This episode of CMSOnAir is the second in a series featuring academics, policymakers, and advocates who have written for the Center for Migration Studies’ (CMS) Journal on Migration and Human Security (JMHS).
In this interview, Jennifer Podkul, the Vice President of Policy and Advocacy at Kids in Need of Defense (KIND), describes the United States’ recent history with respect to the humanitarian protection of children and offers an overview of the current situation at the US-Mexico border for child migrants. An international human rights lawyer and expert on child migration to the United States, Podkul recently testified before the House Committee on Homeland Security on the best practices for the care and protection of child migrants.
Podkul’s 2016 JMHS paper, “The Impact of Externalization of the Migration Controls on the Rights of Asylum Seekers and Other Migrants,” examined how the United States, Australia, and the European Union sought to prevent migrants and refugees from arriving at their borders to seek protection. One example presented in the paper is the Obama administration’s response to the increase in unaccompanied children in 2014. Podkul describes what has changed since the Obama administration with respect to the deterrence of child migrants and offers policy recommendations for the care and reception of child migrants.
This paper seeks to develop a working definition of the externalization of migration controls and how such externalization of the border implicates the human rights of migrants, and asylum seekers in particular....
Emma Winters: Welcome to CMSOnAir, the podcast on migration and refugee issues, brought to you by the Center for Migration Studies of New York (CMS). I’m Emma Winters, CMS’s Communications Manager. Today, I am joined by Jennifer Podkul, the Vice President of Policy and Advocacy at Kids in Need of Defense (KIND). She is an international human rights lawyer and expert on child migration to the United States. She is also the author of “The Impact of Externalization of the Migration Controls on the Rights of Asylum Seekers and Other Migrants,” a paper published in CMS’s Journal on Migration and Human Security. Here’s our conversation…
Emma Winters: Before we get into the meat of your paper, can you tell me a bit about your background? How did you become interested in immigration and in particular the protection of child migrants?
Jennifer Podkul: I have to say my first real interest in this was when I was a Peace Corps volunteer in Honduras. I was there right after Hurricane Mitch about 20 years ago. After the devastation of the hurricane, I saw a lot of my friends who lived in my community struggle with the decision about migrating. Now conditions were very different in Honduras. It was a lot safer then, so the reasons for migration were dramatically different than they are now. The exacerbating trauma of the hurricane and the devastation left behind certainly left a lot of families in a position of making tough decisions about whether or not they could safely stay and care for their families. That was something I had never been exposed to before. I was very concerned about it but also very interested about how and why people make decisions and where that leaves families and children. That was really the inspiration for me getting into this line of work
Emma Winters: Thank you so much for sharing that. In 2016 you co-authored a paper with Bill Frelick of Human Rights Watch and Ian Kysel of the ACLU, which was published in the Center for Migration Studies’ Journal on Migration and Human Security. The title of that paper was “The Impact of the Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants.” Can you explain what that phrase externalization of migration controls means?
Jennifer Podkul: Sure, traditionally people think about migration control at a country’s border, right? You have to show your passport, or you have to show your visa when you present for entrance to a country. A lot of people think that that only happens at borders – at an airport or a land crossing. What Ian and Bill and I were noticing was countries have started pushing their borders out past the physical border. They were trying to manage who’s migrating into a territory before they even get to the border. Our concern was and what we really wanted to look at in this paper is: Are there any violations of rights of when a country does that?
Emma Winters: In your paper, one of the examples of border externalization is the Obama administration’s response to an increase of unaccompanied minors in the summer of 2014. Can you describe what happened that summer and also what the Obama administration’s response was?
Jennifer Podkul: In 2014, we saw an unprecedented number of children presenting at the US-Mexico border asking for protection. There were so many the government was unprepared for them. We started to see children piling up in Border Patrol Stations. The infrastructure, the entity that’s responsible for the care and custody of kids, wasn’t ready. It didn’t have enough beds, facilities, or workers to care for these kids. The government was caught flat-footed and realized that this was not a one-off. This wasn’t just going to be a problem that they’re going to be facing for a couple months. Conditions had deteriorated significantly in some countries in Central America, and there was going to be high numbers of unaccompanied children and families coming to the United States, asking for protection.
In response to it, [the administration] did all sorts of things, part of it was trying to deter refugees from coming to the United States to ask for protection. One example of that was reopening the family detention facilities and holding families in detention. Another tactic that they used was trying to enlist other governments in cooperation to stop migrants before they were able to reach the US-Mexico border. For example, in 2015, there was significant aid and bilateral negotiations with Mexico to get Mexico to do some of the stopping of migration of asylum seekers, so they couldn’t reach the US borders. We were incredibly worried about that.
Emma Winters: That paper came out in 2016 and so much has happened. Could you provide an update on what’s happened in terms of the United States trying to externalize its borders? What was the impact of the Trump administration? Of COVID?
