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