A Call for Clarity: Seeking Justice for Noncitizen Youth in the Juvenile Justice System

In the time since candidate Trump has become President Trump, much attention has been paid to how his rhetoric about immigration policy and enforcement on the campaign trail would translate into concrete action. Much of this attention has been focused on the practices and protocols of Immigration and Customs Enforcement (ICE). Would ICE be instructed to be more indiscriminate in their enforcement? Would the demographics of those targeted for deportation change? Would restrictions regarding enforcement tactics be loosened or even done away with in some cases?

However,  questions about just immigration enforcement expand beyond the  Trump administration, and will continue to in the future. One area that has been overlooked in the conversation about immigration enforcement has been its relationship to the criminal justice system, particularly the juvenile justice system—an issue that has developed under the watch of both Republicans and Democrats.

Over the last 15 years, the immigrant population in the United States has grown significantly. According to the Pew Hispanic Center, the foreign-born population in the U.S. has grown by approximately 7.3 million people over this time. This increase is most apparent among children: 23.2 percent of all children in the U.S. are either immigrants or children of immigrants. Most of these children are citizens, but many are noncitizen youth, meaning they lack legal status, have temporary visas, or have permanent resident status. Although it’s difficult to precisely quantify, officials across the country report an increase of noncitizen youth in the juvenile justice system that corresponds with the general population trends over the last few years.

This influx in noncitizen youth has presented the juvenile justice system with several challenges that it is currently not equipped to handle. The juvenile justice system is primarily comprised of state and local institutions, while immigration enforcement falls under the jurisdiction of federal agencies, such as ICE. The juvenile justice system is not designed to deal with the complexities of immigration law, nor are its employees trained in these matters.

Immigration status is not, and never has been, within the jurisdiction of the juvenile justice system. Despite this, the lines between the institutional responsibilities of state and local juvenile justice facilities and ICE have become increasingly blurred. In recent years, ICE has encouraged state and local authorities to voluntarily assist in immigration enforcement.

The juvenile justice system and immigration enforcement look different in every local community. Therefore, the problems created by the current system will vary from community to community; Orange County, California will have different problems than Omaha, Nebraska, and therefore each will require policy changes specific to the locality. Despite this, the overriding issues of misunderstood authority structures, lack of access to legal resources, and a generally dysfunctional immigration system are constant across localities.

The lines between the institutional responsibilities of state and local juvenile justice facilities and ICE have become increasingly blurred.

According to the Annie E. Casey Foundation, efforts in the past have been targeted at apprehending “criminal aliens” in adult prisons. However, in recent years, ICE has increasingly targeted juvenile justice facilities to interview youth that it suspects are undocumented. Often these interviews are conducted without legal representation for juveniles and result in the youth entering into immigration proceedings. These  interviews are an inaccurate means of  determining immigration status due to language barriers, lack of legal knowledge and counsel for juveniles, and lack of knowledge of documentation by ICE officials.

Without proper access to legal counsel, the juvenile justice and immigration systems are far too complicated for youth to navigate on their own. According to Nick Marritz of the Legal Aid Justice Center, “Children who appear in immigration court by themselves have about a seven percent chance of a successful outcome. If they’re represented by counsel, they have about a 70 percent chance.” The crux of this issue is simply access to resources. Without this access, youth are not able to receive justice under the law.

The implications of the current juvenile justice and immigration systems often  negatively impact immigrant youth, regardless of their immigration status. The reality is that most youth who are reported to immigration authorities are returned back to their home communities in the United States. ICE refers the majority of youth cases that they receive to the Office of Refugee Resettlement, which is the federal agency responsible for “unaccompanied youth” in deportation proceedings. In approximately 90 percent of the cases ORR receives, youth are reunified with family members while removal proceedings are pending. However, the process of being detained, processed, and moved can take a serious toll on youth, as they can be transported to different states and held for lengthy periods of time. This is an entirely unnecessary traumatic experience for already vulnerable youth.

Who Holds Responsibility?

What is the purpose of the juvenile justice system? According to Santa Barbara Deputy Chief Probation Officer Lee A. Bethel, “Our goals are to follow the law and protect the community, but our mission and why we’re here is to help these youth, so we have to balance all those together.” This tension that Bethel describes  is essential to recognize, as communities need to be protected and uphold the rule of law. However, as Bethel also states, the juvenile justice system has a very specific purpose — to bring justice and rehabilitation to youth. Although there may seem to be tension between these goals, it is important to remember that these goals are both necessary in a just juvenile justice system.

Whether or not immigration enforcement has a place in the juvenile justice system must be evaluated in light of this twofold goal of public safety and restoring youth. When using this metric, rarely is the use of the juvenile justice system to introduce minors into immigration enforcement proceedings helpful, and most of the time it actually impedes the purposes of the juvenile justice system.   

