The 1790 Naturalization Act was the first law in the United States to establish rules regarding the naturalization of citizens. “Free white persons” (i.e., not indentured servants, slaves, or women) would be granted citizenship if they had “good moral character,” had lived in the country for at least two years, and pledged allegiance to the U.S. Constitution (Densho Encyclopedia, 2019). The law also provided that children, defined as under the age of 21, would also become U.S. citizens if their parents were naturalized (Migration Policy Institute, 2013).
In 1946, the Constitution of the World Health Organization was adopted by over 190 different countries. This document acknowledged that every human being deserves the right to have access to care to maintain their health (Ruiz-Casares, Rousseau, Derluyn, Watters, & Crepeau, 2009). Two years later, the Universal Declaration of Human Rights was shared and accepted by many (United Nations, 2019). This document states that everyone deserves medical care and other services, especially during motherhood and childhood (Ruiz-Casares et al., 2009). These two pieces of international human rights law set precedence for the right to health for all individuals, regardless of their ethnicity, religion, etc. (Young & McKenna, 2010). Most argue that immigration status is included in these policies.
Constitution of the World Health Organization and Universal Declaration of Human Rights (UDHR)
This 1951 document and its 1967 protocol defined the term refugee and detailed the rights award to them for their protection (UNHCR, 2019). Under these treaties, the United States is not allowed to return an individual to his or her country if he or she would face persecution, harm, or death (UNHCR, 2019). These two documents form the basis for many asylum and refugee programs, which can be hard to determine especially in cases involving children. Recommendations were also given for ensuring their safety, including educating them on their rights and providing them with the legal representation needed for their cases (UNHCR, 2019).
President Kennedy ordered the creation of a new program for Cuban refugees in 1962. He advocated for the expansion of current programs to provide financial aid, education, child welfare services, medical care, and help with resettlement (History.com Editors, 2019). The MRA has been cited during conflicts by other presidents such as Clinton in 2001 and Obama in 2009 (Refugee Reports, 2001; Zanotti, 2009). The policy was amended several years later with the Refugee Act of 1980 (Migration Policy Institute, 2013).
United Nations Convention Relating to the Status of Refugees and 1967 Protocol
Migration and Refugee Assistance Act (MRA)
This piece of legislation, an amendment of the MRA, finally defined a refugee through the adoption of the United Nations’ definition, stating they are individuals who are no longer able to return to their country of nationality as a result of persecution or fear of it (History.com Editors, 2019; Migration Policy Institute, 2013). The document outlined a system for how to process admitted refugees at both U.S. borders and from overseas. As a result, the United States increased their total admission of refugees and this document would later lead to future protection orders based on nationality and religion (i.e., the Haitian Refugee Immigration Fairness Act of 1998) (History.com Editors, 2019).
As a result of the court case, Plyler vs. Doe, the Supreme Court determined that the previous statute banning undocumented children from attending public schools was unconstitutional (United States Courts, 2019). This ruling has ensured that all children, regardless of their immigration status, have equal access to education. However, there have been a few states and school districts who have adopted unofficial policies that seek to undermine this decision such as requiring Social Security numbers prior to enrollment of children (American Immigration Council, 2016).
Refugee Act of 1980
Undocumented Guaranteed Right to Public Education
1985 - 1997
In 1985, a class action case was filed with the United States court system. Flores v. Meesesought to challenge the current treatment and detention of children in the custody of the Immigration and Naturalization Service (INS) (Young & McKenna, 2010). In 1996, a settlement was finally reached that required the treatment of unaccompanied minors to be addressed and changed (Young & McKenna, 2010). The agreement stated that the government would create and implement new standards of care for the treatment of children in detention centers, that they would release children to relatives or other guardians “without delay,” and that they would place children in settings that were deemed “not restrictive” (Sussis, 2019).
This document was created due to world leaders recognizing that children needed additional protections regarding their care under international and domestic law (UNICEF, 2019). It was the first legally binding document that incorporated all types of human rights and has been ratified by over 190 different countries (UNICEF, 2019). Additionally, the CRC states that countries must adopt a “child-centered” approach to their policies and procedures when working with children seeking asylum (Chavez & Menjivar, 2010). The United Nations goal was to ensure that all children would be able to grow, develop, and thrive in their countries, emphasizing the “best interests of the child” (Chavez & Menjivar, 2010).
