Systems created by humans do what they’re designed to do, which too often is not what those humans intended the system to do. Evidence is mounting that a significant piece of federal anti-human trafficking legislation, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, may provide a case in point. Testimony in Congress (“TVPRA”) last week suggested the law has made it easier for labor and sex traffickers to exploit minors seeking refuge from harsh economic and social conditions in Central America.
The law reflects the desire of many in the U.S. and around the world to prevent child trafficking and protect its victims. TVPRA Section 235 ensures that any undocumented child picked up by border officials must be screened to determine if he or she is a trafficking victim or has a credible asylum claim. Minors from countries other than Mexico or Canada, however, cannot be quickly repatriated and must be delivered to the custody of the U.S. Department of Health and Human Services (“HHS”) within 72 hours.
The Act requires HHS to place the child “in the least restrictive setting that is in the best interest of the child” while the government determines if the child is a victim of trafficking or has an asylum claim. In theory, HHS’ Office of Refugee Resettlement (“ORR”) places the child in a shelter or other temporary facility, works to quickly find and vet an appropriate family member or other sponsor for the child in the U.S., and then releases the child to that sponsor to await immigration court processing.
Media reports, however, indicate that once children are placed with a sponsor, the system for monitoring and protecting the minors breaks down. The New York Times and Reuters have recently reported on a surge of undocumented children working in often dangerous conditions across the United States. According to the Times, many of these children are unaccompanied minors from Central America whom ORR placed with sponsors with little to no follow-up or monitoring by the agency. While it appears most children are placed with parents or relatives, the Times found cases in which sponsor was a stranger to the child and that some sponsors “volunteered” to sponsor up to 20 children. Two-thirds of children released to sponsors end up working full-time, the newspaper found.
On top of these reports, Congressional testimony last week accused HHS of becoming the “middleman” in an international child trafficking operation. Federal government employee Tara Lee Rodas told legislators that in her work placing these children on behalf of ORR, she had seen sponsors who made a business of taking in unaccompanied minors. Ms. Rodas testified that such sponsors were keeping children in debt bondage, forcing children to work and even sexually exploiting them. Some apartment buildings housed up to 30 or 40 children released to the same sponsor or group of sponsors. Her testimony is consistent with NYT interviews of unaccompanied children and caseworkers for those children, who reported similar findings.
This evidence strongly suggests that children who are supposed to benefit from TVPRA are instead suffering sex and labor trafficking and debt bondage.
How is it that a well-intentioned anti-trafficking law might end up facilitating the work of human traffickers? Part of the problem is that the ORR system for assisting these youth is overwhelmed with cases: In FY 2022, ORR placed over 127,000 children with sponsors, on top of the record 107,000 it placed in FY 2021. Those numbers are themselves much higher than previous years’ tallies. Perhaps related to the numbers problem is the message being conveyed by federal bureaucrats to their staff making the placement decisions: “get these kids out of the shelter, now.” The Times series reported that speed to placement was ORR’s primary focus and that complaints of suspected trafficking of children were ignored — findings reflected in a recent Florida grand jury report on the issues. It appears that ORR isn’t doing much to monitor the children it places, either. When confronted with the fact that ORR can’t find 85,000 children it placed with sponsors, HHS Secretary Becerra responded that the agency had no legal authority to ensure contact with those children or their sponsors. Given the overloaded immigration courts, many of these unaccompanied minors will essentially become stateless — with neither legal status in the U.S., nor solid connections to family, work, or friends in their home country.
On a deeper level, this situation appears to be the kind created when those with good intentions don’t consider the unintended consequences of their well-meaning efforts. It’s been documented, for example, that some migrant parents who were themselves barred by the Title 42 policy from entering the US resorted to sending their children across the border unaccompanied in hopes they would be placed with a sponsor. When it tells families from Central American countries that their unaccompanied children who cross the border will be taken in and released to a sponsor, the federal government undertakes heightened obligations to keep those children reasonably safe. If government can’t handle those obligations, it shouldn’t be making that implied promise. To do so creates a moral hazard and, as the research shows, physical and emotional hazards for the children who are sent north.
There is another approach. Each year, over 200,000 children in the United States enter state foster care systems. While there is plenty of criticism leveled at those systems, there is general consensus regarding how foster care should work. Those principles are: (1) avoid removal if possible; (2) keep children safe in care and work with families to reunite them whenever possible; and (3) provide children as quickly as possible with safety, permanency, and stability. Child welfare agencies are keen to reduce the numbers of children in foster care by promoting family preservation work. Courts are required to hear foster care cases quickly and to regularly monitor the child’s situation. The federal government monitors how quickly children are reunified with their parents.
When it comes to the unaccompanied children program, however, many of these basic child welfare principles either don’t apply or are ignored in practice. TVPRA as it exists encourages bringing children into federal custody, and thanks to an overburdened system, those children linger in substitute care for years without permanency. In years past (and some would say still today), state foster care systems were roundly criticized for removing first and asking questions later; having children linger in foster care for years, where they might be subject to abuse; and having youth age out with no connections, no family, and no home. At the same time, states and the federal government have made consistent progress in reforming those systems.
We can revamp our immigration laws and processes to bring them more in line with good child welfare practice. First, we need to recognize that when we “remove” an unaccompanied minor from his or her family by placing them in ORR custody, we may be making things worse. A better system would prioritize getting the child back home and then determining just why he or she fled. Second, if the government is going to place unaccompanied youth in its custody, it must have strict procedures for ensuring those children are placed safely and that their living conditions are regularly monitored, as well as firm “permanency” timelines to either grant legal status or reunite the child with family and community back home.
One of the most important lessons I learned while working on a project to improve access to justice for child victims in Latin America was this: be careful about encouraging victims to seek justice if you can’t promise the justice system will deliver for them. We do need to care about children who are fleeing economic turmoil and gangs in Central America. But our recent experience at the border demonstrates that the TVPRA policy prioritizing placement of these youth with US sponsors may very well be doing more harm than good.