Abstract

Excerpted From: Lauren E. Bartlett, Towards the Abolition of the Immigration Detention of Children in the United States, 59 University of San Francisco Law Review 393 (2025) (154 Footnotes) (Full Document)

Detaining migrant children, even for short periods of time, is traumatic and has negative, long-lasting impacts on adolescent health and well-being. Human rights courts, treaty bodies, and experts agree that the detention of children based solely on migration status is never in the best interests of the child and is a clear human rights violation. For over a decade, international human rights mechanisms have been calling for a complete prohibition on the detention of children, with or without their families, based solely on migration status.

While some countries around the globe have outlawed the detention of migrant children, U.S. law allows officials to put children in cages at the border for up to twenty days, and that time limit is rarely enforced. Both the Obama and Trump administrations put thousands of migrant children in cages each year--often separated from family members--for months on end, without adequate medical care, education, and other necessary supports. The Biden administration stated that it would halt the practice in early 2021. The plan that the Biden administration promised was to release migrant children and their families into the United States with ankle bracelets or cellphones to keep track of them. However, the immigration detention of children was never actually halted. While U.S. Immigration and Customs Enforcement (“ICE”) said it ended family detention in 2021, and U.S. Customs and Border Protection (“Border Patrol”) claimed to have no family detention centers of its own, somehow thousands of children were detained in warehouse facilities in 2023 and 2024.

The detention of migrant children will drastically increase under the Trump administration. The Trump administration has signaled it plans to build new immigrant detention centers, and Congress passed the Laken Riley Act, which will lead to increased immigrant detention because it requires the mandatory detention of immigrants without the ability of an immigration judge to grant bond.

The U.S. government has conceded that the detention of children for immigration purposes is traumatic and causes long-term harm. Even President Donald Trump understands that separately detaining migrant children from their families is not good. Yet, at the same time, the U.S. government has refused to adopt a “best interests of the child” principle as the primary consideration in immigration detention decision-making. Many people in the United States cannot imagine an immigration system that would not require the detention of at least some migrant children at the border for some time, let alone putting an end to the practice altogether. Moreover, the U.S. government's goal of deterring future immigration too often overrides any concerns over long-term harm to detained migrant children.

If the United States is serious about forging a path towards the abolition of immigration detention of children, it should at the very least engage candidly on the topic with the human rights experts that sit on international human rights mechanisms, including during the upcoming Universal Periodic Review of the United States by the U.N. Human Rights Council in November 2025. This is a small and relatively easy step that the U.S. government can take toward the abolition of immigration detention of migrant children in the United States. Compliance with recommendations made by international human rights mechanisms is entirely voluntary, and relatively little domestic attention is given to U.S. engagement with human rights mechanisms. Moreover, the expertise and guidance that international human rights mechanisms can provide on this subject are unparalleled.

In Part I, this Article begins with a description of U.S. practices of detaining migrant children. Part II details the growing consensus among human rights law experts around a complete prohibition on the immigration detention of children. Part III discusses recent U.S. engagement with international human rights mechanisms on the topic of immigration detention of children. The Article concludes with recommendations for U.S. engagement with international human rights mechanisms, forging a path toward the abolition of the immigration detention of children.

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The decision to forge a path towards the abolition of the immigration detention of children in the United States is far from impossible. The United States is closer than many may think; the Biden administration even claimed that it ended the practice in 2021. The U.S. government has recognized that the harms perpetrated on children are severe and long-lasting. Although the United States has not outlawed the practice, U.S. law already provides for limits on immigration detention of children and minimum standards of detention conditions. Moreover, despite American exceptionalism, the United States does regularly avail itself of the expertise and guidance of some human rights mechanisms. For example, the United States rejoined the U.N. Human Rights Council in 2022; U.S. government officials attended and participated in treaty body reviews, the Universal Periodic Review, and the Inter-American Commission hearings; and they accepted requests for official visits from human rights experts.

To forge a clear path towards the abolition of immigration detention of children, the United States should take seriously the expertise and guidance it has already received from international human rights mechanisms. In addition, the United States should invite additional guidance by including this issue in its periodic reports to treaty bodies and other official communications with U.N. human rights mechanisms. The United States should also plan to bring up the issue of the immigration detention of children in its national report and at the U.N. Human Rights Council's Universal Periodic Review of the United States in November 2025. This would be a low-stakes approach to exploring the abolition of immigration detention of children.

The United States should also consider issuing invitations to the U.N. special rapporteur on the human rights of migrants for an official country visit to the United States, whereby the special rapporteur could lend his expertise on the abolition of immigration detention of children, including suggestions for outlawing the practice. Eventually, the United States should also consider ratifying additional relevant international conventions, including the Convention on the Rights of the Child and the Convention on the Rights of All Migrant Workers and Members of Their Families, among others. This would allow the United States to receive guidance from those treaty bodies on this issue as well.

Abolition of immigration detention of children is the right thing to do and is in line with international human rights law; the United States can start dismantling its racist, oppressive, and violent immigration system and prevent future long-term harm to the hundreds of thousands of migrant children it encounters each year. Hopefully, this Article can provide law and policymakers with motivation and practical guidance on forging a path towards the abolition of immigration detention of children in the United States.

Lauren E. Bartlett is Professor and Director of the Human Rights at Home Litigation Clinic at Saint Louis University School of Law.