GOVERNMENT 2306(II) ESSAY

1 2 PHI KAPPA PHI FORUM

IVON PA D ILLA -R O D R IG U E Z

T H E NEGLECT OF T H E IM M IG R A N T C H IL D : M A K IN G TH E CASE FOR A C H IL D -C E N T E R E D APPRO ACH TO

U N IT E D STATES IM M IG R A T IO N PO LIC Y

I n N o vem b er 2 0 1 4 , President Barack O bam a stood before the A m erican p u b lic to announce the

creation o f D eferred A ction f o r Parents o f A m ericans a n d expansion o f the 2 0 1 2 executive action

k n o w n as D eferred A ctio n f o r C hildhood Arrivals. D A C A is a discretionary g ra n t o f relief f o r

u n d o cu m en ted people brought to the U.S. unlaw fully as y o u n g children. D A P A was a n a tte m p t to

shield the parents o f U.S. citizens a n d la w fu l p e rm a n e n t resident children fr o m deportation. The

expansion o f D A C A a n d creation o f D A P A were blocked by a Texas district court a n d deadlocked in the

U.S. Suprem e Court's U n ite d States v. Texas decision in February 2 0 1 5 a n d J u n e 2 0 1 6 , respectively.

In President Obama’s remarks about the two programs, he spoke about the U.S. as a nation of immigrants and discussed our centuries-old tradition o f welcoming foreigners to the country. In his speech, President Obama employed a common strategy o f elected officials who have spoken on the topic o f immigration: he invoked the nation’s history alongside the oft-stated characterization of the United States as a nation o f immigrants.

The phrase “nation of immigrants” can be traced to one academic’s seminal history o f immigration to the U.S. In the Pulitzer Prize-winning The Uprooted, Oscar H andlin professed, “Once I thought to write a history o f the immigrants in America. Then I discovered that the immigrants were American history.”

Historian Melissa R. Klapper altered Handlin’s words to reveal an insight that is too often overlooked not just by academics but — as this article will make clear later — lawmakers and practitioners, as well. In Small Strangers, Klapper contends U.S. history is a story o f foreign-born youth

and native-born children of immigrants. “As both real people and symbols, turn-of-the-century immigrant children played a vital role [in the] unprecedented productivity and economic growth o f their country.”

Little has been written about the history of immigrant children in this country, and yet migrant youth have been disproportionately and uniquely impacted by immigration waves and policies in the U.S. A brief overview o f some of the most important eras o f immigration illuminates the neglected yet persistent presence of young immigrants.

The mid-nineteenth to early twentieth century marked an age of mass migration to the U.S., involving several European groups. Millions of children came to the U.S., many o f whom contributed their labor to our economy during America’s Progressive Era. According to Selma Berrol, though “foreign- born white children constituted the largest proportion of the national child labor force,” reformers insisted on characterizing the issue of child labor as one of “children” who were unmarked by ethnicity or immigration status. 1

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I M M I G R A T I O N : A C H I L D - C E N T E R E D A P P R O A C H

Courtesy o f the National Archives, item 6501896 — A Cuban im m igrant and her child look at an in -flig h t magazine as they await takeoff for the United States in 1995.

In post-war America, President Harry Truman signed into law the Displaced Persons Act of 1948, an emergency measure that responded to the influx of refugees searching for stability in the aftermath of World War II. The law planned to admit 200,000 displaced persons, 2,000 Czech refugees, and 3,000 orphaned children. W hat is rarely discussed in accounts of this law is that World War II was, according to historian Tara Zahra, a “war against children” because of the unprecedented number o f young people separated from their parents by deportation, ethnic cleansing, and forced labor.2 Some of these children gained admission to the U.S. through the 1948 Displaced Persons Act either as eligible displaced orphans or family dependents.

In 1942, the U.S. adm itted its first set of contracted Mexican nationals known as braceros through the Migrant Labor Agreement negotiated with Mexico. From 1948 to 1964, the U.S. adm itted approximately 200,000 braceros a year to fill agricultural labor shortages. According to Mae Ngai, “while young adult men comprised

the backbone o f the labor force, children, older men, and women worked illegally as supplemental labor.”3 Though it was illegal for contracted braceros to bring their families with them to the U.S., children o f migrant farmworkers managed to work in fields as agricultural laborers alongside their parents, but are paid little attention by academics.

More recently, from the late 1970s to the 1990s, civil wars in Central America precipitated the outflow of hundreds of thousands of people.4 Most books about these wars do not shed light on the fact that, in late-twentieth-century Nicaragua, El Salvador, and Guatemala, children outnumbered adults.’The focus of scholarship on the topic largely effaces the role of young people who witnessed and actively took part in these wars through voluntary and forced conscription, and fled to the U.S. in search of safety.

Today, the two most visible refugee crises the U.S. faces have origins in Syria and what’s known as the N orthern Triangle of Central America. In Syria, the outbreak of a civil war and the rise o f the Islamic State have displaced millions. The U.S. will admit and resettle 10,000 of these refugees. O f the 8,000 Syrians admitted into the U.S. thus far, about 58 percent are children, according to the State Department and Public Radio International. 6

In the summer o f 2014, a record number of unaccompanied child migrants from Central Americas Northern Triangle — El Salvador, Guatemala, and Honduras — were apprehended at the U.S.-Mexico border. These young people ran from violence, forced gang conscription, and extreme poverty. Unprecedented attention was garnered by the 2014 surge of unaccompanied minors because, in the first few months of fiscal year 2014, more than 57,000 children arrived in the U.S. This number alone constituted twice as many arrivals as the number who made it to the U.S.-Mexico border in all of fiscal year 20137

Historically and contemporaneously, migrant children have made up and continue to make up a significant portion of the major influxes o f people to this country. The decisions lawmakers in the U.S. make always affect the lives of young people. But despite the magnitude and unique plight of immigrant children, U.S. immigration law and procedure is as absent of a child-centered framework as history is; both history and law pay scant attention to the immigrant child’s voice, agency, and experience.

