DOJ Sues Migrant Child Center for ‘Sexual Abuse and Harassment’

On July 18, the Department of Justice (DOJ) announced it’s suing Southwest Key Programs Inc., “a Texas-based nonprofit that provides housing to unaccompanied children [UACs] who are encountered at” the Southwest border, for engaging in “a pattern or practice of sexual abuse and harassment of” children trusted to its care. Such a shocking claim — while inevitable — is emblematic of the issues inherent in the federal government’s UAC system, which has never worked and is now breaking down under its own weight as migrant children continue to surge across the U.S.-Mexico line.

How We Got Here. The term “unaccompanied alien child” is defined in statute as:

a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

Under that definition, only alien minors without parents or legal guardians here are considered UACs, but nonetheless the federal government — and DHS in particular, lumps plenty of kids with parents and guardians here illegally in as UACs, too.

That definition was added to federal law by section 462 of the Homeland Security Act of 2002 (HSA), as good a starting point as any in explaining why Border Patrol has apprehended nearly 82,000 UACs in just the first nine months of FY 2024.

As its name suggests, the HSA was the law that created DHS. Prior to the establishment of that department, the former Immigration and Naturalization Service (INS) was responsible for detaining, caring for, and releasing alien children.

I refer to it as the “former INS” because it was abolished in section 471 of the HSA, with its immigration responsibilities dispersed among various other agencies at DHS, including CBP, ICE, and USCIS.

Responsibility over the detention, care, and release of UACs wasn’t retained by any of those agencies, though. A hasty Democratic amendment to the HSA transferred authority over those children to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS).

As I’ve explained repeatedly in the past, even though I was present when that amendment was adopted, I have no idea why jurisdiction over UACs was transferred to ORR, an office that to that point had no experience in detaining, caring for, or releasing anyone, let alone children.

There was no discussion about the amendment itself, nor any as to why ORR was a better fit than ICE, which retained jurisdiction over the detention of aliens generally for immigration purposes.

Notably, legacy INS units that ICE inherited did, in fact, have experience in the care and placement of such children.

Immigrants’ advocates, however, had long been critical of how INS dealt with alien kids, so the sponsors of that amendment likely assumed placing those children anyplace else was a better choice. History has not vindicated that assumption.

At least initially, there weren’t that many UACs showing up at the border. According to the Congressional Research Service (CRS), the number of UACs apprehended by DHS and referred to ORR in the early 2000s “averaged 6,700 annually and ranged from a low of about 4,800 in FY 2003 to a peak of about 8,200 in FY 2007”.

That quickly changed after a now-Democratically controlled Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA divided UACs into two separate groups based on nationality: (1) children from “contiguous” countries (Canada and Mexico); and (2) minors from “non-contiguous” countries (everywhere else).

Under that provision, UACs from a contiguous country can be returned home if they haven’t been trafficked and don’t have a credible fear of return.

UACs from non-contiguous countries, however, must be transferred to ORR within 72 hours and placed into formal removal proceedings (UACs are not subject to expedited removal), even if they haven’t been trafficked and have no fear of return. By statute, ORR then places most of those children with “sponsors” in the United States — usually the children’s own parents or guardians.

Not surprisingly, the number of UACs from non-contiguous countries soared after that provision took effect as parents (and, more importantly, smugglers) realized the TVPRA all-but guaranteed any child who could make it illegally into the United States would be released into this country to rejoin his or her family.

Here are the stats: CRS reports that in FY 2008, the fiscal year before the TVPRA was passed, CBP encountered fewer than 10,000 UACs at the Southwest border.

By FY 2009, when that bill was signed, that number grew to around 20,000 UACs, 82 percent from Mexico and just 17 percent from the non-contiguous “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

The numbers increased thereafter, with Border Patrol apprehending more than 68,500 UACs in FY 2014. By that point, however, just 23 percent of UACs came from Mexico and 77 percent from the Northern Triangle.

The only logical conclusion is that section 235 of the TVPRA created a loophole now being exploited by those (smugglers, parents, other relatives, traffickers, the children themselves, etc.) seeking to bring UACs to the United States illegally.

You don’t have to trust me, however. In August 2014, the Washington Post editorial board complained: “Inadvertently, [TVPRA] has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy”.

Surges Under Obama and Trump. Not surprisingly, both the Obama and Trump administrations struggled with sporadic UAC surges.

