New DHS Policy Seeks to Criminally Charge Parents Who Pay for Alien Smugglers

Along with the Trump administration's promise to build a U.S.-Mexico border wall and to deport millions of undocumented immigrants, DHS recently announced plans to reevaluate the system processing noncitizen children and to hold parents responsible for child smuggling.

The Trump administration recently announced that it is taking a hard-line stance on unaccompanied children arriving at the U.S. border who later go on to live with parents who lack legal immigration status in the United States. New Department of Homeland Security (DHS) guidance states that the agency will pay more attention to child migrants and may also consider criminally prosecuting parents who are complicit in the smuggling of children into the United States.

U.S. law defines an "unaccompanied alien child" as an undocumented noncitizen under age 18 who does not have a parent available to care for him or her in the United States. Special protections such as social services, proper living arrangements such as care homes (rather than detention facilities), and special procedures for applying for asylum or other types of deportation relief in immigration court are available to these minor children.

However, in the recently released DHS memorandum Implementing the President's Border Security and Immigration Enforcement Improvements Policies, the agency alleges widespread abuse of the system that reviews and processes unaccompanied children and that a majority of unaccompanied children later go on to reunite with parents living illegally in the United States. DHS argues that if a parent is available to take custody of his or her child, then the child should not be entitled to special treatment and instead may be subjected to expedited removal procedures which allow for immediate deportation without further review in immigration court.

DHS goes one step further in the memo by indicating that undocumented parents often pay smugglers or "coyotes" to bring their children across the border illegally, exposing children to violence and crime during the journey. In a drastic change in immigration policy, DHS now authorizes Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) to place these parents into removal proceedings if discovered and refer them for criminal prosecution whenever appropriate.

At the moment is is unknown whether this new guidance is meant to simply discourage parents from sending their undocumented children to live with them in the U.S. or whether the agency is serious about pursuing criminal cases against parents.

However, given the Trump administration's desire to secure the border and crack down on illegal immigration, it is likely that noncitizen children (and their parents) are in danger of deportation if federal agencies determine that they no longer meet the definition of "unaccompanied alien children." It would be worthwhile for unaccompanied minors and their parents to seek the advice of an experienced immigration attorney to examine any other options that might be available to them.

For more information about how immigration authorities process unaccompanied minor children, see Special Procedures for Noncitizen Minors in Removal Proceedings.