An exception exists, in a way: Many undocumented, unaccompanied children in the U.S. can gain legal permanent residency through a Special Immigrant Juvenile visa. The SIJ classification is the only child-centered form of humanitarian-based immigration relief in existence in the United States. Legislated in 1990, SIJ status allows undocumented petitioners who have been abused, neglected, or abandoned to obtain lawful permanent residence. SIJ status is achieved through a two-step process in which a child’s attorney secures a dependency order from a state family or juvenile court and then U.S. Citizenship and Immigration Services is petitioned for the child’s legal status. The state entity makes the child welfare finding while the federal entity makes the immigration ruling.

Legal scholars, however, have again and again revealed the counterproductive nature o f an immigration law like SIJ status. It perpetuates our tendency to occasionally acknowledge the presence of immigrant children in the U.S. without addressing their needs appropriately. SIJ status is afflicted by disparities in access, combative

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jurisdictional debates between the state and federal governments, and inconsistent state procedures and understandings of the visa.

Most importantly, its “best interests of the child” approach is internally contradictory because it does not rightfully perceive children exactly as they are — as children. In 1973, legal scholar Hillary Rodham foreshadowed why the approach is as confused as it is: “a rationalization by decision-makers justifying their judgments about a child’s future [is] like an empty vessel into which adult perceptions and prejudices are poured.”8

Today, U.S. immigration policies operate within a binary of conceptions about children. In cases where children’s immigration cases are adjudicated without consideration o f their parents, children are treated as functional adults who must secure their own legal representation and participate in interviews that use questionable interrogation tactics, according to a 2014 Citizenship and Immigration Om budsman’s report.9

Ib is is what Rodham meant in 1973: that when a “best interests of the child” approach does exist in immigration law, it fails to take into consideration the voice and experience o f the child. The approach is employed through the lens and perceptions of its adjudicator — the adult — and may unreasonably hold the child to adult standards.

Legal scholars such as Jacqueline Bhabha and David Thronson have articulated the binary through which immigration law operates when it comes to children. Bhabha argues the U.S. legal system exhibits a profound ambivalence in its treatment of children, for it simultaneously retains its commitment to enforcement priorities and humanitarian principles that understand the child to be a defenseless victim. Generally, children are perceived by U.S. immigration law either as appendages to adults or miniature equivalents to adults.10 A best interests approach conceived in this dualistic way fails to productively inject children’s voices, lived experiences, and agency into immigration law.

Both approaches — treating children as objects and as adults-in-the-making — have led to the violation of children’s rights by causing bureaucratic delays and litigation battles. Competing interpretations of the “child” under the law enlarge the inadequacies in access to immigration relief for undocumented children. The reason for this is that these interpretations fail to employ a perception o f the child concomitant with their reality: agential, rights-bearing children.

If immigration law were to employ a truly child-centered approach that located a child’s worth not in its potential to reach adulthood but in its resilience to persevere throughout its childhood, the state might be better equipped to address and integrate existing and future populations of border-traversing youth who reach the U.S. We can begin to locate solutions for a child-centered approach to U.S. immigration policy by recognizing the experiences o f the child migrants who were successfully admitted and integrated into U.S. society throughout our past.

IV O N P A D IL L A -R O D R IG U E Z ( U n iv e r s it y o f N e v a d a , R e n o ) is a 2 0 1 5 M a rc u s L. U ra n n F e llo w a n d a 2 0 1 4 T r u m a n S c h o la r w h o is a P h.D . s t u d e n t a t C o lu m b ia U n iv e r s ity 's D e p a r t m e n t o f H is to r y . In 2 0 1 4 , s h e c o - p u b lis h e d t h e a w a r d - w in n in g

The C ountry I C all H om e. She researches a t t h e in t e r s e c t io n o f t w e n t ie t h - c e n t u r y im m ig r a t io n p o lic ie s , h is to r ie s o f c h ild h o o d ,

a n d L a t in o i m m ig r a t io n t o t h e U n ite d S ta te s . S h e h a s p r e s e n te d h e r re s e a rc h o n im m ig r a t io n r e fo r m t o m e m b e r s o f t h e U.S.

C o n g re s s a n d c o n d u c te d re s e a rc h o n im m ig r a t io n f o r t h e f e d e r a l g o v e r n m e n t .

T o p p h o to : C o u rte s y o f t h e N a t io n a l A rc h ive s, i t e m 5 4 3 8 6 6 : A m ig r a n t f a t h e r w i t h his y o u n g s o n , 1 9 7 2 . B o t to m p h o to : C o u rte s y o f t h e N a t io n a l A rc h ive s, i t e m 5 4 3 8 7 1 : A y o u n g c h ild o f a m ig r a n t f a m ily w o r k s in a s u g a r b e e t fi e ld in 1 9 7 2 .

Suggested Readings: Bhabha, Jacqueline. Child Migration & Human Rights in a Global Age. Princeton: Princeton University Press, 2014. Garcia, Maria Cristina. Seeking Refuge: Central American Migration to Mexico, the United States, and Canada. Berkeley: University o f California Press, 2006. Klapper, Melissa R. Small Strangers: I he Experiences o f Immigrant Children in America, 1880-1925. Chicago: Ivan R. Dee, Publisher, 2007. Ngai, Mae. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton: Princeton University Press, 2004. Rodham, Hilary. “Children Under the Law. ” Harvard Educational Review 43 (1973): 487-514.

Zahra, Tara. The Lost Children: Reconstructing Europe’s Families After World War II. Cambridge: Harvard University Press, 2011.

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