[Senate Hearing 107-867]
[From the U.S. Government Publishing Office]
S. Hrg. 107-867
THE UNACCOMPANIED ALIEN CHILD PROTECTION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 28, 2002
__________
Serial No. J-107-63
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
85-520 WASHINGTON : 2003
___________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on Immigration
EDWARD M. KENNEDY, Massachusetts, Chairman
DIANNE FEINSTEIN, California SAM BROWNBACK, Kansas
CHARLES E. SCHUMER, New York ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois CHARLES E. GRASSLEY, Iowa
MARIA CANTWELL, Washington JON KYL, Arizona
MIKE DeWINE, Ohio
Melody Barnes, Majority Chief Counsel
Stuart Anderson, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 11
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 77
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 4
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 82
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1
Leahy, Patrick J., a U.S. Senator from the State of Vermont...... 84
WITNESSES
Anderson, Stuart, Executive Associate Commissioner, United States
Immigration and Naturalization Service, Washington, D.C........ 12
Creppy, Michael J., Chief Immigration Judge, Executive Office for
Immigration Review, Falls Church, Virginia..................... 7
Duncan, Julianne, Director, Office of Children's Services,
Migration and Refugee Services/United States Conference of
Catholic Bishops, Washington, D.C.............................. 56
Morton, Andrew D., Esq., Latham and Watkins, Washington, D.C..... 49
Munoz, Edwin Larios, Grand Rapids, Michigan...................... 27
Young, Wendy A., Director of Government Relations and U.S.
Programs, Women's Commission for Refugee Women and Children,
New York, New York............................................. 31
SUBMISSIONS FOR THE RECORD
Bendit, Heather M., Philadelphia Bar Association; Judith
Bernstein-Baker, HIAS and Council Migration Services; Rupal
Parikh, Nationalities Services Center; Shelly D. Yanoff,
Philadelphia Citizens for Children & Youth; Phyllis Grady,
Amnesty International; Metty Vithayathil, Pennsylvania
Immigration Resource Center; Michele Pistone, Villanova Law
School; Joy VanBerg, Lutheran Children & Family Services;
Marsha Levick, Juvenile Law Center; and Julie Slavkin,
Southeast Regional Immigrant and Citizens Coalition,
Philadelphia, Pennsylvania, March 12, 2002, joint letter....... 74
Florence Immigrant & Refugee Rights Project, Holly S. Cooper,
Florence, Arizona.............................................. 78
Glaves, Bob, Chair, Legislative Committee, Chicago Bar
Association, Chicago, Illinois................................. 80
Sadruddin, Hussein, Soros Postgraduate Justice Fellow, Lawyers'
Committee for Civil Rights Under Law of Texas, San Antonio,
Texas.......................................................... 84
THE UNACCOMPANIED ALIEN CHILD PROTECTION ACT
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THURSDAY, FEBRUARY 28, 2002
U.S. Senate,
Subcommittee on Immigration,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Edward M.
Kennedy, chairman of the Subcommittee, presiding.
Present: Senators Kennedy, Feinstein, and Brownback
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Chairman Kennedy. We will come to order.
Before we get into the matter at hand, I will just take a
moment while our colleagues arrive here to welcome some special
guests who are with us today. They are students from Mt.
Rainier Elementary School, in Prince George's County, who have
demonstrated a strong commitment for improving the treatment of
unaccompanied minors in the country. They have brought with
them a paper doll chain that they have created with children
from over 20 States, containing 500 links to represent the 500
children who are detained by the INS each day.
So maybe they and their teacher would stand up.
[Applause.]
Chairman Kennedy. We can do a little better than that. Why
don't we open up a little line here and maybe they would all
come up to the front of the hearing room. Come right up in
front, if they can come right up in front. Come right up in
front here so everybody can see you. Line up right along here,
line up facing out. The second row can get down on your knees
just down in front.
I am used to large families.
[Laughter.]
Chairman Kennedy. And if we have a third row, they can come
back here. Let's have Ms. Suess, their teacher, up here too.
We are joined by Senator Feinstein. We are intruding on our
Subcommittee's time for a very worthwhile purpose. These
children have created a paper doll chain with children from
over 20 States.
Ms. Suess, we would like to have you just tell us quickly
what this project is all about. Just sit down and speak through
that mike right there.
Ms. Suess. We are from a very special school in Prince
George's County. We are one of ten schools nationwide that is a
National School of Character. We have also been chosen by the
alternative dispute resolution group in Baltimore as a Model
Peace School.
When we heard about this issue of unaccompanied children
not being put into loving home care situations, we thought that
this was a real concrete way to continue our dedication to the
cause of peace for children worldwide.
Chairman Kennedy. Well, I think you are to be commended,
and all of the children.
Now, children, I want you to stretch that chain out so
everybody can see it. And I would like to ask our audience to
give them a round of applause.
[Applause.]
Chairman Kennedy. We want to thank them for being here. If
they want to sit down here, they can hear more, and I think it
is OK with us. I think it is a better seat for them.
I don't know from their teacher what their timeframe is,
but you give me the signal. They will be here for panel one.
Thank you very much. This is inspiring, and we want to
thank all of the students. We just thank you for taking an
interest in this, and we hope that you will continue to keep an
interest in this and that you will keep an interest in the
challenges of children both here at home, in Prince George's
County, in Maryland, and also children in this country and
children around the world. We want to thank you very much for
doing this. It is a very, very important undertaking and we are
very grateful to all of you for doing it.
