Written by Raul Pinto, Deputy Legal Director, Transparency at the American Immigration Council and Jennifer Ibañez Whitlock, Supervisory Policy & Practice Counsel, Government Relations at the American Immigration Lawyers Association
Last month, a federal oversight agency published a report claiming that 32,000 children classified as unaccompanied minors did not show up to their immigration court dates. The report, published by the Office of Inspector General for the U.S. Department of Homeland Security, noted that Immigration and Customs Enforcement (ICE) failed to monitor the location of apprehended minors. Media outlets quickly characterized the report’s findings as suggesting that ICE lost track of the children.
But these media reports are misleading—ICE is the immigration enforcement agency whose mission is to remove individuals, including children, who do not have a legal basis to remain in the United States. It is not a child welfare agency, and it did not “lose” these children. The OIG report reflects paperwork gaps, not lost children.
A deeper understanding of the processes children endure when faced with removal proceedings and why they so often are ordered deported raises some doubts about the characterization of the Inspector General’s analysis.
The Inspector General’s report looked specifically at data from fiscal years 2019 to 2023. During such this period, immigration courts issued 32,000 orders of removal in absentia against unaccompanied minors for failure to show up to their scheduled hearings. The report claims that the number of minors that are unaccounted for could be higher because ICE had not served Notices to Appear – the document that begins individuals’ removal proceedings – to roughly 291,000 minors. The report suggests that the scheduled hearings provide ICE with the opportunity to observe the minors in court and screen them for signs of trafficking or other forms of danger.
Lawmakers seized on the report’s findings to criticize DHS Secretary Alejandro Mayorkas for the Department’s failure to track these minors.
The process minors encounter after being detained by immigration authorities is a convoluted maze of several government agencies and subagencies. The Trafficking Victims Protection Reauthorization Act (TVPRA) provides unaccompanied minors with more specific protections than adults. Under the TVPRA, minors may be apprehended by U.S. Customs and Border Protection at the border. Children from non-contiguous countries (countries other than Mexico and Canada) are generally placed into removal proceedings in immigration court.
Removal proceedings can only commence after the proper service of an NTA, which alerts noncitizens of their court reporting obligations. Children from contiguous countries, on the other hand, may be repatriated if CBP determines that they are not victims of trafficking or fear persecution in their countries of origin. CBP must transfer custody of children from non-contiguous countries to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours. ORR then may release the children to family members or another sponsor in the United States, but the agency is required to ensure that the children are placed in the least restrictive setting that is in their best interest.
Children in removal proceedings will likely interact with several other agencies. Removal proceedings are administered by the Executive Office for Immigration Review, a subcomponent of the U.S. Department of Justice. The government in these adversarial proceedings is represented by attorneys from the Office of the Principal Legal Advisor (OPLA), which coordinates with ICE’s Enforcement and Removal Operations (ERO), an agency that often checks the whereabouts of individuals who have not reported to immigration court hearings. ICE maintains a Juvenile and Family Residential Management Unit Division (JFMD) within its Enforcement & Removal Operations to manage issues related to minors, young adults, and families, including removal of these individuals from the U.S.
Many of the types of immigration benefits available to unaccompanied minors, such as Special Immigrant Juvenile Status (granted to minors who can show they cannot return to their home countries because they were victims of abuse, neglect, or abandonment by one of their parents) or even asylum, are often adjudicated by U.S. Citizenship and Immigration Services (USCIS). This often relegates removal proceedings in immigration courts to brief procedural check-ins with immigration judges and in many instances, the cases are terminated without the need to conduct a hearing. The interaction between the children and attorneys from OPLA is minimal at best.
Children facing this intricate web of government bureaucracy are not provided with attorneys to help them navigate this system.
The Inspector General’s analysis fails to explore any potential explanations for why the children were unaccounted for, recklessly suggesting that the children’s safety may be in question. The report blames the lack of coordination between the agencies as among the reasons for failure to track children after their release from government custody, but this ignores the reality that children are placed with sponsors (and should not be presumed “missing”), not guaranteed legal counsel, and may not know how to update their addresses with ICE ( which is a separate system from the immigration courts). In addition, ICE under the Trump administration targeted sponsors and those residing in the same household as unaccompanied children for arrest, detention, and deportation, creating an atmosphere of intimidation and mistrust between sponsor families and immigration enforcement agencies.
The report also fails to analyze the number of children who were initially processed by DHS and may have pending applications for relief with USCIS, as the benefits-granting agency is not mentioned in the report’s methodology.
The lack of a current address on file does not mean that the children have been trafficked, are lost, or that their parents or sponsors are purposely evading immigration proceedings. Quite the contrary, a majority of the children may be residing in loving homes, attending school, and acclimating to their new surroundings after being reunited with family members in the United States.
Certainly, the Inspector General’s estimates include some cases where children did not show up to court. But it is important to remember that children navigate this adversarial system routinely without the help of legal representatives to remind them of their court obligations and are often unable to travel to court without the direct assistance of their sponsor. In 2023, only 56% of unaccompanied children were represented by counsel. From FY 2005 through June FY 2019—the most recent available data—98% of children with lawyers appeared for their hearings.
Immigration enforcement agencies must acknowledge that children need special protections, and Congress should fund legal counsel, to help move them through the maze of government agencies involved. Earlier this year, EOIR took small but positive steps to safeguard some of the procedures children face in removal proceedings.
If politicians truly cared about the welfare of immigrant children, they should advocate for measures that consider children’s special needs and take a holistic approach to protect against exploitation and trafficking. Concerns about the welfare of unaccompanied children—whom unscrupulous businesses and individuals have subjected to well-documented cases of labor and other abuses—remain real. But such concerns must be grounded in actual care for children’s well-being and a search for real policy solutions, rather than used as a vehicle to score cheap political points.
FILED UNDER: Office of Inspector General, unaccompanied children
