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CHAPTER 1

Children on the Move

In November 1999, a fishing boat rescued a five-year-old boy clinging to a small raft in the waters south of Florida. His mother and stepfather died while traveling from Cuba to the United States when their vessel capsized. A fisherman took young Elian Gonzalez to the home of his great-uncle living in a Cuban enclave of Miami. For the next seven months, a transnational battle between family members, U.S. immigration enforcement, and Cuban authorities ensued, each claiming to serve Elian’s “best interests.” Family members in the United States claimed that a life of stability embodied by regular schooling, family, and Disney World was best for Elian—not political turmoil under dictator Fidel Castro, which spurred his treacherous maritime journey. Yet Elian’s father and stepmother insisted he belonged with his biological parent in a nurturing home and in a supportive community. While the U.S. Immigration and Naturalization Service (INS) considers Cuban nationals a unique category of political refugee, Elian’s alien presence revolved around his status as a dependent minor, who under U.S. immigration law could not independently stand before the law. Declining a congressional offer for political asylum, Elian’s father, still residing in Cuba, requested Elian’s immediate return. Despite a political asylum application filed on his behalf by his uncle, Elian was ultimately repatriated to Cuba, though only after an armed raid by immigration officers “freed” Elian from the captivity of his extended family members in Miami. Images of a masked law enforcement agent aiming a semiautomatic rifle at Elian and his uncle filled the front pages of international newspapers. The “unaccompanied” migrant child entered the U.S. public imaginary with tremendous force, as if Elian were the first child to arrive alone on U.S. shores.

The figure of the “unaccompanied alien child”—an individual under age eighteen who has no lawful immigration status in the United States and who has no parent or legal guardian to provide care and custody—challenges dominant Western conceptualizations of child dependence and passivity, explicitly through these children’s unauthorized and independent presence in the United States and implicitly in the ways they move through multiple geographic and institutional sites. Unaccompanied children are economic, political, and social migrants who arrive both lawfully and unlawfully and originate from nearly every country around the globe. They face similar challenges to those of other populations of migrants who confront language barriers, intergenerational conflict, cultural assimilation, and limited access to resources, but what remains unique are the ways the law and institutions frame children seemingly without parents or kinship ties. Independent, or unattached, migrant children bereft of family or kinship networks therefore threaten the notion of how children can and should act. Their unauthorized presence and exercise of “independent” agency threaten the state’s reliance on the nuclear family as the site for producing future citizens. Thus, migrant children become a problem to be solved.

In response to their independent presence, the state provides care for youth including food, shelter, and medical attention; yet simultaneously, due to their unauthorized entry, state institutions initiate deportation proceedings against unaccompanied youth. Deportation (often framed erroneously as “repatriation”) itself could be seen as a form of care in which the state seeks to reunify children with their families or their country of origin; however, as I will elaborate, in practice, the law may separate children from their families who remain in the United States. In stark contrast to domestic child welfare protocols, there are very few safeguards at the state and the federal levels governing the repatriation or deportation of children, minimal resources invested to confirm the risks of abuse or neglect of even the availability of care on arrival, nor is there basic knowledge about how children are received in the short and long term by governments, communities, or families.¹ More commonly, there is little known about children who are returned to their countries of origin. Some families manage to claim their children on arrival or at shelters for deportees. Some research participants from Guatemala, El Salvador, and Honduras report being abandoned on the tarmac, detained in local jails until a family member could pay a fine or a bribe to secure their release, or, in one extreme case, institutionalized in an asylum for children until a family member located the child three weeks later. In short, with only minor differences, migrant children are removed from the state just as their adult counterparts are, but they face additional risks because of their minor status.

As such, youth encounter the state as both paternal protector and punishing regulator. The policies and practices of the state in response to the presence of unaccompanied children reveal how the state operates through an ideal of a unified entity yet splinters into a multipronged labyrinth with potentially conflicting objectives for solving the “problem of migrant youth.” By interrogating child welfare initiatives and legal interventions, this book argues that state practices enforced by nongovernmental organizations and the forms of legal relief available to migrant children trap the unaccompanied child at the intersection of the family and the state by denying or restricting their social agency. I detail how youth distinguish among state and nonstate actors staking varied claims on their behalf and contend that children are active and creative subjects engaged in constant negotiation with state power. While those in power, be it the state, nongovernmental organizations (NGOs), or parents, may assign meaning to their social agency, youth may acquiesce, push back, and, at times, evade normative positioning in their everyday interactions. This ethnography of youth migration traces the ways youth understand and express their social agency in highly restrictive spaces, such as immigration detention. Amid contentious national debates on immigration and security, this ethnography argues that the state’s criminalization of immigrants and bureaucratization of care challenge the historic reputation of the United States as a place of refuge for the most vulnerable—children.

Child Migration: A New Phenomenon?

Although children have migrated throughout history, migration studies remains a predominantly presentist endeavor, focusing on historical migration trends only enough to situate existing changes in population-level movements. The presumption that mass migration is a new phenomenon that places childhood itself at risk is unfounded.² Historically, government programs have facilitated and even actively encouraged the movement of children. The seventeenth and eighteenth centuries in the United States were marked by an influx of migrants, from Africa, Asia, Europe, and Latin America. African child slaves and children kidnapped from the streets of London alike were forced into indentured servitude in the United States (Bailyn 1986: 302–12); both groups fundamentally altered labor practices of local children working on plantations. At the time, the migrant child, just as the migrant adult, became a vital unit of labor necessary for economic growth in predominantly agricultural regions. Ship captains and plantation owners viewed children as vital cargo or units of labor, not distinguishing them as more vulnerable than adults to harsh labor conditions as we do today (Fass 2005: 939; Haefeli and Sweeny 2003). Similarly Native American children suffered physical displacement from their homes on reservations due to institutionalizations of disease and war. In effect, migrant children and Native American children were expendable and allowed to suffer, just as their adult counterparts were, not warranting special treatment or intervention. Disruption was inescapable in the lives of many children during this period.

From the 1850s to the early twentieth century, the U.S. government orchestrated the transfer of children, mostly teenagers, from overcrowded orphanages in northeastern America to live on small, family-owned and -run farms in western states. Many of these children had biological parents who were unable to care for them due to poverty; some parents enlisted orphanages as temporary shelters for their children during particularly difficult times, later claiming them from institutional care to return home. Government programs removed some of these children from institutional care and sent them west via train with the justification of an anticipated “better life” with their adoptive families. Beyond its perceived altruism, the state was invested in the perseverance of the nuclear family, removing children from orphanages near their families and often placing them with predominantly childless couples. In this context, the state investment was the child’s “well-being,” but ultimately a means of ensuring the “proper” place of the child within the family. The orphan train riders also became an essential source of labor to struggling farmers and, critics argue, a national strategy for population redistribution (Patrick, Sheets, and Trickel 1990).

Nara Milanich (2004) provides a detailed account of how Chilean courts in the nineteenth century mediated disputes over the care and custody of predominantly illegitimate, orphaned, and poor children, who had been “sent out to be reared.” According to Milanich (2004: 312), the unremarkableness of this phenomenon stems from the normality of child circulation between multiple households, care providers, and, at times, the street. Such cultural and historical variations in the roles of institutions in the care of children persist in the contemporary context (e.g., Fonseca 1986; Leinaweaver 2007, 2008). For example, following a 7.0 magnitude earthquake in Haiti in January 2010, the international community misinterpreted children living in orphanages as orphaned by both parents. Several children were misclassified as available for international adoption or as “unaccompanied children,” evacuated to the United States, and placed under the care of the Office of Refugee Resettlement (ORR), despite having intact families who desired to maintain custody of their children.

Yet, not all child migration was forced; for some, migration actually held allure and promise. In seventeenth-century Britain, urban areas were “magnets to young people drawn by dreams of employment, excitement and entertainment” (Coldrey 1999: 32–33). The early eighteenth century brought millions of immigrant families from Europe to the United States in pursuit of change and prosperity, while the later eighteenth and nineteenth centuries brought migration of predominantly Africans and Amerindians. Paula Fass (2005: 940) reminds us that, although families willingly migrated to the United States during this era, “migration had highly varied consequences for children with some becoming successful beneficiaries of the migration, while others became its victims, and that many of the differences were sharply etched along racial lines.” It was not until the end of the nineteenth century that both antislavery movements and organizations against abusive factory conditions for children gained purchase among middle-class Americans, forcing a shift in sensibilities toward childhood. This nineteenth-century sensibility, cloaked in discussions of culture, race, and religion, continue to pervade in child protection interventions, which rely on a particular, privileged ideal of childhood still valued in the West (Fass 2005: 939).

