Introduction

In the days leading up to the end of Title 42, the controversial Trump-era policy that used COVID-19 as a pretext to turn away migrants at the border, conservative news sources warned of an impending “invasion” and claimed that “states on or near the border were expecting a human flood” (Wilson 2023). Fox host Laura Ingraham called the end of Title 42 a “catastrophic” and “history-changing event” and Turning Point USA founder Charlie Kirk tweeted that “million [sic] of illegals prepare to swarm our border.” While we have indeed seen an increase in migrant encounters at the US-Mexico Border since Title 42 expired on May 11, 2023, this was neither the “history-changing event” that some had feared, nor was it the “urgent action to undo Trump’s damage and reclaim America’s values” that President Joe Biden promised on the campaign trail (Biden Plan).

On the day after Title 42 expired, the US Department of Health and Human Services (HHS) issued a statement announcing the death of an unaccompanied minor from Honduras who had died in an unlicensed Safe Harbor shelter run by Gulf Coast Jewish Family and Community Services. A local news agency, Spectrum News, identified the boy as 17-year-old Angel Espinoza and reported that he had been found unconscious and was later pronounced dead at the hospital. While all eyes were on the border and the end of Title 42, few news sources picked up Angel’s story and even fewer recounted more than the suspected cause of death (an epileptic seizure) and the fact that the shelter was unlicensed due to Governor Ron DeSantis’s refusal to license any additional shelters that house immigrant children.

While these two events – Angel’s death and the end of Title 42 – are not directly linked, the difference in public response illustrates the current state of the discourse on immigration. After years of dehumanizing immigrants, the death of one teenager isn’t regarded as particularly newsworthy. Neither is a system of unlicensed shelters and potentially inadequate healthcare. While the media used to portray unaccompanied minors and the so-called DREAMers, young adults who were brought to the US by their parents without documentation in a more positive light than their adult counterparts, they are now commonly lumped in with a generic mass of “illegal” and potentially dangerous immigrants. In some cases, they are even held responsible for an increase in crime and drug smuggling. In a Homeland Security Committee meeting on May 13, 2021, for example, Senator Portman (R-OH) claimed that drug smugglers “are using unaccompanied children and families to divert Border Patrol agents so that they can cross the border with […] illicit and deadly narcotics.”

This article will focus on the experiences of unaccompanied minors who are fleeing from gang violence in their home countries. During the Trump Administration, asylum seekers who had been targeted by private actors – such as abusive partners or gangs – became a particular point of contention and Attorney General Jeff Sessions proclaimed them categorically ineligible for asylum in Matter of A-B-. If teenagers had been coerced to join a gang or forced to participate in violent initiation rituals, they were not seen as victims, but as potentially dangerous. Even girls who had been sexually assaulted and forced into “relationships” with gang members were oftentimes described as complicit in their own abuse. Rather than focusing on the persecution and violence that unaccompanied teenagers had experienced, the media spotlight was on migrants who fit more neatly into our idea of a sympathetic victim, such as young children who were torn from their parents’ arms and put into cages as part of President Trump’s controversial family-separation policy.

The following analysis will make a clear distinction between the political discourse about immigrants and asylum seekers, the policies that are put into place, and the effects these policies have on the lives of unaccompanied minors (and other immigrants). While the Trump Administration’s anti-immigrant and anti-asylum rhetoric and his explicit use of racist and dehumanizing language were indeed a historical aberration, evidence from the first three years of the Biden Administration shows that we have not made much progress towards building a “fair and humane immigration system” that protects the human rights, dignity, and well-being of all immigrants. Instead, immigrants continue to be perceived as a threat. This important distinction was made clear in President Biden’s State of the Union address on March 7, 2024. After proclaiming that he “will not demonize immigrants [or] separate families,” President Biden also defended a bill that would give him “new emergency authority to temporarily shut down the border when the number of migrants at the border is overwhelming.”

This article will begin with a brief historical overview of US asylum law and an analysis of three cases involving unaccompanied migrant children who had fled from gang violence in Central America. Their experiences not only illustrate the challenges unaccompanied children encounter in our legal system, but they also shed light on the stigma that is attached to being associated with a gang in any way, even as a victim of forced recruitment or assault. The next section will examine the Trump Administration’s litany of executive orders, precedential court cases, policy guidelines and procedural changes that affected unaccompanied minors. Finally, this article will demonstrate that the Biden Administration has yet to make good on their promise to “heal the wounds inflicted on immigrant communities and restore America’s moral leadership” (Biden Plan).

Unaccompanied Minors and Asylum Law

In the United States, few areas of the law are characterized by as much controversy and outcome variations as the adjudication of asylum claims (Government Accountability Office 2016; Ramji-Nogales et al. 2007). The 1951 Convention Relating to the Status of Refugees, which the US has not signed, and its 1967 Protocol, which the US has ratified, define a refugee as someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” These five narrowly defined categories were a product of their historical moment and subsequent asylum claims have repeatedly challenged the scope and intent of these five grounds.

Most notably, lawyers have tried to expand the interpretation of a “particular social group” to include cases that were not explicitly mentioned in the original definition. Gender- and sexuality-based asylum claims, which include persons fleeing from female genital mutilation, domestic violence, homophobic and transphobic violence, as well as gang-related cases have become increasingly common. Yet despite several landmark victories, applicants continue to face an adversarial system. Asylum seekers are not only expected to prove that they are indeed part of a distinct and recognizable “particular social group,” but since their oppressors are oftentimes private actors – such as spouses, family members, or local gangs – they must establish that the violence that they encountered does indeed amount to persecution. In other words, they need to have sufficient evidence to prove that the government was either unwilling or unable to protect them – which is difficult to do if reporting a crime, such as rape by a gang member, would only make the victim more vulnerable to further abuse.

In 2009, Thomas Boerman, who had served as a trial consultant and expert witness in almost 50 gang-related asylum cases, concluded that “these cases are essentially unwinnable without engaging a skilled expert who becomes familiar with the circumstances of each case.” Even with the help of experts, US courts were oftentimes disinclined to acknowledge that people who refused to comply with the demands of gangs in Central America could be members of a particular social group that had a well-founded fear of persecution. For example, Matter of S-E-G- (2008) found that Salvadoran youths who resisted gang recruitment did not meet the threshold of a “particular social group”. In 2009, Matter of E-A-G- ruled that young persons who resist gang membership lacked social visibility and did not qualify for asylum. Five years later, the courts found that former members of the Mara 18 gang in El Salvador who have renounced their gang membership were not “socially distinct” and were thus ineligible for asylum (Matter of W-G-R- 2014). Without question, winning a gang-related asylum case has always been challenging.

