Bills
| 3.23.22

Blocking ICE From Arresting Unauthorized Immigrants Who Come Forward to Care For Unaccompanied Children (S. 388)

Do you support or oppose this bill?

What is S. 388?

(Updated March 4, 2020)

This bill — the Families, Not Facilities Act of 2019 — would prohibit U.S. Immigration and Customs Enforcement (ICE) from using information gathered in the process of resettling unaccompanied immigrant children to take civil enforcement actions against prospective sponsors and all individuals who reside with them. It would also redirect ICE funding to programs looking for unaccompanied children’s safety and welfare. 

Specifically, this bill would: 

  • Prohibit the Secretary of the Dept. of Homeland Security (DHS Secretary) from using U.S. Department of Health and Human Services (HHS) information provided by an unaccompanied child, or initially obtained to evaluate sponsorship of an unaccompanied child, to conduct civil immigration enforcement actions against a child, prospective or current custodian or sponsor, or resident in the home of the prospective or current custodian or sponsor.
  • Transfer ICE FY2019 Enforcement and Removal Funding to the new Office of Refugee Resettlement (ORR) programs intended to provide unaccompanied children with comprehensive social work services and connect them with legal representation. It also transfers funds to the FBI’s Violent Crimes Against Children Program and the HHS Task Force to Prevent and End Human Trafficking.
  • Create an ORR Advisory Committee on Shelters comprised of nonprofit immigration and child welfare experts and require the committee to publish public reports on their findings.

Argument in favor

Unaccompanied children are currently being kept in detention facilities or living in tent cities because would-be sponsors are afraid to come forward as they could be deported because of their own immigration status. This bill would lead them out of the shadows and get the children out of federal custody.

Argument opposed

The federal government has a responsibility to enforce immigration law. If the people coming forward to care for unaccompanied minors are also in the country illegally then HHS should be able to share that information with ICE, so that they can be vetted and immigration courts can hear their case.

Impact

Unaccompanied migrant children; sponsors of unaccompanied migrant children; ICE; HHS; ORR; and the FBI

Cost of S. 388

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Kamala Harris (D-CA), who is running for the 2020 Democratic presidential nomination, reintroduced this bill from the 115th Congress to prohibit U.S. Immigration and Customs Enforcement (ICE) from using information gathered in the process of resettling unaccompanied immigrant children to take civil enforcement actions against prospective sponsors and all individuals who reside with them: 

“No potential sponsor who intends to build a safe and nurturing home for an unaccompanied immigrant child should be deterred from coming forward due to fear of a civil ICE enforcement action. This is leaving these vulnerable children to languish in unacceptable conditions in government custody. Unaccompanied children at the border deserve our compassion and assistance, and we must do more to ensure that our government is respecting the human rights and dignity of the youngest among us.”

When she introduced this bill in the 115th Congress, Sen. Harris said:

“Right now, unaccompanied children are being held in detention facilities or living in tent cities due in part to potential sponsors’ fear of retribution from ICE for coming forward. This is an unacceptable obstacle to getting these children into a safe home, and we must fix it. We will ultimately be judged as a society by how we treat our children, and without these crucial protections we are depriving unaccompanied minors of a place they can begin to call home.”

Original cosponsor Sen. Kristen Gillibrand (D-NY), who is also running for the 2020 Democratic presidential nomination, adds: 

“It’s absolutely abhorrent that this Administration is using information collected from children held in government facilities for immigration enforcement purposes against potential sponsors. Rather than complicating and delaying already-challenging reunification efforts, we need to be doing everything we can to move children out of government facilities and into safe homes. This legislation would prioritize their safety and well-being, and I urge my colleagues to pass this bill into law.”

Rep. Debbie Wasserman Schultz (D-FL), who is sponsoring this bill’s House companion, says:

“This legislation would return us to the previous policy of not taking potential sponsors’ immigration status into account when making child placements, which avoided subjecting applicants to harsh immigration actions, including detention. We should not be requesting and sharing sponsors immigration status – the best interests of children must always come first. Lengthening children’s confinement can have lifelong health and development consequences. These arrests force children to remain in ORR custody longer, and the mere threat of arrest prevents other potential sponsors - many of whom are close family members to the detained children – from coming forward to give these children a home. This cruel betrayal hurts too many innocent children, and it must not continue to obstruct the reunification of families.” 

HHS spokeswoman Evelyn Stauffer contends that the policy of arresting unauthorized sponsors isn’t the cause of the increasing number of undocumented children in HHS custody. Instead, she argues, the problem is a border “crisis” and “broken immigration system.”

This bill has 11 Senate cosponsors, including 10 Democrats and one Independent. Its House companion, sponsored by Rep. Debbie Wasserman Schultz, has 31 Democratic House cosponsors. As of August 1, 2019, neither bill had received a committee vote. In the 115th Congress, this bill had nine Senate cosponsors, including eight Democrats and one Independent, and didn’t receive a committee vote.

First Focus Campaign for Children, the National Immigrant Justice Center, Women’s Refugee Commission and Center on Privacy and Technology at Georgetown Law support this bill.


Of Note: From July to November 2018, ICE arrested 170 unauthorized immigrants who came forward to become sponsors of undocumented immigrant children. These arrests were made as a result of the Trump administration’s decision to have the Office of Refugee Resettlement (ORR) share information with DHS for the purpose of immigration enforcement — information sharing that is not necessary to ensure the welfare of the children. When this new rule was proposed in 2018, the American Immigration Council’s Katie Shepherd pointed out the potential for it to harm unaccompanied children:

“The proposal has the potential to drastically expand ICE’s enforcement dragnet. It may ultimately harm—not help—unaccompanied children whose sponsors and loved ones end up being targeted and detained by ICE due to the increased screening.”

Shepherd added that children might end up languishing in foster care or HHS shelters due to the rule change, at a much higher cost to U.S. taxpayers. Based on the number of unaccompanied minors currently in HSS facilities, this prediction seems to have borne out.

Critics of this policy worry that the arrests have deterred potential sponsors from coming forward to take care of unaccompanied migrant children, contributing to the record number of migrant minors in HHS centers and tent cities. 

In a survey of individuals involved in the sponsorship process, the Women’s Refugee Commission and National Immigrant Justice Center found that the data-sharing agreement has led to fewer sponsors, including family members, coming forward out of fear of their information being used for immigration enforcement purposes. According to HHS, children are now staying in facilities for longer periods: in the first quarter of 2019, the average length of stay for unaccompanied youth in the agency’s custody was 89 days (up 29 days over the average of 60 days in 2018).

In the Obama administration, ORR records were kept separate from DHS, and DHS could only obtain ORR case files on individual children through a formal request process.


Media:

Summary by Lorelei Yang

(Photo Credit: U.S. Customs and Border Patrol on flickr)