Since World War II, the United States has admitted thousands of children in ad hoc programs or under the auspices of refugee resettlement programs. Such programs range from the 1940 evacuation of British children; Operation Peter Pan, which evacuated over 14,000 Cuban children following Fidel Castro’s 1959 coup (Rumbaut 1994); and Operation Babylift, which evacuated over 2,500 Vietnamese children during the Vietnam War, placing them in American adoption agencies (Ressler, Boothby, and Steinbock 1988: 142). Each of these examples illustrates how orchestrated rescues of children align with strategic government interventions in politically charged contexts of war and political conflict. The state maintains a political investment in the protection of certain children, while others remain ignored or marginalized. Why, for example, was the United States justified in intervening in the lives of British children, while Guatemalan children during genocide did not benefit from formal resettlement programs? Is it acceptable or beneficial to monitor children from other countries only when it is in the geopolitical or economic interests of the state?

Only in the past thirty years have U.S. legislators acknowledged children as migrants to the United States outside established refugee resettlement programs.³ Between the mid-1950s and the 1990s Asian and Latin American migration, both authorized and clandestine, significantly increased to the United States. Among these groups were children migrating without adults whom authorities regarded with suspicion. Challenging assumptions that the natural state of childhood is stable, dependent, and innocent, the figure of the migrant child has become one to be feared and cast as Other. Pejorative labels, such as “parachute children” (children who migrate to a new country to live alone or with a caregiver while their parents remain in their home country), “anchor children” (children of Vietnamese refugees following the Vietnam War), and “anchor babies” (who by virtue of birthright citizenship in the United States become a future means for their families to secure legal status in the United States), evidence the politicization of the migrant child. Such terms not only dehumanize the migrant child but also condemn parents’ reproductive choices as benefit seeking. The per sis tent use of derogatory terms in the media and legislature has only emboldened conservative efforts to repeal the Fourteenth Amendment of the U.S. Constitution, which grants birthright citizenship to individuals born in the United States (Lacey 2011). Immigration policy analyst Angela Maria Kelley analogizes, “But to say that you want to change the Constitution because of this feels like killing a fly with an Uzi” (Medina 2011). In the past decade, the stakes of the lawful and unlawful presence of the migrant child in particular have intensified.

A “New” Social Problem

There is an overwhelming belief among state actors and NGOs that children are increasingly on the move—migrating both with families and alone. Immigration and Customs Enforcement (ICE, formerly INS), ORR, and advocates alike contend that the rates of children migrating to the United States have risen since 2000, yet these claims are difficult to substantiate. Very little is known about flows of children across borders. Quantitative data are scarce for a number of reasons. The movement of children is often folded into the migration statistics of adults or left out entirely; conflicting definitions of the type and motivations for child migration problematize any systematic account of migratory flows; and specialist literatures on refugees, trafficking, and fostering, for example, stand in contrast to migration literature, which consolidates variation in order to trace large-scale demographic trends over time and space.

Until recently, the U.S. government has not maintained a centralized or even coordinated effort among the various government agencies and departments involved in the care and custody of migrant children to track the inflow of unauthorized migrant children, accompanied or unaccompanied. In their 2006 report Seeking Asylum Alone, Jacqueline Bhabha and Susan Schmidt make a valiant effort to gather government statistics on the volume of unaccompanied child migration to the United States.⁴ They found a significant lack of communication and coordination between the four government departments and fifteen agencies involved with migrating children, resulting in incomplete, convoluted, and at times misleading and contradictory data regarding the scope of child migration (Bhabha and Schmidt 2006; see Figure 1). It was not until the reorganization of the Department of Homeland Security and the transfer of care from INS to ORR in 2003 that a more systematic, though still problematically incomplete, mechanism was developed for tracking the migratory flows of children into the United States.⁵

While statistics on the flow of children across U.S. borders remain largely untraced, legal experts estimate that over 500,000 immigrant children enter the United States each year (Seugling 2005: 863). Central American experts have estimated over 45,000 Central American children immigrate to the United States each year.⁶ Estimates from the Department of Justice indicate 101,952 unaccompanied children apprehended in 2007, with four of every five children from Mexico.⁷ However, many children evade apprehension and pass clandestinely into the United States, joining the more than 11.9 million unauthorized immigrants currently residing in the United States (Passel and Cohn 2009). Other child migrants may successfully pass through official points of entry with fraudulent documents or without inspection. Still other migrant children enter the United States with valid documents but overstay their tourist or student visas, shifting their status from student or tourist to unaccompanied alien minor once their visas expire.

Of the 100,000 unaccompanied minors apprehended yearly, approximately 6,000 to 8,000 enter the care of the ORR. From 2007 to 2011, the number of children in ORR care fluctuated from 800 to 1,500 daily. In 2012, there was a notable increase in the number of children identified as unaccompanied and transferred to ORR custody, with estimates reaching 16,000 children annually. Even amid improved record keeping, this relatively small number of total migrant children is largely guesswork for a number of reasons. First, ICE may reclassify some unaccompanied children as accompanied and release them to family members or detain entire families together in family detention centers as a more “humane” way to keep families together in retrofitted county jails.⁸ Second, ICE or Border Patrol may not identify unaccompanied children as minors. Some youths lie about their age or some law enforcement do not believe their minor status, continuing to categorize them as adults subject to expedited removal from the United States, instead of benefiting from some of the specialized provisions of detention of children. Third, unaccompanied Mexican and Canadian minors are removed from the United States within seventy-two hours to their countries of origin without a hearing before an immigration judge as a result of the Contiguous Territories Agreement between Canada, the United States, and Mexico.⁹ Some Mexican youths do enter ORR facilities, but at much lower rates than their actual rates of migration. Fourth, some unauthorized youths in the juvenile justice system may be transferred to ICE and then ORR custody after serving their sentences rather than being released to their intact families who live locally.

Figure 1. U.S. government organization chart. A network of federal government departments government agencies, and myriad nongovernmental organizations are involved in the care and custody of apprehended unaccompanied children.

Since the transfer of the responsibilities from the INS to ORR in 2003, there are more reliable statistics but only for the small fraction of children who have been apprehended. Of the migrant children in ORR custody, approximately 85 percent come from Central America, primarily Honduras, Guatemala, and El Salvador. Of these, consistently 20 percent are between ages zero and fourteen and 80 percent between fifteen and eighteen. Between 74 and 77 percent are male and 23 to 26 percent are female. Table 1 shows the countries of citizenship of unaccompanied children in ORR custody since the program’s inception.

The absence of reliable or coordinated statistics is emblematic of the ways children have been overlooked in immigration; either considered as miniature adults or folded into family migration statistics. In other words, children are not worthy of being counted or of specialized treatment or care. Instead of acknowledging this critical deficit and recognizing children as contributors to migratory decisions and as migrants themselves, state discourses frame child migration as a burgeoning social phenomenon worldwide. Some legislators have advocated for a growing body of laws and system of care for this growing “social problem” of unauthorized child migration, as a U.S. representative framed it during my interview with her. The “surge” or “flood” of child migrants forcing open the proverbial American gates is an image not unlike one of European migrants at the turn of the twentieth century or of contemporary flows of adult migrants. An attorney with the American Bar Association observed, “My sense is that it is not so much that the numbers are mushrooming, but now our legal system is seeing immigrant children for the first time. They [the children] are here and we have to deal with it. The law is just late to the game but perceives child migrants as a new problem, when it really isn’t.” Children have been migrating for centuries both inside and outside of state-run programs, but not until the late 1990s and early 2000s has there been a critical shift in the “visibility” of migrant children, through which the state has begun to assign specific significance to their presence. Recognizing that with globalization come increased flows of information and commodities across time and space, child migration should come as little surprise; yet, it unsettles entrenched notions of childhood, race, legality, and agency in society and in the law in remarkable ways. This ethnography examines the contradictory nature of how and when children are seen and of which children remain invisible.