This paper will focus specifically on Unaccompanied Alien Children (UACs), as they are referred to by the US government, children who enter the US without a parent or a legal guardian. Due to their young age and their unique vulnerabilities, UACs have been granted the right to be transferred to the custody of the Office of Refugee Resettlement (ORR) within 72 h, be housed in a child-friendly environment separate from adults, and have their cases heard in a non-adversarial setting. Furthermore, the Flores Settlement (1997) favored a timely release of apprehended minors and required ORR to place them in “the least restrictive setting appropriate to the minor’s age and special need.”

However, this hardly means that UACs are automatically allowed to stay in the US permanently. Through records obtained from the Executive Office of Immigration Review (EOIR) under the Freedom of Information Act, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that, between 2005 and 2014, 101,850 cases involving unaccompanied minors were filed in US immigration courts. Out of the cases that had already been decided by the time of publication, only 18% of UACs were allowed to stay in the US, 52% received a removal order and the rest departed voluntarily (TRAC 2014). The odds of winning a case in immigration court were thus hardly good – even before the election of Donald J. Trump.

Despite these ongoing challenges, the legal landscape once again changed during the Trump Administration and UACs – as well as asylum seekers more generally – began to face even more daunting obstacles. Prior to the election of President Trump, most enforcement efforts had focused on undocumented adults. Legal, political, and media discourses of previous decades not only made “illegal aliens” the scapegoat for various social evils – from unemployment to crime and drug trafficking – but they had also advanced an alarmist story of “invasions” and “open floodgates” (Chavez 2001, Gerken 2013, Gorman 2021, Musalo 2007, Santa Ana 2002). However, most of these negative depictions made a clear distinction between supposedly undesirable undocumented immigrants and asylum seekers who were worthy of our protection. Under Trump, these lines became more blurred and basic human rights were called into question, rights that had been established by international agreements as well as decades of case law.

Even children were not spared from these legal changes and the hateful rhetoric that oftentimes accompanies them. In the past, politicians and the media were usually careful to make exceptions for children. For example, in debates surrounding the DREAM Act and DACA, children were depicted as high achieving, assimilated, and potentially productive members of US society. They were innocent victims who were brought to the US by their parents at a young age and oftentimes without their knowledge or consent. If anyone was to blame, it was their parents. Under Trump, immigrant children – and UACs in particular – are not simply met with suspicion, but they are oftentimes constructed as dishonest, violent, and potentially dangerous (especially if they are male). Furthermore, the rhetoric has become more explicitly racist, sexist, and xenophobic and the COVID-19 pandemic served as a convenient pretext for taking away even some of the most basic protections that asylum-seekers have enjoyed for generations.

Historical Background

The number of UACs entering the United States has fluctuated significantly in recent years. Before 2011, numbers averaged about 6,000 to 7,000 annually and then increased exponentially from 16,067 in FY 2011 to 68,541 in FY 2014. After a brief drop, they reached 76,020 in FY 2019. Due to the COVID-19 pandemic, numbers declined dramatically in 2020, but increased to 146,925 in FY 2021, 152,057 in FY 2022, and 137,275 in FY 2023 (US CBP 2024). Originally, about three quarters of UACs arrived from Mexico. Over the years, though, their numbers have remained relatively stable while arrivals from Honduras, El Salvador, and Guatemala have multiplied. By FY 2023, Mexican nationals made up less than 21% of all newly arrived UACs (US CBP 2024).

While unaccompanied boys outnumber girls, statistical data shows a steep increase in the number of girls in recent years. In a report on UACs from Honduras, the Pew Research Center found that the number of all unaccompanied girls that were apprehended at the US-Mexico border had jumped from 7,339 in FY 2013 to 13,008 in FY 2014, a 77% increase. In comparison, the number of unaccompanied boys had grown a mere 8% in the same period (from 31,420 to 33,924). According to more recent data from the US Department of Health and Human Services (HHS), girls made up approximately 36% of UACs arriving at the border in FY 2022. While more research is needed to understand the root causes of the growing proportion of female UACs, it stands to reason that the high rates of femicide and sexualized violence in Central America are at least contributing factors (Ryo and Humphrey 2021, 190).

Scholars from various disciplines have studied UACs, their motivations, experiences, and legal struggles in the US. Research shows that many unaccompanied minors have suffered significant human rights violations in their home countries. While some researchers make a categorical distinction between UACs who should be regarded as illegal immigrants and those with legitimate asylum claims (Carlson at al., 2012), others argue that the lines are blurry and that many children “arrive in the context of ‘mixed migration’ movements” (UNHCR 2014, 3; see also Center for Gender and Refugee Studies 2014; Workman 2004).

UACs come to the US for a variety of reasons and their stories are “complex and multifaceted and in many cases included both protection-related and non-protection-related concerns” (UNHCR 2014, 6). For instance, while many children embark on the dangerous journey to the US in search of a better life or to be reunified with their parents, they also flee their home countries because of an increase in organized crime, especially gang violence, violence in the home, extortion, rape and threats of rape and forced prostitution. Yet despite this complexity and the high likelihood that a UAC has a valid need for protection, a UNHCR report found that “when questioned by officials of a foreign country about situations or experiences that may be difficult or traumatic to discuss, children may provide answers that are simple, ‘safe’ and more easily repeated” (UNHCR 2014, 21). Without the help of a lawyer, even the most deserving UACs might thus be falsely classified and deported as illegal immigrants and not get a chance to raise international protection needs.

Countless legal scholars have argued that the US immigration system fails to adequately protect UACs who might be eligible for political asylum or other forms of relief because they are unable to access legal counsel. To successfully distinguish between children with valid asylum claims and those who could be safely repatriated, indigent UACs should have the right to legal counsel at the government’s expense (Bhabha 2000; Center for Gender and Refugee Studies 2014; Finkel 2001; Gradill 2014; Hill 2011; King and Silvestri Hall 2020; Shea 2014; Women’s Refugee Commission 2009; Wong 2013). However, since deportation procedures are classified as a civil matter, UACs are not given the same procedural safeguards and due process as defendants in criminal proceedings.

