535 law firms, corporate legal departments, law

schools, and bar associations has served more than 15,800 children since 2009, and trained over 25,000

private sector attorneys to provide them with high quality representation in their deportation

proceedings. KIND promotes protection of children in countries of origin and transit countries and works

to address the root causes of child migration from Central America. KIND also advocates to change law,

policy, and practices to improve the protection of unaccompanied children in the United States, by

educating policymakers, the media, and the broader public about the violence that is driving children

out of Central America and their need for protection.

Vision Statement

A world in which children’s rights and well-being are protected as they migrate alone in search of safety.

Mission Statement

KIND will achieve our vision by:

 Ensuring that no child appears in immigration court without high quality legal representation;

 Advancing laws, policies, and practices that ensure children’s protection and uphold their right

to due process and fundamental fairness; and

 Promoting in countries of origin, transit, and destination durable solutions to child migration

that are grounded in the best interests of the child and ensure that no child is forced to

involuntarily migrate.

By Kids in Need of Defense (KIND)

1300 L St. NW

Suite 1100

Washington, DC 20005

Phone: 202-824-8680

www.supportkind.org

Death by a Thousand Cuts 2

INTRODUCTION

Since its first days, the Trump Administration has sought to limit protections for some of the most

vulnerable migrants seeking protection in this country—unaccompanied immigrant and refugee

children. These protections, which were carefully crafted over nearly 15 years through bipartisan

dialogue and collaboration in Congress, are grounded in basic child welfare principles. These procedural

protections recognize that a child who has taken a life-threatening journey of hundreds, if not

thousands, of miles—without a parent or legal guardian—is uniquely at-risk and should be treated in

ways that help promote fundamental fairness in helping the child access the U.S. immigration system to

ensure that we do not return a child to the often life-threatening harm they have fled.

Immediately after taking office in January 2017, President Trump, through a series of executive orders

and published immigration priorities, categorized unaccompanied children in need of protection as

opportunistic, and laws designed to give these children a fair opportunity to have their stories heard by

our legal system as “loopholes.”

Since issuing these executive orders, the White House has also

consistently supported legislative efforts that would undermine procedural protections for these

children—as provided for by the Homeland Security Act of 2002, the Trafficking Victims Protection

Reauthorization Act of 2008 (TVPRA), and the Flores Settlement Agreement—and limit children’s access

to a fair judicial process.

Congress has so far not rolled back important legislative protections.

Not finding legislative success, the

Administration has instead turned to using its authority to implement policy changes that are

dramatically undermining children’s ability to access our legal system. On a surface level, these changes

appear to make only small adjustments to existing procedures. But taken as a whole, they represent a

systematic assault on the ability of children to access the U.S. immigration system and assert claims for

protection for which they may qualify under law.

Based on the Administration’s own public statements

and leaked drafts of forthcoming documents, the attacks on this vulnerable population will continue.

DEPARTMENT OF HOMELAND SECURITY

Immigration Enforcement

While the prior administration embraced a “felons, not families”

approach to the use of limited

enforcement resources for the deportation of dangerous criminals, this Administration has focused its

enforcement resources to systematically target children and their families—all in an effort to create

additional roadblocks and barriers to children trying to make their way through our immigration system.

This pronounced shift in enforcement priorities has put the apprehension, detention, and, in some

cases, prosecution of parents and children at the forefront of enforcement efforts.

Family Separation

In a deeply disturbing hallmark of the Administration’s enforcement strategy, U.S. Immigration and

Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have begun to systematically

separate arriving immigrant children from their parents at the border.

On May 4, 2018, U.S.

Department of Homeland Security (DHS) Secretary Kirstjen Nielsen announced that DHS would begin

referring all immigrants apprehended crossing the U.S. border for criminal charges, even if they are a

parent or asylum seekers. As a result, all children will be separated from the adults who are caring for

them, rendering them unaccompanied. The children will have to be placed in the custody of the U.S.

Department of Health and Human Services Office of Refugee Resettlement (ORR), which by law is

charged with the care, custody, and placement with a sponsor of unaccompanied children. The adult

will be placed in detention to await criminal proceedings.

Death by a Thousand Cuts 3

The use of criminal prosecution against arriving families, including asylum seekers, marks a notable

departure from past practice, as immigration matters are themselves civil proceedings. Secretary’s

Nielsen’s order makes separating children from their families—and referring for prosecution all parents

and adults who cross the border between designated ports of entry—official DHS policy.

By criminalizing the pursuit of asylum based on where a person asserts their need for humanitarian

protection, this policy runs counter to established refugee and asylum law permitting individuals to

present themselves to immigration officials to request asylum wherever they are able, regardless of

whether it is at a port of entry or at the U.S. border. The distinction between where and how migrants

arrive is also troubling in light of the Administration’s announcement in May 2018 that certain ports of

entry were at capacity and unable to process asylum seekers for several days.

As a result, those fleeing

for their lives were left with the untenable options of risking prosecution and indefinite detention, or

being turned away from the U.S. border to danger.

