LITMIR.BIZ

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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 a U.S. citizen and reaches age twenty-one. Absent a legally recognized parent or guardian, the state serves in loco parentis, and, as such, until recently, ICE served as gatekeeper for those seeking access to the law. Children had been required to seek “special consent” from the Department of Homeland Security in order to enter state court and 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’

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