Determining immigration status, especially in the current system, is very complicated. It is not the role of employees of the juvenile justice system to serve as makeshift immigration lawyers, trying to help youth parse out the fine print of immigration law. However, as a result of  confusion over federal requirements and a lack of access to appropriate counsel, many employees in the juvenile justice system often find themselves in this role. This practice is neither beneficial nor appropriate for the employees or the youth involved. Further, a clarification of federal policy concerning the responsibilities of local and state juvenile justice systems as it pertains to immigration enforcement is absolutely necessary. Additionally, agencies need to work with community partners to ensure that the unique needs of noncitizen youth are met.

However, the juvenile justice system cannot simply ignore the question of immigration status. It is important to know this status in order to connect youth to the services and programs that they are eligible for, as there are a number of programs that can help youth attain legal status or even put them on a path to citizenship if they are not citizens. For example, youth can apply for Special Immigrant Juvenile Status (SIJS), where upon exiting the juvenile justice system they can apply for a green card. To qualify, three criteria must be met: the child must be declared a ward of a juvenile court; it must not be in the child’s best interest to return to his home country; and the child must be unable to reunify with one or both of his parents due to abuse, abandonment, or neglect. Understanding immigration status is key in order for youth to be informed that these programs exist. While it is not the role of juvenile justice personnel to serve simultaneously as immigration lawyers, a partnership and institutional cooperation with legal services for juveniles in the system is extremely important.  

The Current Political Climate

The conversation around best practices for the juvenile justice system is vital, but these solutions will, at best, minimize damage until larger reforms to the immigration system take place. Until Congress addresses the status of the 11 million undocumented immigrants living in the U.S., including families with complicated or mixed legal status, and provides meaningful reform to the current immigration system, unintended consequences will continue to shackle and complicate the role of other entities. The ripple effects are felt in nearly every area of public policy. The situation of immigrant youth in the juvenile justice system is merely one of many examples of these spillover effects.

If we are to love and stand in solidarity with our neighbor, we must seek public justice on the behalf of those who urgently need it — even if they are not American citizens.

Unfortunately in our current political climate, comprehensive immigration reform will be difficult to achieve. Despite strong bipartisan efforts in recent years, comprehensive immigration reform has been swallowed by conversations surrounding border security. While border security is a valid component of the broader conversation around immigration, the emphasis of the current administration on controversial policies neglects the much larger complexities and problems. This neglect will continue to compound these issues, only one of which is the intersection of immigration services with the juvenile justice system.

Whether it is immigration reform or a host of other complex public policy questions, the unintended consequences of waiting to enact policy will continue to disproportionately affect poor and marginalized communities, particularly noncitizen youth. Those who most urgently need the system to function properly have little power  to fix it themselves, and lack access to the resources that would enable them to do so. If we are to love and stand in solidarity with our neighbor, we must seek public justice on the behalf of those who urgently need it  — even if they are not American citizens.  

A Faithful Response

As Christian citizens, we can offer a unique response. Our primary political incentives begin and end with the love of God and the love of our neighbor. The accumulation of political power is not our ultimate goal. With special attention to seeking justice for those who are poor and marginalized, we seek the flourishing of all people, not just ourselves.

The work of policy making and just governance must take priority over perceived wins or losses for our political team. As lawmakers partner with legal experts and community members to build a coalition of stakeholders to address these issues, Christians citizens should be actively involved, providing political and cultural support for a renewed vision of politics that runs counter to the dominant political culture. Our capacity to affirm the dignity of fellow image-bearers of God must supersede any allegiance to a political party. Christians should be championing the value and dignity of immigrants regardless of their legal status, and should challenge lawmakers to do the same.

In the case of noncitizen youth in the juvenile justice system, Christians can get involved in several different ways. An important first step is to bring the issue to the attention of lawmakers at the local, state, and national level. Christians can play an important role by helping to create the political impetus amongst their representative lawmakers to address these problems in question.

In states where this issue is more prominent due to higher immigrant populations, such as California, churches can also partner with immigrant and legal advocacy organizations to join ongoing work in a more direct way. Additionally, detention facilities can be found across the United States, and present an opportunity for Christians to seek out avenues for getting directly involved.

There will not be one “Christian” policy solution to the complex issue of immigration reform. However, there should be an agreement upon a certain set of guiding norms: that all human beings are created in the image of God, regardless of immigration status; that it is essential to keep families together when possible; and that Scripture is overwhelmingly clear on how we are to treat individuals who are vulnerable—with dignity and compassion. These norms ought inform how we approach and advocate for immigrants in our communities. If we are genuinely allowing  God and our neighbors shape our political attentions, then we must be convicted to stand in solidarity with our marginalized neighbors, regardless of their immigration status.

-Andrew Whitworth is a graduate of Taylor University and alumnus of the Trinity Fellows Academy. He lives in DC working to build flourishing political communities.