A policy of separating arriving families was first contemplated publicly in March 2017 as a means of

deterring future asylum-seeking children and families from asking for protection.

Despite strong,

consistent opposition from Congress,

separations continue to occur in high numbers. Although CBP

asserts that it has not officially issued a blanket policy, families continue to be separated, including those

families traveling with very young children and babies.

This practice is not only cruel, but flies in the

face of basic child welfare considerations. It has resulted in children being detained alone, which is not

only traumatic, but places an enormous strain on the ORR care and custody system, which otherwise

would not have to house children who have arrived in the United States with their parents. ORR already

struggles to provide required services for children who truly need their support

and should not be

overburdened by caring for children the government has separated for no purpose other than to make

accessing protection in the United States more difficult and deter families from coming to the United

States to seek protection.

In compliance with the law, ORR works to release unaccompanied children to parents or other sponsors

in the United States as children wait for their immigration proceedings. However, the Administration’s

policy of locking up parents in immigration detention has made it harder to identify sponsors for

children, and as a result, lengthened the amount of time that children remain in ORR custody.

In addition, when children are separated from their parents, their legal cases are severed and courts

must process the cases individually, compounding the problem of the current court backlogs. Children

separated from their parents also have a very difficult time locating and communicating with family

members and accessing key documents and information they need as evidence in their immigration

cases.

In many cases, children may not fully understand all the reasons their family had to come to the

United States, as parents may have tried to shield their children from traumatizing facts and events in

the home country. The Administration’s separation of families—designed to deter future migration—

aside from being immoral and cruel, in reality has only resulted in longer court delays, extended

detention, and added strain on our nation’s already-overburdened immigration court system.

Targeting of Sponsors

In June 2017, ICE began targeting the parents and relatives of unaccompanied immigrant children for

deportation and, in some cases, even criminal prosecution. Announced as an effort to disrupt smuggling

networks and protect children, this targeted enforcement instead only endangered and re-traumatized

children by separating them from loved ones who stepped forward to care for them as they go through

Death by a Thousand Cuts 4

the court process. These actions did nothing to punish or disrupt the work of high-level smugglers or

traffickers. Instead, the Administration exploited the process for reuniting children with their families to

facilitate enforcement against undocumented parents and family members, and hundreds of others who

happened to be unlucky and present during enforcement actions. The disruption of reunification efforts

and the separation of families undermines fundamental rights, traumatizes children, and limits access to

due process. Enforcement targeting parents and sponsors has only served to stoke fear in communities,

destabilize families, and place children at an increased risk of trafficking.

ICE Detention After 18

Birthday

Due to prolonged stays in ORR custody, many children now turn 18 while waiting to be reunified with a

sponsor. ORR only has authority to hold children under the age of 18. The Trafficking Victims Protection

Reauthorization Act of 2013 states that, when unaccompanied immigrant children in ORR custody turn

18, ICE “shall consider placement in the least restrictive setting available after taking into account the

[individual’s] danger to self, danger to the community, and risk of flight.”

Instead of automatically

locking up these teens in adult prisons, Congress mandated that ORR and ICE consider alternatives, such

as placement with sponsors or supervised group homes, for these children. Recently, however, ICE has

begun to transfer children to its custody shortly after they turn 18, and even in some cases, on their 18

birthdays, without such consideration.

In March 2018, the National Immigrant Justice Center, with pro bono partner Kirkland & Ellis LLP, filed a

class-action suit in the United States District Court for the District of Columbia against DHS and ICE for

failing to comply with TVPRA amendments related to the placement of unaccompanied immigrant

teenagers who have turned 18.

In April 2018, the court granted a preliminary injunction ordering ICE

to reassess the placement decisions of two immigrant youth who had been transferred to ICE custody,

finding the plaintiffs likely to succeed in proving that DHS did not comply with the TVPRA.

Re-detaining Unaccompanied Children

The Administration’s enforcement actions have not only extended the time children are held in

detention but actively targeted the re-detention of unaccompanied children previously released and

reunified with sponsors. The Administration has repeatedly promoted the false narrative that all

unaccompanied children are criminals and has used this erroneous contention to justify re-detention, as

well as rapid deportations. President Trump and Attorney General Jeff Sessions have repeatedly tried to

paint all unaccompanied children as gang members who pose a danger to this country, when in reality

children are most often fleeing these very gangs and seeking protection from them in the United

States.

As part of this campaign, ICE has specifically targeted and tried to re-detain children they

allege to have some sort of gang involvement.

Children have been targeted by ICE, even in the absence of real evidence of any criminal activity or gang

affiliation, and detained in secure facilities far away from their parents and attorneys.

In these efforts,

many children were not given an opportunity to challenge the unsubstantiated claims against them. This

unfair practice was halted by a federal judge, who ordered that these children be provided a hearing in

which they can contest their re-detention.

The vast majority of these children have since been

released from detention because there was no evidence they were gang involved or posed any danger

to themselves or their communities.

Humanitarian Protection

DHS has also focused its efforts on narrowing longstanding legal protections for children. These changes

include a more limited interpretation of who can qualify for Special Immigrant Juvenile Status (SIJS).