Ample statistical evidence indicates that UACs without legal representation stand a far worse chance of being allowed to stay in the United States. Linda Kelly Hill found that, despite an increasing number of pro bono projects, 60% of all UACs lacked legal representation in 2011 and few unrepresented children petitioned successfully on their own behalf. An earlier study by Jaqueline Bhabha and Susan Schmidt found that the number of successful asylum applications by UACs had declined significantly over the last decade. In 1999, 63% of all child applicants were granted asylum, by 2006, “48% of child applicants with legal representation were granted asylum, compared to 27% without legal representation” (Bhabha and Schmidt 2006, 143). The latest data shows that this gap has widened even more in recent years. In their “Humanitarian Call to Action,” which supports free legal representation for minors in deportation proceedings, the American Bar Association found that “represented children have a 73% success rate in immigration court, as compared to only 15% of unrepresented children” (2016, 1). Five years later, data from the Congressional Research Service (CRS) showed that immigration judges are 100 times more likely to grant legal relief to unaccompanied children with representation than to those without it (2021a, 16). While it is important to acknowledge that these numbers might be skewed because pro bono lawyers choose to represent children with stronger claims, the statistics also show that it is almost impossible for children to win a case without a lawyer. Only 13 out of 19,326 children (less than 1%) that appeared before an immigration judge without a lawyer between October 1, 2017 and March 31, 2021 were able to obtain some form of immigration relief (CRS 2021b, 16).

UACs in the Asylum System

The central policy challenge of the US asylum system, as a report by the Migration Policy Institute highlights, “is how to provide protection for genuinely vulnerable migrants while restricting the admission of unauthorized immigrants who do not have valid humanitarian claims” (Rosenblum 2015, 1). Yet while this tension between humanitarian protection and enforcement affects all unauthorized entries by adults as well as children, the ways of handling these cases vary dramatically. Since the enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, immigration law makes a distinction between migrants from contiguous and non-contiguous countries. Rather than putting unauthorized Mexican (or Canadian) migrants into expedited removal proceedings, they are offered the opportunity to be voluntarily repatriated after 48 h. In other words, if a Mexican minor does not immediately disclose any concerns when questioned, s/he is oftentimes “voluntarily” repatriated in a matter of days. While this system can be beneficial over deportation, especially since it is not automatically accompanied by a 5- or 10-year ban to re-enter the US, it gives potentially traumatized children precious little time to gain trust and disclose their concerns.

UACs from non-contiguous countries, on the other hand, are to be placed into formal removal proceedings under INA § 240. Rather than being quickly repatriated, most minors from Honduras, Guatemala, and El Salvador, the three major sending countries, enter a lengthy process to determine whether they have a valid claim for protection. In addition to asylum proceedings, which are the primary focus of this article, UACs might also be eligible for Special Immigrant Juvenile Status (for children who were abused, neglected, or abandoned by a parent), protection under the UN Convention against Torture (CAT), a U-Visa (for victims of a serious crime), or a T-visa (for victims of severe forms of trafficking). However, navigating this complex legal landscape without a lawyer is nearly impossible for children who are oftentimes traumatized, have little formal education and almost no knowledge of the English language (Bucci 2004; Finkel 2001; Kerwin 2005; Shea 2014; Wong 2013; Workman 2004).

Children who apply for asylum must adhere to the same basic rules as adult applicants and prove that they faced persecution because of one of the five protected grounds. However, there are some important procedural differences. The former Immigration and Naturalization Service (INS), which was dismantled and reorganized under the PATRIOT Act, highlighted the unique vulnerability of unaccompanied children in a Memorandum published in 1998. This Memorandum “recognizes that children may not present their cases in the same way as adults and suggests child-sensitive procedures intended to help Asylum Officers interact more meaningfully with the child during the asylum interview” (INS 1998, 4). Ultimately, asylum officers need to pursue the best interest of the child and assess whether the harm they suffered was serious enough to qualify as persecution – even if it is relatively less than that of an adult. The Memorandum also grants asylum officers greater leeway in weighing subjective and objective elements (Carr 2006). Even if a child does not understand why they were targeted, that “does not necessarily mean that a nexus between the harm and a protected ground does not exist” (INS 1998, 16). In other words, it is up to the judge to determine whether the UAC faced persecution because of their race, religion, nationality, political opinion or, most commonly, their membership in a particular social group.

Furthermore, UACs are granted access to the affirmative asylum process and given an opportunity to speak to an asylum officer in a less adversarial setting. Cases are decided at the Asylum Office level without a written opinion. If one of the parties appeals, the case is moved to the Board of Immigration Appeals (BIA). Most BIA cases are unpublished and do not have precedential value. Even though an increasing number of asylum cases by UACs have made it into the Federal Courts of Appeals, there is not much precedent, especially in cases that involve gender-based claims and gang violence. It is thus hardly surprising that there is very little consistency in the outcomes of these cases.

Gender, Gang Violence, and Asylum

Asylum claims – as well as claims for other forms of immigration relief – are gender-specific and UACs have oftentimes experienced a different kind of harm depending on their gender identity. A 2014 report by the UNHCR found that boys commonly fled forced recruitment into gangs as well as gang violence more generally, while girls were more likely to experience rape and sexual violence as well as violence in the home. Gender-specific differences persist even when we limit our analysis to gang-based claims. Lisa Frydman and Neha Desai found that “Central American gangs replicate the patriarchal norms, subjugation of women, and violence against women that is rife throughout Guatemala, El Salvador and Honduras” (2012, 9). Women and teenage girls who have been pressured to join a gang are oftentimes raped by members as a form of initiation. Those who refuse to join frequently meet the same fate and are kidnapped and sexually assaulted by multiple men. Survivors are acutely aware of the government’s abysmal response rates to both gang violence and violence against women and oftentimes conclude that they have no choice but to flee the country.

While a comprehensive analysis of gang-related asylum claims is beyond the scope of this article, I want to briefly discuss two cases that illustrate the gender-specific legal challenges that asylum seekers face. The first example involves a young woman from El Salvador. According to court records, Rivera Barrientos was approached by members of MS-13 in August 2005 and refused their efforts to recruit her into the gang. After several months of harassment, five gang members cornered her while she was on her way to the bus station.

