Virtuality for Real Children: Unaccompanied Minors and US Immigration Custody

Executive Summary

In the United States, federal law charges the Office of Refugee Resettlement (ORR) with responsibility for the custody and care of unaccompanied migrant children. Since April 2021, more than 1,250 child migrants have experienced what ORR terms a “Virtual” program placement while in its custody. ORR has not: explained what its use of virtuality means for the children in its care, defined Virtual as a program placement type, set forth parameters for its use, or published the criteria by which it selects children for virtual rather than physical placement. Using administrative data, an online video meeting with ORR personnel, and ORR manuals and documents, this article conceptualizes ORR’s use of virtuality as a bifurcation of a child’s custody: ORR takes technical legal custody but not physical custody of the child. The article recognizes risks this bifurcation poses to the physical well-being of unaccompanied children and how bifurcation complicates ORR’s compliance with minimum legal standards set by federal law.

The article likewise identifies benefits some children have received from virtual placement: quick release from ORR custody; the opportunity to remain with accompanying non-parental adults, such as siblings and grandparents, rather than enduring separation from them, as is standard practice in US immigration detention; and privileged entry into the US independent of standard legal authorization procedures. The article urges ORR and other US government entities to account for the risks and benefits virtuality poses to the well-being of unaccompanied migrant children.

It proposes that:

• ORR should revise its policy and procedure manuals, guidance documents, and similar instructions to recognize and define Virtual as a program placement type. The revisions should include 1) the circumstances under which ORR may use virtual rather than physical placements for children entering its custody, and 2) the criteria by which it selects specific children for virtual rather than physical placement. ORR should make all revisions publicly available.

• Any US government agency that has referred a child to ORR custody when the child was physically outside the US should publish its criteria and reasons for doing so. Relevant US government entities include, but are not limited to, Customs and Border Protection (CBP), US Citizenship and Immigration Services, Department of Defense, Department of Homeland Security Headquarters, and Department of State. Public disclosures should be updated yearly if new criteria or reasons arise.

• ORR, CBP, and any other US government entity involved with child migrants should add fields to their data management systems 1) to allow consistent tracking of all children’s physical location, and 2) to identify the individuals or entities responsible for children’s physical care when the placement is virtual.

• ORR should revise its Unaccompanied Child Manual of Procedures and similar instructions to require consistent entry of all relevant information in its data management system for each child. ORR should provide additional training to its employees and private contractors on the importance to the well-being of child migrants of consistent and complete data entry.

• US Senate and House of Representative judiciary subcommittees on immigration should require ORR to demonstrate how its use of virtual placements complies with minimum legal standards for the physical well-being of child migrants set by the Trafficking Victims Protection Act and the Flores Settlement Agreement.