Death by a Thousand Cuts 5

Under federal law, children can qualify for Special Immigrant Juvenile Status, which is a path to

permanent residency, if they have been abused, abandoned, or neglected by one or both parents.

Recently, the Administration has implemented a policy of denying recent applications for relief for

children who were identified as in need of protection between the ages of 18-21.

In other cases, the Administration is rescinding previous approvals for children who applied between the

ages of 18 and 21.

Disregarding state law and agency precedent, USCIS has issued guidance instructing

adjudicators to strip SIJS status from children in this age group who were previously granted this

classification. SIJS cases first go to a state’s juvenile court, where the judge determines whether the

child qualifies for particular protection under state law which upholds basic child welfare guidelines.

Some states have special provisions extending juvenile court jurisdiction to youth ages 18 to 21

promote protection for young people in this age group, who are also particularly vulnerable.

Rescinding previously granted protection is devastating to these children and young people who are

child survivors of abuse, abandonment, neglect, and for whom it was not in their best interest to return

to their country. Those who have been building lives in the United States are no longer able to rely on

previously granted legal protection, creating profound instability and uncertainty for them. It also

willfully ignores the authority of states to make decisions about the best interests of children residing in

their jurisdictions.

USCIS has also modified its review of affirmative asylum applications by requesting that adjudicators

refer certain proposed grants of relief to the agency’s asylum headquarters for review.

This practice,

which is typically used in novel or high-profile cases or those with national security concerns, is now

required for cases in which an adjudicator proposes to grant asylum to an adult or child with alleged

past or current gang affiliation, or to someone previously detained in secure or staff secure facilities.

Due to their age and the pervasiveness of gang activity in their countries of origin, unaccompanied

children from Central America—many of whom are fleeing gang violence and recruitment—may be

confronted with allegations of gang membership or affiliation. These allegations are often based on

unreliable evidence such as a child’s clothing or the neighborhood in which the child lives.

Central American Minors Program

The Administration has not just changed policies that undermine the protections of children in the

United States, it has also targeted vital protections for children abroad. In November 2017, the

Administration terminated a lifesaving refugee program designed to protect children in danger living in

Central America. The Central American Minors (CAM) program began in 2014 and allowed children to

apply for refugee status from their countries of origin.

This enabled children to make their claims for

U.S. protection without having to undergo the dangerous journey to the U.S. border. The CAM program,

although vital for the children who received protection through it, was in fact very limited. Only children

with a parent with legal status in the United States were allowed to apply. Some 3,378 children had

been protected and able to come into the United States through this program, either by gaining refugee

status or humanitarian parole.

Despite the limited nature of the program, and its importance, the Administration cut off this crucial

lifeline for thousands in need. Not only was the cancellation of the program a devastating blow to

children and families who had hoped to apply, the abrupt termination of the program ended before

more than 4,000 children who applied were interviewed by the U.S. government.

Death by a Thousand Cuts 6

IMMIGRATION COURTS

One of the first changes the Department of Justice (DOJ) made in June 2017 was to terminate a program

that provided counsel for unaccompanied children. The program, known as justice AmeriCorps (jAC),

was funded through a joint partnership of the Corporation for National and Community Service and the

Executive Office for Immigration Review (EOIR). This three-year, $7 million partnership provided critical

funding for legal fellows in 29 cities around the country to support free legal services for unaccompanied

children under the age of 16, and was expanded shortly before the program’s conclusion to include

children under 18.

The program aimed to improve court efficiency in a cost-effective manner and to

identify children who had been victims of human trafficking or abuse and, as appropriate, refer them to

others to assist in the investigation and prosecution of those who perpetrate such crimes. The

Administration’s summary elimination of this program limits access to crucial legal assistance for very

young children.

Following the termination of the jAC program, EOIR then issued a series of legal memos addressing the

processing of cases involving unaccompanied children. In September 2017, the General Counsel’s office

sent a memorandum to the Director of EOIR stating that EOIR is not legally bound by DHS’s

determinations regarding whether a child meets the definition of an “unaccompanied alien child

(UAC).”

Prior to this memo, EOIR would defer to DHS’s initial decision regarding whether or not a child

who had been apprehended was “unaccompanied.”

The designation of “unaccompanied alien child” carries with it certain procedural protections that affect

the way in which a court processes a child’s case.

Among these are the right of the child to first have

their asylum case heard in a non-adversarial setting before a trained asylum officer, rather than in

immigration court, where the child would be required to defend themselves against a government

attorney before an immigration judge. Recognizing that children are frequently transferred between

detention facilities during their first year in the United States and that filing paperwork is impracticable

without a permanent location, the TVPRA also eliminates the one-year filing deadline for

unaccompanied children’s asylum applications.

