The children who cross Mexico and arrive at the U.S. border are not “immigrants,” not “illegals,” not merely “undocumented minors.” Those children are refugees of a war, and, as such, they should have the right to asylum. But not all of them have it.
In the summer of 2018, the United States government enacted a “zero tolerance” immigration policy for migrants seeking refuge on its southern border with Mexico. The separation of refugee children and the incarceration of their parents who were seeking protection from persecution caused outrage worldwide. The cruelty toward vulnerable children by the Trump Administration as a matter of strategic immigration policy caused many Americans to wonder with bewilderment: is this who we have become? Are we so intent on “securing” our Southern border with Mexico that the suffering of innocent children caught in the crossfire of global migration policy is a price we are willing to pay?
As shocking as it was to witness children being ripped from their parents’ arms and, for all intents and purposes, abducted by the United States Government, the horrifying truth is that the human rights of refugee children have been being violated by American immigration officials for decades. Although the United States was a major drafter of the United Nations Convention on the Rights of the Child, and in fact signed the Convention on February 16, 1995, the United States remains the only U.N. member state to never ratify it. Despite this long history of scuttling the human rights of children, there is a common misperception that the governmental abuse of immigrant children began with the Trump Administration. While the crimes committed by that regime certainly demonstrate an escalation of the dehumanizing treatment of both migrant children and their parents, the sad truth is that the United States routinely violates international law by ignoring the rights of the children it pledged to protect when it drafted and signed the Convention on the Rights of the Child more than 25 years ago.
In Reno v. Flores, the United States Supreme Court held that the “best interests of the child” standard is not a requirement when justifying the constitutionality of incarcerating refugee children, although the INS purported to use that standard as its rationale for detaining the children. In declining to release migrant children from government custody to a parent or other responsible adult, a majority of the Court held that “[t]here is no constitutional need for a hearing to determine whether private placement would be better, so long as institutional custody . . . is good enough.” The “good enough” standard announced in Flores for incarcerating refugee children is in direct contradiction to the obligations assumed by the United States government when it signed the Convention on the Rights of the Child. I argue that this callous attitude toward the human rights of children has only grown over the years, as we continue to incarcerate immigrant minors and separate them from their families as a result of cruel, misguided law enforcement strategies employed by the United States government.
The Convention on the Rights of the Child states that: [C]hildhood is entitled to special care and assistance. . . the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community . . .
By signing the Convention on the Rights of the Child, the United States acknowledged and implicitly agreed to the proclamation in the Convention that “the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.” Article 3.1 of the Convention states that “[i]n all actions concerning children . . . the best interests of the child shall be a primary consideration.” The decision by the Flores Court to replace the “best interests of the child” standard articulated in the Convention with the “good enough” standard it created represents a betrayal of its commitment to protecting the human rights of refugee children.
Despite the fact that Article 37(b) of the Convention dictates that the arrest and detention of children should only be used as a measure of last resort and should be for the shortest appropriate period of time, the last four presidential administrations – George W. Bush, Barack Obama, Donald Trump, and Joseph Biden – have all engaged in the prolonged civil detention of refugee minors. Instead of acting in the best interests of refugee children and fighting to ensure that they are not separated from their families, the U.S. government has intentionally and systematically violated the human rights of immigrant minors in their custody. By continuing to separate and incarcerate refugee children seeking humanitarian protection at our border, the United States has abdicated its responsibility under the Convention to secure and protect the human rights of children.
Because there is no requirement in United States law that federal immigration enforcement policy be executed in ways that honor the “best interests of the child” standard, little progress has been made in changing the way children seeking protection are treated when they are in the custody of the United States government. However, the U.S. Citizenship Act of 2021, introduced in Congress in February 2021, would require that the Department of Homeland Security use “the best interests of the child” standard when making decisions about immigrant children. The bill would prohibit immigration officials from separating children from their parents for the purpose of enforcing immigration law, ensuring that the Trump Administration’s disastrous and cruel “zero tolerance” policy will not occur once again. Finally, the bill provides funding for legal orientation programs and counseling for children, and funding for school districts educating unaccompanied children.
Despite these recent proposals by the Biden Administration, the United States has a lot more work to do if it wants to begin honoring the promise it made to protect the human rights of children when it signed the Convention on the Rights of the Child in 1995. Even though the United States did not ratify the Convention, as a signatory, it still has a moral obligation to adhere to its principles. Only time will tell if the gross human rights violations of refugee children, contrary to both domestic and international law, will cease as promised under the new Biden Administration.
Kristina Campbell is Professor of Law at the David A. Clarke School of Law, part of the University of the District of Columbia, and a 2002 alumna of the University of Notre Dame Law School.
Listen to an episode of The Kroc Cast podcast featuring the authors from this issue of Peace Policy:
 Valeria Luiselli, Tell Me How It Ends: An Essay In Forty Questions (Coffee House Press, 2017).
 See, e.g., Refugees International, “Report: The Trump Zero Tolerance Policy: A Cruel Approach with Humane and Viable Alternatives,”, July 31, 2018, available at https://www.refugeesinternational.org/reports/2018/7/31/trump-zero-tolerance-policy.
 See Fionnuala Ni Aoláin, “Global Responses to President Trump’s Family via “Zero-Tolerance” Detention Policy, Just Security, June 30, 2018, available at https://www.justsecurity.org/58783/global-responses-president-trumps-family-separation-zero-tolerance-detention-policy/.
 See “Convention on the Rights of the Child”. Article 11 Treaty of November 20, 1989, United Nations General Assembly, available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf.
 See Cindy Carcamo, “Immigration fact check: ‘Who built the cages?.’” Los Angeles Times, October 27, 2020, available at https://www.latimes.com/california/story/2020-10-27/presidential-immigration-debate-fact-check-and-who-built-the-cages.
 See Paula S. Fass, “If You’re Shocked by Reports on Children at the Border, You Haven’t Paid Attention to American History,” Time, July 11, 2019, available at https://time.com/5624256/american-history-protecting-migrant-children-border/ (“The U.N. High Commissioner for Human Rights said on July 8 she was “deeply shocked” by the conditions facing the children. If she looked to American history, she might be less surprised.”).
 Reno v. Flores, 507 U.S. 292 (1993).
 Id. at 305.
 Preamble, “Convention on the Rights of the Child, available at https://www.ohchr.org/en/professionalinterest/pages/crc.aspx.
 Article 3.1, “Convention on the Rights of the Child, supra note 9.
 As of this writing, in March 2021, although the Biden Administration was less than two months old, it had already re-opened a detention camp for immigrant children in Tornillo, Texas. See Silvia Foster-Frau, “First migrant facility for children opens under Biden,” The Washington Post, February 22, 2021, available at https://www.washingtonpost.com/national/immigrant-children-camp-texas-biden/2021/02/22/05dfd58c-7533-11eb-8115-9ad5e9c02117_story.html.
 See Statements and Releases, “Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System,” The White House, January 20, 2021, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.
 Although “there are no legal obligations imposed on a signatory State. . . immediately after the treaty is signed . . . by signing the Convention. . . States. . . indicate their intention to take steps to be bound by the treaty at a later date. Signing also creates an obligation. . . to refrain from acts that would defeat the object and purpose of the treaty.” See https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-the-convention-on-the-rights-of-persons-with-disabilities/chapter-four-becoming-a-party-to-the-convention-and-the-optional-protocol.html.