Table 1: Country of Origin of Unaccompanied Children in ORR Custody (percent, fiscal years 2004–2011)

Source: Office of Refugee Resettlement

N = total number of unaccompanied alien children in ORR custody. * Fiscal year 2009 percentages based on country of origin were unavailable.

Following the September 11, 2001, attacks on the World Trade Center, the U.S. Congress passed the Homeland Security Act of 2002. The act would prove to be the largest reorganization of federal government agencies since the 1947 National Security Act, which created the Central Intelligence Agency (CIA) and the National Security Council and shifted the military under the secretary of defense. As part of the newly declared “war on terror,” the Homeland Security Act also consolidated antiterrorism initiatives, border security, and immigration enforcement under a single “homeland security czar.” The renamed Immigration and Customs Enforcement came under the auspices of Department of Homeland Security (DHS). In March 2003, care and custody of unaccompanied children was transferred from ICE to the Office of Refugee Resettlement, a division of the Department of Health and Human Services (HHS). While ORR’s expertise in the intersection of child welfare and refugee populations has shaped the policies and procedures for the care of unaccompanied children, this program was the first in which ORR had to collaborate with ICE on a regular basis due to the unauthorized presence of unaccompanied “alien” children. There has certainly been greater attention to the care of children at the facilities, in terms of their educational programming, recreation, access to mental health services, and health care; yet hastily crafted legislation has left significant deficits in guidance in the ways ORR should collaborate with ICE. ORR continually struggles to negotiate the best interests of the child, which often stands at odds with ICE’s mandate to remove unauthorized migrants and to respond to threats against the homeland.¹⁰

The diverging state agendas come into regular conflict in a range of areas that I will discuss in greater depth, such as guidelines for legal custody, age determination procedures, placement and transfer practices, family reunification policies, and most fundamentally in the classification of which children are accompanied or unaccompanied. As a result, the transition from ICE to ORR has led to an institutional bias in favor of law enforcement in which the security and safety concerns of the nation continue to outweigh the child welfare concerns of this population. For example, since 2003, we see an institutional trend within ORR toward heightened surveillance gaining momentum. ORR initially reviewed and phased out twenty-eight contracts with secure detention facilities (juvenile jails), placing only a fraction of children in these secure facilities in contrast to the 34 percent INS placement rates; yet, in the past four years, a number of staff-secure and secure facilities¹¹ have opened in response to the perceived demand for detainment of unauthorized children who have some juvenile justice involvement.

There is an inescapable tension between an increasing preoccupation with the universalization of childhood—a space characterized by play and innocence, by the absence of responsibility and “adult” knowledge, and by less physical and emotional maturity—and the differential geopo liti cal interests that underlie the uneven treatment of domestic versus migrant children in the contemporary context. The “child savers” movement of the 1820s until the 1920s and the subsequent settlement house movement fostered the creation of a romanticized ideal of childhood in the United States (see Chapter 3). Reformers sought to socialize newly arrived migrant children into productive members of society through compulsory education, public health initiatives, the construction of playgrounds, and the establishment of the juvenile court. Over time, this privileged notion of childhood has become embedded in multinational treaties and conventions, such as the United Nations Convention on the Rights of the Child (CRC); financial and development agreements though the International Monetary Fund and the World Bank; and specialized agencies, such as the International Labour Organization, that guide child labor laws and practices worldwide (see, e.g., Boyden 1990). Yet in the U.S. context this notion is only selectively applied and enforced. The consolidation and production of a universalized childhood stands in the face of how, when, and to whom that image applies. In a national landscape of racial profiling, particularly of African American and Latino males, a judicial process that tries children as adults, with an increased reliance on incarceration of people of color and immigrants, the application of a universalized ideal of childhood is hypocritical at best and racist in its worst forms. Unaccompanied migrant children traverse these contradictory “modes of being” in which facility staff attempt to foster opportunities for education, play, and socialization amid an absence of freedom in detention (De Genova and Peutz 2010: 14).

Seeking Consent

This ethnography focuses on a largely invisible population of unauthorized migrant children in highly restrictive and largely inaccessible spaces, such as immigration detention, border stations, immigration and family courts, and underground communities.¹² While there are inherent challenges to conducting research with unauthorized or “underground” communities, negotiating access to detention facilities for migrant children proved the greatest obstacle. While news reporters have been granted access to ORR facilities on a case-by-case basis, there are very few independent researchers who have been granted access to conduct long-term qualitative studies within ORR facilities and even fewer with children themselves. There are some who have provided in-depth insight from their vantage point with NGOs engaged in the national coordination of services for unaccompanied children, identifying trends in the treatment of children across facilities (Duncan 2002; Uehling 2008) or as former ORR supervisors (Ensor and Gozdziak 2010). Several attorneys have written critically about challenges in representing unaccompanied children in both immigration and family court (Georgopoulos 2005; Nugent 2005, Somers, Herrera, and Rodriguez 2010). Given the dearth of information and access, a 2007 report from the Office of the Inspector General identified the increased need for transparency within ORR and for oversight of facilities in order to ensure the appropriate care of migrant children. Organizations such as the Women’s Refugee Commission (formerly Women’s Commission for Refugee Women and Children) have responded with research on evaluating the treatment of children and the efficacy of ORR programs and policies, conducting interviews of a wide range of actors involved in the lives of unaccompanied children held in ORR facilities (Women’s Commission for Refugee Women and Children 2002; Women’s Refugee Commission 2009). The extensive work of Jacqueline Bhabha and Susan Schmidt (2006) approaches the phenomenon of child migration in terms of the legal obstacles children confront in seeking political asylum in a post-911 era in the United Kingdom, United States, and Australia. Their important work speaks to the challenges of securing reliable information and the lack of cooperation among the diverse government agencies and departments. These reports have praised the dramatic improvements ORR has made in the care of migrant children since inheriting the program from the INS in 2003, though highlighting many of the concerning trends in the placement and transfer of children from ICE to ORR custody and between ORR facilities. The irony, as one advocate remarked, is “As much as we [advocates] criticize ORR, we are still saying that putting kids in their custody is what we want. On the one hand, we are finding all of these problems and abuses, but on the other we say, ‘Keep putting kids in your custody because it is better than ICE.’ It is all a little crazy.” My request for access to the detention facilities directly benefited from the timing of these reports and public calls for transparency and supervision. Since then, the window has closed and several researchers have been denied access.

In each of the abovementioned studies, the dearth of access to children in the facilities stems, in part, from the logistical challenges of securing permission amid the bureaucratization of care and in a politicized national context of immigration reform, but also from the perceived extreme vulnerability of migrant children and their need for protection from abuse and exploitation. In order to conduct research, I secured permission not only from my university’s institutional review board and two of the organizations’ research review committees but also from the thirteen other individuals and organizations who laid claim to speak for the best interests of the child. Although the director of the ORR Division of Children’s Services is the legal guardian of all detained “unaccompanied alien children” in the United States, other state and nonstate actors recognized themselves as integrally involved in the care and custody of unaccompanied children. Despite their lack of legal standing to grant or deny consent on behalf of detained children, they were very protective of this population of children, wary of those who might capitalize on their vulnerability—be they traffickers, smugglers, an abusive parent, an inquisitive reporter, or a researcher. Interestingly, never was seeking parental consent a concern or a suggestion from any of the boards, committees, agencies, organizations, or individuals.