Previously, once DHS designated a child as unaccompanied, those protections would stay with the child

for the pendency of their immigration court proceedings. This memo invites immigration judges to re-

evaluate a child’s unaccompanied status and significantly change the way a child’s case is processed

mid-way through the child’s case. This not only creates confusion in processing the child’s case, but also

may result in children being forced to navigate more complex and hostile processes, add to the

immigration courts’ already overburdened system, and circumnavigate Congressional intent to provide

streamlined and child-appropriate proceedings for this population. Additionally, due to eligibility

requirements for federal legal services programs supporting unaccompanied children, a change in a

child’s designation as unaccompanied may also lead to the loss of critical legal representation.

Less Child-Friendly Courts

In December 2017, EOIR then issued a memo to all of its immigration judges with new instructions on

how to proceed with cases in court involving children.

The revised guidance weakens the use of child-

friendly practices in cases involving unaccompanied children (such as the ability to view an empty

courtroom before testifying), and directs judges to “be vigilant in adjudicating cases of a purported UAC”

to guard against fraud and abuse, citing “an incentive to misrepresent accompaniment status or age in

order to attempt to qualify for the benefits associated with UAC status.”

These revised instructions do

nothing to substantively change the ways in which the government can test the veracity of a child’s

Death by a Thousand Cuts 7

story, but serve only to make courts that are naturally adversarial even more so and more skeptical of

these particularly vulnerable children as they try to explain the harrowing experiences at the core of

their claims for relief.

New Performance Metrics

Another EOIR memorandum, issued in January 2018, modifies existing case priorities and establishes

new case processing times and goals for immigration courts to evaluate their performance.

These

measures, coupled with the agency’s inclusion of case completion metrics for immigration judges,

pressure immigration judges to restrict the use of continuances. Continuances can be necessary not only

to allow children more time to find an attorney, but also to give USCIS, which has jurisdiction over the

humanitarian protection claims for which most unaccompanied children are eligible, including asylum,

special immigrant juvenile status, and trafficking visas, adequate time to adjudicate these claims. EOIR’s

imposition of artificial time limits on complex cases involving multiple government agencies will result in

children who qualify for humanitarian protection being ordered deported to harm and persecution.

Attorney General Certifications

Finally, the Attorney General has recently certified a number of cases to himself for review.

These

referrals effectively allow the Attorney General to reconsider old decisions and make binding authority

in cases previously decided by the Board of Immigration Appeals (BIA). The cases certified by the

Attorney General address issues of critical importance to the adjudication of children’s claims, including

the ability of immigration judges to grant continuances or administrative closure, the availability of

asylum to those seeking protection based on membership in a “particular social group,” and the ability

of asylum applicants to provide oral testimony in support of their applications.

It seems likely that the Attorney General has taken on these cases to limit asylum protections for

children in profound ways. Many children’s asylum applications are based on persecution suffered at

the hands of the children’s own family or other non-state actors such as transnational criminal

organizations. Children’s asylum applications often assert that the persecution occurred as a result of

the child’s membership in a particular social group. Any limitations on the applicability of this protected

ground, which is defined in the United Nations Refugee Convention, and the United States Refugee Act

of 1980, will have a devastating impact on children’s claims. Additionally, because children are not

guaranteed legal representation, and their asylum stories are often complex, they must be provided an

opportunity to supplement their written applications with oral testimony so they can explain why they

need protection. Limiting this opportunity would harm the ability of children to fully make their case.

Far from mere technical changes, restrictions the Attorney General will seemingly impose would be yet

another way the Administration’s policies will result in children being returned to danger or even to face

death.

OFFICE OF REFUGEE RESETTLEMENT

The Office of Refugee Resettlement (ORR) is required by the Trafficking Victims Protection

Reauthorization Act of 2008 (TVPRA) and the Flores Settlement Agreement

to hold children in the least

restrictive setting possible. This has been interpreted to mean that ORR will work to reunify children

with an adult in the United States who is willing to care for the child throughout their immigration court

proceedings. ORR has specific policies for evaluating potential sponsors based on their relationship to

Death by a Thousand Cuts 8

the child and whether the child has any special needs.

Traditionally, the agency’s primary concern has

been ensuring the process results in a safe placement for the child.

Changes to Release Policy

The Administration has changed the release policy for some children. It now requires ORR’s Director of

Children’s Services to personally approve the release of children who are placed in, or who have ever

been placed in, a staff secure or secure facility for safety concerns for themselves or others.

Children

can be moved to higher and lower security levels based on very limited information, or even for

reporting that they were victimized by a gang. ORR bases its release decisions on the expert opinions of

its staff and thorough background checks. Children likely will be held longer in detention as a result of

this policy change, including children who pose no risk to themselves or to the communities in which

they would be released. This change has also created a bottleneck of cases in which children approved

for reunification based on the expert opinion of ORR staff and background checks are needlessly held in

detention facilities for longer periods of time.

With policy changes resulting in children being detained for longer periods of time, children are not able

to withstand the stress of prolonged detention and often choose to give up their cases just to get out.

Being separated from family and held in secure confinement with no clear understanding of how or

when they will be released often proves too much for children to endure.

As a result, they choose to

drop their claims for protection and prefer to risk the dangers they face in their country of origin, rather

than remain confined.

