Migrant Youth, Transnational Families, and the State. Lauren Heidbrink

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СКАЧАТЬ reclassified as “unaccompanied refugee minors” and enter the URM programs if they are granted a qualifying legal status, such as political asylum or specialized visas. In the early 1980s the rates of reclassification were quite low because a child must first be granted political asylum or prove that he or she was trafficked into the United States. Given the absence of court-appointed legal counsel, no recognition of persecution on account of being a child, and no specialized procedures distinguishing children from adults, such feats were rare. With key revisions to legislation for abused, abandoned, and neglected children in the 1990s and on trafficking in the early 2000s, these rates have risen somewhat, though they are still quite low. Instead, the state continued to fold unaccompanied alien children into the unauthorized adult population under the care and custody of the INS, subject to expedited deportation and prolonged detention.

      For nearly twenty years advocates vied for a transfer of care and custody of unaccompanied, unauthorized children from the INS to the ORR analogous to that of unaccompanied refugee children. Advocates highlighted the irreconcilable conflict of interest in which the INS simultaneously served as guardian, jailer, and prosecutor of unaccompanied children. While the INS was responsible for housing, feeding, and providing medical care for detained children, it was also charged with “the departure from the United States of all removable aliens,” including the children entrusted to its care (U.S. DHS/ICE 2003). Prior to 2003, the INS held one-third of unaccompanied children in secure facilities, which were subcontracted bed space in existing state and county juvenile detention facilities. Although the INS claimed that unaccompanied children were housed in separate cells, in practice unauthorized children were commingled with juvenile offenders, some of whom had committed violent crimes. There were limited opportunities for education, access to interpreters, and recreation in these facilities (Duncan 2002). While in INS custody, children lacking the requisite documents to remain in the United States were detained for extended periods, sometimes up to two years while awaiting a ruling on their immigration cases.

      During this time, a principal cleavage crystalized between legal advocates and immigration enforcement that persists in more recent discussions of the treatment of unaccompanied children—are unaccompanied children humanitarian refugees or criminal aliens? In this chapter, I elaborate the development and current status of the competing humanitarian and law enforcement regimes and the ways these imaginaries continue to shape the interventions of advocates, government bureaucrats, and nongovernmental staff involved in the lives of both detained and nondetained migrant children. I identify three overlapping sensibilities—the illegal alien, the criminal, and the enemy within—that contribute to a punitive approach to child migrants. To illustrate, I trace the circulation of a youth, Mario, from his home in El Salvador to immigration detention in the United States to his uncle’s home in Maryland. Classified as an “unaccompanied alien minor,” Mario faces critical legal decisions that shape not only his fate but also his family’s. The blunt tool of the law compels Mario along prefigured trajectories intended either to protect him as a vulnerable child or to expel him as a criminal alien. I analyze two key legal cases, Flores v. Reno and Plyler v. Doe, which shaped the ways unauthorized children both in and outside of the context of detention are viewed as legal subjects and the rights afforded to them. The activism of DREAMers,¹ unauthorized youth who are the contemporary beneficiaries of Plyler v. Doe, highlights the failure to recognize the social agency of children and youth within the law and institutional practices. The law is not a disembodied, independent force, but is culturally constructed by the legislature, media, law enforcement, legal advocates, and helping professionals. While children are not traditionally considered contributors to the law and legal discourses that determine their fate, the narrative of Mario and the political organizing of DREAMers prove otherwise.

       “But These Are Not Our Children”

      Prior to a meeting at a Border Patrol station along the Texas-Mexico border in which I sought to discuss the agents’ experiences apprehending migrant children, a station commander played a video that showed “inside the work of the Border Patrol.” Reminiscent of the reality television show COPS, the fifteen-minute video opened with blasting music with a deep bass as quick images of uniformed Border Patrol and ICE officers flashed across the small television in the three-room station. A white Border Patrol vehicle pursued a van at high speed along a deserted highway, resulting in a violent crash as the driver lost control of the van; officers contended with a raging grass fire; youths firebombed officers as they arrested an unauthorized migrant. At the video’s end, the station commander explained, “This is what we must contend with. We are not dealing with nice little kids.”

      In the law enforcement regime, the migrant child is folded into the pervasive rhetoric of the “illegal alien” who must be apprehended, controlled, and removed from the state. This social sensibility taps into anxieties about an invasion or flood of “illegal aliens,” requiring repression and containment of unaccompanied children in the same ways that their adult counterparts do (Chavez 2001; Rodriguez 1997). Relying on the state’s authority to regulate inclusion or exclusion of subjects, the migrant youth is an ungovernable subject—an outlaw. As Esther Madriz (1997) observes, the figure of the outlaw “brings together members of society in a common conviction, to direct their disapproval against those who are outside the social boundaries. Fear is a very important component in the creation of outlaws: we should fear them because they are dangerous, or evil, or just threatening to ‘us’” (96; see also Durkheim 1982). Despite limited evidence supporting its efficacy, the detention of unauthorized migrants is an increasingly pervasive state strategy enlisted to control and remove the “contagion” or “criminal” as well as to deter and to deincentivize future unauthorized migratory flows.

      As there is minimal distinction between children and adults in immigration law, there is little difficulty in identifying unauthorized immigrants exclusively in terms of illegality, rather than distinguishing any markers of difference along lines of age, gender, race, or ethnicity or any specific need for rights. While children are often held in an immutable category of innocence, the law enforcement approach toward unauthorized migrants prioritizes their “alien” status over their status as children. The fear that drives the creation and proliferation of the migrant as “outlaw” fails to recognize that illegal alienage is not a preconditioned set of rules and regulations or inherent traits as law enforcement suggests but is culturally informed, derived, and constructed.

      The illegality and criminality of migrant youth are not innate social or legal qualities of unaccompanied children: “the line between alien and citizen is soft” (Ngai 2004: 6). As Mae Ngai (2004) argues, “illegal alienage is not a natural or fixed condition but the product of positive law; it is contingent and at times unstable. The line between legal and illegal status can be crossed in both directions” (6). Various forms of legal relief, in fact, are available to children, including political asylum, Special Immigrant Juvenile (SIJ) status visas, visas for victims of Trafficking (T visas), family sponsorship, the Violence Against Women Act (VAWA), as well as temporary statuses such as Deferred Action for Childhood Arrivals (DACA) or Temporary Protective Status (TPS). Migrants can move in and out of lawful immigration status over time. At the same time, the state can also repeal one’s legality or grant graduated benefits and rights contingent on the type of lawful status. However, for the multiple structural, cultural, linguistic, and developmental reasons I will discuss, there are proportionately few children who benefit from these legal statuses.

      Despite the malleability of one’s legal status, the practices of law enforcement historically have treated detained migrant children as inherently illegal, blocking children’s access to forms of legal relief from which they could otherwise benefit outside of the “care and custody” of the federal government. In immigration law, which lacks a legal recognition of a child’s individual relationship to the state, unaccompanied children must rely on an adult or guardian as a proxy to petition state courts for a dependency finding that could lead to legal status. In family reunification petitions, for example, a parent can petition for his or her child as “derivatives” of an asylum application; however, a child as a principal applicant cannot petition for his or her parents until the child becomes СКАЧАТЬ