The following will continue and update my comments posted on June 22 concerning treatment of unaccompanied children arriving at the US border (referred to officially as "UAC's"). As mentioned in my previous post, the number of these children has markedly increased, to the point where an estimated 50,000 to 60,000 have been apprehended by the Border Patrol since October, 2013. As mentioned in my previous post, the average age of these children is only 14, and hundreds of those apprehended have been only 2 years old or younger. It is hard to argue with the administration's description of this as a "humanitarian crisis".

Most of the children involved are from three poverty-stricken Central American counties, Guatemala, Honduras and El Salvador, which are also among the most violent in the world in terms of their homicide rates. Unlike children from Mexico, those from Central America cannot be immediately repatriated under US law because they are not from contiguous countries. Therefore they must remain in the US pending a determination of their legal rights, if any, to asylum or other relief from deportation.

According to a June 13, 2014 Congressional Research Service (CRR) Report: Unaccompanied Alien Children: An Overview, 73 percent of the UAC's arriving at the US border in the first 8 months of FY 2014 (i.e. since October 2013), were from the above three central American countries; only 25 per cent were from Mexico.

How do the law and current administration policies provide for the treatment of these children? On paper, their treatment would appear to be a significant improvement over the conditions under the "Legacy INS" regimen described in the 2010 Harvard Civil Rights-Civil Liberties Law Review article discussed in my previous post.

As mentioned on that article, the 2002 Homeland Security Act made the Office of Refugee Resettlement (ORR) a division of Health and Human Services (HHS), responsible for the care of UAC's in custody pending determination of their rights. if any, to remain in the US.

In addition, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) directs the DHS, in conjunction with other federal agencies, to develop policies and procedures to make sure that UAC's are adequately screened to see if the may have a right to remain in the the US or are safely repatriated if sent home.

ICE also has to turn UAC's who are not from a contiguous country over to HHS-ORR within 72 hours after apprehension at the border, according to the TVPRA.

Again, on paper, the responsibilities of the ORR appear to be child-friendly. The above CRR report states:

"[The TVPRA], which made significant reforms to policies on UAC, directed that HHS ensure that the UAC 'be promptly placed in the least restrictive setting that is in the best interest of the child'. The HSA requires that ORR develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the interests of the child are considered in decisions and actions related to the care and custody of a UAC and oversee the infrastructure and personnel of UAC residential facilities, among other responsibilities."

However, how well does this work out in practice?

The CRR report states:

"To deal with the current influx of UAC, HSS/ORR has made use of a network of group homes operated by nonprofit organizations in Texas and other parts of the country. These nonprofit organizations have experience providing the types of services that UAC need (e.g., medical, nutritional, educational. In addition, HHS has reached out to the Department of Defense for additional assistance in housing UAC."

However, when one looks at the numbers that the various DOD facilities which the CRR article mentions, the total numbers of UAC that all of them put together were expected to be able to accommodate as of June 6, 2014, were only 2,800 children, only about 5 per cent of the total who have arrived at the border during the current fiscal year!

This would go a long way to explain the disturbing photos of young children being piled up like sardines in makeshift "warehousing" facilities which are now appearing in the news on daily basis.

However, even this limited use of military facilities to provide temporary shelter to UAC's is attracting criticism from right wing politicians such as Senator James Inhofe (R-Oklahoma) in a recent statement concerning plans to house 600 children at Ft. Sill.

Obviously more Congressional funding is need to deal with this crisis, but the CRR report concludes by showing that attempts to increase necessary funding have fallen far short up to now.

Essentially, the UAC crisis is just one more part of the larger issue of where America's immigration policy priorities lie. Is policing our borders our highest priority, no matter how much suffering and hardship this may cause to thens of thousands of young children, the most vulnerable and least culpable immigrants of all, or are we a nation that honors basic civil rights and humanitarian considerations?

More than 50,000 UAC's are now putting America to this test.
Roger Algase is a New York lawyer and a graduate of Harvard College Harvard and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

His interest in the legal rights of minors began more than half a century ago when his article The Right to a Fair Trial in Juvenile Court was published in 3 Journal of Family Law 292 (1963).