Children at the Border: What is the Law, and Are We Living Up to It?

Written by Michael Gonen on . Posted in Opinion

The history of how we got here is instructive.

In the mid-2000s, two offsetting trends in unauthorized immigration to the U.S. occurred. At the turn of the millennium, the overwhelming majority of unauthorized immigrants apprehended by U.S. Customs and Border Protection Office of Border Patrol were Mexican — 1.12 million out of 1.24 million in 2003, for example. By the end of the decade, however, immigration from Mexico had dropped by half. Even though immigration from the “Northern Triangle” countries — Guatemala, Honduras, and El Salvador — virtually doubled during this time period, the drop in unauthorized immigrants from Mexico resulted in a historic net decline in total unauthorized immigration to the U.S.


It was in this environment that Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Among other changes, the TVPRA afforded special protections to non-Mexican children apprehended by the Border Patrol without their parents. The belief was that children, far from their country of origin and without their parents around, were particularly vulnerable to human traffickers. The TVPRA would require Homeland Security to promptly transfer those children to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. ORR would in turn place the child according to their best interests, generally with family already in the United States. These children would also be given greater access to the asylum process.

Far from being partisan legislation, the TVPRA passed both houses of Congress unanimously, and was signed into law by George W. Bush. Congress wrote the TVPRA anticipating that, in line with historical norms, non-Mexican immigrants would be a tiny fraction of border apprehensions.

Instead, by 2014 almost a third of apprehensions were of immigrants from the Northern Triangle. Total apprehensions were still less than half what they had been a decade earlier, but the Border Patrol was apprehending more than 10 times as many non-Mexican children as they had only a few years earlier.

Even as the number of Salvadoran, Guatemalan, and Honduran children soared, ORR consistently placed the overwhelming majority of them with parents already residing in the United States or at least with other close relatives. This is because, just as my own great-grandfather sent for his wife and children seven years after coming to New York as a manual laborer, the adults who came in the mid-aughts had started sending for their families. The “surge” in children precisely mirrored the earlier growth in adult Northern Triangle apprehensions.

The policy of family separation happening now is not authorized or required by the TVPRA. The Trump administration has made no secret that this is a punitive measure to try to discourage other immigrants from coming to the US to seek asylum. The Department of Justice is prosecuting all border crossers for crime of “entry without inspection,” and then using the criminal detention (immigration detention is civil) of the parents to declare the children “unaccompanied.”

Set aside the moral issues for a minute —the documented trauma of separation being piled on top of the trauma that brought many of these families to our country’s doorstep — and this policy is still ludicrous on legal grounds.

First, because physical presence in the United States is a requirement to seek asylum, it is not a crime for an asylum seeker to enter the U.S. without proper authorization and then promptly request asylum.

Second, if one wants to argue that these immigrants, asylum seekers or not, are guilty of entry without inspection, pre-trial detention for a misdemeanor is outrageous. Many of the administration officials making the argument for detention complained last week about Paul Manafort being detained pre-trial, and he is facing felony charges that could keep him behind bars for the rest of his life — and this was after his bail was revoked for alleged witness tampering.  

Not only is this an untenable reading of the statute, but with parents detained, ORR may lack anyone with whom to place their children. They are categorized as entering the country as unaccompanied minors, not because they came here alone, but because they are separated from the adult who accompanied them. In light of these circumstances, some of these kids are far younger than ORR handled previously. For those too young to even identify themselves, later reunification with their parents could be difficult or impossible. Their “placement” through ORR certainly fails the “best interest of the child” test required by the TVPRA.

Treating these children in this fashion is not about adhering to the letter of any law. It is about inflicting an experience, setting an example… and at what a cost.

By Michael Gonen 

An alumnus of the George Washington University, Michael Gonen is also a veteran of the wars in Iraq and Afghanistan and worked as a strategic intelligence analyst for the Department of Homeland Security from 2010 to 2015; he resigned to attend the University of Pennsylvania Law School, from which he graduated in May 2018. He and his family belong to Adath Israel synagogue in Lower Merion, Pennsylvania.