It shows a lot of work, doing all of those cards. Someone
took a lot of time to do it, and that is what you have done.
And I think because of that and because of our hearing today,
those children will be helped. So you ought to take some
satisfaction from that, too, for really helping some people.
I want to first of all thank Senator Feinstein, who has
been our driving force on this issue. She has had a
longstanding commitment to this important issue. She has
introduced the Unaccompanied Alien Child Protection Act. I am a
proud and privileged cosponsor with her, but she has been the
important leader in the U.S. Senate and nationally on this
issue and on this question.
I will just make a few comments here and put this issue in
some framework.
For the past few years, increasing numbers of foreign-born
children have come to the United States unaccompanied by their
parents or legal guardians. Last year, more than 4,600 arrived,
and their number continues to rise this year. Some flee human
rights abuses. Others have been abused or abandoned by their
parents or flee armed conflict or dangerous conditions in their
home countries.
These children generally enter this country after traumatic
experiences, often speak little or no English, and are rarely
aware of their rights under U.S. law. Although they might be
good candidates for asylum, they are not appointed counsel and
are left to represent themselves in immigration court against
experienced INS lawyers.
Their situation is exacerbated by the fact that when they
arrive they are frequently detained. Many of these children
languish for long periods of time in shelters that are designed
for short-term use without adequate access to translators,
telephones, medical care, or other vital services.
But these are the fortunate ones. While INS has made an
effort to increase the number of beds in foster homes and
juvenile centers, more than 30 percent of unaccompanied
children detained last year were held in juvenile jails, often
with dangerous criminals, subject to shackling and strip
searches.
The Unaccompanied Alien Child Protection Act will address
many of the problems facing unaccompanied minors and will help
bring U.S. treatment of unaccompanied alien children into line
with international standards. Senator Feinstein will outline
the details of the proposal.
Most of these children who come here are not criminals and
should not be treated as such. We must limit the use of
detention in these cases, and children who aren't a danger or a
flight risk should be released to their families or appropriate
caregivers.
I am pleased that Commissioner Ziglar is committed to
addressing many of the problems facing unaccompanied minors,
and I look forward to working with him on these issues. I also
look forward to the testimony of our witnesses today and to
working closely with my colleagues on this very important and
needed legislation.
[The prepared statement of Senator Kennedy follows:]
Statement of Hon. Edward M. Kennedy, a U.S. Senator from the State of
Massachusetts
I'm pleased to Chair this important hearing on the treatment of
unaccompanied children arriving in the United States. I commend Senator
Feinstein's long-standing long-standing commitment to this important
issue, and her introduction of the Unaccompanied Alien Child Protection
Act, of which I am a cosponsor.
I'm also pleased to welcome and recognize some special guests who
are here with us today. They are students from Mt. Rainier Elementary
School in Prince George's County and their teacher Mrs. Suess, who have
demonstrated a strong commitment to improving the treatment of
unaccompanied minors in this country. They've brought with them a paper
doll chain that they created with children from over 20 states,
containing 500 links to represent the 500 children who are detained by
INS each day. Each paper doll carries a message of hope and justice,
affirming values fundamental to who we are as Americans. I thank the
students for their efforts and encourage them to continue to advocate
for these important reforms.
For the past few years, increasing numbers of foreign-born children
have come to the United States unaccompanied by their parents or legal
guardians. Last year, more than 4,600 arrived, and the number continue
to rise this year. Some flee human rights abuses, including forced
recruitment as soldiers, servitude, child labor, prostitution or forced
marriage. Other children escape to the U.S. because they have been
abused or abandoned by their parents or care givers. Others flee armed
conflict or other dangerous conditions in their home countries. They
may be brought into the U.S. by a family friend or relative, by paid
smugglers, or by traffickers involved in organized crime.
Regardless of how they arrive, these children generally enter this
country after traumatic experiences, often speak little to no English,
and are rarely aware of their rights under U.S. law. Although they
might be good candidates for asylum, they aren't appointed counsel, and
are left to represent themselves in immigration court against
experienced INS trial lawyers.
Their situation is exacerbated by the fact that when they arrive,
they're frequently detained. Many of these children languish for long
periods of time in shelters that are designed for short term use,
without adequate access to translators, telephones, or medical care and
other vital services. But these are the fortunate ones. While INS has
made an effort to increase the number of beds in foster-homes and
special juvenile centers, more than 30% of unaccompanied children
detained last year were held in juvenile jails, often with dangerous
criminals, subject to handcuffing and shackling, and forced to wear
prison uniforms.
The Unaccompanied Alien Child Protection Act will address many of
the problems facing unaccompanied minors and will help bring U.S.
treatment of unaccompanied alien children into line with international
standards.
Essential to these efforts is providing appointed counsel and
guardian ad litem to every unaccompanied undocumented child. Statistics
demonstrate the asylum seekers are four times more likely to be granted
asylum when represented by counsel. However, less than half of the
important non-immigration cases, and they should be afforded the same
rights in immigration proceedings. In addition, trained guardian ad
litem can be critical in identifying the needs of children when
language and cultural barriers prevent attorneys from communicating
effectively with their child clients. This bill will require that these
vulnerable children receive the representation they need to ensure that
their rights are protected ad the care they deserve to ensure their
welfare is properly considered as they navigate through complicated
immigration proceedings.
