Child-ObjectsZChild-Subjects and Migrant-Subjects
To understand how Bunikyte unfolded, it is important to know the broader legal landscape for noncitizen families and children in immigration custody. Two previous cases set a precedent in which children’s derivative status limited local policing of immigration.
In Plyler v. Doe (1982), the Supreme Court considered whether “Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.” Ultimately deciding that Texas did have the right to deny services to undocumented adult migrants, the Court argued that “At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.” Children, though, “are not comparably situated.... It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States” (Plyler v. Doe 1982, p. 220). Appearing to support children’s rights to education, the case presumed a child-object, property of a household, not a “childsubject” endowed with political agency (Thronson 2002). Lacking the intentionality presumed of adult migrants, and therefore grounds for punishment, children’s dependence limited local withdrawal of services. This subordinate legal position is bound, however, to the full responsibilization of parents, to the figure of an “illegal alien” who can be punished. Thus, decisions bearing on noncitizen children elaborate an immigration geopolitics, in and through the opposition between childobjects and criminalized migrant-subjects.“Unaccompanied minors” present a more substantial challenge to immigration officials, however, since their presence cannot be as easily explained by parental coercion. As “minors,” rather than “children,” unaccompanied children were detained, processed, and deported through the adult system (see Women's Commission 2002).
Engaged in immigration’s adversarial legal process, even the most litigiously competent children are often unable to obtain the necessary documentation without adult assistance. Many countries require adults to request birth certificates, so that age itself becomes a barrier to making successful claims. In the asylum system, which limits claims to political and religious persecution, immigration judges routinely dismissed young people’s political activity as warranting persecution. In the words of one judge, “it is almost inconceivable that the Tontons Macoutes could be fearful of the conversations of 15-year-old children” (Civil v. INS, 140 F.3d 52, 55 (1st Cir. 1998) in Thronson 2002, p. 979). Thus, young people faced an immigration system that discriminated against them on the basis of their presumed apolitical nature and the age requirements of the administrative process. The boundary between childhood and adulthood is woven into the legal categories of admission and exclusion and has wider impacts on judicial decision-making, dramatically impacting children’s location in the detention system.Seeking to ameliorate the effects of detention on children advocates settled Flores v. Meese in 1997, after a decade-long lawsuit against the federal immigration agency (then known as Immigration and Naturalization Service). This settlement achieved a substantial set of protections for minors navigating the immigration system alone, based on their “special vulnerability.” As a class action lawsuit, the Flores Settlement produced a contractual agreement between “all minors in federal immigration custody” and federal immigration authorities. Stipulating INS release preferences, administrative procedures, and conditions of custody, Flores endowed children with the right to be released to family members and guardians, to challenge INS/ICE detention decisions, and to access a variety of services. In short, the settlement entitled children to a series of relationships, binding children’s rights under Flores to particular spatial and temporal orders.
Like Plyler, Flores presumed innocent child-subjects and created a more robust legal process for children navigating the immigration system. Flores did not, however, reconfigure the admission or exclusion categories through which children’s immigration status is ultimately decided, limiting children’s entitlements to conditions of release and confinement. Importantly, Flores delineated a difference between the decision about whom to detain/release and where to detain them. The spatiality of children’s legal protections under Flores became particularly important in legal debates over family detention, when it became unclear whether accompanied children would be granted access to those legal protections.
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More on the topic Child-ObjectsZChild-Subjects and Migrant-Subjects:
- Child-ObjectsZChild-Subjects and Migrant-Subjects
- Harker C., Horschelmann K. (Eds.). Conflict, Violence and Peace. Springer,2017. — 456 p., 2017