United Nations Convention on the Rights of the Child (CRC)
Flores v. Meese and the 1996 Settlement
In 1995, the United States signed the United Nation’s Convention on the Rights of the Child (United Nations Treaty Collection, 2019). However, we have still failed to ratify this document, meaning the United States is not legally required to enforce its procedures in its domestic law (United Nations Treaty Collection, 2019).
The Immigration and Naturalization Service (INS) issued the Guidelines for Children’s Asylum Claimsin 1998. These provided specific guidelines for best practices including how to interview children seeking asylum, how to identify inter-cultural factors for interviewing them, and how to determine persecution of the children in order to determine their eligibility for asylum in the United States (USCIS Asylum Division, 2009). These guidelines were created to better protect children going through the U.S. immigration process.
Guidelines for Children's Asylum Claims
United States Signs the CRC
Introduced by Senator Dianne Feinstein of California, the Unaccompanied Alien Children Protection Act sought to create a division under the Immigration and Naturalization Service (now an agency in the U.S. Department of Homeland Security) to focus strictly on the protection and unique needs of unaccompanied minors (Feinstein, 2018). Though this bill was never passed, many of the key components regarding custody of children, placement, and their overall care were incorporated into future legislation such as the Homeland Security Act of 2002 (Young & McKenna, 2010).
As a result of the 9/11 terrorist attacks, President George W. Bush enacted the Homeland Security Act. This legislation created the Department of Homeland Security (DHS) from the previous U.S. Immigration and Naturalization Service (INS) (Migration Policy Institute, 2013). This new department now includes additional agencies including the U.S. Immigration and Customs Enforcement (ICE), the U.S. Citizenship and Immigration Services (USCIS), and the U.S. Customs and Border Protection (CBP) (History.com Editors, 2019). This act effectively changed the landscape of immigration protocol within the United States.
Unaccompanied Alien Children Protection Act (UACPA)
Homeland Security Act
This legislation was originally created to address human trafficking issues and was reauthorized by both President Bush and President Obama (Ataiants et al., 2018). It was the first policy to focus on developing an effective protocol for meeting the needs of unaccompanied children (Young & McKenna, 2010). This policy details the type of care settings children should be held in, addressing the “best interests of the child” as the top priority (Young & McKenna, 2010). Responding to the concerns of potential trafficking, all unaccompanied children are screened for signs of trafficking or persecution fears before being released (Ataiants et al., 2018). Additionally, the TVPRA also requires that children receive representation for legal and advocacy issues (Chishti & Bolter, 2018).
Developed in response to the current law at the time, the DREAM Act was proposed as a solution to immigration issues faced by young adults (American Immigration Council, 2017). These individuals were those who had graduated from high school but did not have a way to obtain legal residency, despite living in the United States the majority of their lives (National Immigration Law Center, 2011). The Act aimed to have these students apply for temporary legal status on the way to permanent legal status if they went to college or chose to serve in the military (National Immigration Law Center, 2011). Though this was not the first time a version of this policy was introduced (first in 2001), this version did not pass. However, parts were still used in the creation of the DACA program a year later (American Immigration Council, 2017).
Development, Relief, and Education for Alien Minors (DREAM) Act
Under the Obama Administration, the Deferred Action for Children Arrivals, or DACA, was established via executive order. This order stated that any young adults, defined as between the ages of 15 and 31, who entered the United States illegally as children would be eligible to apply for a 2-year work permit, supplying them with temporary deportation relief (History.com Editors, 2019). This program, however, did not establish a citizenship path for these individuals, but individuals could re-apply (Robertson, 2018).
In 2015, a United States District Court Judge ruled that the settlement of Flores v. Meese in 1996 not only applied to unaccompanied children but also to children who are detained with their parents (Chishti & Bolter, 2018). Later this decision was upheld by an appeals court in 2016, requiring all children to be released no later than 20-days after being detained, setting a new standard of care and placement for children at U.S. borders (Chishti & Bolter, 2018; Sussis, 2019).