Part of the problem facing unaccompanied minors arises from INS'
dual mission of enforcing immigration laws and providing services. many
convincingly argue that the competing responsibilities of prosecuting
and caring for these children make impartial consideration of the
children's best interests almost impossible. The Unaccompanied
Children's bill addresses this issue by establishing the Office of
Children's Services outside the INS. Working independently of the INS,
this office will assume responsibility for custody and release
decisions, and the oversight of juvenile foster care and shelter care
facilities for undocumented children, thereby reducing the inherent
conflict of interest that currently exists within INS.
I'm pleased that Commissioner Ziglar is committed to addressing the
problems facing unaccompanied minors. While I'm concerned that this
decision to establish an Office of Juvenile Affairs under INS
jurisdiction may not go far enough, I look forward to working with him
to ensure that these vulnerable children receive the support and
protection they need.
Most of these children are not criminals and should not be treated
as such. We must limit the use of detention in these cases and release
children who aren't a danger or a flight risk to their families or
appropriate care givers. This bill requires the release of the children
whenever possible and supports the expanded use of shelters and foster
care for placement of children who lack such care givers. Other needed
protections in the bill include the establishment of detention
standards and training for immigration personnel.
I look forward to the testimony of our witnesses today, and to
working closely with my colleagues to pass this much needed
legislation.
As I mentioned, our leader, Senator Feinstein, is here.
Welcome, I thank her for all of her good work on this issue.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Well, thanks very much, Senator Kennedy,
and it was a sheer delight to me that you were the first person
to be a cosponsor. Senator Durbin is on the bill, and a number
of others. I would also like to mention that Senators Cantwell
and Kohl are now cosponsors of this bill.
I can never remember numbers of bills, ladies and
gentlemen, but if you want to help us with it, it is S. 121.
And if you don't want to help us with it, forget the number.
[Laughter.]
Senator Feinstein. But I would you to help us with it
because I think we are going to have a little bit of trouble
with this bill with INS. We will see. I suspect they don't want
to do it, and I suspect they don't want a bill that tells them
to do it. So they are probably going to say a number of
different things and we will have a chance to answer that, but
my view is INS has not done what it should have done up to this
point. Therefore, my view is that the only way to handle this
is to put it in legislation.
I had no idea of the depth of this problem until I happened
to turn on my television set in California one night and I saw
a young Chinese girl--I think it was in Seattle, Washington--
before a judge, crying. Her hands were shackled to her waist.
She couldn't speak the language and she didn't know why she was
there.
It really struck me, and then I began to look into this
issue and what I learned was that our Government has a lot of
power when it wants to have that power, and that there are at a
given time maybe 500 children, but total throughout the year
maybe 5,000 children. The Department does try to find a
situation where they can live that is appropriate for their
circumstances, but very often they end up in jails, when they
have done nothing wrong, and in detention facilities when they
have done nothing wrong.
I want to give you one other example which sort of stirred
me on. I read in the newspaper that there was a young baby from
Thailand who arrived at Los Angeles Airport, and that baby had
been sold by his mother to human traffickers and the
traffickers used the baby to go back and forth across the ocean
pretending that that baby was theirs, when, in fact, the baby
wasn't theirs.
Well, the INS got custody of the young boy. They discovered
he was being used as a decoy. The youngster suffered from
dehydration, from malnutrition. He was vomiting, he had an ear
infection, he was running a temperature.
In its notice of intent to deny this baby's asylum claim,
which was filed by others--that was March 14, 2001--the INS
conceded that the events surrounding his situation, and I
quote, ``indicate neglect that reached a life-threatening
level.'' Nonetheless, the INS sought the child's immediate
deportation without further investigating the matter.
It was only after a number of congressional offices and my
office really got involved that the INS agreed to allow the
child to remain in the United States so that he could obtain
proper medical attention. Then INS sought to send him back to
Thailand to his grandmother, who had a serious criminal drug-
trafficking conviction that carried a sentence of 25 years.
Now, according to INS, it is the standard policy for an
unaccompanied child to be placed with the nearest possible
relative, who will then make the necessary decisions regarding
the child's welfare. But in this situation, these relatives
were the same ones who either trafficked him or engaged in
criminal behavior that is clearly detrimental to the baby's
interests.
Fortunately, the circumstances of this case were sufficient
to warrant his protection under something called the
Trafficking Victims Protection Act, which permits a minor to
remain in the United States if there is risk to that child.
Now, INS denied the youngster's application for such
protection, so I wrote a letter to the Attorney General and
asked for his assistance. Through him and his intervention, he
was actually granted humanitarian parole, and there was a
family here that was a good family that really wanted to take
care of this baby.
The Attorney General also instructed the INS to accept and
adjudicate this child's application for something called a T
visa, which would grant him the ability to remain in the United
States for 3 years, given his history as a trafficking victim.
Then earlier this year, the Attorney General announced that
this baby was the first recipient ever of a so-called T visa.
So I am very pleased with the end result, but I was really
concerned because it was such an unnecessary ordeal. On the
face of it, it sounded so clear that things shouldn't have
worked out the way they worked out.
