Jersey, and California. Thus, the term “unaccompanied alien child” is not a preconditioned state but constantly vacillates based on culturally informed notions of care and kinship and on the fiscal and political interests of law enforcement. Internationally, the more prevalent term is “separated children,” which, in many ways, more accurately reflects the temporary or contingent nature of travel or living arrangements of many children. In my research, I recognize this problematic and shifting definition, but choose to enlist the juridical term “unaccompanied child” because it is a critical intersection between migrant youth, their families, and U.S. law. The legal category, constructed though it may be, becomes a useful site of inquiry into the ways the law attempts to identify and to shape the capabilities and rights of children and their relationships to extended kinship networks both in the United States and abroad.
Children and Youth
Immigration law defines a “child” as an unmarried person under twenty-one (a minor) who fits into one of the following categories: (1) a child born to parents who are married to each other (born in wedlock); (2) a stepchild if the marriage creating the step-relationship took place before the child reached eighteen; (3) a child born out of wedlock (the parents were not married at the time the child was born); (4) an adopted child if the child was adopted before age sixteen and has lived with the adoptive parent(s) in their legal custody for at least two years; (5) an orphan under sixteen when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen, or is coming to the United States for adoption by a U.S. citizen; or (6) a child adopted who is under eighteen and the natural sibling of an orphan or adopted child under sixteen, if adopted with or after the sibling. In effect, a child is defined specifically by the child’s relationship to his or her parents and may forfeit certain forms of legal relief based on the child’s own marital status or the age at which a parent petitions for the state’s recognition of his or her legal status as a child.
Scholars have shown the legal and social categories of a child and childhood to be highly problematic; U.S. immigration law is no different. For example, in immigration law, a “child” summons attributes of dependency on the actions and relationship of his or her parents; while in the country of origin, the same “child” may maintain his or her own household, work independently, and even have his or her own family—attributes often associated with adults in the U.S. context.
To call someone a child, or a minor, is to summon specific attributes of age, dependency, agency, citizenship, rights, and responsibilities in a socially and historically informed context. For unaccompanied children, there are often-conflicting ways in which the state, political parties, NGOs, courts, households, and children themselves identify childhood and the ways the law or institutional actors specifically mobilize discourses on childhood or youth to achieve certain political ends. Because unaccompanied children explicitly and implicitly challenge the constructed legal and social category of “child,” I often interchange the term “youth” to reflect the specific social and legal positioning of young adult migrants with whom I collaborated. I contextualize how migrant youth intersect with, inform, and at times resist the social, legal, and political landscapes that make and unmake citizenship and how these landscapes may also simultaneously contradict migrant youth’s experiences as subjects of the state.
CHAPTER 2
Criminal Alien or Humanitarian Refugee?
INTERLUDE
“Sueños Rotos” (Broken Dreams)
Sometimes, we young people get together to talk about our unrealized dreams. It is easy at times for others to assume why we are here.
The answer is easy: for a better tomorrow. Nobody understands that even though we are young, we have the necessary maturity to confront reality. Here is a country with so many opportunities for everyone but I find myself along a road with no exit—I have only thoughts of my loved ones and of the possibility of moving forward. Yet, my worst enemy is always by my side. I am Latino and an immigrant.
Today I find myself locked up by the laws of the USA as a criminal wearing a prison uniform. I live like a criminal with sadness in my heart. I look at American kids going to school and think, I too am an American child. I should go to school. Is being Latino so different? Is coming here for our family such a bad thing? Is this so difficult to understand?
You will never understand that for my family, I am capable of so much more.
—Mario, fifteen-year-old Salvadoran youth
The Refugee Act of 1980 recognized the needs of refugee children who are unaccompanied, creating special legal provisions for their acceptance into the United States via formal refugee resettlement processes. The act established and funded specialized programs through the Department of Health and Human Services Office of Refugee Resettlement (DHHS-ORR) for minors who are identified as refugees prior to entry in the United States. The State Department identifies refugee children living in UN refugee camps who do not have a parent or legal guardian. On arrival in the United States, refugee children are placed in ORR’s Unaccompanied Refugee Minor (URM) program and resettled by refugee resettlement agencies, similar to refugee adults. However, the Refugee Act of 1980 did not include “unaccompanied alien children,” as they are neither recognized prior to entry nor do they maintain legal status in the United States as their refugee counterparts do. The specialized provisions and procedures for refugee children excluded unauthorized migrant children despite their shared experiences of war, violence, and deprivation in many of the same countries of origin. “Unaccompanied alien children” can be reclassified as “unaccompanied refugee minors” and enter the URM programs if they are granted a qualifying legal status, such as political asylum or specialized visas. In the early 1980s the rates of reclassification were quite low because a child must first be granted political asylum or prove that he or she was trafficked into the United States. Given the absence of court-appointed legal counsel, no recognition of persecution on account of being a child, and no specialized procedures distinguishing children from adults, such feats were rare. With key revisions to legislation for abused, abandoned, and neglected children in the 1990s and on trafficking in the early 2000s, these rates have risen somewhat, though they are still quite low. Instead, the state continued to fold unaccompanied alien children into the unauthorized adult population under the care and custody of the INS, subject to expedited deportation and prolonged detention.
For nearly twenty years advocates vied for a transfer of care and custody of unaccompanied, unauthorized children from the INS to the ORR analogous to that of unaccompanied refugee children. Advocates highlighted the irreconcilable conflict of interest in which the INS simultaneously served as guardian, jailer, and prosecutor of unaccompanied children. While the INS was responsible for housing, feeding, and providing medical care for detained children, it was also charged with “the departure from the United States of all removable aliens,” including the children entrusted to its care (U.S. DHS/ICE 2003). Prior to 2003, the INS held one-third of unaccompanied children in secure facilities, which were subcontracted bed space in existing state and county juvenile detention facilities. Although the INS claimed that unaccompanied children were housed in separate cells, in practice unauthorized children were commingled with juvenile offenders, some of whom had committed violent crimes. There were limited opportunities for education, access to interpreters, and recreation in these facilities (Duncan 2002). While in INS custody, children lacking the requisite documents to remain in the United States were detained for extended periods, sometimes up to two years while awaiting a ruling on their immigration cases.
During this time, a principal cleavage crystalized between legal advocates and immigration enforcement that persists in more recent discussions of the treatment of unaccompanied children—are unaccompanied children humanitarian refugees or criminal aliens? In this chapter, I elaborate the development and current status of the competing humanitarian and law enforcement regimes and the ways these imaginaries continue to shape the interventions of advocates, government bureaucrats, and nongovernmental staff involved in the lives of both detained and nondetained migrant children. I identify three overlapping sensibilities—the