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Physical apprehension and detention of aliens who are in the United States without permission (i.e. without lawful immigration status) and aliens who are seeking admission to the United States without required documents or without inspection by an immigration officer are enforcement actions necessary to effectively remove such persons from the United States if such aliens are not eligible for relief from removal.

An alien in the United States without lawful immigration status is subject to arrest and detention solely based on such alien’s lack of lawful immigration status for the purpose of removing such alien from the United States.  No criminal violation or charge is required.  Likewise, no person who is not a United States citizen or national has an unfettered right to enter (or even transit through) the United States.  See section 235(a)(3) of the Immigration Act, as amended ("the Act").

Long ago the United States Supreme Court declared that deportation, as a matter of law, is not punitive:   

The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend.

Fong Yue Ting v. United States, 149 U.S. 698, at 701 (1893).  See, also, Pereida v. Wilkinson, Acting Attorney General, 592 U.S. ____, at 15 (2021) (comparing the burden of proof in criminal proceedings to the burden of proof in “civil immigration proceedings”); INS v. Lopez-Mendoza, 468 U.S. 1032, at 1046 (1984) (Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end.); Harisiades v. Shaughnessy, 342 U.S. 580, at 594 (1952) (acknowledging deportation proceedings as civil proceedings).

Confounding civil immigration proceedings with criminal proceedings sometimes produces great distress and alarm when children become the subject of immigration proceedings.  Immigration law is not guided by what is commonly described in domestic family law as the best interest of the child.  In this regard, the immigration law might seem counterintuitive to practitioners of other legal specialties. 

At its root, United States immigration law only distinguishes between aliens and United States citizens and nationals.  The definition of “alien” is set forth in section 101(a)(3) of the Act:  “The term ‘alien’ means any person not a citizen or national of the United States.”  Thus, a juvenile or child who is an “alien” (i.e. “not a citizen or national of the United States”) and who is present in the United States without lawful immigration status is subject to removal from the United States just like any adult alien in the same posture.  For the purpose of this assessment, age and the best interest of an alien child are irrelevant.  Similarly, classes of inadmissible aliens who are applying for admission to the United States defined under section 212(a) of the Act include no exception or waiver of inadmissibility based on age alone or child status.

Generally, for immigration purposes, the term, “child” means an unmarried person under twenty-one years of age.  See section 101(b)(1) of the Act.

Removal of children under the immigration law is nothing new.  In the late 19^th century, an unaccompanied minor would probably be classified inadmissible, as an alien “unable to take care of himself or herself without becoming a public charge.”  See section 2 of the Act of August 4, 1882.  

In 1907, Congress provided for the exclusion of “. . . all children under sixteen years of age, unaccompanied by one or both of their parents . . .”  See section 2 of the Immigration Act of 1907.  See also section 3 of the Immigration Act of 1917 which added the exception, “that any such children may, in the discretion of the Attorney General, be admitted if in his opinion they are not likely to become a public charge . . .”

After the enactment of the Immigration and Nationality Act of June 27, 1952 (which essentially repealed all previous immigration acts and consolidated the immigration law under one act) the only indirect allowance for minor alien children (presuming their incompetence) could be found in former section 242(b) of the 1952 Act:

Determination of deportability in any case shall be made only upon a record made in a proceeding before a special inquiry officer, at which the alien shall have reasonable opportunity to be present, unless by reason of the alien's mental incompetency it is impracticable for him to be present, in which case the Attorney General shall prescribe necessary and proper safeguards for the rights and privileges of such alien.

The presence at an immigration hearing of any incompetent alien, including a minor child, was not required.  This provision remains in the current law under section 240(b)(3) of the Act, as amended.  Another conclusion that can be drawn is that mental incompetence provides no substantive protection in deportation or removal proceedings for any alien; adult or child.     

In short, although Congress has enacted legislation and the former INS/DHS has promulgated regulations to provide procedural protections for children in immigration proceedings, age cannot serve as a shield or render immunity from exclusion, deportation or removal grounds for any alien who is applying for admission to the United States or is found in the United States without government permission.

To be clear, provisions for relief from removal for certain juvenile aliens undeniably exist.  See, for example, sections 101(a)(27)(J), 245(h) of the Act and regulations under 8 C.F.R. § 204.11 relating to special immigrant juveniles. However, nothing in the immigration law exempts any alien from grounds of removal, even though removal might be avoided by affirmatively applying for relief as provided by law.  

In short, regardless of age, any person who is not a United States citizen or national must be legally admissible if applying for entry or admission to the United States and enjoy lawful immigration status or parole if inside the United States; no exceptions.