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Undocumented youth in limbo: the impact of America’s immigration enforcement policy on juvenile deportations

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Abstract

The surge in unaccompanied minor crossings between 2011 and 2014 led to an overwhelming increase in the number of juvenile deportation proceedings, which coincided with a peak in intensified immigration enforcement at the state and local levels. Using data on juvenile deportation proceedings, we examine how tougher immigration enforcement might have influenced judicial rulings on these cases and, ultimately, these youths’ ability to stay in the country. We find that the average increase in immigration enforcement over that period is associated with a 15% reduction in the share of juvenile cases ending with permission to stay. The result underscores the importance of the immigration policy context in which courts operate on their rulings, even if immigration law is within the jurisdiction of the Federal government. Given the gravity of the circumstances these children are escaping, further attention to how the piecemeal approach to immigration enforcement might impact the protection of their humanitarian rights is warranted.

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Notes

  1. Available at: http://www.refugees.org/our-work/child-migrants/i-am-solo.html [Last accessed July 3, 2015]. Children’s testimonies from the “I am solo” campaign—an online advocacy campaign to educate the public on the plight of the thousands of unaccompanied refugee children crossing the US southern border every week. More at refugees.org/iamsolo

  2. First among President Obama’s executive orders, DACA offered eligible immigrants a renewable two-year reprieve from deportation proceedings and work authorization.

  3. In contrast, children from Mexico or Canada are first screened by Customs Border Protection (CBP) officers. If the child is able to make independent decisions, is not a victim of trafficking, or does not fear persecution in her/his home country, s/he is immediately sent back to their home country through a process called “voluntary return.”

  4. Appendix 2 details how unaccompanied minor cases are processed.

  5. Immigration courts have been seriously overwhelmed by the growing number of juveniles in deportation proceedings in recent years. Figure 1 shows the rising trend after 2011, as well as the mounting number of pending cases.

  6. Focusing on juveniles, they have pointed to individual child characteristics (sex, age, race, educational attainment, socioeconomic status, and residence), aggravating circumstances (especially gang membership, prior records, use of weapons, illegal drug use), alleviating circumstances (history of child abuse and maltreatment, familial instability), as well as the internal dynamics of the courtroom, which are, in turn, dependent on its size and ideology (see, for example, D’Angelo 2009).

  7. See: http://www.ncsl.org/research/immigration/state-laws-related-to-immigration-and-immigrants.aspx#2013JanJune [Last accessed April 18, 2016].

  8. See: U.S. Immigration and Customs Enforcement (2009).

  9. ICE distinguishes between criminals in priority 1, 2, and 3 based on the charge for which they were arrested and their criminal history. Priority 1 are individuals convicted of an aggravated felony or multiple felonies, priority 2 are individuals convicted of a felony or three misdemeanors, and priority 3 are individuals convicted of, at least, one misdemeanor.

  10. See: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf. Last accessed: June 29, 2015. President Donald Trump has revived the program in February 2017.

  11. See, for example: http://www.washingtonpost.com/wp-dyn/content/article/2007/06/10/AR2007061001229_2.html, http://www.usatoday.com/story/news/politics/2014/08/27/immigration-judges-reform/14704039/

  12. Unlike federal and state courts, which are part of the judiciary, immigration courts are at the mercy of the executive power. The Attorney General, a cabinet appointment, acts as the arbitrator between the U.S. Department of Homeland Security and the immigrants the agency prosecutes. S/he is in charge of the Justice Department and its Executive Office for Immigration Review (EOIR). S/he appoints and, importantly, has the discretion to dismiss immigration judges. The lack of protections for immigration judges, such as life appointments that would give them freedom to do their job without fear of retribution if their rulings prove unpopular with the Administration in place, is a main weakness. As noted by Dana Leigh Marks, president of the National Association of Immigration Judges union: “Immigration judges can be disciplined or downgraded in a performance review for insubordination to a supervisor and thereby punished for their good faith interpretation of the law” (International Affairs Forum, Winter 2016).

  13. Please see http://trac.syr.edu/aboutTRACgeneral.htmlfor detailed information on data collection process by TRAC for details.

  14. Our data spans over 10 years, 3 countries of origin, and 50 court locations. We lose a few observations when, for the year in question, there were no juveniles in deportation proceedings.

  15. Since the final outcome is the same, we lump the various rulings together to look at juvenile deportation proceedings in which the youth is allowed to stay in the country.

  16. Table 10 in Appendix 1 also provides information on the number of cases ending otherwise.

  17. We do not have data on the characteristics of minors and, therefore, cannot assess if the latter significantly differ across courts. Appendix 2 provides a more detailed picture of how unaccompanied minors flow through the US Immigration System. At any rate, in our most complete model specification, we include county fixed effects indicative of the court’s location, as well as county-specific time trends. If youth characteristics were to systematically vary with the court’s location, the aforementioned controls should effectively capture that variation.

  18. See https://www.dhs.gov/xlibrary/assets/dhs_u_visa_certification_guide.pdf [Last accessed on July 1, 2015].

  19. The violent gang MS-13 (Maras Salvatrucha) was created, for the most part, by Salvadorians who immigrated to the USA after the Central American civil wars of the 1980s.

  20. Further detail on the data sources can be found in Appendix 1.

  21. ICE (2013).

  22. We estimate a number of specifications that progressively add controls. County fixed effects (and the corresponding county-specific time trends, are included last. When doing so, state fixed effects (and their corresponding state-specific trends) are absorbed by the county fixed effects (and time trends).

  23. An estimated 1.6 million Salvadorians resided in the USA in 2014, relative to 1 million Guatemalans and half a million Hondurans (authors’ tabulations using the American Community Survey).

