Who Deserves a Childhood?

In the United States, it seems that childhood is a privilege afforded to only certain people. We only recently ended juvenile executions and still practice juvenile life without parole; we are a country that lets children go without food and water; we are a nation that purports to welcome "your tired, your poor, your huddled masses yearning to breathe free" – only to stack up the juvenile poor like cord wood in euphemistically-named government "detention centers" before bussing them back to whatever violent place from whence they fled.

And we call ourselves the "home of the brave".

There is a crisis at the US-Central America border, where over 52,000 unaccompanied migrant children have been taken into state custody since last October. There is a crisis of courage at the US capital in Washington, where hundreds of unabashed politicians have taken the last three weeks to muster responses as vile as these:

  • Earlier this week, Texas governor Rick Perry announced that he would deploy 1,000 National Guard troops to the border to attempt to prevent more children from crossing it.
  • President Obama requested $3.7bn dollars in emergency funding that would, in part, hire more immigration judges to expedite deportation proceedings against the children.
  • House Republicans are proposing a repeal of the Bush-era law that allows child refugees to be placed in the custody of resident relatives until they have to appear for a hearing, and instead would force them to remains in the state's custody until they see an immigration judge or agree to "voluntary" deportation.
  • Senator John McCain, the Republican party's 2008 candidate for president, suggested removing "planeloads of these young people" to send a message to their parents.

Arguing for the mass removal – by the planeload – of underage refugees seeking asylum from systemic violence is a brutal response to a humanitarian crisis involving children. But simply putting the migrants before immigration judges more quickly – to expedite our kicking them out as fast as inhumanely possible – is by no means to insure that their needs will be adequately met, as children or as refugees.

Unlike in domestic legal proceedings in juvenile criminal and family courts – where children have the right to lawyers and, in some cases, court-appointed guardians ad litem – children in immigration proceedings are not provided court-appointed counsel. That means that, if and when these kids do get to see a judge, they may not have an adult to help them make their case. Earlier this month, the ACLU filed a nationwide, class-action lawsuit on behalf of the thousands of children put in this situation, charging that the government violated both Constitutional due process and a immigration law requiring a "full and fair hearing".

Imagine a five-year-old who doesn't speak English representing him- or herself in an adversarial legal process. Then imagine that that courtroom – despite domestic and international law – does not even need to prioritize the best interest of the child.

All 50 states have statutes that require courts to consider the "best interest of the child" when making decisions about their custody or placement in domestic court proceedings. The statutes vary by state, but they are all meant to prioritize the health, safety, physical and emotional well-being of children, so that the state doesn't knowingly send a child into a dangerous situation. International law has a similar standard, as outlined by the United Nations Conventions on the Rights of the Child (CRC):

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The idea of affording children special protection is so uncontroversial that the CRC has been ratified by more countries than any human rights treaty in history (though not yet by the United States). However, the "best interest of the child" standard is not binding in immigration court. The well-being of a child facing deportation proceedings is not prioritized the same way as a child holding a US passport – youth, innocence, and dependence notwithstanding. It's almost as if the young people at the border are not children in the eyes of US law.

But the principle, however ineptly or unjustly applied in some US family courts, of "best interest of the child" – that young people deserve care and protection precisely because they are young – falls apart when it is applied selectively. To recognize the childhood of a kid in one courtroom while turning our backs on those in another is not only logically inconsistent, but morally.

Much of the border debate has centered around whether or not the children will "have their day in court" – a phrase that evokes justice and due process. But a day in court is not the be-all, end-all of justice. A child, alone and traumatized, standing in a courtroom with no representation hardly resembles due process. By chipping away at special protections for young refugees, rather than building them up, the United States is doing more than denying these children legal status and safety – it is denying their childhood itself.


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