LITMIR.BIZ

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of Homeland Security (DHS). In March 2003, care and custody of unaccompanied children was transferred from ICE to the Office of Refugee Resettlement, a division of the Department of Health and Human Services (HHS). While ORR’s expertise in the intersection of child welfare and refugee populations has shaped the policies and procedures for the care of unaccompanied children, this program was the first in which ORR had to collaborate with ICE on a regular basis due to the unauthorized presence of unaccompanied “alien” children. There has certainly been greater attention to the care of children at the facilities, in terms of their educational programming, recreation, access to mental health services, and health care; yet hastily crafted legislation has left significant deficits in guidance in the ways ORR should collaborate with ICE. ORR continually struggles to negotiate the best interests of the child, which often stands at odds with ICE’s mandate to remove unauthorized migrants and to respond to threats against the homeland.¹⁰

      The diverging state agendas come into regular conflict in a range of areas that I will discuss in greater depth, such as guidelines for legal custody, age determination procedures, placement and transfer practices, family reunification policies, and most fundamentally in the classification of which children are accompanied or unaccompanied. As a result, the transition from ICE to ORR has led to an institutional bias in favor of law enforcement in which the security and safety concerns of the nation continue to outweigh the child welfare concerns of this population. For example, since 2003, we see an institutional trend within ORR toward heightened surveillance gaining momentum. ORR initially reviewed and phased out twenty-eight contracts with secure detention facilities (juvenile jails), placing only a fraction of children in these secure facilities in contrast to the 34 percent INS placement rates; yet, in the past four years, a number of staff-secure and secure facilities¹¹ have opened in response to the perceived demand for detainment of unauthorized children who have some juvenile justice involvement.

      There is an inescapable tension between an increasing preoccupation with the universalization of childhood—a space characterized by play and innocence, by the absence of responsibility and “adult” knowledge, and by less physical and emotional maturity—and the differential geopo liti cal interests that underlie the uneven treatment of domestic versus migrant children in the contemporary context. The “child savers” movement of the 1820s until the 1920s and the subsequent settlement house movement fostered the creation of a romanticized ideal of childhood in the United States (see Chapter 3). Reformers sought to socialize newly arrived migrant children into productive members of society through compulsory education, public health initiatives, the construction of playgrounds, and the establishment of the juvenile court. Over time, this privileged notion of childhood has become embedded in multinational treaties and conventions, such as the United Nations Convention on the Rights of the Child (CRC); financial and development agreements though the International Monetary Fund and the World Bank; and specialized agencies, such as the International Labour Organization, that guide child labor laws and practices worldwide (see, e.g., Boyden 1990). Yet in the U.S. context this notion is only selectively applied and enforced. The consolidation and production of a universalized childhood stands in the face of how, when, and to whom that image applies. In a national landscape of racial profiling, particularly of African American and Latino males, a judicial process that tries children as adults, with an increased reliance on incarceration of people of color and immigrants, the application of a universalized ideal of childhood is hypocritical at best and racist in its worst forms. Unaccompanied migrant children traverse these contradictory “modes of being” in which facility staff attempt to foster opportunities for education, play, and socialization amid an absence of freedom in detention (De Genova and Peutz 2010: 14).

       Seeking Consent

      This ethnography focuses on a largely invisible population of unauthorized migrant children in highly restrictive and largely inaccessible spaces, such as immigration detention, border stations, immigration and family courts, and underground communities.¹² While there are inherent challenges to conducting research with unauthorized or “underground” communities, negotiating access to detention facilities for migrant children proved the greatest obstacle. While news reporters have been granted access to ORR facilities on a case-by-case basis, there are very few independent researchers who have been granted access to conduct long-term qualitative studies within ORR facilities and even fewer with children themselves. There are some who have provided in-depth insight from their vantage point with NGOs engaged in the national coordination of services for unaccompanied children, identifying trends in the treatment of children across facilities (Duncan 2002; Uehling 2008) or as former ORR supervisors (Ensor and Gozdziak 2010). Several attorneys have written critically about challenges in representing unaccompanied children in both immigration and family court (Georgopoulos 2005; Nugent 2005, Somers, Herrera, and Rodriguez 2010). Given the dearth of information and access, a 2007 report from the Office of the Inspector General identified the increased need for transparency within ORR and for oversight of facilities in order to ensure the appropriate care of migrant children. Organizations such as the Women’s Refugee Commission (formerly Women’s Commission for Refugee Women and Children) have responded with research on evaluating the treatment of children and the efficacy of ORR programs and policies, conducting interviews of a wide range of actors involved in the lives of unaccompanied children held in ORR facilities (Women’s Commission for Refugee Women and Children 2002; Women’s Refugee Commission 2009). The extensive work of Jacqueline Bhabha and Susan Schmidt (2006) approaches the phenomenon of child migration in terms of the legal obstacles children confront in seeking political asylum in a post-911 era in the United Kingdom, United States, and Australia. Their important work speaks to the challenges of securing reliable information and the lack of cooperation among the diverse government agencies and departments. These reports have praised the dramatic improvements ORR has made in the care of migrant children since inheriting the program from the INS in 2003, though highlighting many of the concerning trends in the placement and transfer of children from ICE to ORR custody and between ORR facilities. The irony, as one advocate remarked, is “As much as we [advocates] criticize ORR, we are still saying that putting kids in their custody is what we want. On the one hand, we are finding all of these problems and abuses, but on the other we say, ‘Keep putting kids in your custody because it is better than ICE.’ It is all a little crazy.” My request for access to the detention facilities directly benefited from the timing of these reports and public calls for transparency and supervision. Since then, the window has closed and several researchers have been denied access.

      In each of the abovementioned studies, the dearth of access to children in the facilities stems, in part, from the logistical challenges of securing permission amid the bureaucratization of care and in a politicized national context of immigration reform, but also from the perceived extreme vulnerability of migrant children and their need for protection from abuse and exploitation. In order to conduct research, I secured permission not only from my university’s institutional review board and two of the organizations’ research review committees but also from the thirteen other individuals and organizations who laid claim to speak for the best interests of the child. Although the director of the ORR Division of Children’s Services is the legal guardian of all detained “unaccompanied alien children” in the United States, other state and nonstate actors recognized themselves as integrally involved in the care and custody of unaccompanied children. Despite their lack of legal standing to grant or deny consent on behalf of detained children, they were very protective of this population of children, wary of those who might capitalize on their vulnerability—be they traffickers, smugglers, an abusive parent, an inquisitive reporter, or a researcher. Interestingly, never was seeking parental consent a concern or a suggestion from any of the boards, committees, agencies, organizations, or individuals.

      The legal organizations representing detained children were most preoccupied with the truth-seeking aspect of the research. What if children disclose information that contradicted their legal claims? What if children lie? What if ICE subpoenas my records and uses my notes against children in their legal petitions? These concerns are founded on past violations of children’s due process rights in which ICE used a child’s ORR records as evidence of a child’s inconsistent or unreliable testimony in immigration court. In Texas, lawyers experienced ICE enlisting children as bait to entice

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