The legal organizations representing detained children were most preoccupied with the truth-seeking aspect of the research. What if children disclose information that contradicted their legal claims? What if children lie? What if ICE subpoenas my records and uses my notes against children in their legal petitions? These concerns are founded on past violations of children’s due process rights in which ICE used a child’s ORR records as evidence of a child’s inconsistent or unreliable testimony in immigration court. In Texas, lawyers experienced ICE enlisting children as bait to entice their unauthorized parents when attempting to take custody of their child. In contrast, ICE and my university’s research review board for this research were principally concerned with the illegality of unaccompanied children as “an indicator of their greater disposition toward criminal activity” and the special measures I would take to report threats of potential criminal activity, as well as my ethical responsibility to report crimes committed. These concerns stem from public discourses on unauthorized migration, which conflate “illegality” with criminality and are bolstered by a shift in federal policies toward the criminalization of unauthorized migrants. Particularly in the backlash following 2006 efforts for comprehensive immigration reform, the politicization of unauthorized immigration brought real traction to the board’s concerns, though most advocates and facility staff working with children strongly disagreed with this perception. The two-year process of permission seeking highlights the often conflicting and always tense relationship between the state, law enforcement, nongovernmental subcontractors, family members, and the often excluded migrant children themselves in decisions about the best interests and legal rights of unaccompanied children.

These very disparate concerns—on the one hand, the criminal potential; on the other, the victim—gestures toward the potential malleability of the image of the unaccompanied child—at once a child and an “alien” in a highly politicized context of racism and xenophobia in the United States. I take seriously the concern of one administrator who warned early on, “Be careful what you find and what you write. They will use it against the very child that we seek to protect.” The malleability of the image of the migrant child—the victim, the delinquent, the “illegal,” the gangbanger, the terrorist—makes me acutely aware of the ethical responsibility I assume in writing about the experiences of migrant children. I have seen firsthand how information about specific children becomes distorted to serve a particular organization or agency’s political or institutional agenda. The impact on the child and his or her family is devastating. For this reason, I have been highly selective in the narratives of individual children I write about in these pages. I have maintained the integrity of the narratives of youth, using their words whenever possible, and of the ways they understand and navigate their everyday lives.¹³ The narratives balance the unique and diverse experiences of youth migrants with the themes and trends identified during an initial survey of participants in the study.

While in the past decade, the migration of unaccompanied children as a social phenomenon has become increasingly visible, what remains obscured are the perspectives of children on the growing layers of bureaucracy developed to protect or to prosecute them. My ethnographic research attempts to carve out a space in which children’s voices might enter the discussion in a way that accurately reflects their understandings of the law, institutional interventions, and their own best interests while taking precautions to guard against the manipulation of their experiences.

Exposing the Snapshot: Social Agency

Migration studies is not a discipline with a set of well-defined methodological procedures but a topic of great interest to scholars of sociology, geography, anthropology, political science, history, and law (Brettell 2003). As such, myriad approaches to children and migration have merged under the rubric of “migration studies.” Most avoid the complexities of migration as a dynamic process, in which people circulate through time and space with great flexibility and uncertainty (Ong 1999: 10), instead locating the child in social and legal categories of the family, by which they infer the conditions of children from those of the household. Interestingly, the family in migration studies is defined by the presence of dependent children, yet few studies take children as serious contributors to household decision-making processes.

Woven throughout migration literature and immigration law is the presumption that adults are the decision makers and providers for children. The social position of the child as inferior or somehow exclusively dependent stands in marked contrast to the integral roles children often assume in familial decision-making processes as well as the decisions they make as individual social actors. From my research with child migrants and their families, it is clear that the decision to migrate is often a collective one. Children contribute to the discussion on whether to migrate, the destination, and the timing of migration. Children may spark adult migration through a change in the number of household members due to birth, death, adoption, fostering, the departure of older children, or a change in the needs of household members, such as education or illness (McKendrick 2001: 464; Young 2004: 471). Children may be the reason for postponing migration, waiting until they are older, or they may catalyze migration, given a desire for improved living conditions or education (Boyle, Halfacree, and Robinson 1998: 119; Rossi 1980: 178; Tyrrell 2011). At times, adults pursue additional opportunities or resources for their children, such as access to education, health care, or future employment opportunities (South and Crowder 1997). Children may shape migration decisions in terms of the completion of their school year and program of study or in the violence or instability they experience in their everyday lives (e.g., pressure to join a gang). In spite of this rich variation, discussions of household migration largely subsume child migration, in which children are just one of a myriad of factors shaping family migration decisions. Even as they may provide a family with central motives for migration, they remain liminal figures in most interpretations of migration practices.

In this ethnography, I argue that an analysis of the social agency of children and youth is critical to uncovering the shortcomings and dangers of current conceptualizations of child migration. “Social agency,” a term used by social scientists, refers to the actions and choices that individuals (and non-humans in some cases) often make of their own free will. Shaped by upbringing, cultural beliefs and norms, and social status, among other factors, social agency may be conscious, intentional actions or unconscious, involuntary behaviors. I depart from historical, moral framings of agency as exclusively individualized and self-determined by attending to the ways agency may assume historical and collective dimensions. Even in the contexts of extreme isolation—detention and deportability—conversations with youth and their families repeatedly revealed that youth make small and large choices as actors embedded in kinship networks and informed by their cultural context.

Early in my research, I was struck by the ways policymakers, government bureaucrats, detention facility staff, and legal advocates each conceptualized social agency in their descriptions of the conditions spurring, context of, and reasons for migration and how these narratives did not reconcile with my interactions with migrants in the United States and Central America with whom I had worked since the late 1990s. Amid emerging anxieties about childhood and migration, powerful discourses in the media and legal and advocacy spheres have emerged—discourses that either embrace dependency and victimhood (read as a lack of agency) as defining features of child migrants or fold child migrants into the pervasive criminalization of immigrants (read as transgressive agency). On the one hand, civil society has staked a claim in the research of child migration in order to respond to a perceived increase in occurrences of children made vulnerable by their exposure to the “street” (Becerra and Chi 1992; Nann 1982). The pervasive belief among civil society is that the sheer presence of an unaccompanied child marks his or her acute risk of abuse, trafficking, harsh labor arrangements, and sexual exploitation. Discourses of trauma and exploitation frame children as inherently vulnerable, and thus reliant on the interventions of well-meaning (adult) professionals to guide their psychic and physical development into adulthood and to ensure their long-term legal permanency in the United States.

Legal advocates and scholars have also taken interest in child migration, questioning how the law contends with the “illegal” and “unaccompanied” presence of migrant children, as in the notable case of Elian Gonzalez. In particular, attorneys must navigate convoluted and ethically murky terrain that routinely places them in positions of power over children and their narratives. They must balance their professional commitment to zealously advocate on behalf of the child with recognition that the complex experiences of migrant children do not easily fit into the few forms of immigration legal relief available to them. A seasoned immigration attorney characterized the predicament as “having no reliable signage. If I move to the right, I risk having [my client] returned to a place he has left at risk to his life. If I move to the left, I risk exaggerating a truth that I know to be incomplete at best. So, I forge straight ahead but wonder if I’m helping to build more dead ends for these kids by not putting the full story out there. The risks for [my client] are too great and the benefits for others too uncertain.” Attorneys must grapple with how to distill a child’s narrative into the requisite eligibility criteria without reifying the child victim into the law.

Claims of victimhood and vulnerability carry significant risks. In the humanitarian and legal arenas, a child’s victimhood becomes problematically synonymous with the child’s social, economic, and political rights as detailed in the UN Convention on the Rights of the Child (CRC). The absence or violation of those rights constitutes a child’s vulnerability. Pervasively, advocates fail to recognize the fraught history of the drafting and ratification of the CRC, which embodies Western social, cultural, and legal norms of childhood and ignores cultural or historical variation. While inherent victimhood justifies protection, care, and legal advocacy in the name of a child’s best interests, it also diverts advocates from inquiring how children view their own best interests (Ensor and Gozdziak 2010). Denying the social agency of children by advocating for their rights rather than their wants discounts social and kinship dimensions of migration and ignores divergent cultural meanings. In claiming rights on behalf of vulnerable children, advocates struggle to solicit adequately their desires, perspectives, choices, and decisions and to recognize the very social agency that led them to the United States.

In contrast to humanitarian or legal advocacy realms that view children’s social agency as either violated or biologically undeveloped, law enforcement criminalizes a child’s social agency as either delinquency or indistinguishable from adult “criminal aliens.” In the law enforcement regime, a child’s social agency has led to a social and legal transgression of the law that requires punishment and rehabilitation. The production of the legal category of the “unaccompanied alien child” and the institutionalization of children in federal custody is a product of the overlapping enforcement regimes encapsulated by the wars on drugs, immigrants, and terror. The past fifteen years have seen record levels of U.S. government funding of immigration enforcement ($18 billion in 2012); the militarization and technologization of the U.S.-Mexico border; the fluid collaboration between local law enforcement and federal immigration authorities; and an infusion of U.S. funding, technology, and training to Mexican authorities to thwart migration through Mexico. The stakes in the detention of migrants have intensified.

