The surge of migrant children seeking refuge at the southern U.S. border has embroiled the previous three presidential administrations. Lauren R. Aronson, an associate clinical professor of law and the director of the Immigration Law Clinic at the University of Illinois Urbana-Champaign College of Law, spoke with News Bureau business and law editor Phil Ciciora about the Biden administration’s handling of the issue.

Are we experiencing a crisis with unaccompanied children at the U.S.-Mexico border?

As of last month, the number of unaccompanied children at border has decreased significantly during the Biden administration, which is important considering the sheer number of kids that is and the limited resources that the government has to care for them. Most of these children are natives of Central America and Mexico.

In all recent administrations – Bush, Obama, Trump and now Biden – dealing with unaccompanied immigrant children has been an incredibly complex task from a humanitarian standpoint. The first part, sheltering kids, is straightforward: Children arrive at the border and we take them into custody. Obviously, we cannot send them back to the dangerous situations from which they’re fleeing. But the second part, releasing kids from custody, is much more complicated. We want them to reunite with family as quickly as possible, but we cannot simply release them to whoever claims them. These individuals must be vetted to avoid placing the children in different-but-still-dangerous settings. Unfortunately, this vetting can create obstacles and significant delays to release, even to parents, siblings or grandparents.

There’s no easy solution.

Critics have recently put a spotlight on Special Immigrant Juvenile Status, claiming that this form of humanitarian relief is drawing immigrant youths to enter the country illegally and serving as a legal loophole to stay here. How valid are those criticisms?

They’re not valid at all. First, the children coming to the border now and in years past have no idea that SIJS exists, let alone that they’re eligible for it. The children come here because they’re desperate to leave their homes.

For historical context, SIJS wasn’t originally conceived of in the framework of immigration law. Rather, it was based on principles of child welfare as they applied to immigrant youths. SIJS was created in 1990 after a big push to arrest and deport Central Americans and Mexicans from Southern California who were involved in gangs and other criminal activity. One result of that deportation push and criminal crackdown was that a lot of immigrant juveniles were effectively orphaned when their parents were either incarcerated or deported.

Subsequently, the U.S. foster care system ended up raising these orphaned children. And when they aged out of foster care, they faced the risk of deportation after the state had financially supported them to adulthood. That didn’t make any sense, and some enterprising social workers advocated for a way to help these kids who had been abused, abandoned or neglected by their actual parents to stay in the U.S. once they entered the foster care system.

For over a decade, SIJS was an extremely underutilized form of relief – many immigration advocates had never even heard of it, and truth be told, many still haven’t. So, the suggestion that kids come here to benefit from SIJS is, frankly, laughable.

Some tweaks to the SIJS statute’s language in the Trafficking and Victim Reauthorization Protection Act of 2008 made SIJS explicitly available to a broader population of abused, abandoned or neglected children. These changes meant that children placed in the custody of any entity – foster care or a private individual – could be eligible, and word spread throughout the legal community. Kids who get SIJS from this larger group are no less worthy of protection than those who previously benefited.

What is reality like for migrant youths who are granted Special Immigrant Juvenile Status?

If they’re from anywhere besides Mexico, El Salvador, Guatemala and Honduras, the reality is a swift and secure pathway to lawful permanent U.S. residence. But for youths from those four countries, their reality is a legal limbo. Despite its classification as a “status,” SIJS simply bestows the right to apply for lawful status once a priority date is current.

Unfortunately, due to a glitch in the law, SIJS beneficiaries were placed in an employment-based category with religious workers, Iraqi and Afghani interpreters, and a few other groups, so they’re all competing for the same limited number of visas. There are now approximately 26,000 immigrant youths caught up in the backlog. Without a current priority date, SIJS recipients lack any kind of legal stability. They can’t work; they’re ineligible for federal public assistance; and they remain at risk of deportation as they wait years for a green card.

These circumstances disincentivize the pursuit of higher education and often force kids into the underground work market, which risks exposing them to illegal activity and makes them vulnerable to exploitation.

This reality is clearly not what the creators of this humanitarian and child welfare-based policy had in mind.

What policy should the Biden administration pursue regarding Special Immigrant Juvenile Status-eligible youths?

The best outcome would be an amendment to existing law. But given the makeup of Congress, legislative action is extremely unlikely. However, we don’t need congressional action to help these kids. The most promising option is for the Biden administration to act in a way similar to what the Obama administration did with the Deferred Action for Childhood Arrivals program: exercise executive action to give SIJS youths deferred action, temporarily protecting them from deportation and permitting them to legally work. Some less friendly immigration judges deport children with SIJS despite the government’s acknowledgement that they merit protection, so unambiguously foreclosing that possibility would be a big step. And allowing these kids to legally work would have many positive benefits, including protecting them from exploitation and increasing their contribution to our economy as U.S. taxpayers.

The SIJS backlog is not only an immigration issue but also a child welfare issue. As a country, the U.S. has historically prioritized the mission of safeguarding the welfare of children at home and abroad. Based on how we’re treating immigrant children within our borders, we are failing this mission.