Deferred Action for Children Arrivals (DACA) Program
Flores Decision Impacting Current Events
The American Academy of Pediatrics published their report regarding the standards of care for immigrant children being held in detention centers along the U.S.-Mexico border (Wood, 2018). Their harsh report highlighted the rights being violated by government officials such as lack of beds, insufficient food, lack of medical care and mental health resources, inadequate toilet and bathing facilities, constant exposure to light, and other forms of physical and emotional maltreatment and abuse (Linton, Griffin, & Shapiro, 2017). This report called for immediate reform by the government and other officials to address these concerns.
In the fall of 2017, the Trump Administration ended the DACA program (National Immigration Law Center, 2019). As a result, several lawsuits have been filed against this action, claiming the program was terminated unlawfully. New York, California, and the District of Columbia have issued injunctions allowing DACA individuals to renew their deferred action (National Immigration Law Center, 2019). To date, decisions from the Supreme Court on three DACA-related cases are still pending (National Immigration Law Center, 2019).
Three executive orders were issued by President Trump in 2017 regarding travel bans against Muslim-majority countries. These countries included Iran, North Korea, Syria, Somalia, Yemen, Venezuela, and Libya (NAFSA, 2019). The aim of the bans was to limit both travel and immigration from these countries into the United States (History.com Editors, 2019). However, they were all challenged in court, but the Travel Ban 3.0 is still in effect after being upheld by the Supreme Court (NAFSA, 2019).
End to DACA Program
American Academy of Pediatrics Report on Standards of Care
Travel Ban Restrictions
In April of 2018, it was announced that a new “zero-tolerance” policy would be implemented that would criminally prosecute all adults who were caught entering the United States illegally (Human Rights Watch, 2018). As a result of this harsh policy, punitive measures were taken in the treatment and care of children. Thousands of children, no matter their age, were being separated from their families and detained as a consequence of their parent’s actions (Human Rights Watch, 2018). After facing public backlash, President Trump signed an executive order to reverse his previous policy in June (Hegarty, 2018). Additionally, a federal judge in California ordered government authorities to reunite all separated children with their families within 30 days via an injunction (Hegarty, 2018). Recently though, government officials have stated that it could take up to two years before every child is returned to their families due to their negligence in collecting important information for identifying families (Jacobs, 2019).
Zero-Tolerance Immigration Policy, Family Separation, and the Building
American Immigration Council. (2016). Public education for immigrant students: Understanding Plyler v. Doe. American Immigration Council, 1-5. Retrieved from https://www.americanimmigrationcouncil.org/sites/default/files/research/public_education_for_immigrant_students_understanding_plyer_v_doe.pdf
American Immigration Council. (2017). The Dream Act, DACA, and other policies designed to protect Dreamers. American Immigration Council, 1-5. Retrieved from https://americanimmigrationcouncil.org/sites/default/files/research/the_dream_act_daca_and_other_policies_designed_to_protect_dreamers.pdf
Ataiants, J., Cohen, C., Riley, A. H., Lieberman, J. T., Reidy, M. C., & Chilton, M. (2018). Unaccompanied children at the United States border, a human rights crisis that can be addressed with policy change. Journal of Immigrant Minority Health, 20, 1000-1010. doi:10.1007/s10903-017-0577-5
Chavez, L., & Menjivar, C. (2010). Children without borders: A mapping of the literatures on unaccompanied migrant children to the United States. Migraciones Internacionales, 5(3). 71-111.