Relying on modes of behavioral pathology or biological and developmental models of childhood rooted in universalized and romanticized ideals of childhood glosses over the complexity and variation in experiences of migrant children. In order to penetrate the powerful discourses, an analysis of the social agency of children allows for a transcendence of the clashing binaries of dependency or independence, natural or pathological, delinquent or victim, positive or negative that are the basis of institutional policies, professional practices, and legal frameworks. A contextualization of the ways children and youth navigate structural constraints and express agency may begin to deconstruct the oversimplifications that underpin the institutional interventions and legal frameworks that shape migrant children’s everyday lives. With such an exploration, we may begin to understand how children comprehend and express social agency rather than the ways those in power assign meaning to it. These often diverging, moralized meanings attributed by “stakeholders” to a migrant’s social agency routinely come into conflict in courts of law, institutional practices, and on the bodies of children.

Unaccompanied children as a juridical category justifying institutional and legal intervention discounts the significant variation in experience, context, and social relatedness of children across cultures. “Always embedded in broader structure, child agency, like adult agency, is inevitably partial and conditioned by multiple factors” (Coe et al. 2011: 9). Categorically ignored, the agency of migrant children and youth is conditioned by their upbringing with notable differences across culture, age, gender, family position, sources of caregiving, and social obligations. Financial and social indebtedness, language, emotionality, and household economy may encourage, deny, or make relevant or irrelevant child agency (Coe et al. 2011: 15–16). A child’s agency may be contextualized by his or her experiences of (dis)empowerment, access to knowledge and information, employment or labor, and exposure to trauma or violence. Children maintain individualized capacities for innovation, creativity, strength, and resilience that may shape their ability and willingness to express agency either actively or passively.

The burgeoning field of new childhood studies recognizes children and youth as actors in their own right and whose worldviews are worthy of inquiry. Scholars have argued that youth are both “makers and breakers” engaged in dynamic social processes of making and being made (Honwana and de Boeck 2005; Maira 2009). In this vein, I engage youth less as agents in process of “becoming,” instead focusing on their “being.” Youth negotiate complex networks of actors and institutions that may aid them in evading deportation, earning income, and contributing to household economies in the United States and in their home countries. Considering only the structural forces on youths’ lives and reducing childhood and youth into periods of transition or molding threaten to negate their contributions as social actors. Youth challenge, resist, or shape the law and institutional practices. Youth may understand the law differently than adults and their experiences may differ across time and space, and through an examination of their everyday interactions and confrontations with institutional networks and legal systems, youth shape the very laws that govern their everyday lives. Through my research, I came to realize that migrant youth reflexively understand social agency, not as an act of one’s own free will but as a responsibility, a form of belonging, or a mode of being. Thus, an analysis of agency and rights becomes central in the narratives of migrant youth in the ways they cross physical, social, and metaphoric borders and reside in overlapping spaces of impossibility—be it social invisibility, illegality, or independence.

Methods

Research methods employed in the study of youth often adopt either “adult” scripts for understanding youth or “child” scripts for understanding a child’s perspective on adult domains. Yet, as social actors, youth negotiate and develop ways of understanding conflict, the law, and justice all their own. As Samantha Punch (2002: 337) cautions, anthropologists should employ “research participant-centered” methods rather than “child-centered” approaches (see also A. Best 2007). Instead of segregating youth from other social actors, developing a particular set of methods exclusively for youth is not only patronizing, Punch warns, but negates their competencies. Taking heed, I adapted methods based on research contexts, not on assumptions of the capacity or character of migrant youth as a category of persons.

This three-year ethnography is based on fieldwork with four principal groups. First, I conducted research in three federal detention facilities (euphemistically called “shelters”) for unaccompanied children in Texas and Illinois and in four federal foster care programs in Texas, Michigan, and Pennsylvania (periods 2006–2009). At the facilities and foster care programs, I observed children in their everyday activities: at intake, class, mealtime, recreation, medical appointments, house meetings, legal appointments with their attorneys, at court hearings with immigration judges, and with foster families and peers. I conducted a survey over multiple, one-on-one interviews with eighty-two detained and nondetained children, tracing demographic data, detailed family histories, migration journeys, and the expectations reported by all migrant youths entering the facility regardless of country of origin. The survey provided a distributional analysis of the population of children entering the facility, the variations in experiences, and a baseline from which I tracked change over time. I compared the narrative structures of surveyed youth and identified key terms to track throughout my research. I conducted interviews in Spanish, Portuguese, or English and enlisted a Mandarin interpreter as needed. All translations from Spanish and Portuguese are my own.

Since the completion of this research, I have visited five additional facilities in Arizona, Texas, and Illinois and maintained communication with individual children and staff of fourteen facilities and seven foster care programs in Arizona, California, Florida, Michigan, New York, Texas, Virginia, Utah, and Washington, D.C.

Second, I conducted one-on-one structured and semistructured interviews with nearly 250 “stakeholders”—individuals engaged in the apprehension and detention of migrant children, including government bureaucrats, nongovernmental facility staff, attorneys, guardians ad litem, judges, members of Congress, community leaders, Border Patrol agents, ICE agents, consular officials, foster families, teachers, researchers, and policymakers across multiple sites, including in El Salvador and Mexico.¹⁴ Many of these individuals were eager to engage in thoughtful reflection on their work with migrant children and the structural challenges they face in serving this population. Many stakeholders (facility staff, legal service providers, voluntary agencies, guardians ad litem, policy researchers) are funded almost exclusively by ORR, which significantly and financially dissuades public critiques or lawsuits regarding the care and custody of children. Confidential interviews for a study approved by ORR provided simultaneous anonymity yet institutional blessing for stakeholders’ candid observations.

Table 2: Country of Origin, Gender, and Location of Children Participating in Study

I collected and analyzed the various types of institutional paperwork produced by governmental and nongovernmental “stakeholders” tracking the presence of unaccompanied youth in federal custody in the United States, including custody transfer forms between ICE, ORR, detention centers, and families; immigration applications and rulings; and fingerprint and photographic records—each asserting the lawful or unlawful status of the youth’s tenuous presence in the United States. I analyzed the marks of the state through genres of writing and practices connecting youth to the state. This focus on institutional paperwork and shifts in the law and legal practices provides a critical space in the analysis of youth agency as it provides an avenue through which to consider how youth are shaped by and shape institutions they encounter. While the law is often assumed to be impermeable, youth as social actors dynamically interact and engage with the law and legal practices. By focusing on the persistence of certain legal notions of youth over time amid specific moments of legal change, I examine how the law simultaneously reflects change and continuity in the space of youth, even as it shapes their daily lives (James and James 2004).

Third, I maintained regular communication with children released from detention who remained in California, Washington, D.C., Maryland, Texas, Illinois, and New York and with unauthorized children who evaded apprehension altogether. Tracing the social and familial networks of migrant youth was particularly challenging given the transnational and mobile character of children’s lives. Many of the youths circulated between households in multiple living arrangements, requiring creative methods and fluidity inherent in a multisited project. At other times, I was astounded by what appeared, at first glance, to be pure chance of encountering the same youths in multiple locations or once again in immigration detention. While I expected children detained in one location to be released in other localities, I did not anticipate the remarkable extent of mobility of non-detained children or children following their release from federal custody. Children moved quite frequently between households, jobs, cities, and even countries. Their transnational social networks and their nimble ability to foster new social ties facilitated their movement to improved living arrangements or employment opportunities. The sedentary demands of childhood customary in the West rarely applied to the children and youth with whom I worked.

