In the last week, reports that the Office of Refugee Resettlement (ORR) “lost” children in its care or placed them in the custody of traffickers spread like wildfire over social media. The catalyst: In April, a government official testified in Congress that the office, which oversees care of unaccompanied undocumented children who cross into the United States, had lost track of nearly 1,500 children after they were released from government custody.
Well-meaning Americans—alarmed about the Trump administration’s policy of separating asylum-seeking families at the border and concerned about the plight of immigrant children who might be in danger—have demanded that the government immediately find the lost children and ensure their well-being.
But we need to think twice about asking any government, especially one that proudly equates immigrants with gang members and calls them “animals,” for more scrutiny, more monitoring, and more targeting of kids and their communities.
First things first: When the media say ORR “lost” kids, that’s simply not true. The children in question were released from ORR’s custody to vetted family, friends, or sponsors according to court-mandated procedures. Once released, the government has no custody or control over the kids, which is how it should be. We don’t expect or want local jails or prisons to track folks once they are released to loved ones.
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The reality is that many kids and their sponsors have refused to engage with an agency determined to deport them.
Outrage over the inability to locate these minors ultimately plays into the Trump administration’s attempts to manufacture an immigration crisis. The crisis will likely lead to a crackdown and an increase in the detainment and deportation of minors. Which is exactly what ORR and the administration wants to see happen; in a statement, Health and Human Services Deputy Secretary Eric Hargan said that the problem is “open borders” and that the children were placed with “individuals who helped arrange for them to enter the country illegally. This makes the immediate crisis worse and creates a perverse incentive for further violation of federal immigration law.” The end game for the Trump administration is to close the borders and implement nativist immigration policies like those touted by the hate group the Center for Immigration Studies.
As an attorney who represents immigrant youth, I’ve seen how ORR works—and how rarely it works to the true benefit of the client, despite its child-saving rhetoric.
I witnessed the myriad ways ORR manipulated policies to keep individual kids with mental health issues incarcerated and failed to provide adequate mental health care. The first time I met with a client who was in ORR custody, I realized how the office could get away with its treatment of kids: Virtually all of the adults, doctors, therapists, case workers, and lawyers who had contact with kids in custody were paid by ORR. I was shocked to learn that I was the only person with whom my client had contact who was not funded by ORR itself.
I remember one 17-year-old client who was admitted to the local children’s psychiatric hospital after a failed suicide attempt at a secure ORR facility. Upon learning about his inadequate treatment in facility, the hospital refused to release the client back to ORR. Eventually, ORR convinced the young man to voluntarily return to its jail after promising that he would be released to an uncle. That didn’t happen and, on his 18th birthday, he was handed over to Immigration and Customs Enforcement (ICE). Though we were able to secure him legal status, the years-long incarceration and mistreatment by ORR had a permanent impact.
I have many more stories like this. ORR has failed to provide my clients with an adequate education by refusing to provide special education services that a previous school determined were necessary. And ORR also refused to release a client to his mother, saying she was not an adequate guardian, despite the fact a state court had awarded her custody.
ORR is not a benevolent child welfare agency. It’s an active and damaging arm of the U.S. deportation machine. It openly despises the children it detains, the sponsors to whom they are released, the very fact of their existence, and the laws in place to protect children in their jails. As fellow immigration attorney Maureen Abell aptly noted, ORR cares about kids the way prison doctors care for death row inmates.
The unaccompanied minors program of ORR was created to ensure that child welfare values were incorporated into the detention conditions of unaccompanied children. Coupled with the principles governing the detention and release of unaccompanied minors guaranteed by the case Flores v. Reno, protections for youth were expanded in 2008 to ensure that children, among other things, are placed in appropriate settings and that they are released to parents or sponsors, who are screened by the agency, without unreasonable delay.
Since its inception, ORR has been sued for the poor treatment of kids it detains. Not surprisingly, the Flores litigation, which was initially settled in 1997, is ongoing because of the government’s continuous violations of the rights of kids in detention. These violations range from keeping kids in jails not licensed to care for them to detaining children in deplorable and unsanitary conditions. In the last two years, ORR has been sued over the prolonged detention of accompanied minors, something almost universally agreed to be permanently damaging to kids; its failure to provide any amount of due process when determining placements; unlawfully medicating youth; arbitrarily denying family reunification; and failing to provide bond hearings. The director of ORR, Scott Lloyd, has also personally attempted to block minors in ORR custody from accessing abortions.
Though ORR was bad under Obama, it has gotten undeniably worse under Trump. Because not only does it continue to flout the legal protections for children it detains, but it also employs the same dehumanizing anti-immigration rhetoric and lies as Trump.
Despite the legal mandates to release detained children to parents or sponsors without unnecessary delay and to incorporate child welfare values in its decisions, ORR clearly believes that the entire unaccompanied minors program is a legal “loophole” that is being abused and should be closed. As an HHS fact sheet said, “The United States taxpayer can no longer be responsible for being a surrogate parent for every would-be illegal immigrant who crosses our border. Under our current immigration loopholes, if anyone under the age of 18 illegally enters the United States they will be placed into HHS custody and released into the interior of the United States, rather than returned home to their country of origin.”
ORR also works with ICE to target sponsors for deportation, claiming that they are part of smuggling operations. With this circular logic, ORR is calling for Congress to end “catch and release” of minors and to close the “catastrophic loophole” that allow children to be reunited with “smugglers” aka parents.
The problems faced by kids detained by ORR is not being lost or being trafficked. Their problem is ORR and the fact of their detention.