We have put together a bill which essentially says that
there should be an Office of Children's Services within the
INS, and that that office should be responsible to do a couple
of things: one, to appoint somebody who is called a guardian ad
litem. Now, that is not an attorney, but that is someone who
comes in--and the INS would set this program up and would
determine the credentials for the individual, and there are a
number of pro bono efforts that are willing to fill in here--
who can talk to the child in their language, can get the facts,
and can be with the child during that child's period of
detention, which can be a long time.
Second, that child, when they go before a judge, would have
some legal representation. Again, there are non-profit
organizations that are willing to provide legal representation
for the child.
Any placement of the child, when it is necessary to keep
them in some form of--well, I don't like to use the word
``custody,'' but in some holding facility--that where that
child is placed is appropriate for the circumstances of the
case. Obviously, if the child has committed a crime or the
minor has committed a crime, that is one thing. If the child
hasn't, but is like an Elian Gonzalez, let's say, because
everybody knows of that case, that child shouldn't be in a
detention facility.
I know INS is going to say they don't want the bill, and I
am going to say back to them, if you don't want the bill, why
haven't you done something about it before this point? I know
you have tried, but the point is that the trials haven't really
produced the results that they should have.
Thank you, Senator, very much.
Chairman Kennedy. Thank you very much.
Our first panel of witnesses has worked on these issues on
a daily basis and we look forward to hearing their comments.
Michael Creppy is currently the Chief Immigration Judge of
the INS. He has served in this position since 1994. Prior to
that, the judge worked for 13 years in numerous positions with
the INS. As Chief Immigration Judge, Judge Creppy established
operating policies for the immigration courts and overseas
policy implementation in each of these courts. I know he is
deeply committed to ensuring that children receive fair
immigration hearings, and we look forward to his testimony.
Stuart Anderson is no stranger to the Committee, having
worked for more than 4 years as immigration policy director
first for Senator Abraham and later for Senator Brownback. He
has extensive experience in immigration law and policy, and a
distinguished record as a fair and effective advocate.
As a result, Commissioner Ziglar lured him away from the
Subcommittee to become his Executive Associate Commissioner for
Policy and Planning. During his tenure with our Committee, he
worked well with members and staff on both sides of the aisle,
and I am pleased that he brings these talents to his new
position at INS.
I would like to thank both of you for being here today and
look forward to your counsel and testimony.
Judge Creppy, we will hear from you first, please.
STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE,
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FALLS CHURCH, VIRGINIA
Judge Creppy. Mr. Chairman and members of the Subcommittee,
I thank you for inviting me to testify on the Unaccompanied
Alien Child Protection Act. I am sensitive to the way our
Nation responds to this vulnerable population and I am pleased
to have the opportunity to share my thoughts on S. 121.
The 223 immigration judges across the country play a
critical but narrow role in handling unaccompanied juveniles.
Because of this, my comments are focused on the part of the
process where immigration judges are authorized to act.
The Executive Office for Immigration Review has several
initiatives on juvenile aliens and proceedings. When I refer to
an unaccompanied juvenile, I will mean those juveniles under
the age of 18 who appear before an immigration judge without a
parent or legal guardian. Let me first tell you about current
initiatives to make the courts more sensitive to special issues
unique to juveniles.
In the summer of 2000, the immigration court established a
pilot program in Phoenix consisting of special juvenile
dockets. The purpose was to provide access to juveniles for pro
bono attorneys and to consolidate all juvenile cases before one
judge for consistency.
I was so pleased with its success that I have expanded the
program to Harlingen, Texas; York, Pennsylvania; Los Angeles,
California; and San Diego and San Francisco, California.
Moreover, we are working with the Executive Office for
Immigration Review's pro bono coordinator to explore other
programs relating to juveniles.
Let me assure the Committee that all aliens appearing
before an immigration court, including juveniles, are given due
process of law. Immigration judges are committed to providing
fair hearings for all aliens, not just juveniles, and I
encourage the immigration judges to do all that is required to
ensure that this occurs. For juveniles, this means that an
immigration judge may interview the juvenile in his or her
chambers, or grant continuances to ensure that the juvenile is
given adequate opportunity to obtain representation.
Now, I would like to address five aspects of Senate 121
that involve the immigration judges. First, I will address the
definition of ``child''; second, the legal counsel; third, the
guardian ad litem; fourth, interpreters; and, fifth, the best
interests of the child.
My first topic addresses a technical but critical issue.
The term ``child,'' as defined in the Immigration and
Nationality Act, is at odds with Senate 121's definition. The
difference will cause confusion. Instead, I suggest using the
term ``unaccompanied juvenile alien,'' since the regulatory
definition of ``juvenile'' is consistent with Senate 121.
My second topic is on the legal counsel. Immigration judges
know how to be fair even when only one side is represented.
However, when you combine the complexity of immigration laws
with the varying maturity levels of the juveniles, it provides
a greater challenge to judges to ensure that juveniles
understand the nature of such proceedings. If counsel was
assured, the efficiency of the hearing would be greatly
improved. Yet, before such a program can be established, there
are serious issues that must be addressed which Senate 121 does
not answer.
For example, first is the question of the program
structure. Factors such as oversight, administration,
eligibility, and selection of attorneys need to be fully
explored. Senate 121 also leaves a question of who will be
responsible for giving the counsel direction. For example, to
whom will the counsel be answerable? Who will have authority to
discharge the attorney?