In addition to prolonged detention having an impact on children’s ability to proceed with their cases, the

ORR Director has also placed new restrictions on girls’ access to reproductive healthcare.

The agency

suggested that girls who wanted access to services they could not get while detained should abandon

their cases, and accept voluntary departure from an immigration judge so that they may attempt to

access services in their country of origin.

Sharing Sponsor Information with ICE for Enforcement

In another disturbing change, ORR has been sharing more information about children and their families

with DHS. ORR has historically protected the information it gathers from children about their families

from DHS. ORR has traditionally considered the safety of the home paramount in considering the release

of a child. The agency had, in accordance with basic child welfare principles, prioritized the child’s

reunification with a safe family member over the sponsor’s immigration status. Because a family

member can often provide the best care for a child, and because an unaccompanied child has an

immigration case unrelated to that of their family member, the immigration status of the sponsor was

not relevant.

In April 2018, ORR finalized a written memorandum of agreement with ICE outlining policies and

procedures for conducting background checks on potential sponsors for children.

Although ORR

maintains responsibility for making decisions about the appropriateness of a sponsor, the agency has

agreed to refer information about potential sponsors to ICE so that ICE may conduct criminal and

immigration checks on sponsors. This new process will result in many undocumented sponsors,

including parents, either not being eligible for sponsorship or discouraged from even applying out of

fear of deportation. Under the new agreement, if sponsors are vetted by ICE, children may be prevented

from reunifying with the best or safest caregiver for them. As in so many other examples referenced in

this report, immigration enforcement would prevail over basic child protection.

Death by a Thousand Cuts 9

Both DHS and HHS have moved quickly to implement the memorandum of agreement through the

solicitation of public comments on records and forms related to the collection of information from

sponsors and other adults. On May 8, 2018, DHS published notice of its modified record system in the

Federal Register and clarified that it would accept public comments for 30 days.

The notice clarifies

that new vetting and information-sharing procedures would apply to potential sponsors as well as other

adult members of the potential sponsors’ household.

The DHS notice states among its purposes the screening of individuals “to verify or ascertain citizenship

or immigration status, immigration history, and criminal history to inform determinations regarding

sponsorship of unaccompanied alien children who are in the care and custody of HHS and to identify

and arrest those who may be subject to removal....” The implementation of these procedures—and the

likely immigration enforcement to follow—pose far-reaching consequences for children in ORR custody,

who may face prolonged stays in ORR custody and choose to give up their legal claims if their parents or

other sponsors decline to come forward to care for them or are deported.

MORE HARMFUL CHANGES TO COME

Statements and priorities issued by the White House detail a range of additional policy changes that the

Administration hopes to pursue, both administratively and legislatively, to the protections for

unaccompanied children.

Among these are changes that would: subject all unaccompanied children to

the narrower protections and cursory screening procedures currently provided to unaccompanied

children from Mexico and Canada; eliminate the opportunity for unaccompanied children to have their

asylum applications first heard in a non-adversarial setting; and strip “unaccompanied child” status and

the related procedural protections from children if a parent or sponsor is located.

The Administration also seeks to terminate the longstanding Flores Settlement Agreement (FSA)

pertaining to the treatment of immigrant children in detention. In fall 2017, as part of the federal

government’s agenda for future regulatory action, DHS published notice of its intent to engage in

rulemaking regarding provisions of the FSA.

DHS framed the proposed action, which is planned for

September 2018, as a necessary response to changes in the applicability of the settlement’s terms and

an effort to ultimately seek termination of the agreement and related litigation in court.

The Administration has also suggested entering into a “Safe Third Country Agreement” with Mexico to

deny access to asylum to children who have traveled through Mexico en route to the United States. The

term “safe third country” applies to countries from which no one flees persecution as a refugee, or

those countries where refugees can receive asylum without being in danger while they wait for their

claim to be considered.

If the Administration declares Mexico to be a safe third country it would mean

any child who traveled through Mexico would be required to seek asylum in Mexico and not be eligible

for this form of protection in the United States. This change would slam the door on children escaping

violence who are poor and forced to journey by foot through Mexico to find permanent protection and

reunify with family in the United States.

Mexico is not currently able to provide protection to the majority of children seeking asylum there and is

not a realistic alternative to requesting protection in the United States.

Despite recent improvements

to its asylum system, Mexico is still unable to process large numbers asylum claims. It does not have the

infrastructure to ensure children are systematically informed of their right to seek asylum or process the

large number of cases that would be forced on Mexico’s system if the United States implemented this

Death by a Thousand Cuts 10

policy. Especially for children with family in the United States, or who are fleeing criminal organizations

currently operating in Mexico, seeking permanency in Mexico is not in the child’s best interest.

These potential changes would severely undermine due process for the most vulnerable in our

immigration system and risk the return of children to harm and danger in their home countries. While

the timeline for future action remains uncertain, U.S. agencies continue to draft policies and support

legislative activity in these priority areas.