Given the variations in experience and social and legal trajectories, my interactions with youths and their families varied over time and space. Some youths would maintain weekly phone or Skype contact with me for extended periods of time, while others would come in and out of communication with me, and I would receive a text message after three or four months of no contact. For many youths following their release, I served as a cultural interlocutor, assisting them in securing copies of documents from ORR, enrolling in school, and facilitating legal referrals, or navigating health care needs. In the days and weeks following their release, many youths and their parents would call me daily to ask questions, seek translation assistance, or simply say hello. My phone number was passed to family members, friends, and neighbors, identifying me as “a person who helps.” I continue to receive phone calls from Georgia, Maryland, and Indiana with requests for assistance. Many youths with whom I worked moved multiple times, changed phone numbers routinely, or lacked the financial resources to charge their prepaid cellular phones. Tracking down updated contact information proved extremely difficult, so I relied on the youth keeping me informed of changes in residence. Because of the geographic distribution and mobility of many youth, I was restricted to only occasional in-person visits with youth and their families in Washington, D.C., Maryland, Texas, and New York. For released and nondetained youth living in the Midwest, communication was much more predictable and regular. I attended school events, family picnics, soccer games, religious celebrations, doctor’s appointments, meetings with attorneys, and court hearings. Unable to “leave the field,” I continue to communicate with several youths, now ranging from twenty-one to twenty-six years, as they secure legal status, enter college, get married, and start families.

Fourth, I conducted interviews with members of the Guatemalan and an communities in Maryland and Illinois with whom I have worked for over a decade, and I spent several months in El Salvador (2007) with children deported from the United States and with the families of unaccompanied children who remain in the United States.¹⁵ With convoluted and ambiguous directions from detained youths, I located some families in El Salvador in an effort to understand not only the specificities of the local situations and networks of these youth, but also the national context that informs both the motivations for migration and the state and home communities’ reception of repatriated youth. I encountered several youths who had migrated and had since returned or been deported to El Salvador. Their experiences on return added depth I had not anticipated. I met with several governmental and nongovernmental actors who provided assistance to returned migrant youth, as well as two research institutions that were coordinating efforts on migration both into and out of El Salvador. Many of the migrant youth I encountered in El Salvador were Nicaraguan children who had come to El Salvador in search of work or Salvadoran children who had recently returned from Mexico and the United States, often planning their next trip. Since the completion of this project, I have initiated a study with deported youth in the highlands of Guatemala. Their experiences of deportability and removal have added dimensions of experience and complexity to this work.

While a multisited ethnography was an imperative given the mobility of both detained and nondetained youth, there are inherent limitations to ethnography as a methodology, particularly for researching a structurally decentralized federal custodial system.¹⁶ A multisited ethnography proved critical for a number of reasons. I sought to explore the differing sensibilities and anxieties about unaccompanied children between the “border” and the “interior”; the varying personalities and capabilities between subcontracted voluntary agencies; the conservative Fifth Circuit Court versus a more moderate Seventh Circuit Court; the localized tensions between state-run Children and Family Services and the federal Office of Refugee Resettlement; and the local court jurisdictions’ receptiveness to the Specialized Immigrant Juvenile (SIJ) status—a hybrid form of relief that requires a dependency finding in state court to pursue federal immigration relief. SIJ is a step in immigration law toward identification of unaccompanied minors by permitting unauthorized children to stand before the law as primary petitioners in cases of abuse, neglect, or abandonment. In spite of these variations, trends emerged across three countries and five states where I conducted research. These trends are further refined by my subsequent communication and visits with staff and children at an additional twenty-six programs and facilities from my applied work as a guardian ad litem.¹⁷

As I map out the actors, organizations, state and federal institutions, and international governments and organizations involved with unaccompanied children in the United States, the sheer number is dizzying. The overlapping and at time conflicting responsibilities and interests consistently trap children and their families in untenable situations with few alternatives and marginal opportunities to voice their desires and concerns. Forced to navigate this “Kafk a-esque” network, as Bhabha and Schmidt (2006) describe, that espouses a simultaneous desire to care for and to remove them, unaccompanied children, as I argue, exercise their agency as social actors to challenge, shape, and reformulate the very laws that define them.

Anxieties of Power

There is a critical power imbalance that pervades research of marginalized populations by Western, privileged researchers. These differentials are only magnified when engaging in participatory research around children’s lives, especially in the context of their detention. Research with migrant children and youth in federal immigration facilities, a quintessential “captured population,” presents a number of complex ethical and methodological considerations. My university’s Institutional Research Review Board and the American Anthropological Association Code of Ethics provided the ethical guidelines that directed my research. Researchers working in “vulnerable populations” or correctional settings (e.g., prisons, parole, probation, juvenile justice, and so on) assisted me in anticipating and attending to critical issues of (dis)empowerment, choice, and consent in this project (Fisher et al. 2002; Haggerty 2004; Levine et al. 2004; Waldram 2009). I found myself drawing on my previous work in Guatemala, Argentina, Angola, and the United States with survivors of war, genocide, and torture. On the basis of these professional experiences, I was particularly attentive to the profound and prolonged impact of trauma on people’s lives and how institutional practices can exacerbate symptoms and even retraumatize people.

I attempted to be mindful of the multilayered power imbalance between myself (an adult middle-class citizen) and the children (unauthorized, often impoverished legal minors). Methodologically, I tried to create spaces of privacy and feelings of confidence during our meetings. When interviewing children, we met one on one in a private room. While we were unable to escape the gaze of surveillance cameras throughout the facilities, we did experience a level of privacy children were not permitted at any other time during their detention. I explained to youth that I did not work for the government, facilities, attorneys, or consulates. I had no benefit to give them. I could not influence their legal or custody cases in any way. I simply explained that I was writing a book about youth, their experiences of migration, and their lives in the United States. I told them I wanted to learn about why they came, about what they hoped to find, and about their everyday lives both in detention and beyond. By writing about their thoughts, perspectives, and experiences, I hoped my book might educate the public and perhaps improve the laws, practices, and policies for the treatment of migrant children who came to the United States in the future. For detained youth, I explicitly sought consent multiple times throughout their participation in the study—at initial meetings, every three months of detention, on release, and following their removal from the United States. Most children welcomed the opportunity to escape the everyday monotony of detention and to spend time talking about their lives. Some children who were reserved or quiet in class and group activities overwhelmed me with their willingness to speak at great length and with candor. It seemed they had been storing up conversations over time that only erupted when provided the space and time to speak. One youth told me, “No one here [at the facility] has talked to me like this before. They are all too busy to talk.” Indeed, always-harried staff had very little time to be present for children because of their heavy caseloads. Time to talk was a luxury I uniquely possessed as a researcher.

During my research at the facilities, I engaged with youth on a regular basis. I attempted to occupy a space beyond the everyday expectations children had of staff and various “stakeholders” they encountered on a daily basis in the facilities. Contingent on the flows and needs of children, I tried to circulate with them in their everyday lives—sitting among the children in the classrooms, doing homework alongside them, sharing lunch at tables apart from the staff, standing in line to be perpetually counted and surveilled, and engaging in recreational activities. From my perception, the children’s interactions with “stakeholders” were fundamentally different. They fulfilled a specific purpose—completing a questionnaire with facility staff identifying potential “sponsors” for release; responding to an intake assessment with legal service providers determining their eligibility for legal relief; cataloging medical or psychological concerns with a clinician at intake; or requesting a continuance or legal determination with an immigration judge in court. For fear of overwhelming children with additional inquiries, I tried to place as few constraints as possible on our informal interviews, open-ended conversations, and daily interactions. I hope they too felt our dialogue was structurally different.

Spontaneous conversations—at mealtimes, during free time, the rare outing, or on the soccer pitch beyond earshot of staff—proved qualitatively more informative than one-on-one interviews. Amid an influx and exit of children, knowledge circulated in the facility in impressive ways. Particular youth, often those who remained in custody longest, became sophisticated power brokers. They revealed to new arrivals which staff to trust or distrust; which youth to align with or guard against; which stakeholders to discuss past histories or current concerns with or not; what to disclose or conceal in court; how to orchestrate unauthorized phone calls with boyfriends or girlfriends; and where to hide from the surveillance cameras either to share an intimate moment with another youth or to seek retribution for interpersonal conflicts.