Jennifer Podkul: It’s important to note and what we tried to do in the paper was show that the United States is not unique in this tactic. We were seeing the same things happening in Europe. We were seeing the same things happening with Australia, trying to externalize their borders. What we wanted to do is really raise the alarm bell to say: Globally, this is not a practice governments should be engaged in because there’s a very high risk of violating rights when you do that. We wanted to make sure that we were making the point that the United States was not alone in this, unfortunately.
We’ve seen a doubling down of this strategy, particularly in the United States. During the Trump administration, there were several efforts that went way beyond the Obama administration’s efforts to try to externalize our borders that were incredibly troubling, that violated the rights of asylum seekers and unaccompanied children. Everyone’s waiting with bated breath to see how the Biden administration is going to respond to this.
Some examples that we saw with the Trump administration were the ACAs (Asylum Cooperative Agreements) with other countries. They say that if somebody travels through their country they have to ask for asylum there. Otherwise, they’re not going to be eligible to ask for asylum in the United States. An example is with Guatemala. Guatemala was in this position where they were asked to enter into this agreement. This is the United States negotiating with a country that receives significant aid from the United States. The United States has a lot of leverage when they make these kinds of requests to smaller countries asking that they enter into these agreements. If a person was leaving, felt like they had to flee their home in Honduras and they’re traveling through Guatemala, they would be forced to ask for asylum in Guatemala and not be allowed to do so if they came to the United States.
This is incredibly troubling for many reasons. One reason is Guatemala didn’t have a large, functioning asylum system that could receive the numbers of people who are fleeing Honduras. Secondly, a lot of people that are fleeing Honduras may not be safe in Guatemala. It’s very close. Gangs often have larger territories, so somebody could not be safe or not able to sustain themselves. What we see globally is that when refugees flee their countries of origin they go to a place where they know somebody, where they where they’re going to have support. If somebody’s fleeing and their support system is in Mexico or it’s in Costa Rica or it’s in the United States, they may be better off and could integrate better into society if they end up in a place where they have a support system.
We were very troubled by this doubling down of the Trump administration on externalization policies and hope there’s going to be a dramatic departure from these practices under the new administration.
Emma Winters: In the last several weeks, there’s again been an increase in the number of unaccompanied minors who are coming to the US-Mexico border and seeking protection. Could you share what factors are causing this increase? Also, how is the Biden administration managing?
Jennifer Podkul: For a long time nobody could ask for protection in the United States because the Trump administration had put forward a policy using the authority under Title 42, a public health policy, saying the US-Mexico border was going to be closed to anybody asking for protection. What happened was we saw lots of unaccompanied children languishing and waiting in Northern Mexico for a chance to be able to ask for protection in the United States because they didn’t feel like they could return to their country of origin. Once the Biden administration made the decision to follow the law and allow unaccompanied children to present and ask for protection, we saw very, very large numbers.
Nobody was surprised that there were large numbers. I think the size of the numbers and the speed at which they’re coming has been a little bit of a surprise. What happened was the Biden administration released a pressure valve. You know there was this ballooning population in Northern Mexico in these refugee camps waiting to ask for protection. When the Biden administration opened the doors, now we’re seeing these large numbers of kids who are asking and needing to ask for protection. That’s what we’re seeing right now.
Adults and families still are generally subject to Title 42. That doesn’t mean that they’re not there waiting and hoping for their opportunity to ask for protection as well. Like we saw in 2014, like we saw in 2018, sometimes unaccompanied kids are a little bit the canary in the coal mine. They come first, and then the family units are traveling separately. I would not be surprised if we’re going to see that same pattern again.
Emma Winters: Given that trend, what’s going on right now, and all the recent history, what are your top two or three policy recommendations that the Biden administration could adopt, so that there’s more humane border management and so that children especially are being protected?
Jennifer Podkul: They made a difficult choice in allowing unaccompanied kids to present. It was the absolute right choice, both legally and just out of humanity, to make sure that kids can ask for protection. It was the harder choice. It’s been hard to make sure that they have the capacity to receive these children in a humane way, get them to a sponsor’s home, and then allow them to go through the process to ask for protection. We want to make sure they keep doing that. We do not want them to roll back their decision about allowing children to present. We think it’s imperative that they are very clear that unaccompanied kids can present for protection both at ports of entry and also between ports of entry.
There’s a distinction between border externalization – stopping anybody from coming to your country – versus regional collaboration. I want [that distinction] to be very clear. Mexico has said they’re going to close their southern border. We’re trying to get clarity: Are they saying that they’re also closing it to unaccompanied children? Are they closing it to asylum seekers? Or is it a different kind of closure? Is it more about commerce? We’re trying to get clarity on that because we want to make sure that those in need of protection – because of the rights that attach to them under international law as asylum seekers, as refugees – that they can go where they need to go to ask for protection. However, there are collaborative actions that they can take that respect the rights of those in search of protection and help manage migration, so it can be more predictable and more orderly.