CONCLUSION

Without question, these policy changes and those likely to come dramatically undermine the United

States’ system of protection for immigrant and refugee children and fundamentally alter the identity of

the United States as a global leader in the protection of the most vulnerable. Moreover, these policies

decrease government efficiency and waste taxpayer dollars in unnecessary costs.

The cruel irony is that none of these polices address the root causes of why these children are fleeing to

the United States in historic numbers. Until we do this in a meaningful way that prioritizes protection,

children will continue to come, at greater risk to themselves, and we will very likely return those who do

manage to cross our borders to harm after only a cursory review of their request for protection.

This ruthless and brutish treatment of these particularly vulnerable children is being done in the name of

all Americans.

Death by a Thousand Cuts 11

ENDNOTES

Executive Order 13767 of Jan. 25, 2017, Border Security and Immigration Enforcement Improvements, 82 Fed.

Reg. 8793 (Jan. 30, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-01-30/pdf/2017-02095.pdf

CNBC, “Trump Seeks Border Wall, Crackdown on Unaccompanied Minors for 'Dreamer' Deal,” by Reuters,

October 8, 2017,

https://www.cnbc.com/2017/10/08/trump-seeks-border-wall-crackdown-on-unaccompanied-minors-for-

dreamer-deal.html

See generally, The Marshall Project, “Trump’s Quiet War on Migrant Kids: How the Administration is Turning

Child Protection into Law Enforcement,” by Eli Hager, May 1, 2018,

https://www.themarshallproject.org/2018/05/01/trump-s-quiet-war-on-migrant-kids

White House, Remarks by the President in Address to the Nation on Immigration, November 20, 2014,

https://obamawhitehouse.archives.gov/the-press-office/2014/11/20/remarks-president-address-nation-

immigration

See, e.g. The New York Times, “Hundreds of Immigrant Children Have Been Taken From Parents at U.S. Border,”

by Caitlin Dickerson, April 20, 2018, https://mobile.nytimes.com/2018/04/20/us/immigrant-children-separation-

ice.html

CNN, “DHS to Prosecute all Illegal Border Crossings, Potentially Separating Families,” by Tal Kopan, May 7, 2018,

https://www.cnn.com/2017/03/29/politics/border-families-separation-kelly/index.html

USA Today, “Migrant Caravan: No Room for Asylum Seekers at Border Crossing, U.S. says,” by Daniel Gonzalez

and Rebecca Plevin, April 30, 2018, https://www.usatoday.com/story/news/nation-now/2018/04/30/migrant-

caravan-border-asylum-seekers/563851002/

CNN, “Kelly: DHS is Considering Separating Undocumented Children from their Parents at the Border,” by Daniella

Diaz, March 7, 2017, https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from-parents-

immigration-border/index.html

Letter from 75 Democratic Congressmembers to DHS Secretary Nielsen, Feb. 8. 2018, https://democrats-

homeland.house.gov/sites/democrats.homeland.house.gov/files/documents/DemsLetterDHSFamilies.pdf. Letter

from 33 Senate Democrats to DHS Secretary Nielsen, Feb. 12, 2018,

https://www.harris.senate.gov/imo/media/doc/021218%20Letter%20to%20DHS%20on%20Separation%20of%20F

amilies%20at%20Border.pdf

See Joint Complaint by Women’s Refugee Commission, Lutheran Immigration and Refugee Service, Kids in Need

of Defense (KIND), et al. to DHS Office of Civil Rights and Civil Liberties and Office of Inspector General, December

11, 2017, at pp. 6 & 17, https://www.womensrefugeecommission.org/rights/resources/1540-joint-complaint-on-

forcible-separation-of-families-in-customs-and-border-protection-custody; Mrs. L. v. U.S. Immigration and Customs

Enforcement, et al., Case 18-cv-00428-DMS-MDD (S.D. Cal.) [Amended Complaint Mar. 9, 2018],

https://www.aclu.org/sites/default/files/field_document/2018.03.09_32_amended_complaint.pdf.

See, e.g. U.S. Senate, Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations,

Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office of Refugee

Resettlement (Staff Report), at 42-44 (discussing ORR’s provision of post-release services in only 10 percent of

cases), https://www.hsgac.senate.gov/imo/media/doc/Majority%20&%20Minority%20Staff%20Report%20-

%20Protecting%20Unaccompanied%20Alien%20Children%20from%20Trafficking%20and%20Other%20Abuses%20

2016-01-282.pdf.

In FY2015, the average length of stay for children in ORR shelter care was 34 days. U.S. Government

Accountability Office, Unaccompanied Children: HHS Can Take Further Actions to Monitor Their Care, February

2016, https://www.gao.gov/assets/680/675001.pdf. In FY 2017, the average length of stay was 41 days. ORR,

Facts and Data (Length of Stay), https://www.acf.hhs.gov/orr/about/ucs/facts-and-data#lengthofstay. An HHS

official recently testified that the average length of stay for FY2018 through March 2018 was 56 days. Testimony of

Steven Wagner, Acting Assistant Secretary, Administration for Children and Families, U.S. Department of Health

and Human Services, Before Senate Homeland Security and Governmental Affairs Permanent Subcommittee on

Investigations, April 26, 2018, https://www.hsgac.senate.gov/imo/media/doc/Wagner%20Testimony.pdf.