One of them put a knife to her throat and they forced her into a car, blindfolded her, and drove her to a field. After dragging her out of the car, the gang members asked Rivera Barrientos if she had changed her mind, and she told them she had not. The gang members then began kissing her. When she struggled to escape, one of them smashed her in the face with a beer bottle. Three of the gang members then brutally raped her. Afterwards, they told her that she had to join the gang, and that if she talked to the police they would kill both her and her mother. Rivera Barrientos did not report the rape because she feared the gang members would follow through with their threats, and she did not believe the police could protect her. (Rivera Barrientos v. Holder 2011)

In the days after this attack, gang members showed up at her residence on five separate occasions. Fearing for her own life and the life of her mother, Rivera Barrientos fled to the United States. While the court found her testimony credible, they ruled that she was ineligible for asylum because her opposition to gangs did not count as a political opinion and because she was not a member of a cognizable social group. Citing Matter of S-E-G-, the court ruled that the proposed group was potentially too large and too broadly defined and thus didn’t qualify as a cognizable social group. To meet the legal standard, a cognizable social group must “have particular and well-defined boundaries, and […] possess a recognized level of social visibility” (Matter of S-E-G- 2008).

In short, Rivera Barrientos is portrayed as a credible, sympathetic victim of a brutal attack. The court doesn’t doubt that she has suffered past violence, but they do fear that granting her petition could potentially “open the floodgates” to countless asylum claims from other female victims of gang violence. However, evidence from other countries has shown that “the acceptance of gender asylum does not give rise to a skyrocketing number of claims” (Musalo 2007, 120). Karen Musalo found that the number of gender-based claims in Canda declined in the first seven years after the publication of their 1993 Gender Guidelines. Since most women with legitimate claims of gender-based persecution come from countries where they have few rights and little access to money, they are unable to travel to another country.

In contrast, male asylum seekers who are fleeing gang violence are frequently met with suspicion and are seen as liars and potential perpetrators. One case that illustrates such a verdict is Matias-Cifuentes v. Whitaker (2018). Roderico Matias-Cifuentes entered the United States as an unaccompanied minor at the age of 11. Seven years later, in October 2010, the Department of Homeland Security (DHS) served him with a notice to appear in removal proceedings after he was arrested for operating a vehicle under the influence. Matias-Cifuentes applied for asylum at that point. According to his statement, members of MS-13 had killed an uncle and a good friend and beat him when he refused to join. He eventually agreed to join but ran away when he realized that he was expected to kill a person, the father of a young child, as an initiation ritual. His older brother, who also fled to the United States, disappeared (and was most likely murdered by MS-13) after he was deported back to Guatemala. In addition to denying his petition (mostly due to the fact that he missed a filing deadline), the immigration judge also found that “Matias-Cifuentes was not a credible witness based on his demeanor, internal inconsistencies in his testimony, and inconsistencies between his testimony and the record evidence” (Matias-Cifuentes v. Whitaker 2018). While it is impossible to judge his credibility based on the written records alone, it is important to note that the defendant was only 11 years old when he fled Guatemala all by himself. Based on his young age, the trauma caused by the aforementioned incidents and the fact that it had been 7 years since the events occurred, it is hardly surprising that his story has some gaps and inconsistencies.

To make matters worse, an unaccompanied minor’s gang affiliation can be used as justification for placement in a secure facility, even when the minor was coerced to join. In a US District Court case from 2017, an unaccompanied minor from Honduras who was housed at the Shenandoah Valley Juvenile Center (SVJC) petitioned to be released to his mother who had moved to the US when her son was only five years old. After his mother placed him in the care of relatives, O.G.L.S. endured years of severe physical abuse and neglect. By the time he was 12 years old, O.G.L.S. lived mostly on the streets and “was often dependent on gangs for both protection and daily necessities” (Dilcia Santos v. Timothy J. Smith 2017). Court records show that “the gang exerted significant coercion to get O.G.L.S. to join and stay in the gang, including physical violence against him and severe physical violence perpetrated against others in his presence” (Dilcia Santos v. Timothy J. Smith 2017). He was eventually forced to sell drugs. At the age of 14, O.G.L.S. made his escape to the US and was transferred to ORR custody after he was apprehended by border patrol and determined to be an unaccompanied minor. Once ORR learned of his gang involvement, he was first placed into a staff-secure facility. During his stay, O.G.L.S. was involved in several physical altercations and became a victim of assault by others. All charges against him were later dismissed in their entirety, but the incident reports and a false confession to violent crimes became part of his ORR record and he was soon transferred to a secure facility, the most restrictive form of housing for UACs.

Meanwhile, his mother had filed a reunification application and, after a home study and a psychological evaluation were conducted, the final report recommended reunification. Yet despite this clear directive and the Flores Settlement’s decree to release a minor to family as soon as possible, “ORR did not issue a decision or respond to Ms. Santos’s request for reunification until May 31, 2016, more than 17 months after her petition was filed, and more than 14 months after the home study was completed” (Dilcia Santos v. Timothy J. Smith 2017). In their denial letter, ORR claimed that O.G.L.S. “poses a safety risk to the community.” Multiple requests for reconsideration were denied and by the time the District Court issued their decision, O.G.L.S. had been in custody for 29 months. Ultimately, the court concluded that “O.G.L.S.’s immigration status does not have any bearing on his constitutional right to family unity” and ruled that his due process rights had been violated by the lengthy delays in processing his mother’s petition for reunification and ordered his immediate release (Dilcia Santos v. Timothy J. Smith 2017).

While it is indisputable that O.G.L.S. was involved in several altercations while in ORR custody, the reason behind these incidents is certainly debatable. In contrast to ORR’s insistence that O.G.L.S. was a violent gang member and a threat to others, the court suggests that these incidents might have been the direct result of his extended confinement in a highly restrictive facility. Records show that his behavior and his mental health didn’t start to deteriorate significantly until he had been in custody for over a year. Furthermore, psychological reports “refer to his behavior as likely being attributable in part to his placement at SVJC and his being kept away from his mother for such a long time” (Dilcia Santos v. Timothy J. Smith 2017). In other words, there is a chance that O.G.L.S. might not have had any behavioral issues if he had been released to the care of his mother in a timely fashion.