Sergio, a fifteen-year-old youth who migrated to the United States with his mother at age seven and who was detained for over nine months during my research, was a critical interlocutor for me. Able to navigate English and Spanish fluently, Sergio had a keen understanding of the institutional logic, staff dynamics, American culture, and the social and political contexts from which children came. Gregarious and knowledgeable, Sergio listened attentively to others. He let them vent their frustrations with family members who were reluctant to “sponsor” them out of detention. He counseled youth soliciting his legal and relationship advice. He imparted to them his knowledge about life in America beyond the confines of detention. He had seen, as one youth articulated as the source of her intrigue in his stories, “el otro lado” (the other side). To my reassurance, Sergio communicated explicitly to other youth that I was “alguien de confianza” (a trusted person). He let them know that the information shared with me would not be divulged to others. I made an explicit methodological choice to interview staff at the initiation and completion of my research in the facilities to create clearer boundaries during my interactions with children. This was made transparent to staff at the outset so as not to compromise their comfort or candor in our conversations and formal interviews.

Even with Sergio’s confidence in my silence, in a handful of cases, children refused to meet with me. I was grateful that they felt empowered to do so. In some instances, I suspected that children were being guarded and, in some cases, even untruthful. The factual accuracy of their statements did not matter to me, though it proved intriguing. I became interested in why some youth would conceal or tell only partial truths. Was it a sense of obligation to protect their families from disclosing the truth to an outsider? Was it fear or coercion from smugglers or traffickers? Was it suspicion of the facilities and government authorities? Was it a survival skill that assisted some youth who lived in the streets? Or was it because I, essentially, at least to them, was no different from their detainers? These refusals and misgivings reminded me that, despite my efforts to establish trust and confidence, my position of privilege was insurmountable.

For children who had been institutionalized, either in the juvenile justice system or in several ORR facilities, initial conversations followed a “script,” one that appeared told and retold to various stakeholders, likely in differing variations. They had learned to be suspicious and guarded, attempting to decipher the “right answer” to my questions. When I first met Emilio, a seventeen-year-old whom authorities had bounced between four federal and juvenile facilities for nearly two years, he recounted his life’s narrative with little affect, relative ease, and impeccable chronology. Mindful to include only the pertinent individuals and events, he neatly (re)told of his past traumas, the reasons for his incarceration, and his desire to make better choices. Only after eight months following his release, over our monthly coffee at the local Pancake House, did he begin to break from his script with subtle shifts in vocabulary, changes in narrative structure, and divergent stories. Elements of his narrative from our initial meetings fell out of our conversations, while other facets of his experiences unfolded.

For some children, the inescapable reality that I would return home to my family at the end of the day could only be overcome by meeting them following their release from detention. Julio, sixteen, had been detained in three facilities over fourteen months. At the outset of our first interview, he asked: “Why is my life important to you?” and “Can what I tell you cause me harm?” Savvy to the multiple and shifting meanings of confidentiality, Julio tested my sincerity and his ability to trust me. I was one in a long line of professionals, primarily women, asking him to describe his life. I do not believe that the distinction for Julio sank in until I met with him at his father’s home in New York. We were eating pupusas, following my return from visiting his mother and siblings in El Salvador, when Julio joked, “You must be a socialist like my dad if you traveled all the way to see my family.” When I asked what he meant, he replied, “You care about me and my family and my future.” He said that neither the facility staff nor the attorney in Texas ever called him to see how he was faring with his father whom he had not seen in eight years. Facility staff routinely reported that ORR does not permit staff to maintain communication with children following their release from detention. My relationship with Julio shifted over time and space. It was only on his release from detention and over a year’s time that he grew to trust me. And while I maintained that I had no power or influence over Julio’s legal status, I helped him navigate the local school system that refused him admittance because of unauthorized status. Helping Julio and his father manage the legal and social particularities of their community in small ways communicated, I felt, my enduring receptiveness to learning from him. I believe my approach helped to enable him either to accept or to refuse my presence over time.

I tried to engage both detained and nondetained youth as ethnographers of their own lives, employing methods of journaling, game playing, kinship mapping, auto-ethnographies, and storytelling projects.¹⁸ Youth as ethnographers helps to deflate perceptions of youth as incomplete social subjects and as potentially dangerous and delinquent. Furthermore, these activities served as a constant reminder of what I could learn from and with children rather than about them (Freire 1970; Tilton 2010: 11). The methodological strategies I enlisted helped me understand how the state enters into the domestic sphere in the everyday and how children actively shape and navigate their environments. By engaging youth directly in the research and examining the practices of youth migrants, not just the structures that attempt to direct and confine migration, I was better able to analyze the dynamic and complex nature of child mobility. I could better recognize child participation in local, national, and transnational processes (Bourdieu 1977; Ortner 1984). Each of the subsequent chapters opens with an excerpt from these activities, framing the thematic content of each chapter through the voices of youth themselves. The pieces were also chosen to remind us of the profound human stakes of how the law, institutions, and we as individuals respond to youth as people deserving of respect.

The Chapters Ahead

Chapter 2 begins with the examination a pivotal historical moment within immigration law—the 1997 Flores Settlement Agreement—and the ways it specifically shapes political and institutional discussions of the social agency of unaccompanied children. Competing perspectives of law enforcement and legal advocates force to the surface a critical question: are unaccompanied children humanitarian refugees or unauthorized aliens? The competing discourses of victimization and delinquency create a false binary that does not account for the multiplicity of experiences and narratives of unaccompanied children. Unaccompanied migrant children cannot be characterized as a monolith category; rather, they represent a diverse cross-section of migrants whom legal and governmental institutions homogenize by virtue of their unauthorized presence and the absence (whether perceived, real, or constructed) of their parents. This homogenization derives in part from juridical indolence and a lack of political will but also rests quite comfortably in social constructions of childhood and of deviancy among youth of color. Neither approach allows space for thoughtful consideration of a child’s agency or the cultural significance of the decision to leave the home country or the need to do so. Untangling the multiple ways in which the state and social discourses entrap youth between law enforcement and care sheds light on public imaginations of youth; Chapter 2 challenges these problematic conceptions of youth as either dangerously susceptible to delinquency or as victims due to their malleability and status as not-yet adults.

Acknowledging children as important social actors is a critical step; yet to conceptualize children and adults as equivalent social actors is also problematic in that it downplays the disparity in power between children and adults. Adults and children do participate in distinct power hierarchies that also shape their everyday lives. Discussions of delinquency provide a clear example of the court’s differential recognition of youths’ ability to enact violence (delinquency) versus their ability to speak on their own behalf; the courts recognize the agency of youth as both legally and morally responsible for their transgressive behaviors, thus necessitating harsh punishments (Coutin 2000; Terrio 2004: 10; Terrio 2009). In such instances, the youth temporarily is granted the full agency of an adult, in spite of his or her limited power in many daily circumstances. In the adjudication of cases, judges view youth agency as approximating that of adults, not as a separate type or quality of agency identifiable as belonging to youth. However, the court’s recognition of a youth’s ability to speak remains confined to certain contexts and only when adults with disproportionate power consider it appropriate or fitting to their agendas (Neale 2002: 458). Thus, the youth’s access to “adult” capabilities shifts and slides depending on the court’s will, which often seems to arbitrarily assign rights as well as to rescind them. None of these shifts actually account for the youth’s experience of agency or (dis)empowerment in his daily life or what sorts of rights are available to him.

A careful theorization of unauthorized child migration necessitates situating migration and illegality in the social, historical, and political context in which the law produces migrant “illegality” (De Genova 2002: 419). Chapter 3 locates the analysis of child migration within a broader field of historical knowledge in terms of the circulation of people but also within the often-absent context of immigration law. Early American law did not recognize children as individual rights holders independent of their parents. Treated as property, “children were parental, or more specifically paternal, assets who were under the direct and extensive control of their fathers” (Thronson 2002: 982). A shift occurred with the late nineteenth-century reformist discourse that “viewed children not so much as individual property … but as a form of social investment in which custody produced … social duties on the part of each parent, the performance of which the state could supervise” (Fineman 1988: 737). It was during this time that the still-prevalent legal principle of “best interest of the child” emerged, rooted in the presumption that children were inherently weak, dependent, and vulnerable. In 2001, the development of special legislation for unaccompanied children marked another historical shift in American law in which, for the first time, immigration law recognized the migrant child as potentially independent of his or her family despite decades of court records replete with such cases. Chapter 3 details the evolving relationship between the state, the family, and immigrant children, examining the relevant laws and judicial cases that have shaped the ways the state enters into or mediates domestic life of unaccompanied children and their families.