Death by a Thousand Cuts 12

Kids in Need of Defense (KIND), Women’s Refugee Commission, and Lutheran Immigration and Refugee Service,

Betraying Family Values, March 2017, https://supportkind.org/resources/betraying-family-values/

8 U.S.C. § 1232(c)(2)(B), Enhancing Efforts to Combat the Trafficking of Children,

https://www.law.cornell.edu/uscode/text/8/1232

Ramirez v. ICE, et al., Case: 1:18-cv-00508 (D. D.C. 2018) (Complaint),

http://www.immigrantjustice.org/sites/default/files/content-type/press-release/documents/2018-

03/GarciaRamirezvICE_Complaint_filestamped_20180305.pdf.

Id.

Ramirez v. ICE, et al., Case 1:18-cv-00508-RC (D.D.C. 2018) (preliminary injunction),

http://www.immigrantjustice.org/sites/default/files/content-type/press-release/documents/2018-

04/Garcia%20Ramirez%20Preliminary%20Injunction%20Order%204.18.2018.pdf

The New York Times, “Trump Targets MS-13, a Violent Menace, if Not the One He Portrays,” by Ron Nixon, Liz

Robbins and Katie Benner, March 1, 2018,

https://www.nytimes.com/2018/03/01/us/politics/ms13-gang-threat-trump-policy.html

Saravia v. Sessions, Case No. 17-cv-03615-VC (N.D. Cal. 2017),

https://www.aclunc.org/sites/default/files/20171121-Gomez_v_Sessions-Order_Granting_PI_and_Class_Cert.pdf.

Id.

ACLU, Press release, Twenty-two Immigrant Teens Freed after Wrongful Arrests by the Trump Administration,

Dec. 20, 2017, https://www.aclunc.org/news/twenty-two-immigrant-teens-freed-after-wrongful-arrests-trump-

administration (noting that 22 of 34 class members had been ordered released to date, with others still in the

hearing process); Saravia v. Sessions, Case No. 18-15114 (9

Cir. 2018), Appellee’s Answering Brief, at 2 (“At these

‘Saravia hearings,’ an overwhelming majority—including the three Named Plaintiffs—have been released from

detention after showing that they did not present a danger or risk of flight that warranted their continued

detention.”), https://www.clearinghouse.net/chDocs/public/IM-CA-0109-0007.pdf.

The New York Times, “A Rule Is Changed for Young Immigrants, and Green Card Hopes Fade,” by Liz Robbins,

Apr. 19, 2018, https://www.nytimes.com/2018/04/18/nyregion/special-immigrant-juvenile-status-trump.html.

Currently Maryland, Washington, Massachusetts, New York, California, and Texas state law contain these

provisions.

See USCIS, USCIS Asylum Division Quarterly Stakeholder Meeting, Questions and Answers, August 8, 2017, at p.

9-10 (section a.),

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/PED_Asyl

umDivisionQuarterlyStakeholderMeeting08112017_QA.pdf; USCIS, USCIS Asylum Division Quarterly Stakeholder

Meeting, Questions and Answers, November 13, 2017, at p. 5 (section e.),

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/PED_Asyl

umDivisionQuarterlyStakeholderQA_11032017.pdf.

Secure facilities are the most physically restrictive of ORR’s facilities, used to house unaccompanied children

deemed to present a danger to themselves or others, or who have committed a criminal offense. Staff secure

facilities are less restrictive than secure placements, but have security features, including additional staff to enable

closer supervision, for children who may present disruptive behavior but not require secure placement. See ORR,

Children Entering the United States Unaccompanied: A Guide to Terms, Mar. 21, 2016,

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms.

See USCIS, Central American Minors (CAM): Information for Parole Applicants,

https://www.uscis.gov/humanitarian/humanitarian-parole/central-american-minors-cam-information-parole-

applicants.

Huffington Post, “Trump Left Nearly 4,000 Applicants For Central American Refugee Program Stranded,” by Elise

Foley, Apr. 30, 2018, https://www.msn.com/en-us/news/politics/trump-left-nearly-4000-applicants-for-central-

american-refugee-program-stranded/ar-AAwyyLB.

Id.

Death by a Thousand Cuts 13

Corporation for National and Community Service, justiceAmericorps,

https://www.gcir.org/sites/default/files/resources/CNCS%20AmeriCorps%20Fact%20Sheet%20justice%20AmeriCo

rps%20MacArthur%20Foundation%2006-2014%20%28FINAL%29.pdf; Laura Simich, Vera Institute of Justice,

Evaluation of the justice Americorps Legal Services for Unaccompanied Children Program,

https://www.vera.org/projects/evaluation-of-justice-americorps-legal-services-for-unaccompanied-children-

program/overview; see Email from program contractor Equal Justice Works to program fellows and supervisors,

dated Jan. 10, 2017 (discussing change to client eligibility for jAC program) (on file with KIND).