This leads me to my third topic, the guardian ad litem. In
cases where a juvenile does not have the capacity to make
informed decisions, the immigration court process would be
aided by the presence of an independent adult who can make such
informed recommendations. A guardian ad litem could be an
active participant in deciding legal issues relating to the
juvenile.
However, a guardian may not be necessarily desirable in all
cases. Yet, it is mandated by Senate 121. I support the concept
of a guardian ad litem in limited circumstances and I have
begun to explore the viability of this option for immigration
courts, including whether we have the organizational expertise
to fully integrate such a program into our court system.
My fourth topic relates to interpreters. Senate 121 does
not contain a provision for the appointment of interpreters. If
counsel and guardians are provided, it is necessary to make
provisions for ensuring that the juveniles are able to obtain
access to these services in a meaningful fashion.
Finally, Senate 121 requires that the best interests of the
child shall be paramount, and that this interest should not
trump any provision of the Immigration and Nationality Act or
its regulations. As it currently is drafted, it may do so.
In conclusion, the Unaccompanied Alien Child Protection Act
represents an attempt to comprehensively address a number of
critical issues. However, it raises many unanswered questions.
I look forward to working with the members of the Committee as
this legislation progresses and I am happy at this time to
respond to any questions that you might have.
[The prepared statement of Judge Creppy follows:]
Statement of Michael J. Creppy, Chief Immigration Judge, Executive
Office of Immigration Review, Falls Church, Virginia
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting me to testify on the Unaccompanied Alien
Child Protection Act of 2001. Like other witnesses here today, I am
sensitive to the way our nation responds to this vulnerable population.
I applaud you and the members of your staffs for the interest you have
shown in this issue, and for the encouragement you have given to those
who confront it on a daily basis.
I am very pleased to have the opportunity to share my thoughts on
S. 121. The 223 Immigration Judges across the country play a critical--
but essentially narrow--role in the handling of unaccompanied juvenile
aliens. We do not apprehend the juveniles at the border or the airport,
nor do we provide juveniles with shelter when they are taken into
custody. Similarly, the Immigration Judges do not manage the details of
their return to their native country, when their stay in the United
States is concluded. Rather, these are responsibilities of the
Immigration and Naturalization Service (INS).
For those topics, I defer to the other witnesses appearing today.
Instead, my comments before your Committee are focused on the part of
the process where Congress and the Attorney General have authorized
Immigration Judges to act--that of providing aliens with immigration
hearings in Immigration Court.
Let me first tell you about current initiatives which EOIR has
established to make the Courts more sensitive to the special issues
that are unique to juvenile aliens in proceedings. When I refer to
``unaccompanied juvenile'' for the purposes of my testimony, I mean
those juvenile aliens under the age of 18 who appear before an
Immigration Judge without a parent or legal guardian.
Immigration Court Initiatives
Three years ago, in 1999, I began meeting with representatives of
INS and non-governmental organizations (NGOs) in Phoenix, Arizona, in
an effort to develop a program that would deal exclusively with
unaccompanied, detained juveniles in immigration proceedings. After
much work, we established a Pilot Program in Phoenix in the summer of
2000. Each of the participants in the Phoenix Pilot Program has a key
role--from the INS identifying juveniles, to the NGOs assisting the
juveniles and giving them ``legal rights presentations.'' I established
special ``juvenile'' dockets and assigned one Immigration Judge to
preside over all juvenile cases. The purpose of such dockets was to
provide access to juveniles for pro-bono attorneys and to consolidate
all juvenile cases before one Immigration Judge for consistency
purposes. We also have developed, and I have now mandated, the use of
the ``J'' code to better track any case involving juveniles. Currently
our data system does not track aliens by date of birth. However, once
we update our system, we will have the ability to do so.
Although the Pilot Program is still in its infancy, I was so
pleased with its success that I have expanded the ``juvenile docket''
program, with the cooperation of INS, to Harlingen, Texas; York,
Pennsylvania; Los Angeles, San Diego and San Francisco, California.
Moreover, we are working with the EOIR pro-bono coordinator to explore
other programs relating to juveniles.
All Immigration Judges have received training and materials to
assist them in dealing with juveniles in their court rooms. I provide,
on a weekly, and at times on a daily, basis, information on case law,
regulations and other legal matters that affect immigration law,
including issues dealing with juveniles. Further, Immigration Judges
have been provided books, guidelines and cultural sensitivity training
pertaining to juvenile issues. Finally, at the 1998 and 1999
Immigration Judges' conferences, Judges received live lectures from
experts in the juvenile area and they will again receive such
instruction this June.
Let me assure the Subcommittee that all aliens, including
juveniles, that pass through our Immigration Court system are given all
the due process that the law accords them. Immigration Judges are
committed to provide fair hearings for all, not just juveniles, and I
encourage the Immigration Judges to do all that is required to ensure
that this occurs. For juveniles, this means that an Immigration Judge
may interview the juvenile in his or her chambers, or grant
continuances to ensure that the juvenile is given adequate opportunity
to obtain representation.
Now I would like to address those aspects of S. 121 that involve
Immigration Judges. Specifically, permit me to briefly address five
topics that are of immediate relevance to the immigration hearings we
provide:
(1) the definition of eligible aliens; (2) second, access to legal
counsel; (3) guardians ad litem; (4) interpreters; and (5) the ``best
interest of the child'' standard.