While these three examples are not a representative sample of cases involving unaccompanied minors who had fled from gang violence, they offer a glimpse into the logic that is being used to detain and process UACs. For boys and young men, being affiliated with a gang is commonly used as a mark against them, regardless of their age and the circumstance of their recruitment. They are portrayed as inherently dangerous and not credible. Due to the long immigration court backlog, they do not have the benefit of standing in front of a judge as potentially more sympathetic 11- or 14-year-olds, but they are young adults by the time their case is finally decided. Female victims of sexual violence and threats of sexual violence by gang members face different obstacles. While they are more likely to be deemed credible and are met with more compassion, their claims are denied because their experience is far too common and because judges fear that their verdict might “open the floodgates.”

The Trump Administration

The 1951 Refugee Convention and its 1967 Protocol have inspired the development of many asylum systems around the world. The core principle is non-refoulement, a rule of customary international law that prohibits a country from returning someone to a place where their life or freedom would be at risk. While this principle doesn’t force the United States to accept everyone who claims to fear persecution in their home country, the US has developed an asylum system that evaluates every claim on its own merit. Certain cases – such as those involving gang violence and gender-based violence – are difficult to win, but everyone who is determined to have a “credible fear” of persecution in an initial interview will at least get their day in court. With the election of Donald J. Trump, however, even some of these basic protections have been called into question.

President Trump’s anti-immigrant and anti-asylum agenda, which had already been propagated on his campaign trail, was put into action immediately after his inauguration. During his first week in office, President Trump signed three executive orders (Exec. Order No. 13,767, 13,768 and 13,769, 2017) which had a devastating effect on many asylum seekers. They greatly expanded the number of asylum seekers that were subject to detention, they further limited their ability to appeal asylum decisions and expanded the use of “expedited removal” orders, and they criminalized those who had entered the country without proper documentation, even if they had a valid asylum claim – a clear violation of Article 31 of the 1951 Refugee Convention.

Furthermore, our former president’s rhetoric equated asylum seekers with “illegal aliens,” drug traffickers, gang members and violent criminals who attempt to obtain asylum through false claims. For example, on November 1, 2018, President Trump asserted that “the biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country (Trump 2018).” These people are not victims of persecution, but, quite to the contrary, they are supposedly “tough people, in many cases. A lot of young men, strong men. And a lot of men that maybe we don’t want in our country.” Five months later, during a Roundtable on Immigration and Border Security in Calexico, California, President Trump went a step further. In addition to once again claiming that “some of these asylum people; they’re gang members,” he went on the record suggesting that we needed to stop accepting asylum seekers altogether.

It’s a colossal surge and it’s overwhelming our immigration system, and we can’t let that happen. So, as I say, and this is our new statement: The system is full. Can’t take you anymore. Whether it’s asylum, whether it’s anything you want, it’s illegal immigration. We can’t take you anymore. We can’t take you. Our country is full. Our area is full. The sector is full. Can’t take you anymore, I’m sorry. Can’t happen. So turn around. That’s the way it is. (Trump 2019)

This alarmist rhetoric about “caravans,” “stampedes,” “open floodgates,” and “colossal surges” set the stage for far-reaching new asylum restrictions. The following analysis will focus on three specific strategies that the Trump Administration used in their attempt to permanently alter the US asylum system: (1) Having the Attorney General assign cases to himself; (2) Publishing “rules” that impose new restrictions; and (3) Using arcane Public Health Policies to justify the expulsion of asylum seekers. In many ways, these measures were as much about the spectacle that they created as about actual substantive changes, and it was hardly surprising that some of them did not stand up in court. However, this doesn’t mean that these attempts at altering the US asylum system were failures. Quite to the contrary, they served a political purpose.

What is perhaps even more alarming though is the fact that President Biden, despite campaign promises to “end Trump’s detrimental asylum policies,” kept several of these policies in place and has even attempted to enact new restrictions that could put unaccompanied minors at risk. One recently introduced bill, the Defending Borders, Defending Democracies Act (H.R. 7372), is of particular concern in this context. On January 26, 2024, President Biden opened his Statement on the Bipartisan Senate Border Security Negotiations with the following two sentences: “For too long, we all know the border’s been broken. It’s long past time to fix it.” While this doesn’t rise to the level of alarmism we saw during the Trump Administration, President Biden’s proposed remedy is certainly reminiscent of Trump-era policies like the “Remain in Mexico” Program. Not only would the bill enable him to hire more border patrol agents and install more surveillance technology at the US-Mexico Border, but it would also give him the authority to temporarily shut down the border when it “becomes overwhelmed.” Migrants would have to wait in Mexico. The bill contains inadequate exceptions for unaccompanied children and the bill, if passed, “would ensure those children’s return to trafficking, sexual abuse, and other harm” (KIND 2024).

Interference by the Attorney General

Since immigration courts are not technically part of the judicial branch but are directly under the control of the Department of Justice, the Attorney General can overrule decisions by the BIA. In spring 2018, Attorney General Jeff Sessions decided to take advantage of this technicality and assigned asylum cases to himself for review. Session’s rulings had precedential value and would thus have a far-reaching effect on future asylum cases.

One of these cases, Matter of A-B- (2018), involved a woman who had fled El Salvador to escape an extremely violent relationship. After 15 years of physical and sexual abuse and obtaining several protective orders, which went unenforced, A-B- was granted a divorce and moved to another city. This resulted in escalating violence and threats on her life from her ex-husband and his police officer brother. A-B- eventually decided that she needed to flee the country if she wanted to survive. The immigration judge who originally heard her case denied her asylum claim, but this decision was overruled by the BIA. On March 7, 2018, Attorney General Sessions assigned the case to himself. He not only found that A-B- was ineligible for asylum in the US, but he also overturned the legal precedent that had been set in Matter of A-R-C-G- (2014). In his opinion issued on June 11, 2018, Sessions ruled that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum” (Matter of A-B-, A.G. 2018, 320).

On December 3, 2018, Acting Attorney General Matthew Whitaker followed in his predecessor’s footsteps and directed the BIA to refer another asylum case to him for review. Matter of L-E-A- (2019) involved a man from Mexico who had been targeted repeatedly by members of a local gang, La Familia Michoacana, because his father had refused to let gang members sell drugs in his store. By the time the decision was issued, Attorney General Whitaker had already been replaced by William Barr, who overturned the BIA’s decision to grant asylum. According to Barr, L-E-A- was not a member of a cognizable and socially distinct “particular social group”. The Trump Administration argued that these decisions were meant to restore efficiency to a backlogged immigration court system and allow for swift, large-scale denials of asylum claims that were based on “private violence,” such as a gang violence.