Chapter 4 traces the journey of one youth from his home in Guatemala to an Illinois courtroom and his simultaneous experiences of disempowerment and agency. The chapter details the ways he navigates a complex network of actors and institutions in pursuit of safety and security for himself and for his sister and the ways the law affords him some rights by virtue of his being a child while restricting other rights due to his independent presence in the United States. His narrative reveals how he negotiates the imposition of the law on his everyday life. Perceived as unruly, delinquent, and somehow dangerous to society and the nation-state, he embodies the intersection of the law’s attempts to contain and to reintegrate those existing outside of the law. At the same time, he is not merely a passive recipient of the law; he actively shapes legal discourses on migration in his everyday negotiations of institutional and community networks.

In Chapter 5, I enter federal detention centers for detained unaccompanied migrant children to examine the complex, everyday negotiations between the federal government, NGOs, and youth. These subcontracted, nongovernmental facilities are a direct response to the incarceration of immigrant children prior to 2003 under the INS, creating a less restrictive environment for children while they await family reunification, foster care, or deportation. I examine the institutional practices of the facility staff in simultaneously caring for and detaining migrant youth and the ways these practices produce migrant children as a category of persons. The facilities embody the competing frameworks of care and law enforcement through the increasing bureaucratization of care and containment amid minimal transparency and oversight. Yet youth resist the facility staff’s socialization programs, which attempt to “rehabilitate” youth into a specific image of a child that reflects socioeconomic and culturally specific American norms. The dynamics of a child’s agency are defined in a context of social interactions that emphasize reciprocity of individuals and structures while recognizing asymmetrical distributions of power between the facility’s staff and detained children. I focus on both the context in which youth interact with other social actors and institutions and the forms these interactions assume. Chapter 5 reflects on perceptions of institutional practices from “below” (Griffiths 2002), questioning how youth make sense of and shape legal and institutional practices.¹⁹

One of the few benevolent aspects of immigration law is that children may be released from “shelters” into federal foster care, group homes, or with sponsors who may or may not be family members. Chapter 6 turns to institutional policies and procedures that determine the conditions of release and the viability of certain kinship ties. In tandem with the law, institutional policies reformulate kinship ties both in the United States and abroad. I trace the lives of unaccompanied children on their release from immigration detention, examining the ways children reconcile their aspirations in the United States with their roles as children and providers for their transnational kinship networks. Departing from the study of highly visible youth cultures marked by deviance from social norms, Chapter 6 considers everyday life as a theoretical framework that will allow for, as Veena Das and Pamela Reynolds argue, an examination of the ways children enact cultural belonging and express discord “repeatedly and undramatically” (2003: 1). To these ends, this book argues that children are not merely passive recipients of the law and institutional practices but actively shape legal discourses on migration and kinship in their everyday negotiations of institutional and community networks. By failing to recognize the legal personhood and social agency of unaccompanied children, the state undermines the rights of children and compromises their pursuit of justice.

A Note on Terminology

Illegal Alien

While the term “illegal alien” appears throughout the U.S. Code, it is not explicitly defined. However, “alien” is defined as “any person not a citizen or national of the United States.”²⁰ The popular usage of “illegal alien” has become increasingly politicized as someone who willfully trespasses on national sovereignty. Among the migration and human rights networks, “no human is illegal” has become a rallying cry against the derogatory connotations of the term, often associated with criminality or along specific racial lines. In the United States, rhetoric has begun to define the debate on immigration—dehumanizing the “illegal” or the “alien” as one without due process and without rights. Such politicization resulted in the Associated Press changing its stylebook to end its usage of the term “illegal alien.” The Associated Press, followed by the Los Angeles Times and USA Today, now distinguishes that actions are illegal and people are undocumented.

In legal terms, the boundary between citizen and illegal is porous. Under some conditions, such as Temporary Protected Status (TPS) or certain types of visas, individuals can transform their illegal status to legal, just as individuals with legal status in the United States can lose that status through committing certain crimes. Unaccompanied children can lose their eligibility for the Special Immigrant Juvenile (SIJ) status simply by turning eighteen.²¹ Kitty Calavita (1998: 531) adds that not only does the law create illegality, but, in the case of Spanish immigration law, actively “regularizes and ‘irregularizes’ people, by making it all but impossible to retain legal status over time … the boundaries between legal and illegal populations are porous and in constant flux, as people routinely move in and out of legal status.” As such, illegal alienage is not a preconditioned set of rules and regulations but is culturally informed, derived, and constructed. For these reasons, I enlist the term “unauthorized migrant,” which is a more neutral term that recognizes both the integrity of individual migrants and the fluctuation of their legal status in the United States.

Unaccompanied Alien Children

The U.S. legal code defines “unaccompanied alien children” (UAC) as those under age eighteen who have no lawful immigration status in the United States and are without a parent or legal guardian in the United States who is available to provide care and physical custody (6 U.S.C. §279(g)(2)).

The juridical category of the unaccompanied child and those who assign it to specific children are particularly problematic. With the 2003 transition of the care and custody of unaccompanied children from the INS to the ORR came several points of conflict, which my research details. One such tension derives from the determination and classification of a child as accompanied or unaccompanied at the point of apprehension. ICE (formerly INS) maintains exclusive power to determine if a parent or legal guardian accompanies a child or if the child is alone in the United States; yet, this practice is teeming with contradictions. Advocates have accused ICE of misclassifying children, determining them as accompanied in order to deport them quickly with family members or to prolong detention of those suspected of criminal activities. In other instances, advocates claim that ICE misclassifies children as unaccompanied to avoid the expense of family detention (shifting the expense for children from ICE to ORR) and unnecessarily separating a child from his or her family. For example, ICE may detain or deport a biological parent traveling with his or her children, leaving a child unaccompanied and in the care of ORR when, at the point of apprehension, the child was accompanied. During the period of my research in ORR facilities, there were two cases in which ICE classified children as unaccompanied in what appeared to be an effort to bait their unauthorized parents, apprehending the parents when they come forward. There were also several cases in which ICE forcibly separated children from parents or customary caregivers because the parent was accused of a crime and detained separately or because the parent had a mandatory order of deportation for a previous unauthorized entry. Furthermore, if ICE lacks the bed space in family facilities, a child may be reclassified as “unaccompanied,” separated from his or her parents who remained in adult detention, and transferred to an ORR facility. In three cases, immigration enforcement authorities separated and deported an elder sibling or parent leaving a child deemed unaccompanied.

Although many children outside their country of origin are without their parents or legal guardians, they may be accompanied by customary care providers, extended family, family friends, or community members, or they may be entrusted to smugglers throughout the duration of their journey. Many of the unaccompanied children with whom I worked, in fact, had parents or immediate family members who have resided in the United States for many years. Some parents, due to their own unlawful status in the United States, are apprehensive about coming forward to claim their child from federal authorities. Parents must provide information regarding their status, employment, housing, and finances when seeking custody of their child. Despite the legal or illegal presence of their parents in the United States, ORR reinforces ICE classifications of unaccompanied status if ORR determines that a parent is unfit for family reunification. This “suitability” may be determined by a pending deportation order issued for the parent, a parent’s own criminal history, or even the inability of a parent to meet the family reunification criteria for housing, employment, financial support, or child-care arrangements, much of which is informed by middle-class social norms for parenting and caregiving.

Both ICE and ORR may (re)classify children at multiple points in their apprehension, detention, and release, in spite of the physical presence of parents or family members in the United States. Even with a notice classifying a child as an “unaccompanied alien child,” some asylum offices systematically ignore this classification once a child is reunited with his or her parent, determining a failure of jurisdiction to adjudicate the child’s asylum petition because the child is “accompanied.” While legal advocates contend this is a misreading of the federal statutes, the practice is gaining prevalence particularly in areas with large concentrations of immigrants—namely, New York, New 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.