S. 121
1. definition of eligible aliens
My first topic addresses a technical, but critical, issue: the
definition of ``unaccompanied alien child''. The term ``child'' is
currently defined in Section 101(b)(1) of the Immigration and
Nationality Act, in part, as ``an unmarried person under twenty-one
years of age. . . .'' However, S. 121 defines ``unaccompanied alien
child'', in part, as one who ``has not yet attained the age of 18. . .
.'' This difference with respect to the age limitation is inconsistent
with current law and will cause confusion.
Instead, I suggest using the term ``unaccompanied alien juvenile''
in place of the phrase ``unaccompanied alien child'', since the
regulatory definition of ``juvenile'' is an alien under 18 years of
age. Again, I reiterate that for purposes of my testimony, when I refer
to
``unaccompanied alien juvenile'', I mean those juvenile aliens
under the age of 18 who appear before an Immigration Judge without a
parent or legal guardian.
2. appointment of legal counsel at government expense
Most Immigration Judges favor increased representation by legal
counsel. Every day our Judges conduct cases involving respondents who
appear pro se. The Judges know how to be fair, even when only one side
to the proceeding is represented by counsel. However, when you combine
the complexity of the immigration laws with the varying degrees of
maturity of juveniles, it provides a greater challenge to Judges to
ensure that the proceedings are fair, and that the juvenile understands
the serious nature of such proceedings. If the Judge knew that
competent counsel were assured for every juvenile respondent, the
efficiency of the hearing would be greatly improved. No longer would
there be a preoccupation with procedural issues such as whether pro
bono counsel can be located, or whether someone can assist the juvenile
in completing the relief application.
Yet before a program providing legal counsel for juveniles can be
established, there are some serious issues that must be addressed,
questions which S. 121, in its current form, does not answer.
First is the question of how such program would be structured.
Factors such as oversight, administration, eligibility and selection of
attorneys to serve as juvenile counsel, need to be fully evaluated and
developed. These are the types of questions that S. 121 does not
answer.
S. 121 also leaves unanswered the question of who will be
responsible for giving the counsel direction. For example, to whom will
the appointed counsel be answerable--the juvenile's parent, the
Immigration Judge, or some other entity? Who will have authority to
discharge the attorney if he or she is not competent? The counsel must
truly represent the interests of the juvenile--and not those of some
third party. I am sure the Subcommittee is familiar with accounts of
lawyers who appear to be in league with the smugglers who traffic in
human cargo. Several of our Judges have voiced concerns about attorneys
whose interests do not seem to be truly on behalf of the juvenile, or
with whom the juvenile appears to have little, if any, contact.
This leads me to my third topic, the guardian ad litem.
3. guardians ad litem
In some cases, a juvenile may be more than just an alien in the
United States--the juvenile may also be unaccompanied, with no adult to
stand in the place of the absent parent. While an attorney can provide
advice to the juvenile about his or her legal case--such as whether or
not the juvenile is eligible for relief from removal--that advice is
different from advice as to whether or not the juvenile should choose
to try to stay in the U.S. or return to his or her family, a decision
that a parent would be better suited to make. It is inappropriate for a
counsel--even a talented and dedicated one--to make these decisions.
In cases where a juvenile does not have the capacity to make
informed decisions on his or her own behalf, I believe that the
Immigration Court process would be aided by the presence of an
independent adult who can make informed recommendations for the
juvenile respondent. A guardian ad litem or other adult acting in a
similar capacity could be an active participant in deciding whether the
juvenile should return to his or her native country or apply for relief
from removal. Keep in mind, however, that a guardian may not be
necessarily desirable in all cases--yet it is mandated in S. 121.
I support the concept of a guardian ad litem for a juvenile alien
in limited circumstances. I have begun to explore the viability of this
option, including whether Immigration Judges have the authorization or
the organizational expertise to fully implement such a program. There
are a series of issues that have not been fully explored, such as
criteria that would render an individual eligible to be a guardian and
the purview of such a guardian over an unaccompanied juvenile.
4. interpreters
Current EOIR regulations allow for the hiring of interpreters to
translate proceedings conducted before Immigration Judges. Appointed
guardians ad litem and counsel will also need interpreters to speak to
client juveniles outside of the proceeding before the Immigration
Judge. Yet, S. 121 as drafted does not contain provisions for the
appointment of interpreters. If such professional services are to be
made available to unaccompanied juvenile aliens, it is necessary to
make some provision for ensuring that such juveniles are able to obtain
access to these services in a meaningful fashion.
5. ``best interests of the child''
Finally, Section 2 of S. 121 declares that the ``best interest of
the child'' shall be held ``paramount'' when making decisions regarding
an unaccompanied juvenile. While no one would argue with such a
standard as an important factor in the context of family law, the
legislation should not permit any inference that the ``best interest of
the child'' standard trumps any specific provision of the Immigration
and Nationality Act or its implementing regulations. This provision, as
currently drafted, would undermine the Immigration Court process by
prompting endless arguments about whether specific provisions of the
INA do or do not promote the ``best interest'' of the juvenile
respondent in proceedings.
