Jacqueline Bhabha on Migrant Children and Human Rights

by Doug Gavel, interviewed on June 27, 2014

The recent surge in the numbers of undocumented migrant children crossing into the United States is causing great concern among public officials, law enforcement and human rights advocates. Jacqueline Bhabhais the Professor of the Practice of Health and Human Rights at the Harvard School of Public Health, the Jeremiah Smith Jr. Lecturer in Law at Harvard Law School, and an adjunct lecturer in public policy at the Harvard Kennedy School. She has written extensively on issues of transnational child migration, refugee protection, children’s rights, and citizenship. Her latest book is titled "Child Migration and Human Rights in a Global Age."

Q: What are the factors contributing to this recent surge of child migration into the United States?

Bhabha:There are now estimated to be 80,000 unaccompanied child migrants arriving in the U.S. each year, whereas only three or four years ago those numbers were between eight and 10 thousand. I think there are three principle factors responsible for this huge increase. The first is the massive population of undocumented migrants who live in the U.S. and who’ve lived here for years. They have no prospects of going back home to bring their children over to join them in a way that will ensure that they can get back in again. And, so, they send for their children. They arrange with smugglers – or "coyotes," as they’re called in Central America – for the children to be brought in so that they can finally be reunited. This is a common and concerning phenomenon because the children often go through dangerous journeys and holding locations before they get to the border. Then, of course, once they reach the border, they are often picked out by border control officials as not being in the company of a legitimate parent. If they are Mexican they then get sent back immediately. If they are not Mexican (OTM or other than Mexican, in official speak) they are detained. For girls these migration experiences are particularly hazardous; we know of many cases where girls have experienced sexual violence and rape. So, I think that’s one factor – working parents trying to finally reunify with children who they’ve left behind in the care of grandparents or other family members in Central America.

The second factor, I believe, is the dramatic escalation of violence in Central America, not only in Mexico, but also in Honduras, El Salvador and Guatemala. All of these countries are experiencing a very dangerous urban situation that has seriously escalated. It is partly fueled by the drug wars and by massive increase in drug trade in Central America, moving up from Colombia and Latin America. But it’s not only drugs; it’s also this proliferation of gangs and of violence, more generally. So, I would say that some cities, like Tegucigalpa, the capital of Honduras, or San Salvador, are probably as dangerous as Baghdad or Homs. These are really like war zones, an extremely dangerous situation, particularly for poor, urban kids. They are places that you would want to get out of for your own safety, and that you would certainly move your children away from if you had any option.

As I just mentioned, one factor related to the violence is the proliferation of gangs. There are thousands of kids being forcibly recruited into gangs who have very little option of escaping the risks that flow from that recruitment unless they get out physically. Many of the gangs are created by young people who have been deported from the U.S. So, this is, in a way, an American Diaspora – people who were brought to the U.S. when they were very young, don’t have American citizenship, have offended while they were living in the U.S., joined gangs, and then are deported back “home.” But the home is really no longer their home. Many of these American deportees are exporting the violence they learned in L.A. or Chicago to Central American cities, running very violent gangs that ensnare local kids. This, then, is a huge factor that many children and teens are fleeing – forcible recruitment into gangs.

I believe the third factor responsible for this increase in child migration is a general attempt to achieve a better life, an attempt to access hope and possibility, and greater prospects of employment and education. Many of the societies from which these children come, particularly the cities, are failing in their infrastructure. Hundreds of thousands of children are being raised by aging grandparents, in families divided by migration and increasingly by cultural separation. The school system is embattled, in many cases radically failing those kids who most need an education to have future prospects. Social services are pretty much nonexistent, and employment options are also limited. So kids and their families see El Norteacross the border as a sort of glimmer of hope, with the idea that better options exist in America. As some migrate, others follow – the exit option seems more and more attractive, and so the flow grows and from a stream becomes a river. We have seen similar processes elsewhere – among the “kinder transport” children fleeing Nazi Europe, the boat children in Vietnam, the Pedro Pan children in Cuba. So, I think the push factor of the violence and the pull factor of a sunnier future in North America contribute to this massive surge in child migration.

