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Unaccompanied Children Separated at Southern US border, Again

Thousands of Ukrainians have been permitted to enter from Mexico, receiving exemptions from Title 42, the public health law in place through 23 May, being used to restrict entry for others attempting to enter through the southern border, as noted in my earlier blogs.


Since 2008, with the fourth reauthorization of the Trafficking Victim Protection Act (the William Wilberforce Reauthorization Act, aka TVPRA), DHS has taken a role of itself in preventing the trafficking of children by detaining them. DHS gives itself the option of detaining minors (under 18) attempting to cross the border, when they are not accompanied by a parent or legal guardian. They then separate the children from any relatives with whom they might be traveling, and detain the children. And sometimes prosecute the relatives. They do both, allegedly, in order to protect the children from human trafficking. As I have written elsewhere, given HHS's track record with child abuse and other invasive practices, this practice is not at all proven to be a solution to trafficking of children. Nevertheless, during the Trump Administration, the US government went into overdrive trying to repel primarily Central Americans, especially those trying to enter the US in order to reunite with relatives and find safety. Relatives accompanying them (siblings, aunts) were often prosecuted for trafficking or smuggling, and the detained children were often not ultimately reunited with family in the US, at least not without long and dangerous stays in foster care, as I have written about here.


Now DHS is using this law as a justification for detaining Ukrainian minors not accompanied by a parent. Even though the US has instituted special Title 42 exemptions for Ukrainians, permitting them to enter from the southern border, where no others are similarly permitted, Ukrainian minors are nevertheless being subjected to this interpretation of the TVPRA.


CBS News reports that at least 4 minors from Ukraine attempting to find safety with relatives in the US have been permitted to enter the US, but detained. Minors taken into custody are typically transferred within 72 hours from DHS detention centers to shelters or foster care facilities overseen by the US Department of Health and Human Services. There are currently thousands of Afghan and tens of thousands of Central American minors in such custody, with stays ranging from 30-120 days on average.


Typically, HHS will only release minors into the care of parents, older siblings, grandparents, uncles and aunts, if at all. In the past, when any of these family members are undocumented, they were often reasonably concerned about interfacing with US government officials. With TPS on the horizon for Ukraine, this is likely less of a concern for these particular families. HHS has authority to release unaccompanied minors to sponsors who are not family members, but then increases its vetting on these sponsors. Again, this was often problematic for families with undocumented persons in their household, but may be less of a concern for those sponsoring minors from Ukraine.


Anyone assisting a minor attempting to enter the US, or assisting their US based relatives, should consult with an immigration lawyers before attempting entry.


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