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CHAPTER 2

Criminal Alien or Humanitarian Refugee?

INTERLUDE

“Sueños Rotos” (Broken Dreams)

Sometimes, we young people get together to talk about our unrealized dreams. It is easy at times for others to assume why we are here.

The answer is easy: for a better tomorrow. Nobody understands that even though we are young, we have the necessary maturity to confront reality. Here is a country with so many opportunities for everyone but I find myself along a road with no exit—I have only thoughts of my loved ones and of the possibility of moving forward. Yet, my worst enemy is always by my side. I am Latino and an immigrant.

Today I find myself locked up by the laws of the USA as a criminal wearing a prison uniform. I live like a criminal with sadness in my heart. I look at American kids going to school and think, I too am an American child. I should go to school. Is being Latino so different? Is coming here for our family such a bad thing? Is this so difficult to understand?

You will never understand that for my family, I am capable of so much more.

—Mario, fifteen-year-old Salvadoran youth

The Refugee Act of 1980 recognized the needs of refugee children who are unaccompanied, creating special legal provisions for their acceptance into the United States via formal refugee resettlement processes. The act established and funded specialized programs through the Department of Health and Human Services Office of Refugee Resettlement (DHHS-ORR) for minors who are identified as refugees prior to entry in the United States. The State Department identifies refugee children living in UN refugee camps who do not have a parent or legal guardian. On arrival in the United States, refugee children are placed in ORR’s Unaccompanied Refugee Minor (URM) program and resettled by refugee resettlement agencies, similar to refugee adults. However, the Refugee Act of 1980 did not include “unaccompanied alien children,” as they are neither recognized prior to entry nor do they maintain legal status in the United States as their refugee counterparts do. The specialized provisions and procedures for refugee children excluded unauthorized migrant children despite their shared experiences of war, violence, and deprivation in many of the same countries of origin. “Unaccompanied alien children” can be reclassified as “unaccompanied refugee minors” and enter the URM programs if they are granted a qualifying legal status, such as political asylum or specialized visas. In the early 1980s the rates of reclassification were quite low because a child must first be granted political asylum or prove that he or she was trafficked into the United States. Given the absence of court-appointed legal counsel, no recognition of persecution on account of being a child, and no specialized procedures distinguishing children from adults, such feats were rare. With key revisions to legislation for abused, abandoned, and neglected children in the 1990s and on trafficking in the early 2000s, these rates have risen somewhat, though they are still quite low. Instead, the state continued to fold unaccompanied alien children into the unauthorized adult population under the care and custody of the INS, subject to expedited deportation and prolonged detention.

For nearly twenty years advocates vied for a transfer of care and custody of unaccompanied, unauthorized children from the INS to the ORR analogous to that of unaccompanied refugee children. Advocates highlighted the irreconcilable conflict of interest in which the INS simultaneously served as guardian, jailer, and prosecutor of unaccompanied children. While the INS was responsible for housing, feeding, and providing medical care for detained children, it was also charged with “the departure from the United States of all removable aliens,” including the children entrusted to its care (U.S. DHS/ICE 2003). Prior to 2003, the INS held one-third of unaccompanied children in secure facilities, which were subcontracted bed space in existing state and county juvenile detention facilities. Although the INS claimed that unaccompanied children were housed in separate cells, in practice unauthorized children were commingled with juvenile offenders, some of whom had committed violent crimes. There were limited opportunities for education, access to interpreters, and recreation in these facilities (Duncan 2002). While in INS custody, children lacking the requisite documents to remain in the United States were detained for extended periods, sometimes up to two years while awaiting a ruling on their immigration cases.

During this time, a principal cleavage crystalized between legal advocates and immigration enforcement that persists in more recent discussions of the treatment of unaccompanied children—are unaccompanied children humanitarian refugees or criminal aliens? In this chapter, I elaborate the development and current status of the competing humanitarian and law enforcement regimes and the ways these imaginaries continue to shape the interventions of advocates, government bureaucrats, and nongovernmental staff involved in the lives of both detained and nondetained migrant children. I identify three overlapping sensibilities—the illegal alien, the criminal, and the enemy within—that contribute to a punitive approach to child migrants. To illustrate, I trace the circulation of a youth, Mario, from his home in El Salvador to immigration detention in the United States to his uncle’s home in Maryland. Classified as an “unaccompanied alien minor,” Mario faces critical legal decisions that shape not only his fate but also his family’s. The blunt tool of the law compels Mario along prefigured trajectories intended either to protect him as a vulnerable child or to expel him as a criminal alien. I analyze two key legal cases, Flores v. Reno and Plyler v. Doe, which shaped the ways unauthorized children both in and outside of the context of detention are viewed as legal subjects and the rights afforded to them. The activism of DREAMers,¹ unauthorized youth who are the contemporary beneficiaries of Plyler v. Doe, highlights the failure to recognize the social agency of children and youth within the law and institutional practices. The law is not a disembodied, independent force, but is culturally constructed by the legislature, media, law enforcement, legal advocates, and helping professionals. While children are not traditionally considered contributors to the law and legal discourses that determine their fate, the narrative of Mario and the political organizing of DREAMers prove otherwise.