  24. We use Wooldridge’s (2002) test for autocorrelation in panel-data model which suggests that we have first-order autocorrelation in our specifications. We then correct for the autocorrelation problem using Baltagi-Wu’s GLS method. See details in http://www.stata.com/manuals13/xtxtregar.pdf.

  25. See details about multiway clustering in Cameron et al. (2011).

  26. We experiment with alternative definitions of our dependent variable (i.e., share of cases ending with permission to stay). Specifically, we try (1) excluding cases with ‘other closures’, and (2) excluding both cases with ‘other closures’ and those ending through prosecutorial discretion. The main findings in Table 4 prove robust to these alternative definitions. Results are available from the authors.

  27. County fixed effects and county-specific time trends in the last model specification absorb state fixed effects and state-specific time trends.

  28. The association between intensified immigration enforcement and a reduction in the share of juvenile proceedings ending with permission to stay is robust to the inclusion of the number of pending cases as an additional regressor. Results are available from the authors.

  29. As mentioned earlier, immigration judges are likely sensitive to local sentiments and pressures during surge-like conditions. To show that is the case, we reestimate the models in Table 4 excluding the period corresponding to the surge in unaccompanied minors and the peaking of intensified immigration enforcement—namely, the years 2013 and 2014. Results, shown in Table 12 in Appendix 1, confirm the hypothesis that immigration judges are sensitive to surge-like conditions and to local sentiments potentially captured by tougher local immigration enforcement, as decisions no longer seem responsive to immigration enforcement in that case.

  30. We exclude a few immigration courts in Arizona, California, and Florida, that had already implemented some of these more stringent immigration enforcement measures by 2005.

  31. All these measures (287(g), SC, and OILs) rely on the same resources (namely, local and state law enforcement) to detect, apprehend, and detain undocumented immigrants. They frequently overlap and, jointly, help us better capture the intensity of police-based enforcement that we are trying to encapsulate.

  32. We also estimate a model that includes all immigration enforcement policies separately. The results, available from the authors, show that the Secure Communities program, which came to replace the 287(g) agreements in many locations and gained nationwide coverage by the end of 2014, was the main confounder of the police-based immigration enforcement impact.

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Acknowledgements

We are grateful to three anonymous referees for their help and guidance during the review process.

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Authors and Affiliations

  1. San Diego State University, San Diego, CA, USA

    Catalina Amuedo-Dorantes

  2. Kasetsart University, Bangkok, Thailand

    Thitima Puttitanun

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  1. Catalina Amuedo-Dorantes
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  2. Thitima Puttitanun
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Correspondence to Catalina Amuedo-Dorantes.

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Responsible editor: Alessandro Cigno

Appendices

Appendix

Table 9 Variable names, definitions, and sources
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Table 10 Juvenile deportation proceedings in the USA
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Table 11 Summary statistics for police-based and employment-based immigration enforcement
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Table 12 Determinants of the share of juvenile deportation proceedings ending with permission to stay in the USA excluding 2013–2014
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How unaccompanied minors flow through the US immigration system

Unaccompanied children often enter the US immigration system when the Border Patrol, a division of Customs and Border Protection (CBP), apprehends them while crossing the border. They are transferred to a Department of Homeland Security (DHS) detention facility, where it is determined if the children are younger than 18 and unaccompanied. Special rules apply to unaccompanied children who come from the “contiguous countries” of Mexico and Canada. In those instances, the children are often provided the opportunity of voluntarily returning or, alternatively, requesting a hearing before an immigration judge. If the child chooses the last option, CBP must first conduct a screening to verify that: (1) the child is not a victim of trafficking or at risk of being trafficked upon return to the home country, (2) the child does not have a credible fear of persecution in that country, and (3) s/he is capable of making an independent decision to withdraw an application for admission into the USA. If the child does not meet these criteria, s/he must be transferred to the care and custody of the Office of Refugee Resettlement (ORR), as other unaccompanied children from noncontiguous countries.

ORR will arrange to house the child in one of its shelters or foster care. ORR oversees different types of shelters to accommodate unaccompanied children with different circumstances, including nonsecure shelter care, secure care, and transitional foster care facilities. A juvenile may be held in a secure facility only if s/he is charged with criminal or delinquent actions, threatens or commits violence, displays unacceptably disruptive conduct in a shelter, presents an escape risk, is in danger and is detained for his/her own safety, or is part of an emergency or influx of minors that results in insufficient bed space at nonsecure facilities. The same care providers also facilitate the release of unaccompanied children to family members or other sponsors who are able to care for them. Removal proceedings continue even when the children are placed with parents or other relatives.

DHS will file a notice to appear with the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice at the immigration court nearest to ORR’s placement. The court then schedules the child for a hearing. In some instances, immigration courts develop specialized juvenile dockets, which consolidate children’s cases for hearings. This allows ORR to transport a group of children to court at the same time. In most immigration courts, one judge or several judges cover these dockets. At a typical juvenile docket, the majority of detained children appear before a judge to ask for a continuance, which allows extra time for children to find pro bono representation or to wait for ORR to approve a sponsor reunification application.

Once a child receives a final order of removal or voluntary departure, DHS initiates the repatriation process by contacting the consulate of the child’s home country and ORR to inform its staff that DHS is in the process of obtaining travel documents from the consulate. Once travel documentation is in order, the child is transferred back into DHS custody and the agency arranges for transportation. Figure 3 shows the flow of unaccompanied children through the immigration system from the moment they are apprehended until they are removed.

Fig. 3
figure 3

The flow of unaccompanied children through the immigration system. Source: Byrne and Miller (2012)

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Amuedo-Dorantes, C., Puttitanun, T. Undocumented youth in limbo: the impact of America’s immigration enforcement policy on juvenile deportations. J Popul Econ 31, 597–626 (2018). https://doi.org/10.1007/s00148-017-0666-8

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