As noted, agents at the Southwest border apprehended more than 68,500 UACs in FY 2014, prompting President Obama that August to expand UAC detention and launch a PR campaign throughout Central America to deter parents from paying smugglers to bring children to the United States.

As an aside, so many children were showing up at the border that agents were forced to erect chain-link dividers in Border Patrol’s emergency processing facilities to separate them from unrelated adults, the genesis of the so-called “kids in cages” trope that later came to haunt the Trump administration.

Speaking of Trump, there was another UAC surge in FY 2019, as more than 76,000 UACs poured over the Southwest border, straining ORR’s shelter capacity.

The Trump administration responded by expanding ORR vetting of would-be sponsors, and by FY 2020, UACs were spending on average 102 days in the office’s custody during that vetting process (the current average under Biden is 29 days).

Would-be sponsors/relatives likely didn’t want the extra scrutiny because monthly UAC apprehensions fell from a high of nearly 11,500 in May 2019 to just over 3,000 in February 2020 — the month before Title 42 began.

And Then Came Biden. Biden excoriated Trump over his treatment of alien children during the 2020 presidential campaign, and once he took office in January 2021 and switched things up, the number of UACs skyrocketed.

In March 2021, agents apprehended nearly 16,500 UACs from non-contiguous countries at the Southwest border, prompting Biden to begin moving them into “emergency” shelters as ORR contract shelters quickly ran out of space in a highly criticized move (I was one of his few defenders).

All told, between February 2021 (Biden’s first full month) and June 2024, agents at the Southwest border encountered more than 396,000 UACs, a population larger than New Orleans, Cincinnati, or Cleveland. As of July 5, 2024, there were 6,790 unaccompanied children in ORR’s care; most of the rest have been released.

If all those Biden UACs were all in the same school district, it would be the sixth largest school district in the United States. Congress likely never envisioned the UAC process it set up in the HSA and TVPRA would ever run at such a volume, though to this outside observer it was inevitable.

The ORR Shelter System and Southwest Key. Including so-called “influx shelters”, ORR has around 17,500 UAC shelter beds, most of them in private facilities that have contracted with or received grants from HHS.

Southwest Key is the largest provider of UAC housing, and according to ABC News, it operates 29 migrant children shelters: “17 in Texas, 10 in Arizona and two in California — with room for more than 6,300 children”. The outlet notes:

Previous abuse at some Southwest Key shelters led to their closure, including two large facilities in Arizona in 2018. The state revoked their licenses for not properly conducting background checks on their employees, and further investigation revealed several cases of physical and sexual abuse, including accusations from the government of El Salvador.

It’s unclear what impact those closures had on its operations because DOJ now alleges that between 2015 and 2023:

multiple Southwest Key employees subjected children in their care to severe or pervasive sexual harassment that has included, among other things, sexual contact and inappropriate touching, solicitation of sex acts, solicitation of nude photos, entreaties for inappropriate relationships and sexual comments. The complaint further alleges that Southwest Key took insufficient action to prevent sexual harassment of the children in its care, failed to consistently follow federal requirements for preventing, detecting and reporting abuse including sexual harassment, failed to take appropriate or sufficient action to protect the children in its care and discouraged children from disclosing sexual harassment in violation of federal requirements, despite ORR having issued multiple corrective actions to Southwest Key.

As if that’s not bad enough, the complaint contends: “In harassing these children, these Southwest Key employees exploited the children’s vulnerabilities, language barriers, and distance from family and loved ones.”

I’ll spare you the details, but suffice it to say that the allegations in the complaint are lurid and disturbing.

The proponents of the UAC shelter and placement schemes in sections 462 of the HSA and 235 of the TVPRA likely had only the best of intentions. Unfortunately, they were blithely (and possibly recklessly) ignorant of the impacts their proposals would inevitably have — both in encouraging parents and other relatives to pay smugglers to bring alien children to this country and on the ability of ORR to handle the inevitable UAC flood.

If the allegations in the complaint are true, even after 21 years ORR lacks either the competence or the ability to properly supervise the migrant child shelters that it’s funding (probably both).

Congress should review the allegations DOJ has lodged against Southwest Key and other recent instances of migrant child abuses, look in the mirror, and admit its efforts to protect those children have not only failed, but are actually making their humiliation and suffering worse. After that, Congress should strike section 235 of the TVPRA and end the incentives for child smuggling altogether.