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

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СКАЧАТЬ ultimately to pursue the SIJS visa, a principal for unaccompanied children who have been abandoned, abused, or neglected. ICE’s policies and practices have been inconsistent and convoluted in regard to specific consent in which a single individual maintains the authority to grant or to deny children’s petitions to enter state court. From January 2001 until August 2006, the national juvenile coordinator at ICE approved only 70 percent of special consent petitions, many of which, advocates contend, came too late to affect a child’s legal claim (Marlan 2006). Once they reach eighteen, children typically cannot obtain the needed orders in most state courts (Junck 2012). In practice, ICE’s national juvenile coordinator would prejudge cases, often freezing their illegal status by limiting their ability to file a petition in state court. Through outright denials, delaying applications for sometimes up to six months, or by waiting until a child turned eighteen, the coordinator served as lawyer, judge, and jury with no mechanism for appeal. Children were held in a catch-22—unable to access the law because of their minor status and because the state as parent did not grant permission to such access. By restricting children’s access to the courts, ICE prevented the opportunity to regularize legal status. The law enforcement approach to unaccompanied children fixed the criminality of unauthorized migrant children, hedging out potential humanitarian forms of legal relief to child migrants in the name of safety and the security of the nation. Law enforcement practices effectively invented permanent illegality and inherent criminality, not unlike the way turn-of-the-century reformers invented delinquency as ascribed to behaviors of lower-class and immigrant children (Platt 1969). In 2008, pressure brought by federal litigation seeking to change practices that made illegality and criminality inherent qualities of unaccompanied migrant children led to shifts in ICE’s gatekeeping of state courts. Following federal litigation of Perez-Olano v. Gonzales et al., unaccompanied children must now seek permission from ORR rather than ICE.² For the moment, ORR in loco parentis has maintained an open access policy permitting all children the “privilege” (although not a “right”) of filing a petition in state court. However, in practice, ORR subcontracted nongovernmental organizations often restrict access, as they will not serve as guardian for the purposes of SIJ while youth are held in their facilities, leaving detained children unable to pursue this principal legal remedy and ensuing benefits.

      Critical to the functionality of this sensibility are the ways law enforcement views the relationship between migrant children and their parents. Those whose parents are identifiable are seen as reproductions of their parents’ illegal or criminal behavior, destined to reproduce the same pathological behaviors embodied in their illicit presence in the United States. In this view, deceptive parents pay smugglers to transport their children illegally to the United States, knowingly violating the law. Children unaccompanied by an adult caregiver are seen as lacking the parental relationship necessary for effective socialization and governance. For many unaccompanied children, law enforcement and advocates alike assume that their parents have abandoned them, forcing them to live on the streets and to turn to a life of crime. Migration becomes an indicator of family rupture. Without parents to socialize youth into productive citizens effectively, the unaccompanied child remains pathologically independent and in need of state intervention and discipline. However, there is a critical contradiction in this perspective: ICE considers some children products of their parents’ poor decisions, and in this way divorces children from any social agency to make their own decisions or to contribute to familial migration decisions. At the same time, unaccompanied children are held no less responsible for the outcomes of those decisions even if the decisions are viewed as not of their own making.

      In a second overlapping sensibility, law enforcement concretizes the linkage between unauthorized migration and the criminalization of youth of color by comparing “illegal” immigration with issues of urban crime and gang violence; in each case, predominantly male youth are framed as exhibiting antisocial behavior and existing outside the law. While different bodies of law guide immigration and state court decisions, both systems draw from the analogous public and institutional narratives that criminalize youths of color. Contemporary American courts contend with multiple layers of norms and values, which inform notions of pathology in relation to multiple and often overlapping terms of race, ethnicity, and poverty (Bortner, Zatz, and Hawkins 2000; Shook 2005: 465). Public perceptions of the criminality and delinquency of youth create tremendous fear, as in cases of highly publicized school shootings or gang violence (Adelman and Yalda 2000: 37; Giroux 2000: 15). High rates of teen pregnancy and school dropouts, particularly in African American and Latino communities, have led some to call for simultaneous policy reform and institutional interventions to “save” troubled youth (Giroux 1998) while the state bolsters enforcement efforts to allay public anxieties.

      Some scholars have attempted to contextualize youth delinquency through studies focusing on how youth experience the law through lenses of race, ethnicity, gender, education level, or socioeconomic status. Mike Males (1999), for example, argues that by controlling for race in instances of juvenile crime, income inequality becomes the prominent determinant, not ethnic or racial differences. Given that more people of color in the United States live in poverty, it remains unsurprising that youth of color are more frequently arrested for criminal activity. Pete Edelman (2002) terms these inequalities the “duality of youth,” suggesting that there is a division along racial/ethnic and class lines that signals the disparate social and economic support accessible to and ultimately received by youth (Shook 2005: 469). Ann Ferguson’s (2001) ethnography traces how race and gender identities shape whether the school system labels African American youth as either “troublemakers” or “school boys.” She argues that albeit a fiction, race continues “as a system for organizing social difference and as a device for reproducing inequality in contemporary United States” (2001: 17). This criminalization of youth of color folds comfortably into the national public discourses that associate Latinos and African Americans with social ills such as poor schools, poverty and unemployment, crime, overpopulation, and public health crises (Inda 2011: 77; see also Coutin 2011). The state contributes to and exacerbates the marginality of youth of color through unequal access to employment, education, and health care and disproportionate attention from law enforcement officers, as evidenced by Mario’s “Broken Dreams” in this chapter’s opening interlude. In U.S. conceptualizations of delinquency, differences in economic status are integrally intertwined with race and ethnicity; variation in skin color becomes a visible means by which to identify delinquent youth, marking those who require punishment and those who warrant leniency.

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