Even though the referrals of BIA cases to the Attorney General were widely criticized by President Trump’s political opponents, the AGs under the Trump Administration were neither the first nor the last to take advantage of this power. The scholarly opinion of this practice is divided. Some legal scholars regard the Attorney General’s referral powers as “a potent tool through which the executive branch can lawfully advance its immigration policy agenda” (Gonzalez and Glen 2016, 920). They argue that it is a particularly useful tool during a divided Congress and deem it superior to regulating immigration through executive orders. Others are much more critical of this referral and review mechanism and claim that its frequent usage “has interrupted the development of immigration law by the judiciary, altered legislative standards, and restructured the agency’s own application of immigration policy, often with partisan interest in mind” (Shah 2017, 153). Without a doubt, the review mechanism is a powerful tool. It is also a tool that the new Attorney General Merrick Garland didn’t hesitate to utilize when he vacated several Trump-era immigration decisions (Matter of Castro-Tum (2018) and Matter of A-C-A-A- (2021)). As Fatma Marouf cautioned though, its usage during the Trump – and, I would add, the Biden – Administration “raises pressing questions about the appropriateness of making decisions on political rather than legal grounds” (2019, 743).

Publication of the “Interim Final Rule” and the “Final Rule”

To make the rules for asylum seekers even stricter, the EOIR announced a list of “Asylum Eligibility and Procedural Modifications” in July 2019. This so-called “Interim Final Rule” (IFR) made one substantial change to the US asylum system: Anyone who travels through a third country on their way to the US would have to apply for asylum in that country first. If they fail to do so, they would be ineligible for asylum in the US. According to the EOIR, this restriction was a reaction to the “large number of meritless asylum claims” which place “an extraordinary strain on the nation’s immigration system” (Asylum Eligibility and Procedural Modifications 2019, 33,831). The Southern Poverty Law Center, the American Civil Liberties Union, and the Center for Constitutional Rights filed a federal lawsuit challenging these new restrictions (East Bay Sanctuary Covenant v. Barr 2020). This lawsuit was supported by Amicus Briefs from immigration law professors, former National Security Officials, different non-profits as well as the Office of the United Nations High Commissioner for Refugees (UNHCR). According to the UNHCR, the IFR “significantly restricts access to asylum in a way that is at variance with two international law protections: the right to seek asylum and the principle of non-refoulement.”

Kids in Need of Defense (KIND) focused their analysis on children and described how “the IFR will exacerbate the acute dangers faced by already vulnerable unaccompanied children, who are particularly ill-equipped to navigate asylum processes” (2019, 4). KIND was concerned that Guatemala’s child welfare system is “not safe” and “utterly inhumane” and lacks the capacity to process thousands of UACs (2019, 17). Furthermore, it is simply unrealistic that children fleeing from gangs could safely relocate in another country in Central America. MS-13 and Mara 18 have a region-wide reach and could easily locate and harm a child in Mexico or Guatemala. On July 24, 2019, the court granted the motion for a preliminary injunction, and effectively prevented the government from implementing the IFR.

On December 11, 2020, the EOIR issued yet another set of “Asylum Eligibility and Procedural Modifications.” This so-called “Final Rule” needs to be read against the backdrop of previous attempts to dismantle asylum protections and alter nearly every step of the process. In many ways, the Final Rule represents the culmination of a presidency that had attempted to permanently alter the asylum system through executive orders, agency rulemaking, referring asylum cases directly to the Attorney General and, perhaps most importantly, by vilifying and criminalizing asylum seekers and unaccompanied minors every step of the way.

Notably, the Final Rule was announced after President Trump had lost the election and it was supposed to go into effect mere days before the Biden Administration took office (i.e., well short of the 60 days required by the Congressional Review Act (5 U.S.C. § 801(a)(3)). Its significance is thus largely symbolic and none of the restrictions ever went into effect. However, the mere fact that these proposals made it to this stage and were officially published in the Federal Register represents a frightening attack on human rights and humanitarian protections that have been in place for almost 70 years.

The Final Rule once again contained a third country-transit bar. In response to public concerns about the effect that this bar would have on unaccompanied minors, the new notice claims that “this rule may encourage families with children and UAC to avoid making a long, arduous, and extremely dangerous journey that brings with it a great risk of harm that could be avoided if they were to more readily avail themselves of legal protection from persecution or torture in a third country closer to the family’s or child’s country of origin.” Not only does this observation ignore the “great risk of harm” that gangs represent in those “safe” third countries, but it is also troubling that the EOIR implies that this bar has the best interests of UACs in mind. Nothing could be further from the truth. This is also evident in the other restrictions contained in the final rule.

For example, the Final Rule would have altered credible fear and reasonable fear interviews and adjudications and potentially barred even more people from making it past this initial hurdle. As research has shown, many children are reluctant to disclose their experiences with gang violence or sexual- or gender-based violence due to shame, trauma, and fear (KIND 2017; Kohli 2006). Expecting them to trust a stranger and immediately talk about some of the most traumatic events in their life is unrealistic at best. Instead, “children need to first feel safe and to have an established relationship with a trusted adult before they are able to discuss experiences of sexual violence” (KIND 2017, 13). Especially for unaccompanied minors, it is essential that the initial credible fear threshold remains low and that they will get a chance to present their case in front of an immigration judge, preferably with the help of an attorney. In short order, the Final Rule was challenged in three lawsuits (Human Rights First v. Wolf (2020), Pangea Legal Services v. DHS (2021) and Immigration Equality v. DHS (2021)) and never went into effect.

Yet even though the Biden Administration has aimed to distinguish itself from the inhumane Trump-Era policies, several recent proposals are reminiscent of the aforementioned Final Rule. In response to the end of Title 42 and the anticipated increase in migrants at the Southwest border, the Biden Administration published its own Final Rule to severely restrict access to asylum (88 Federal Register 3134, May 16, 2023). The “Circumvention of Legal Pathways Rule” not only includes a transit ban for applicants who have travelled through a “safe” third country, it also imposes an entry ban for any applicant who does not have a visa or a scheduled appointment through the CBP One app. Just like his predecessor’s Final Rule, this one was immediately challenged in court. On July 25, 2023, Judge Jon Tigar in the Northern District of California vacated the asylum transit ban because it was arbitrary, capricious, and not procedurally valid (East Bay Sanctuary Covenant v Biden 2023).

