The political branches possess plenary authority over admission and removal. The Homeland Security Act assigned the care of unaccompanied children to Health and Human Services. The Trafficking Victims Protection Reauthorization Act directs the federal government to place each child “promptly in the least restrictive setting” consistent with the child’s best interest. The federal authority over the unaccompanied minor is not improvised for this policy; it is the structure the law provides.
Romans 13:1 holds that the governing authorities are instituted by God and bear the sword for the protection of the good. First Peter 2:13–14 commands submission to every ordinance of man for the Lord’s sake. Properly construed, the state does not shed responsibility because a child enters without an adult. It acquires responsibility for the child’s custody, safety, and disposition. The arrival does not dissolve the authority; it activates it.
The administration’s second-term measures can be defended as a coherent exercise of that authority. The Department of Health and Human Services and the Office of Refugee Resettlement have tightened sponsor review, and ORR states that criminal smuggling organizations play a role in every case involving the entry of an unaccompanied child. HHS further states that the standards ORR follows closely mirror those of the United States foster care system, and that ORR releases children as quickly as, or faster than, the foster system once a sponsor completes the application. Information sharing between ORR and the Department of Homeland Security is the exercise of one federal jurisdiction’s awareness over another’s subject. Accelerated immigration hearings serve the schedule the sovereign has fixed. The federal contract that supplied counsel for unaccompanied children has ended, and representation has been reallocated to private organizations; more than fifty legal groups have formed the Children’s Due Process Project to file habeas corpus petitions on the children’s behalf. Federal custody, verified placement, enforceable immigration orders, and information sharing are the instruments by which the sovereign holds what the sovereign has taken in until a vetted household receives the child or the law returns her. The sovereign controls the docket. The court tests confinement. No private household receives unchecked control over a child whom the federal government has accepted into its care.
A seven-month-old girl entered an Office of Refugee Resettlement shelter without her mother or any adult relative, in the custody of a smuggler hired to bring her north. She is thirteen months old now. She has never left the building. She is underweight for her age and thinner than she was when she arrived. She does not yet sit without support. She does not turn her head at a new voice, the way an infant of thirteen months should. She does not reach toward the adult who lifts her from the crib. She rocks her torso back and forth against the mattress when the floor is quiet. She does not coo. She does not babble. When she cries in the evenings the sound has no tears behind it; her face is dry, and her body is the only part of her in distress. She is held by a different adult each shift. The adult today is not the adult who held her yesterday, and her body does not register either as a familiar presence. She sleeps for forty minutes at a stretch. She wakes into noise she cannot locate, and she does not cry out when she wakes. Two of the ORR shelters currently operating in Texas and Florida are unlicensed; the state that houses them has declined to certify them as fit to hold children. One closed shelter in Brownsville, Texas — retired from service now — was fitted inside a converted Walmart Supercenter. The retail ceiling, the open sightlines, and the hard floors were not removed when the building became a dormitory. The shell required for selling groceries is the shell the infants and toddlers sleep inside.
A two-year-old girl entered another shelter. She is two and a half now. The sponsorship application for the family member four hours away has been pending since she entered custody. She had words in her home language at entry. She has lost most of them. She does not point. She does not combine words. She bangs the side of her head against the crib rail when the adult does not come, and there is a welt above her left ear this morning. She eats what is put in front of her because it is put in front of her; she does not ask for food. She wets the bed at night even when the staff takes her before sleep. She does not recognize her own mother’s voice on the sponsor’s phone calls, and she does not turn her head toward the speaker. The staff at the larger shelters report that the wall between cubicles does not reach the ceiling; the children are sleeping in cubicles with constant noise. There is no quiet corner in her day. Her body is exposed, hour by hour, to the lights, the voices, and the cries of every other child in the room.
A fifteen-year-old boy entered an ORR facility sixteen months ago. He is sixteen now. He is among the sixty-five children the government’s own data shows held in ORR custody for over a year by the end of July, and the average stay for the population of roughly 1,900 children is one hundred and eighty-three days. He has not grown the inches his age predicts; the chart measures the same height today that it measured at entry. He sleeps with the overhead light on because he cannot tolerate dark after the long stretches of fluorescent-lit nights inside the building. The skin of his forearms shows the parallel scratches he has made with his own fingernails when no adult is close. He attended the shelter’s school through the second semester and then did not return; he sleeps through morning classes now. He speaks to the staff when spoken to and to no one else. Ryan Matlow, a clinical associate professor at Stanford Medicine, said of children held against their will under these conditions that they “create the conditions for trauma and a lasting post traumatic stress response.” The body inside the building has been carrying that condition for sixteen months, and the building will hold him until the sovereign admits or returns him.
The state holds the body. The state schedules the immigration hearing. The state has ended the federal contract that supplied the children counsel. The state shares the sponsor’s information with the Department of Homeland Security, and DHS has detained parents who appeared at the sponsorship appointments by which the child was to be released. The adult needed to receive the child enters the federal process subject to immigration enforcement. The family member who came to take the child home is taken instead. The child remains inside the shelter. The family remains outside it. The state holds the child until the state admits or returns her.
She stands outside the covenant. Until a vetted household receives her, the domestic order has not received her. The federal household retains jurisdiction over her body, her sleep, her development, and over the route by which she enters a family or is returned from the territory. Federal custody is the standing assigned to one whom the household has not admitted.
Paul’s words at Athens give this jurisdiction its scriptural form: “God hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed, and the bounds of their habitation.” The shelter is the habitation this federal household assigns while a sponsor has not received the child. The cubicle marks the standing of one not yet within the domestic covenant. The months inside it certify the place of one who remains outside until the sovereign admits or returns her. The ledger is settled.