Q: And how are agencies in the United States responding to this crisis?
Bhabha:Belatedly, they are responding with some vigor and some dynamism and concern. Some of us have been arguing for at least 10 years that this phenomenon needs much more attention and much more concerted intervention. We’ve been saying that child migration is a substantial issue, it’s here to stay, it’s not just an errant aberration that happens occasionally. But the authorities have really failed to systematically attend to this.
So, in the U.S., in particular, there’s been a dearth of services. To this day, unaccompanied child migrants have no right to legal counsel. They have no right to a guardian or somebody who’s going to, sort of, hold their hands through proceedings, and so this has created a huge vacuum of protection. And I think now with this enormous surge, the authorities are really concerned. Of course, there’s the very practical consideration about where to accommodate them, so detention centers and other facilities are being opened all across the country to house these young people. They are trying to also think of ways of increasing access to some form of counseling and representation.

President Obama announced a couple of weeks ago that he would provide, through government assistance, one hundred paid counsel to represent children. That’s a drop in the ocean, of course, if you think there are up to 100,000 going to come in this year. That means, one thousand kids per advocate, so it’s not a great ratio, but it’s an indication that the administration is thinking about the need for some sort of protection and some sort of representation.

I also believe that we are beginning to see some real collective soul-searching taking place across borders, involving U.S. authorities, Mexican authorities, and even other Central American governments, about what to do about this very dangerous and difficult situation. I recently attended a meeting in Washington DC along with several members of the Obama Administration, advocates, legal experts, and representatives from the consulates of Mexico and El Salvador, all trying to think together about how we can, in a humanitarian way, make it possible for these children and adolescents to remain at home, to be mentored, and to actually have prospects of getting an education, gain skilled training, and, eventually, a job. So I think that there really are moves now to think about this problem systematically.

Regrettably, of course, a lot of pressure also exists to simply just repel and send these kids back to their home countries as quickly as possible, without even concerning one’s self about their best interest, which is, I believe, very concerning due to the fact that many of these kids don’t really have a good option to go back to. There isn’t a loving family waiting to receive them. There aren’t state structures in place which are going to provide them with safety and care. And, yet we know that hundreds of kids every week are being sent back across the border, both across the U.S.-Mexico border and further south from Mexico into other Central American countries and this is very concerning to me.

Q: What more can be done to help these undocumented children?

Bhabha:There are several things that can and should be done to help address this challenge. First, I think we really need a solution to the general problem of undocumented migration illustrated by the large number of people who’ve lived here in the United States for so many years and have made significant contributions to this country. So we need to think about legalization in a systematic way. I think the political odds of having comprehensive immigration reform any time soon are complicated. On the one hand there are incentives for any administration to increase the voter base when you have the prospect of a majority-minority voter base. On the other hand, there is huge pushback from people who are concerned about border control, lax immigration, and about creating incentives for illegal migration. So, we do have a problem, but I think that any viable solution will require addressing this question of divided families that have no prospect of reunifying legally.

Second, I think that we need to think much more systematically about what should be offered to these children, what rights they have as children. In most other destination states, including Europe, children in this situation have a right to free legal representation, and I think that’s an essential move. It’s unconscionable for a child who is fleeing forcible gang recruitment, one of the most dangerous threats a child could face, to have to contend with the legal obstacles to remaining here in the U.S. without a lawyer. We need to make legal representation accessible widely to unaccompanied minors who come in seeking protection of one sort or another. NGOs and a range of organizations do a valiant job of trying to provide pro bono advocacy to kids, but that’s really not adequate. What often ends up happening is that while pro bono advocates are trying their best, often without much expertise, it is the students in law clinics or the junior associates who end up handling these very difficult, complicated cases which require expert representation.

