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The Infernal Challenge of Ending “Kids In Cages”

There’s more the Biden administration can do to make a sharp break with his predecessors’ policies on unaccompanied minors.

A 3 year old unaccompanied minor from Honduras waits to be bussed to a U.S. Border Patrol facility in Texas.
John Moore/Getty Images

While the Trump presidency is over and the former president, by dint of being denied his preferred social media perches, is no longer toxifying the scene with his rhetoric, the poison he left behind is still saturating our civic groundwater. Among the many areas of our political life that have been left infected by the predations of the prior administration is what is perhaps Donald Trump’s original sin: his inhumanity toward immigrants. The notion of “kids in cages” as a policy prescription has become such a flashpoint that any discussion that carries even the most tenuous allusion to the practice almost instantly devolves into incoherent indignation, volleys of accusations, and semantic discourse over what exactly constitutes a “cage.” It has become a tricky matter for Joe Biden and his administration to offer a course correction.

This phenomenon’s latest iteration came over the last couple of weeks, in news that the Biden administration was reopening at least two so-called “influx shelters” to house unaccompanied migrant minors arriving at the border. Warring Twitter factions quickly emerged, landing neatly into two camps: those who viewed Biden’s action as open hypocrisy and believe the government should never have custody of these children, and those defending the move as a necessary temporary measure to safely deal with a “surge” of arriving minors under the constraints caused by the ongoing Covid-19 pandemic.

The former view is unworkable and a little naïve. The government has a legal and moral responsibility to ensure that children are provided safe shelter and released to qualified sponsors; we can’t just hand bus fare to nine-year-old kids and send them on their way. Yet the latter argument seems a bit too reflexive a justification of a system that has had myriad problems even during the shelters’ relatively short periods of operation, and where there has generally been limited oversight, partly owing to their supposed status as emergency use only.

As several reporters, including myself, have pointed out, these Health and Human Services–overseen shelters are very different from the cage-like Border Patrol holding cells but also from the more tightly controlled, state-licensed stable of permanent child shelters overseen by the HHS Office of Refugee Resettlement, or ORR. “These aren’t ‘kids in cages,’ these overflow facilities. But at the same time, they are unlicensed, and it’s a carceral setting. They can’t leave, it’s not like a home-type setting,” said Carol Anne Donohoe, the managing attorney at the family reunification project of the cross-border legal and social services organization Al Otro Lado. At the Homestead facility in Florida, staff were not checked even for prior child-abuse incidents. Recent reporting shows that thousands of children haven’t even made it to these shelters at all, remaining for days in Border Patrol facilities that are barely fit for habitation.

So what’s the alternative? How could the administration respond in a way that both safeguards the welfare of these children and avoids prolonged stays—or ideally, any stay at all—in what have often been shoddy and unsafe conditions? One reason it will be hard to mollify those on either side of the debate is that there isn’t any one immediate answer but rather a patchwork of efficiencies and policy changes that could collectively direct children more quickly toward what is always the ultimate goal: unification with family or another suitable guardian. The good news is that all of these prescriptions are squarely within the president’s power to enact.

Perhaps the most obvious first step is to simply find and vet sponsors more quickly. This is the responsibility of HHS, which is legally supposed to take custody of unaccompanied children no later than 72 hours after they’ve entered the custody of the government, usually via Customs and Border Protection. Some of the breakdowns of this system have verged on the absurd: In one case discovered by Reveal’s Aura Bogado, a Honduran girl had not only been separated from her brother but been in HHS custody for six years despite having family in North Carolina ready and willing to take her in. The family itself had tried several times to get through to HHS personnel, to no avail.

This is an extreme example, but advocates and legal providers point to routine delays and maddening bureaucratic hindrances. Donohoe recalled one case of a separated child her team handled where they “put forth sponsor after sponsor after sponsor,” only to see each of them shot down for absurd reasons. “In one case, the notation was that the uncle or whoever didn’t get out of work until seven o’clock at night, and the caseworker left work at five,” she said, adding that the child eventually turned 18 and was taken into ICE custody while still waiting to be released from HHS custody.

The previous administration didn’t help on this front, having rolled out an initiative to share sponsor data with immigration enforcement authorities, chilling undocumented potential sponsors’ willingness to come forward and partially causing the glut of kids in licensed ORR shelters that led to Trump’s own use of influx shelters. The new administration has done away with this and other counterproductive vetting standards, but much of the fear remains. Still, screening processes are there to ensure that kids aren’t, for example, released to traffickers who will use them to work on an egg farm, as happened in a few cases some years back.

Jennifer Podkul, vice president for policy and advocacy at the child rights and services organization Kids in Need of Defense, said that her organization wants rigorous standards for sponsors to be maintained, but some of the oversight can happen after release. “If you’re doing less fingerprinting, anything that’s more quick, that you’re doing more simply, you have to make sure that there’s a set of eyes on the kid after reunification,” she said.