Chishti, M., & Bolter, J. (2018). Family separation and “zero-tolerance” policies rolled out to stem unwanted migrants but may face challenges. Migration Information Source. Retrieved from https://www.migrationpolicy.org/article/family-separation-and-zero-tolerance-policies-rolled-out-stem-unwanted-migrants-may-face
Feinstein, D. (2018, April 13). Protecting defenseless children is not an immigration ‘loophole.’ Retrieved from https://www.feinstein.senate.gov/public/index.cfm/op-eds?ID=F3871F29-C2D8-4E1D-BB44-9AF614009444
Hegarty, A. (2018, June 27). Timeline: Immigrant children separated from families at the border. USA Today. Retrieved from https://www.usatoday.com/story/news/2018/06/27/immigrant-children-family-separation-border-timeline/734014002/
History.com Editors. (2019, February 7). U.S. immigration timeline: Attitudes and laws around U.S. immigration have vacillated between welcoming and restrictive since the country’s beginning. Retrieved from https://www.history.com/topics/immigration/immigration-united-states-timeline
Human Rights Watch. (2018, August 16). Q&A: Trump Administration’s “zero-tolerance” immigration policy. Retrieved from https://www.hrw.org/news/2018/08/16/qa-trump-administrations-zero-tolerance-immigration-policy
Jacobs, J. (2019, April 6). U.S. says it could take 2 years to identify up to thousands of separated immigrant families. The New York Times. Retrieved https://www.nytimes.com/2019/04/06/us/family-separation-trump-administration.html?login=email&auth=login-email
Linton, J. M., Griffin, M., & Shapiro, A. J. (2017). Detention of immigrant children. American Academy of Pediatrics, 139(4), 1-13.
Migration Policy Institute. (2013). Major U.S. immigration laws, 1790 – Present. Washington, DC: Migration Policy Institute. Retrieved from https://www.migrationpolicy.org/research/timeline-1790
NAFSA. (2019). Executive order travel ban: NAFSA resources. Retrieved from https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/Executive_Order_Travel_Ban__NAFSA_Resources/
National Immigration Law Center. (2011). DREAM Act: Summary. Retrieved from https://www.nilc.org/issues/immigration-reform-and-executive-actions/dreamact/dreamsummary/
National Immigration Law Center. (2019). DACA litigation timeline. Retrieved from https://www.nilc.org/issues/daca/daca-litigation-timeline/
Naturalization Act of 1790. (2019). In Densho Encyclopedia. Retrieved from http://encyclopedia.densho.org/Naturalization_Act_of_1790/
Refugee Reports. (2001, January). A news service of the U.S. Committee for Refugees. Refugee Reports, 22, 1-168. Retrieved from https://refugees.org/wp-content/uploads/2019/02/2001-Refugee-Reports.pdf
Robertson, L. (2018, January 22). The facts on DACA. Retrieved from https://www.factcheck.org/2018/01/the-facts-on-daca/
Ruiz-Casares, M., Rousseau, C., Derluyn, I., Watters, C., & Crepeau, F. (2009). Right and access to healthcare for undocumented children: Addressing the gaps between international conventions and disparate implementations in North America and Europe. Social Science & Medicine, 1-8. doi:10.1016/j.socscimed.20 09.10.013
Sussis, M. (2019, February 11). The history of the Flores settlement: How a 1997 agreement cracked open our detention laws. Retrieved from https://cis.org/Report/History-Flores-Settlement
UNHCR. (2019). The 1951 Refugee Convention. Retrieved from https://www.unhcr.org/3b66c2aa10
UNICEF. (2019). The Convention on the Rights of the Child: About the Convention. Retrieved from https://www.unicef.org/rightsite/237_202.htm
United Nations. (2019). Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/universal-declaration-human-rights/
United Nations Treaty Collection. (2019). Convention on the Rights of the Child. Retrieved from https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en
United States Courts. (2019). Access to education – Rule of law: Plyler v. Doe. Retrieved from https://www.uscourts.gov/educational-resources/educational-activities/access-education-rule-law
USCIS Asylum Division. (2009, March 21). Guidelines for children’s asylum claims. Asylum Officer Basic Training Course Participant Workbook. Retrieved from https://cliniclegal.org/sites/default/files/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum_Claims_0.pdf
Wood, L. C. N. (2018). Impact of punitive immigration policies, parent-child separation and child detention on the mental health and development of children. BMJ Pediatrics Open, 2, 1-6. doi:10.1136/bmjpo-2018-000338
Young, W., & McKenna, M. (2010). The measure of a society: The treatment of unaccompanied refugee and immigrant children in the United States. Harvard Civil Rights-Civil Liberties Law Review, 45, 247-260.
Zanotti, J. (2009). U.S. foreign aid to the Palestinians. Congressional Research Service. Retrieved from https://www.everycrsreport.com/files/20090515_RS22967_96452013b9c692737d65c8ec9f2112f96fcc6232.pdf