Third we do need to think about root causes of this problem. We need to focus systemically on prevention. We need to think about the factors that are fueling the desire by many to leave home. Most people, given an option, would rather stay at home. You only leave if there is a better prospect somewhere else or if you feel you have to. And I think that’s exactly the case in this latest wave of migration. The people who are leaving see no future, and rightly so, in remaining at home. So, how can we think radically about changing the dynamic of the drug violence? How can we think about increasing social and economic benefits across the border? How can we think radically about really making these countries, which after all are our neighbors, more livable for young people? I think none of this is easy, none of this is going to happen overnight, but I do think that if we don’t think radically about prevention and about root causes, the will continue migration will continue.

Q: How is this crisis forcing governments and citizens to rethink the international ethics of children’s human rights?

Bhabha:I don’t know. I think there is a real tension in both government and in the citizenry, if you like, in the public sphere, between two opposing attitudes about this issue. On the one hand, there genuinely is a concern for children. There is a genuine feeling that poor, unaccompanied, vulnerable children need and deserve protection; that they are not responsible for the situations they face; that they have a right to expect the government and the public at-large to care for them. You’ve heard that sentiment from the President and from many other leaders across the political spectrum.

On the other hand, though, there is a countervailing position, which argues that whether they’re children or not, they are illegal immigrants, and we should not be encouraging illegal migration. The view is: this problem is not our responsibility. A senior administration official told me years ago that, “these kids are either runaways or throwaways.” I think he meant that either they’re criminals up to no good, or they’re throwaways in the sense that people who should be responsible for them have just discarded them and thrown them away, so why should we be picking up these pieces? And I believe that behind that attitude is a set of different positions. One is a concern with making the borders secure and disallowing access for undocumented migrants to those government protections and benefits paid for by citizen tax dollars. Secondly, I think there is also an underlying sense that many of these children, many of whom are adolescents, are actually juveniles, and the word juvenile denotes the negative stereotype of juvenile delinquent. So, I think there’s a sense that they, far from being innocent, sweet, or vulnerable children who need protection, are potentially dangerous. They might have a criminal background. They may be involved in drug smuggling. They may be involved in terrorism. There’s a sense that, far from being an innocent, likeable, and deserving group, they’re a threatening and negative force who we need to keep at bay. I think these two positions – one the one hand the protective instinct and on the other hand the punitive or exclusionary instinct – are battling it out in the public sphere

In answer to your question, I’d say that the citizenry and the government are divided, and I think it’s difficult to be optimistic that a good solution will ensue any time soon. But I think it does mean that for those of us who feel strongly that the ethics of the situation demand a generous and inclusive approach, it sets the agenda to be as proactive as we can to make the facts of the situation known to people so that they realize how dangerous the conditions are that these kids are escaping, and how deserving they are of our generosity.

Q: Your most recent book, "Child Migration and Human Rights in a Global Age," addresses many of the issues being raised in the current discussions. Please tell us more about the book.

Bhabha:The timing is quite ironic because this book has been a long time in the making as it pulls together research I’ve done on this topic for the past 15 years or so, as an advocate first and then as a scholar. But I think at no time in this long period have these issues been more acutely relevant.

This book has come out at a time when I think everybody is forced to think about these issues, and not only in the U.S. Issues of child migration are actually very much on the front burner in Europe, as well. Even American readers and listeners are probably aware of the dramatic increase in migration across the Mediterranean. Hundreds of thousands of people are fleeing violence and poverty in Syria, Iraq, North Africa, and sub-Saharan Africa and many of these people are young. Some are children, some are very young children, and so this problem repeats itself again and again. We know of cases of young Afghani boys, for example, who are fleeing recruitment by the Taliban. We know of cases of Syrian children whose parents are sending them out so that they will have a future, who are arriving in southern Europe, Italy, or Malta, Spain, or Greece, trying to escape war zones. So, this is a very widespread problem. I think the point here is that this is a global issue and it really needs to be at the top of the agenda.

Another point that I want to make is that these children we are talking about are our future; they are the next generation, the leaders of tomorrow. Think of the courage it takes for these young people to take the risks and make the choices they make in order to find a better life. I think that just as we rejoiced about the very engaged role played by young people during the Arab Spring, we need to be concerned about these other young people who have an equal desire for justice and freedom, who are struggling to make that happen.


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