Record-breaking border crossings in late 2023 turned immigration into a political tinderbox during a contentious primary season and put additional pressure on the Biden Administration to appear tough on immigration. Despite the legal defeat of the “Circumvention of Legal Pathways Rule”, Biden’s team negotiated a bipartisan bill that he described as “the toughest and fairest set of reforms to secure the border.” The Defending Borders, Defending Democracies Act (H.R. 7372) expects everyone – including severely traumatized unaccompanied minors – to tell the first immigration officer they encounter that they are in fear for their life or freedom and/or could be subjected to torture if they were to be expelled. If they fail to do so, they will not get a chance to talk to an asylum officer and will instead be expelled immediately. Furthermore, the bill seems to erode other protections for UACs. Section 105 states that “no Federal funds may be used to transfer or otherwise move an alien in the custody of the Federal Government.” Since this would presumably include transfers to ORR shelters, it would be in direct violation of the Flores settlement. While this bill has stalled in Congress and would most likely be challenged in court if passed, it is still indicative of the dramatic difference between President Biden’s pro-immigrant campaign rhetoric and his restrictive reform proposals.

COVID-19 Restrictions

The Public Health Service Act of 1944, 42 U.S.C. 265 (“Title 42”) was designed to give health authorities the right to impose quarantine restrictions on people entering the United States during a pandemic. This law was designed to apply to everyone, US citizens, legal permanent residents, and other non-citizens alike. At no point did Title 42 mention deportations or suggested applying the rule only selectively to certain groups of people. This was about to change when the Trump Administration implemented the Title 42 Process during the COVID-19 pandemic and brought the adjudication of asylum claims to a grinding halt.

While entry restrictions appear to be a perfectly reasonable response to a deadly worldwide pandemic, evidence suggests that the planning for implementing such a policy began well before COVID-19 was even discovered. On May 3, 2020, the New York Times reported that Stephen Miller, the president’s chief adviser on immigration, had repeatedly looked for evidence of contagious diseases in immigrants as a pretext for closing the border to migrants and asylum seekers from Central America (Dickerson and Shear 2020). He tried to execute Title 42 during a brief mumps outbreak in detention facilities in 2019 and then once again considered such a move to contain the spread of the flu. COVID-19 gave these ideas legitimacy and the White House closed the border to almost all migrants and asylum seekers within days of the first confirmed case in the US.

On March 20, 2020, the Centers for Disease Control (CDC) issued an “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists,” thus setting the implementation of the Title 42 Process into motion. However, rather than imposing restrictions on everyone entering the US from a foreign country where COVID-19 is present, the order only applies to one group of people: immigrants who arrive without a valid visa and would thus be housed in congregate settings. While US citizens and legal permanent residents can freely return to the US, migrant families, unaccompanied minors, and asylum seekers are turned away at the border, oftentimes without conducting required credible fear screenings and without determining if returning them to their home country could be dangerous and potentially deadly. In his testimony before Congress, Mark Morgan, the Acting Commissioner of CBP, confirmed that over 2,000 UACs had been deported under the Title 42 Process between March and June of 2020. By the time Title 42 expulsions of minors were halted in November 2020, more than 13,000 UACs had been expelled (ACLU 2020).

While there is little doubt that Title 42 put many asylum seekers at risk, we can question whether it served a legitimate public health interest. According to the Trump Administration, housing undocumented immigrants and asylum seekers in notoriously crowded detention facilities puts them at a higher risk of infection. This is undoubtedly true. However, this is also based on the false assumption that people should be contained until their court hearing (Harris 2021). Rather than presenting expulsion as the only possible solution, there are certainly less restrictive means that would significantly reduce the risk of COVID-19 infection.

Not surprisingly, the legality of the Title 42 Process was challenged in several court cases. One such case is G.Y.J.P. v. Wolf (2020). The plaintiff is a 13-year-old girl from El Salvador who fled to the US after gang members began threatening her life. Even though she informed officials that she feared for her life, she was returned to El Salvador without a hearing. Another case (J.B.B.C. v. Wolf 2020) involves a 16-year-old boy from Honduras who was forced to flee after he witnessed a gang member murder a young man and became concerned that the gang would try to target him next. He fled to the US to reunite with his father. In a Motion Hearing on June 24, 2020, Jean Lin, a DOJ official, argued that we shouldn’t focus on J.B.B.C. and the risks that he might face if he was deported because “the efficacy of the order will be compromised if we start chipping away looking at each and every individual” (45). This callous statement not only shows a remarkable disregard for human life, but it also represents a clear violation of the principle of non-refoulement.

In response to a class action suit which challenged the legality of using Title 42 to restrict the entry of unaccompanied minors (P.J.E.S. v. Wolf, 2020), the US District Court for the District of Columbia ruled that border authorities did not have the right to turn away children. On November 18, 2020, the court thus halted the expulsion of UACs under Title 42. In P.J.E.S. v. Wolf, the plaintiff successfully demonstrated that minors are entitled to special protections – such as a full hearing, a speedy transfer into an ORR facility, and a release to a family member – and that the application of Title 42 “to unaccompanied children is patently arbitrary and capricious from a public health standpoint” (P.J.E.S. v. Wolff). The Class Action Complaint states that this is not a public health measure, but that “the current Administration has repeatedly and publicly stated that restricting access to asylum, as well as eliminating the TVPRA, are among its key immigration objectives.” Using Title 42 was nothing more than a convenient excuse for furthering that goal, especially since large numbers of US citizens and Legal Permanent Residents were still allowed to enter the US during the pandemic.

Contrary to his public criticism of the Trump Administration’s use of inaccurate public health concerns, President Biden not only hesitated to overturn Title 42, but he vigorously defended it as medically necessary (Ellison and Gupta 2022, 7). In a rare public criticism of the US, UN High Commissioner for Refugees Filippo Grandi appealed “to the government of the United States to swiftly lift the public health-related asylum restrictions.” By the time Title 42 finally ended in May 2023, it had been used to expel almost 2.8 million immigrants. More than 80% of these expulsions happened after Biden took office.