Conclusion
In conclusion, for the past several years the Immigration Judges
have worked with children's rights advocates and the INS to identify
concrete ways to improve our efforts on behalf of unaccompanied
juveniles. The Unaccompanied Alien Child Protection Act of 2001
represents an attempt to deal comprehensively with a number of critical
issues. However, it raises as many questions as it provides answers. In
particular, the appointment of guardians ad litem and legal counsel for
unaccompanied juvenile aliens would constitute significant changes to
the current immigration system. We would, however, be pleased to work
with you to define in greater detail the roles of the guardian ad litem
and legal counsel, should you elect to pursue these concepts. It would
be important, for example, to think through all potential issues that
might arise in connection with their appointment and service. Moreover,
because of the potential magnitude of the changes under consideration,
the Department suggests that any program that may ultimately be adopted
be tested and evaluated on a limited, ``pilot program'' basis prior to
implementation on a broader scale.
Mr. Chairman, I look forward to working with the members of the
Subcommittee as this legislation progresses. In the meantime, I am
happy to respond to any question you might have for me.
Chairman Kennedy. Thank you very much.
Senator Brownback is here. I would welcome any opening
comments that he would like to make before we hear from the
next witness.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you very much, Mr. Chairman. I
appreciate that, and I also appreciate all you have contributed
to this legislative body.
There was a tribute to Senator Kennedy--you may or may not
have seen that--that took place this week upon his reaching of
a certain milestone of age, which I won't repeat in the room.
Chairman Kennedy. That is right.
Senator Brownback. But the tribute was well deserved.
Chairman Kennedy. Thank you.
Senator Brownback. He has been quite a contributor to the
legislative body in all the years of his service here.
I have a statement I would like to put into the record, and
I will just state briefly about Stuart Anderson before he
speaks, Stuart served on the staff of this Committee for both
Spence Abraham and myself before he went to the executive
branch. So I am looking forward to his comments, as well as the
other witnesses. He is very skilled and highly regarded in this
field, and I look forward to that.
I also thank the children for being here and recognizing
the other children that are in some very difficult
circumstances. Senator Feinstein, while I was still chairing
the Subcommittee, had brought this issue up and we had agreed
to schedule a hearing to recognize what is taking place with
the children who are in these difficult circumstances in
incarceration. I am glad the other children have recognized
that as well.
Mr. Chairman, I look forward to the hearing.
Chairman Kennedy. Thank you for your kind comments.
We will hear from Mr. Anderson.
STATEMENT OF STUART ANDERSON, EXECUTIVE ASSOCIATE COMMISSIONER,
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE,
WASHINGTON, D.C.
Mr. Anderson. Thank you, Mr. Chairman. Thank you very much
for your kind introduction. Senator Brownback, Senator
Feinstein, thank you. It is a special privilege to get a chance
to testify here today.
Commissioner Ziglar very much wanted to be here.
Unfortunately, he is in Canada working on border security
issues at the moment.
I would like to introduce some of the people at INS who
work with juveniles--Tony Tangemin, Dave Enterella, Mark
Matisse, and John Pogash. None of them brought any art work
with them, which I reprimanded them for. These are good people,
Mr. Chairman, many with children of their own, and they care
deeply that the juveniles that come into INS custody are
treated humanely and justly.
Mr. Chairman, I am not here to defend every INS action or
policy, past or present, in connection with juveniles. I went
to INS with Commissioner Ziglar about 7 months ago, and I can
assure you that the commissioner has no vested interest in the
status quo. That is why he announced a reform agenda on
juvenile affairs. The hope is that we can work together with
the Committee to combine the best ideas to develop the best
policies in this area.
As part of that reform agenda, within days of his
confirmation, the commissioner asked me to bring together key
components of INS and to establish an initiative to improve the
treatment of juveniles in INS custody. We reviewed policies,
and as part of that we met extensively with advocates on the
outside. We adopted many of their ideas, not all; others are
still under discussion. In addition, just this week we met with
majority and minority Subcommittee staff to further continue
the dialog on this issue.
In his speech at the National Immigration Forum on February
1, the commissioner announced key parts of the juvenile policy
initiative. First, he talked about the creation of an Office of
Juvenile Affairs that will report directly to the commissioner.
Having an office reporting directly to the commissioner will
ensure that it will receive the visibility, attention,
resources, and support that that office needs. The director of
juvenile affairs will have the authority necessary to guide the
placement decisions of juveniles within the agency.
Second, whereas today we have a number of individuals at
INS who work with juveniles as part of multiple
responsibilities, INS will instead provide for dedicated case
management officers who will work exclusively on juvenile
issues and help ensure that the child has an advocate within
the system.
Third, while S. 121 would codify the Flores settlement, the
INS is doing so through regulations. Fourth, the INS will
review, in cooperation with the Public Health Service, current
procedures for determining age and examining any improvements
that may be able to be made in that area. My written testimony
includes many other parts of the initiative.
Mr. Chairman, I think it is important to keep in mind the
complexity of this issue and the need to maintain a degree of
flexibility. We have to have policies that take into account
the 17-year-old who is caught coming across the border, the 16-
year-old who may have committed a crime and the police turn
that individual over to INS custody, or the 15-year-old young
girl who is a victim of trafficking, or the 5- or 10-year-old
boy or girl who is abandoned at an airport by someone who had
claimed to be a relative. Those are all very real situations
and they all require very different responses from the Federal
Government.
While media attention often focuses on very young children
who come into INS custody, of the 5,000-plus juveniles in
custody in a year, the majority are 16- or 17-year-olds and
they are overwhelmingly male, and the median stay in INS
custody is approximately 15 days. The vast majority, over 80
percent, live in residential care facilities or foster homes,
not in secure detention.
