The news reports have been full of stories about the estimated up to 60,000 unaccompanied children from Central America who have arrived at the US border and cannot be returned immediately because they are not Mexican.

These reports have focused on the fact that these children are now America's latest immigration political football, but little, if anything, has been written about the issue of whether they have any legal rights, and it so, whether the Department of Homeland Security is showing any awareness of or respect for these legal rights.

See, for example, Immigrant children tread treacherous political landscape, CNN, June 18, (listed as a news item in the June 19 Immigration Daily), and US border patrol struggles to shelter thousands of unaccompanied children, The Guardian, June 18).

The following comments will deal only with the neglected legal issues involved in this children's mass migration, not the political ones, and will suggest ways in which further discussion and action might help to resolve these legal issues.

My comments are based on an excellent article in the Harvard Civil Rights-Civil Liberties Law Review by Wendy Young and MeganMcKenna of Kids in Need of Defense ("KIND") entitled: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 H.C.R.C.L. Law Review 247 (2010). This article should be the starting point for anyone interested in the legal rights of these children.

The article begins with the description of a 15-year old girl from China who was put in a boat to the US by her own parents in the 1990's in order to flee that country's rigid family planning laws, under which she had no rights to citizenship, education or medical care.

The article describes how upon arrival in the US, she was held in a juvenile jail for eight months and detained for an additional four months after being granted political asylum. At her asylum hearing, she could not wipe away her tears because her hands were chained to her waist.

Young and McKenna state:

"Although progress has been made since this young girl's case, the United States has a long way to go before its handling of these children truly takes into account their unique obstacles as children processed in a system that was designed for adults."

One might think that the most basic concept of American law regarding the treatment of children, namely that their best interests should always be considered by officials charged with enforcing the law, would also apply to immigrant or would-be immigrant children who are in the United States.

But this doctrine has been expressly ruled out, at least as far as immigration judges are concerned. Young and McKenna cite a May 22, 2007 DOJ memorandum entitled Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children which states:

"The concept of 'best interest of the child' does not negate the statute or the regulatory delegation of the Attorney General's authority and cannot provide a basis for providing relief not sanctioned by law."

In other words, elementary humanity toward the least powerful and most defenseless members of America's immigrant population is not part of our legal system.

Granted, the above is a DOJ memorandum, not a DHS one, and it is meant by its terms to apply only in immigration court. The above two authors also point out that there has been a significant improvement in the current DHS system of treating unaccompanied immigrant children compared to the previous "Legacy INS" approach.

The INS, according to the authors,

"applied the same model of punitive detention to children as it did to adults, Children were often detained in criminal facilities, commingled with the juvenile delinquent population. Even if held in one of the INS's special children's centers, children faced detention-like conditions and had to contend with facility administrators more attuned to the priorities of the INS than the needs of the children."

This harsh approach toward children in immigration detention was challenged in Flores v. Meese 681 F. Supp 665 (C. D. Cal. 1988), which ultimately led to a 1996 settlement agreement providing that all children in INS custody should be "treated with dignity, respect and special concern for their particular vulnerability as minors".

The Flores settlement also provided that the INS would place each child in the "least restrictive setting appropriate" and, when appropriate, release the child to a person or organization able to ensure his or her well being and appearance in court.

Unfortunately, as the above article also points out, the Flores settlement has never been enacted into law or codified by formal regulations, and its spirit has still not been put fully into effect, despite improvements made by the Homeland Security Act of 2002 when the Office of Refugee Resettlement (ORR), was given responsibility for developing placement options for unaccompanied children as an agency within the Department of Health and Human Services (HHS).

But Young and McKenna state that even after Flores, unaccompanied children were still detained for long periods of time, and children, including those with mental health or behavioral problems, were detained in secure facilities, where accusations of abuse were rampant. And the involvement of ORR under the 2002 law, while making some improvements, has not solved all of these problems.

Young and McKenna write:

"The overarching obstacle to proper treatment for unaccompanied immigrant children is a system that was never designed to take children into account. For the most part, these immigrant programs continue to treat children and adults identically under US law."

However, while there has been some improvement in the area of ensuring adequate care, custody and placement of unaccompanied immigrant children, providing them with adequate legal representation has proved even more challenging, according to the above authors.

They point out that the US government does not provide appointed counsel for unaccompanied children in immigration proceedings and that more than half of these children do not have lawyers, even though they are bound by the same legal standards and burden of proof as adult immigrants.

Despite a pilot pro bono program set up by ORR in 2005 for unaccompanied immigrant children, much more remains to be done to ensure that they have adequate legal representation. Young and McKenna state:

"While these steps are positive and will result in greater numbers of represented children, the system remains inherently unfair and inconsistent with American principles of justice and due process, because it propels children through a complex immigration system without the guaranteed guidance of legal counsel."

They also point out the inadequacy of relying only on pro bono legal assistance:

"Immigration detainees are often located in rural areas where pro bono services are not readily available, such as along the Texas border where legal resources are scarce. In addition, some children's cases are not accepted by pro bono counsel either because their cases require swift and immediate action or because their cases involve considerable complexities."

In addition to providing guaranteed legal representation, Young and McKenna also recommend providing unaccompanied children with child welfare experts to protect the child's best interests and provide as much information about the child's situation as possible in order to assist in the determination of eligibility for relief.

In terms of procedure, the authors also recommend:

"EOIR should systematically implement, through regulations, juvenile dockets in every immigration court that include the use of child-friendly procedures, as is recommended by the Operating Policies and Procedures Memorandum [see DOJ's May 22, 2007 memorandum referred to above] and Legacy INS's Guidelines for Children's Asylum Claims."

In their conclusion, Young and McKenna write:

"Progress has been made in recent years toward acknowledging the unique challenges that arise when a child arrives in the United States without his or her traditional caregiver. However, the question remains whether the immigration system as a whole will ever truly move away from enforcing U.S. immigration laws as if its only subjects were adults with the capacity to make immigration decisions of their own volition."

As mentioned above, this article was written four years ago, when even though detention conditions were an issue, the main focus was on providing justice for unaccompanied children in immigration court. At that time, evidently, no one could have anticipated that over 50,000 unaccompanied children would arrive at the US border in the space of only nine months, and that some of them would be barely old enough to walk.

But this is exactly what has happened, according to a June 20 article in Fusion, Hundreds of Toddlers Said to Be Taken Into Custody at the Border. This article reports that about 52,000 unaccompanied minors have been apprehended at the border since October 2013. 378 of them were children two years old or younger and 95 were less than a year old.

The Fusion article quotes a spokesperson for the Border Patrol as saying:

"Apprehending infants and children can be difficult for Border Patrol agents; our facilities are not designed with people that young in mind...We often have minimal amounts of diapers, formula and other items for the care of infants and toddlers."

But unaccompanied infants and toddlers arriving at the border are part of America's immigration picture today, and, according to the above Fusion article the average age of unaccompanied children arriving at the US border is now only 14.
Many of these children are now being detained in deplorable, inhuman conditions. Lack of access to lawyers or proper legal procedures is only part of the problem.

America's leaders need to stop using these children in order to score political points, and instead come up with an immigration system which will provide them not only with the necessities of law, but the necessities of life.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is