“But These Are Not Our Children”

Prior to a meeting at a Border Patrol station along the Texas-Mexico border in which I sought to discuss the agents’ experiences apprehending migrant children, a station commander played a video that showed “inside the work of the Border Patrol.” Reminiscent of the reality television show COPS, the fifteen-minute video opened with blasting music with a deep bass as quick images of uniformed Border Patrol and ICE officers flashed across the small television in the three-room station. A white Border Patrol vehicle pursued a van at high speed along a deserted highway, resulting in a violent crash as the driver lost control of the van; officers contended with a raging grass fire; youths firebombed officers as they arrested an unauthorized migrant. At the video’s end, the station commander explained, “This is what we must contend with. We are not dealing with nice little kids.”

In the law enforcement regime, the migrant child is folded into the pervasive rhetoric of the “illegal alien” who must be apprehended, controlled, and removed from the state. This social sensibility taps into anxieties about an invasion or flood of “illegal aliens,” requiring repression and containment of unaccompanied children in the same ways that their adult counterparts do (Chavez 2001; Rodriguez 1997). Relying on the state’s authority to regulate inclusion or exclusion of subjects, the migrant youth is an ungovernable subject—an outlaw. As Esther Madriz (1997) observes, the figure of the outlaw “brings together members of society in a common conviction, to direct their disapproval against those who are outside the social boundaries. Fear is a very important component in the creation of outlaws: we should fear them because they are dangerous, or evil, or just threatening to ‘us’” (96; see also Durkheim 1982). Despite limited evidence supporting its efficacy, the detention of unauthorized migrants is an increasingly pervasive state strategy enlisted to control and remove the “contagion” or “criminal” as well as to deter and to deincentivize future unauthorized migratory flows.

As there is minimal distinction between children and adults in immigration law, there is little difficulty in identifying unauthorized immigrants exclusively in terms of illegality, rather than distinguishing any markers of difference along lines of age, gender, race, or ethnicity or any specific need for rights. While children are often held in an immutable category of innocence, the law enforcement approach toward unauthorized migrants prioritizes their “alien” status over their status as children. The fear that drives the creation and proliferation of the migrant as “outlaw” fails to recognize that illegal alienage is not a preconditioned set of rules and regulations or inherent traits as law enforcement suggests but is culturally informed, derived, and constructed.

The illegality and criminality of migrant youth are not innate social or legal qualities of unaccompanied children: “the line between alien and citizen is soft” (Ngai 2004: 6). As Mae Ngai (2004) argues, “illegal alienage is not a natural or fixed condition but the product of positive law; it is contingent and at times unstable. The line between legal and illegal status can be crossed in both directions” (6). Various forms of legal relief, in fact, are available to children, including political asylum, Special Immigrant Juvenile (SIJ) status visas, visas for victims of Trafficking (T visas), family sponsorship, the Violence Against Women Act (VAWA), as well as temporary statuses such as Deferred Action for Childhood Arrivals (DACA) or Temporary Protective Status (TPS). Migrants can move in and out of lawful immigration status over time. At the same time, the state can also repeal one’s legality or grant graduated benefits and rights contingent on the type of lawful status. However, for the multiple structural, cultural, linguistic, and developmental reasons I will discuss, there are proportionately few children who benefit from these legal statuses.

Despite the malleability of one’s legal status, the practices of law enforcement historically have treated detained migrant children as inherently illegal, blocking children’s access to forms of legal relief from which they could otherwise benefit outside of the “care and custody” of the federal government. In immigration law, which lacks a legal recognition of a child’s individual relationship to the state, unaccompanied children must rely on an adult or guardian as a proxy to petition state courts for a dependency finding that could lead to legal status. In family reunification petitions, for example, a parent can petition for his or her child as “derivatives” of an asylum application; however, a child as a principal applicant cannot petition for his or her parents until the child becomes a U.S. citizen and reaches age twenty-one. Absent a legally recognized parent or guardian, the state serves in loco parentis, and, as such, until recently, ICE served as gatekeeper for those seeking access to the law. Children had been required to seek “special consent” from the Department of Homeland Security in order to enter state court and ultimately to pursue the SIJS visa, a principal for unaccompanied children who have been abandoned, abused, or neglected. ICE’s policies and practices have been inconsistent and convoluted in regard to specific consent in which a single individual maintains the authority to grant or to deny children’s petitions to enter state court. From January 2001 until August 2006, the national juvenile coordinator at ICE approved only 70 percent of special consent petitions, many of which, advocates contend, came too late to affect a child’s legal claim (Marlan 2006). Once they reach eighteen, children typically cannot obtain the needed orders in most state courts (Junck 2012). In practice, ICE’s national juvenile coordinator would prejudge cases, often freezing their illegal status by limiting their ability to file a petition in state court. Through outright denials, delaying applications for sometimes up to six months, or by waiting until a child turned eighteen, the coordinator served as lawyer, judge, and jury with no mechanism for appeal. Children were held in a catch-22—unable to access the law because of their minor status and because the state as parent did not grant permission to such access. By restricting children’s access to the courts, ICE prevented the opportunity to regularize legal status. The law enforcement approach to unaccompanied children fixed the criminality of unauthorized migrant children, hedging out potential humanitarian forms of legal relief to child migrants in the name of safety and the security of the nation. Law enforcement practices effectively invented permanent illegality and inherent criminality, not unlike the way turn-of-the-century reformers invented delinquency as ascribed to behaviors of lower-class and immigrant children (Platt 1969). In 2008, pressure brought by federal litigation seeking to change practices that made illegality and criminality inherent qualities of unaccompanied migrant children led to shifts in ICE’s gatekeeping of state courts. Following federal litigation of Perez-Olano v. Gonzales et al., unaccompanied children must now seek permission from ORR rather than ICE.² For the moment, ORR in loco parentis has maintained an open access policy permitting all children the “privilege” (although not a “right”) of filing a petition in state court. However, in practice, ORR subcontracted nongovernmental organizations often restrict access, as they will not serve as guardian for the purposes of SIJ while youth are held in their facilities, leaving detained children unable to pursue this principal legal remedy and ensuing benefits.