Part of the problem is that this entire process only gets started when children are transferred to HHS, an exchange that often takes place many days after they were first detained. This is a complication not only because it lengthens the amount of time postentry that it takes to find a sponsor, but because many children actually do enter with a guardian, just not an official one. Under U.S. law, blood relatives such as aunts and uncles and grandparents are not considered legal guardians; minors entering in the custody of such family members are classified as unaccompanied and separated from them. This allows these children to pursue a standalone asylum case with greater procedural protections but also takes them away from someone who could well be a sponsor, if not just a trusted presence, leaving them bound for an HHS shelter.

KIND and other groups have proposed that the government begins detailing HHS personnel to point-of-contact, working with CBP along the border. That way, they can get the process started immediately and potentially certify a sponsor on the spot. “A kid comes in with Grandma.… Maybe Grandma is the best sponsor. [HHS] would be able to interview Grandma, they’d be able to get Grandma’s fingerprints. They’d be able to watch the interaction between the two,” said Podkul. “There’s no reason to send the kid to an ORR shelter in New York and then send Grandma to a detention center in Chicago, and everybody’s sitting in government custody separate from each other.”

The vetting could theoretically start even earlier, before the children ever set foot on U.S. soil. Organizations like Al Otro Lado and KIND already coordinate with minors who are still in Mexico or traveling to the U.S. with the intention of applying for asylum, and they could pass relevant information along to HHS with the goal of having a sponsor already identified before their entry. The Mexican government has certainly shown itself to be willing to assist the U.S. when it comes to enforcement and might play a role in this advance warning system.

Even when all else fails, there’s nothing that necessarily makes expensive and unlicensed influx shelters the best option; it’s true that ORR’s permanent slate of shelters are running out of space, but there’s no reason that this slate can’t expand. The agency could look first to established, state-licensed shelters with greater track records, which it could contract for short-term service, as needed. These aren’t devoid of their own issues but already have the infrastructure and staff in place, as opposed to influx facilities that have to quickly build up capacity.

All of this would require coordination across different agencies and someone managing the policy at an executive level, which emphasizes the lack of a Stephen Miller–equivalent figure who could bring disparate departments together and make them share data and planning (the lack of such communication infamously led to huge difficulties in reuniting families separated under Trump’s 2018 “zero tolerance” policy). An immigration “czar,” pulling the strings from the White House, could move things along. The Biden administration emphasized its executive action on immigration early on, but the pace of reform has left advocates frustrated. “Every family that enters is a reason to rejoice. But at the same time, there’s a lot more that could be done and a lot faster,” said Donohoe.

Most notably, the administration has left in place the Trump-era Centers for Disease Control and Prevention Title 42 order, which allows border officials to summarily expel almost anyone detained at the border without documentation, ostensibly as a pandemic-response measure. Biden made an exception just for unaccompanied minors, which has had the predictable impact of turning some formerly accompanied minors into unaccompanied ones as parents realize that the only way to get their children successfully across the border into safety is by sending them alone. It’s hard to quantify just how many children are in this situation, but advocates say it’s known to happen, much as it did during the days when the Migrant Protection Protocols program was active.

An easy fix here would be repealing the Title 42 order altogether, a notion to which the administration has thus far been resistant. As Buzzfeed’s Hamed Aleaziz reported on Thursday, Department of Homeland Security officials were only recently considering using Title 42 to “turn back certain unaccompanied 17-year-olds” on a limited basis, largely for the sake of reducing the number of referrals to HHS shelters as a stopgap. Meanwhile, an administration spokesperson wrote that the government “is working around the clock to find ways to [unite minors with family and sponsors] more swiftly. A variety of things are on the table as the President is deeply engaged on this and receives briefings and updates regularly.”

Some opportunities for preemptive action have already been missed. Despite headlines about a “surge” of unaccompanied minors, the current level of apprehensions is not unprecedented and in fact remains lower than at the highest points of fiscal year 2019. The ongoing situation is also not exactly a shock: Advocates like Donohoe had met with Biden transition officials in the weeks following the 2020 election and warned them that asylum-seekers, including families and children, had been bottlenecked by Trump-era policies like the Title 42 order (which then applied to everyone).  If and when these policies are eased or revoked by the new administration, the bottleneck would break.

“Nobody was surprised by the numbers. They’re still very difficult to deal with, and we anticipated that they would have to rely on influx facilities, at least for a short time,” said Podkul. It doesn’t seem like much advance planning was done to head off the reliance on these shelters, at least in part because Trump officials often refused to collaborate with the transition. Still, advocates don’t let the Biden team off the hook. “[Biden] certainly is not new to the game, and there could have been a lot ready to go,” said Donohoe. Now, with the number of minors trending up, there are clear pathways to avoid reliance on the influx shelters. The open question is whether the administration will feel a clear enough sense of urgency to implement them. Until such actions are taken, the new administration is likely to continue to be buffeted by critics of the prior administration’s misdeeds, and Biden’s would-be defenders will be short-handed to argue that a clean break has been made with the recent past.