In the complex arena of immigration and asylum claims, the plight of unaccompanied minors stands out as a particularly challenging and morally charged issue. These minors, often fleeing violence, persecution or other forms of danger in their home countries, arrive at our borders seeking safety and hope. This is something we in Texas are acutely aware of. As a society, we have a moral obligation to ensure that the best interests of these children are not only considered but are also at the forefront of all actions and decisions involving them.

International agreements and U.S. laws have long recognized the paramount importance of the “best interests of the child.” However, a closer look reveals a troubling reality that the practical application in the treatment of unaccompanied minors seeking asylum is often undermined by contradictory policies and practices.

First and foremost, the “best interests of the child” principle is, at times, relegated to the procedural aspects of immigration and asylum proceedings. For instance, while the U.S. Citizenship and Immigration Services has issued guidelines for child-friendly interview procedures, these guidelines explicitly state that the principle of the child’s best interests cannot be considered in determining substantive eligibility for asylum under U.S. law. A similar limitation is seen in guidelines issued for immigration judges, which allow for a “child-appropriate” hearing environment but do not extend relief beyond what is sanctioned by existing law.

In a disheartening turn in 2018, guidelines were rescinded that even curtailed immigration judges’ discretion in ensuring a child-appropriate hearing environment. The new guidelines prioritized adherence to immigration laws over the best interests of the child, a move that raised concerns about the fair and compassionate treatment of unaccompanied minors.


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Secondly, while these principles exist on paper, their practical implementation by various agencies responsible for the care and custody of unaccompanied minors leaves much to be desired. These minors have, in some cases, been detained for extended periods in secure facilities instead of being released to suitable sponsors, in direct violation of the 1997 Flores Settlement Agreement. Some have endured sexual abuse and inadequate medical care in conditions that starkly contrast with the promises of a “child’s best interests.”

The implementation of Title 42 in 2020 also saw unaccompanied minors held in hotels in McAllen, San Antonio, Houston, and El Paso for extended periods, raising concerns about their care and the ability of lawyers to contact them contrary to the Flores Settlement Agreement mandating placement in licensed, non-secure facilities.

The third and most pressing issue is that substantive asylum decisions for unaccompanied minors are guided by U.S. immigration laws rather than the best interests of the child. To qualify for asylum, applicants must demonstrate persecution based on factors like race, religion, nationality, political opinion, or membership in a particular social group. Many unaccompanied minors apply for asylum based on persecution related to their social group membership, such as opposition to gang involvement. While asylum is, in theory, an option for those facing persecution due to their membership in a particular social group, the reality is far more complex.

Recent decisions by multiple Circuit Courts of Appeals have denied asylum based on proposed social group criteria. These decisions often overlook the harrowing experiences of these minors and the threats they face from criminal gangs in their home countries. In many instances, the courts relied on problematic reasoning, such as suggesting that minors could relocate within their home country to evade persecution or ignoring the broader context of their experiences. These rulings raise significant questions about whether the best interests of the child are genuinely being considered when determining the fate of these young asylum-seekers.

The treatment of unaccompanied minors seeking asylum is an issue that transcends political boundaries. It is a moral imperative that we uphold the principles of international agreements and U.S. laws by placing the best interests of the child at the forefront of all actions and decisions.

As we navigate the intricacies of processing unaccompanied minors seeking asylum, it is also imperative that we strike a balance between adhering to legal requirements and safeguarding the best interests of the child. The world is watching, and the moral integrity of our asylum system hinges on our ability to uphold the principles of child welfare in these cases.

Claire Nolasco Braaten is an associate professor of criminology at Texas A&M University-San Antonio, where Daniel Braaten is an associate professor of political science. They are co-authors of the new book “Benched Justice: How Judges Decide Asylum Claims and Asylum Rights of Unaccompanied Minors.”

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