Critical to the functionality of this sensibility are the ways law enforcement views the relationship between migrant children and their parents. Those whose parents are identifiable are seen as reproductions of their parents’ illegal or criminal behavior, destined to reproduce the same pathological behaviors embodied in their illicit presence in the United States. In this view, deceptive parents pay smugglers to transport their children illegally to the United States, knowingly violating the law. Children unaccompanied by an adult caregiver are seen as lacking the parental relationship necessary for effective socialization and governance. For many unaccompanied children, law enforcement and advocates alike assume that their parents have abandoned them, forcing them to live on the streets and to turn to a life of crime. Migration becomes an indicator of family rupture. Without parents to socialize youth into productive citizens effectively, the unaccompanied child remains pathologically independent and in need of state intervention and discipline. However, there is a critical contradiction in this perspective: ICE considers some children products of their parents’ poor decisions, and in this way divorces children from any social agency to make their own decisions or to contribute to familial migration decisions. At the same time, unaccompanied children are held no less responsible for the outcomes of those decisions even if the decisions are viewed as not of their own making.

In a second overlapping sensibility, law enforcement concretizes the linkage between unauthorized migration and the criminalization of youth of color by comparing “illegal” immigration with issues of urban crime and gang violence; in each case, predominantly male youth are framed as exhibiting antisocial behavior and existing outside the law. While different bodies of law guide immigration and state court decisions, both systems draw from the analogous public and institutional narratives that criminalize youths of color. Contemporary American courts contend with multiple layers of norms and values, which inform notions of pathology in relation to multiple and often overlapping terms of race, ethnicity, and poverty (Bortner, Zatz, and Hawkins 2000; Shook 2005: 465). Public perceptions of the criminality and delinquency of youth create tremendous fear, as in cases of highly publicized school shootings or gang violence (Adelman and Yalda 2000: 37; Giroux 2000: 15). High rates of teen pregnancy and school dropouts, particularly in African American and Latino communities, have led some to call for simultaneous policy reform and institutional interventions to “save” troubled youth (Giroux 1998) while the state bolsters enforcement efforts to allay public anxieties.

Some scholars have attempted to contextualize youth delinquency through studies focusing on how youth experience the law through lenses of race, ethnicity, gender, education level, or socioeconomic status. Mike Males (1999), for example, argues that by controlling for race in instances of juvenile crime, income inequality becomes the prominent determinant, not ethnic or racial differences. Given that more people of color in the United States live in poverty, it remains unsurprising that youth of color are more frequently arrested for criminal activity. Pete Edelman (2002) terms these inequalities the “duality of youth,” suggesting that there is a division along racial/ethnic and class lines that signals the disparate social and economic support accessible to and ultimately received by youth (Shook 2005: 469). Ann Ferguson’s (2001) ethnography traces how race and gender identities shape whether the school system labels African American youth as either “troublemakers” or “school boys.” She argues that albeit a fiction, race continues “as a system for organizing social difference and as a device for reproducing inequality in contemporary United States” (2001: 17). This criminalization of youth of color folds comfortably into the national public discourses that associate Latinos and African Americans with social ills such as poor schools, poverty and unemployment, crime, overpopulation, and public health crises (Inda 2011: 77; see also Coutin 2011). The state contributes to and exacerbates the marginality of youth of color through unequal access to employment, education, and health care and disproportionate attention from law enforcement officers, as evidenced by Mario’s “Broken Dreams” in this chapter’s opening interlude. In U.S. conceptualizations of delinquency, differences in economic status are integrally intertwined with race and ethnicity; variation in skin color becomes a visible means by which to identify delinquent youth, marking those who require punishment and those who warrant leniency.