One example of that is that the United States and Mexico should work together to ensure that when an unaccompanied child is identified by either government they do a best interest analysis. They analyze what is really in the best interest of this child. For example, if Mexico determines that the child has a parent or family member in the United States, they may make the consideration that it is actually in the child’s best interest to ask for protection in the United States. Because there’s going to be support for that child, they might have an easier time integrating. The governments should work together to make sure that the child can present for protection at the US-Mexico border. It’s a fine line, but we want to make sure that the collaboration is not intended just to stymie someone’s ability to ask for protection but rather it’s done in a way that countries can burden share to make sure that they’re all working together to support and take humanitarian action, and do it in a way that’s going to be in the best interest of the person in search of protection.
Emma Winters: That’s not easy. What do you think it would take to put those policy recommendations into action? How can the United States live up to all of its legal obligations to protect children and families?
Jennifer Podkul: I think this is a matter of resources. We’re very happy to see that the Biden administration is serious about committing resources to this. Because if they don’t, we’re going to be here next year, the year after, under the next administration. We’ve been happy to see a commitment to try to address the root causes.
Building up protection frameworks is what it’s going to take. For example, when we’re sending aid to the sending countries in Central America, make sure when we’re doing that we’re helping build up their child protection systems, so that they have the ability to protect children, so that they can help with the analysis, so that they can contribute to best interest analyses of children on the move. The United States and Mexico should be working together, not just as security entities collaborating in terms of stopping migration, but so that the protection entities are sufficiently resourced and collaborate and are in constant communication with each other, so that we can have a more receptive model. [We can have a] more orderly process of how countries work together and identify: What are the shortcomings? What can other countries do to help support and resource them? So that everybody can be equal partners in ensuring safety.
Emma Winters: We’re coming to the end of our interview, and I want to ask you: What is KIND doing right now to protect children? If possible, can you tell us about someone who’s been impacted by KIND’s work?
Jennifer Podkul: Sure, KIND is really trying to take a holistic approach to the needs of children on the move. The ultimate goal is that a child feels safe in their home, and they never feel the need to leave their home in search of protection. That’s the ultimate goal. In the meantime though, there are kids on the move who need protection at all steps of the journey. We’re trying to address and look at this and make recommendations on what governments can do soup to nuts. From the moment that the child departs, during their journey, to ensure that there is safe reception. That there is care and custody. That there is not a reliance on punitive detention models for children. That they have a fair ability to tell their story, so that an adjudicator – whether it’s in the United States, whether it’s in Costa Rica, whether it’s in Mexico – can get to the bottom of a child’s story and determine who needs protection and who could safely be returned to their country of origin. If they’re going to be returned, how do you do reintegration support so that that child really feels like that they can stay and that we’ve addressed the reason for their migration the first time?
KIND has an office in Mexico. Now we have offices along the border to make sure that kids during their journey are safe and that Mexico is able to consider the best interest of the child. We make sure that kids have a legal advocate, who can support them, work with them, and explain to them their rights, so the kids understand their rights and understand what the options are, what the obligations are to ask for protection, and how you do it. Then, [the legal advocates] accompany them through the process. We’re helping with kids who want to present at the US-Mexico border, so they understand how to do it. We can help prepare the governments on how to make that presentation safe, so kids aren’t dying in the desert. Finally, when they get to the United States, we make sure that when they’re in government custody that it’s safe and appropriate, that they’re quickly reunified with a family member, and that they have an attorney to accompany them through the very complex legal process. Then, we make sure that the decision is the right one. If a child needs to go back or decides to go back, we can support them and their reintegration into their country of origin.
There are so many examples of kids that we’ve worked with. It’s hard to think of just one. There’s so much attention right now on the border and what’s been happening to the kids who’ve been waiting to ask for protection. One example I can say is we recently worked with three very young siblings. Their parent was killed while they were waiting in Mexico for the opportunity to ask for help. The children have just been able to present to the United States so that they can start the process [of asking for protection] and have been reunified with an extended family member here. It’s going to take a long time for these kids to heal from what they went through, but to know that they’re in a place where they’re safe and they’re being cared for by somebody who loves them very much is a good start for this. We’re anxious to accompany them through the rest of the process.
Emma Winters: Thank you so much for sharing that. I really appreciate it.
Jennifer Podkul: Of course, I’m really grateful for you all spending time to talk about this issue because it’s so important to frame it in a rights-based narrative.
Emma Winters: If you want to learn more about the Center for Migration Studies’ Journal on Migration and Human Security, please visit: cmsny.org/jmhs.
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