Memorandum from Jean King, General Counsel of Executive Office for Immigration Review, to James R.

McHenry III, Acting Director of EOIR, Legal Opinion re: EOIR's Authority to Interpret the Term Unaccompanied Alien

Child for Purposes of Applying Certain Provisions of TVPRA (Sept. 19, 2017),

https://cliniclegal.org/sites/default/files/resources/King-9-19-17-UAC-TVPRA.pdf.

See, e.g., Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. 1232(a)(5)(D).

Memorandum from MaryBeth Keller, Chief Immigration Judge, EOIR, Operating Policies and Procedures

Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien

Children, Dec. 20, 2017, https://www.justice.gov/eoir/file/oppm17-03/download.

Id. at p. 7-8.

Memorandum from James R. McHenry III, Director, EOIR, Case Priorities and Immigration Court Performance

Measures, Jan. 17, 2018, https://www.justice.gov/eoir/page/file/1026721/download.

8 C.F.R. § 1003.1(h)(1)(i) (“The Board shall refer to the Attorney General for review of its decision all cases that:

(i) The Attorney General directs the Board to refer to him. . . . “). See Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G.

2018) and 26 I&N Dec. 319 (BIA 2014); Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018); Matter of A-B-,

Respondent, 27 I&N Dec. 227 (A.G. 2018); Matter of L-A-B-R, 27 I&N Dec. 245 (A.G. 2018).

United States District Court Central District Of California, Flores v. Reno, Stipulated Settlement Agreement,

http://www.aila.org/File/Related/14111359b.pdf

See, e.g. ORR, Children Entering the United States Unaccompanied: Section 2 Safe and Timely Release from ORR

Care, Section 2.2.1 (Identification of Qualified Sponsors); Section 2.4 (Sponsor Assessment Criteria and Home

Studies); Section 2.4.1 (Assessment Criteria); Section 2.4.2 (Home Study Requirement),

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-2#2.1.

ORR, Children Entering the United States Unaccompanied: Section 2 Safe and Timely Release from ORR Care,

Section 2.7 Recommendations and Decisions on Release, https://www.acf.hhs.gov/orr/resource/children-entering-

the-united-states-unaccompanied-section-2#2.7.

ORR, Facts and Data, https://www.acf.hhs.gov/orr/about/ucs/facts-and-data

American Academy of Pediatrics, Detention of Immigrant Children, March 2017,

http://pediatrics.aappublications.org/content/early/2017/03/09/peds.2017-0483

The Guardian, “'Blatant and Brazen' Trump Accused of Blocking Abortions for Undocumented Women,” by Ed

Pilkington, January 26, 2018,

https://www.theguardian.com/world/2018/jan/26/trump-accused-abortion-block-women-aclu

The New York Times, “U.S. Must Allow Undocumented 17-Year-Old to Have Abortion, Judge Says,” by Matt

Stevens, October 18, 2017,

https://www.nytimes.com/2017/10/18/us/texas-immigrant-abortion-ruling.html

The New York Times, “Federal Agencies Lost Track of Nearly 1,500 Migrant Children Placed With Sponsors,” by

Ron Nixon, April 26, 2018, https://www.nytimes.com/2018/04/26/us/politics/migrant-children-missing.html

Federal Register, DHS, Notice of Modified System of Records, May 8, 2018,

https://www.federalregister.gov/documents/2018/05/08/2018-09902/privacy-act-of-1974-system-of-records

See White House Framework on Immigration Reform and Border Security, January 25, 2018,

(https://www.whitehouse.gov/briefings-statements/white-house-framework-immigration-reform-border-

security/; White House, Immigration Principles and Policy Priorities, October 8, 2017,

http://www.aila.org/infonet/wh-immigration-principles-and-policies.

Death by a Thousand Cuts 14

See White House, Immigration Principles and Policy Priorities, October 8, 2017, http://www.aila.org/infonet/wh-

immigration-principles-and-policies, Section B (Unaccompanied Children). http://www.aila.org/infonet/wh-

immigration-principles-and-policies.

DHS, Unified Agenda, Apprehension, Processing, Care and Custody of Alien Minors (Fall 2017,

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1653-AA75#; 83 Fed. Reg. 1717,

January12, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-12/pdf/2017-28207.pdf.

83 Federal Register 1717, Jan. 12, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-12/pdf/2017-28207.pdf.

Section 608 of IIRIRA amended the INA as follows:

INA §208 (a)(2)(A) SAFE THIRD COUNTRY.-Paragraph (1) [stating that any alien physically present in the United

States or who arrives in the United States, irrespective of status, may apply for asylum in accordance with the

provisions of § 208] shall not apply to an alien if the Attorney General determines that the alien may be removed,

pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or,

in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's

life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social

group, or political opinion, and where the alien would have access to a full and fair procedure for determining a

claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public

interest for the alien to receive asylum in the United States.

Human Rights Watch, Closed Doors: Mexico’s Failure to Protect Central American Refugee and Migrant Children,

March 2016, https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-

refugee-and-migrant-children