Research has shown that the prolonged use of Title 42 has resulted in nearly 13,000 documented cases of kidnappings, rape, and violence. It has also led to dramatic changes in migration patterns. Sarah Rosen, for example, demonstrated that migrant families who used to voluntarily turn themselves in to border agents “are now attempting to enter the United States undetected by hiring human smugglers, widely known as ‘Coyotes’” (2022, 253). Not only does this make the journey more expensive, but it also makes it more dangerous and increases the risk of being robbed, (sexually) assaulted, or even dying. Some observers have also shown that the selective enforcement of Title 42 has led to an increase in unaccompanied minors. By expelling family units but allowing UACs to enter, some desperate parents have decided to self-separate and send their children to the US on their own (Congressional Research Service 2021a; Sands 2021). Furthermore, the increase in unaccompanied minors has led to a mounting need for “influx shelters [which] are notoriously known for their poor internal conditions” (Medina 2022). Images of crowded shelters with young children under foil blankets, which became synonymous with former President Trump’s notorious family separation policy, are once again a reality for unaccompanied children.

Conclusion

After the 2020 presidential election, many immigration and asylum advocates breathed a sigh of relief. Even though the US immigration and asylum system were not a main topic in presidential debates, the Biden-Harris Administration had indicated their commitment to restoring asylum protections. In the “Biden Plan,” Joe Biden vowed to put an end to President Trump’s “unrelenting assault on our values and our history as a nation of immigrants” and to “reassert America’s commitment to asylum-seekers and refugees.” He also pledged to end family separation and prolonged detention, restore asylum eligibility to victims of gang violence and gender-based violence, suspend the so-called “Remain in Mexico” Program, and reduce backlogs by doubling the number of immigration judges, court staff and interpreters within the first 100 days in office.

Not surprisingly, this plan proved difficult to put into action in a matter of 100 days. With that being said, the Biden Administration has indeed ended some of the most reprehensible Trump-era policies and overturned several precedent-setting decisions. Perhaps most importantly for victims fleeing gang violence, the new Attorney General Merrick Garland swiftly vacated Matter of A-B- (2021) and Matter of L-E-A- (2021) after referring the cases to himself for review. While these reversals will help victims of gang- and gender-based violence, the practice of assigning cases to the Attorney General to overrule the BIA also highlights how vulnerable the asylum system is to the political agenda of the executive branch.

While President Biden does not use the openly racist and xenophobic language of the Trump Administration, his enforcement actions and policy initiatives have disproportionately targeted black and brown migrants (Sherman-Stokes 2021; Rosen 2022). What is particularly concerning to many immigrant advocates is the President’s shift from his promise to build a more humane immigration system while he was on the campaign trail to his recent efforts to employ many of the same policies that he had previously criticized. In February 2024, more than 150 international, national, state, local, and faith-based organizations implored President Biden in an open letter “not to emulate [his] predecessor and extremist legislators” and emphasized that “U.S. border policies need not be defined by cruelty and punishment.”

While it is beyond the scope of this article to offer a comprehensive solution, I would like to outline some potential steps towards developing more compassionate and effective policies. One deeply concerning issue in the context of this article is the attempts both the Trump and the Biden Administration have made to prevent people from applying for asylum and getting a full hearing. This is particularly problematic for traumatized children who are unlikely to meet a high burden of proof during the credible fear screening (UNHCR 2014, Center for Gender and Refugee Studies 2014). Rather than immediately expelling children to a country that is potentially unsafe and thus violating the principle of non-refoulement, children need time and help to prepare an asylum case that accurately depicts their experiences and that allows judges to determine who has a genuine need for protection. Unaccompanied minors must have access to legal representation and, ideally, to expert witnesses that can testify to the conditions in their home countries and put the child’s experiences and behaviors into a larger societal context (Kannam 2023).

Another important concern involves policy proposals that are in violation of previously agreed upon protections. When it comes to unaccompanied minors, the Flores Settlement laid out basic protections and appropriate standards of care when it was enacted in 1997. Children must be housed in age-appropriate settings and have access to sufficient food, clean water, and necessary medical care. The Flores Settlement also requires ORR to release children to a parent or adult relative without delay. As the case of O.G.L.S. and countless stories of appalling living conditions in shelters illustrate, many of these basic protections still go unenforced and neglect and abuse from border patrol agents and staff in ORR shelters is common (Bartholomew et al. 2022). Records also show that the conditions in facilities for children have further deteriorated in recent years. The Biden Administration has not only reopened several controversial facilities, such as an emergency shelter in Carrizo Springs, Texas; they have also housed migrant teens in substandard conditions in a tent camp at the Fort Bliss US Army Post as well as a former work camp in Pecos, Texas. The Defending Borders, Defending Democracies Act (H.R. 7372) seems to call even the most minimal protections into question when it prohibits the use of any federal funds for the transfer of any “alien.” Presumably, this would mean that unaccompanied minors would remain in adult facilities.

Legal scholars have shown that the President has considerable power over immigration and that “the inauguration of a new President can bring with it remarkable changes in immigration policy” (Cox and Rodriguez 2009, 464). Perceived crises can and have been used to legitimize the Executive’s actions. This power has been used to create legal avenues for more immigrants (e.g. the Bracero Program) and to restrict or prohibit the entry of certain – seemingly dangerous – immigrants (e.g. President Trump’s Muslim ban). The Trump Administration took full advantage of these powers and has used many unconventional means of influencing immigration adjudication. Scholars have questioned whether his interferences, which include politicized training materials for asylum officers and the politicized appointment of immigration judges, rose to the level of executive overreach (Marouf 2019, 485). Recent developments show that President Biden might be taking a page from the same playbook.

Even if we think that the immigration measures that have been taken by the last two presidents are well within their power and do not rise to the level of executive overreach, we should question whether it is wise to regulate immigration through executive orders, “Final Rules,” and emergency measures. I contend that it is time to explore ways to reign in the President’s power over immigration adjudication. It is also time to shift the public discourse about immigration from the supposed necessity to respond to yet another crisis with ever more drastic enforcement measures and a further militarization of our Southern border, to an exploration of alternative measures. The construction of both literal and figurative obstacles does not stop migration, it just makes it more dangerous. Rather than spending even more money on a border fence, detention facilities, and lengthy court proceedings, we should devote resources to creating a functioning asylum system for the 21st century and to new legal avenues for immigrants. To borrow the words of Rep. Yvette Clarke (D-MA): “When we can look at children and see them as a threat to our national security […], then clearly there is some soul searching that needs to be done” (Hearing before the Subcommittee on Border Security, Facilitation, and Operations of the Committee on Homeland Security, June 10, 2021).