But it is a daily dilemma. Releasing a juvenile out of
custody may mean that they never show for their immigration
hearing or, more worrisome, they may suffer harm at the hands
of smugglers or others who may seek to do them harm.
INS supports the principles underlying S. 121, and I would
like to acknowledge Senator Feinstein's leadership and the hard
work of herself and her staff that they have committed to this
important issue. A number of the issues raised in the bill can
likely be addressed more swiftly and with more flexibility
through administrative and regulatory action. However, we want
to work very closely with the Subcommittee on legislative
changes, and combine the two to see if we can get the best
combination of policies.
For example, the Immigration and Nationality Act prohibits
the Government from paying for attorneys to counsel
unaccompanied juveniles who are in removal proceedings. While
the Department of Justice supports the principle of providing
counsel for these juveniles, appropriations would be necessary
and we will need to have sufficient safeguards on the fees that
can be charged in this area.
The adoption of a guardian ad litem program which the bill
calls for may have value as well. There is great uncertainty
about how a guardian ad litem would work in Federal immigration
proceedings. Questions arise such as the ability to do home
assessments for juveniles thousands of miles from home and the
relationship between the guardian ad litem and an attorney
representing the juvenile in legal proceedings. Therefore, it
may be most prudent to look at well-crafted pilot projects in
this area, with real deadlines, and well-structured pilot
projects so we can all determine what the best policy is in
this area.
We support the principles of S. 121. While we have some
areas of concern, its intentions are indeed noble, and we look
forward to the opportunity to work closely with the
Subcommittee to address the issues.
Thank you.
[The prepared statement of Mr. Anderson follows:]
Statement of Anderson, Stuart, Executive Associate Commissioner, United
States Immigration and Naturalization Service, Washington, D.C.
Mr. Chairman and Members of the Subcommittee:
On behalf of Commissioner Ziglar, thank you for the opportunity to
appear before you to discuss an issue that is one of the top priorities
within the INS today: the treatment of unaccompanied juveniles who have
been entrusted into our care and custody. The INS would like to
acknowledge Senator Feinstein's leadership on this issue and the hard
work that she and her staff have committed to this issue. We look
forward to working with her and all the Members of the Subcommittee.
Juvenile immigration policy is complex and requires assessing our
treatment of juveniles within the context of broader national and
international obligations. It requires recognizing the special
obligations imposed on any government when it takes juveniles into its
custody, regardless of their nationality or legal status. The INS is
supportive of the principles underlying S. 121. We believe that a
number of the issues relating to care and custody raised in the bill
can likely be addressed more swiftly and with greater flexibility
through administrative and regulatory changes, some of which we have
begun to put into place. We want to work with the Subcommittee on
legislative changes that would address other policy issues.
INS Initiatives
Since the 1997 settlement of litigation in Flores v. Reno, 507 U.S.
292 (1993), the INS has made great strides in improving custody
conditions for juveniles. But we can do more. We can make changes that
acknowledge that juveniles are a particularly vulnerable population
whose needs are not limited solely to questions of custody. To that
end, the Commissioner recently announced a new initiative on juvenile
policy. In his speech to the National Immigration Forum on February
1st, the Commissioner committed the INS to a program that will
comprehensively address juvenile issues. He articulated principles that
should guide our discussions as we work together to shape appropriate
responses to children's issues.
First, the initiative adheres to the fundamental principle that it
is generally in the best interests of a juvenile to be reunited with
his or her parents, either in the United States or abroad, absent
evidence that the juvenile will suffer harm. This will not be true in
all cases, as some unaccompanied juveniles may be in need of U.S.
protection from serious harm upon return. Absent evidence of such a
threat, however, we should be working toward a system that quickly
reunites children with their parents in the United States or abroad, or
that quickly determines that reunification is not possible.
Second, juveniles are a vulnerable population with different needs
than adults. While this simple statement should be self-evident, many
of our immigration laws, practices and procedures do not significantly
distinguish between juveniles and adults. The Flores settlement
agreement established a baseline to distinguish between adults and
juveniles for custody determinations and we plan to standardize that
distinction through regulation.
Third, because the INS encounters juveniles under every
circumstance imaginable--from the child who is a victim of trafficking
to the teenager with a violent criminal history--the policies relating
to juveniles must be flexible enough to permit the INS to take the
appropriate steps in an individual case. While this is particularly
true in custody matters, flexibility should also guide our thinking
with respect to issues ranging from a child's ability to consent or
speak on his own behalf to determining whether a particular case
requires the initiation of removal proceedings.
Fourth, juvenile issues cannot be addressed in isolation. We must
examine our treatment of children within the total immigration
process--from the moment we first encounter that child through
completion of immigration proceedings--to understand how best to
address children's issues within the immigration system.
Building on these principles the INS is committed to:
Minimizing the need for detention of any kind for
unaccompanied minors.
Seeking alternatives to detention whenever possible.
Ensuring that juveniles have access to apply for all
benefits and protections for which they may be eligible.
Exploring additional avenues for the expedient and
humane return of juveniles to parents or guardians in all
appropriate cases.
The INS is taking the following steps to fulfill these commitments.
We plan to establish an Office of Juvenile Affairs
that reports directly to the Commissioner. The director of
Juvenile Affairs will have the authority necessary to guide
placement decisions and will continue to seek alternatives to
custody.
S. 121 would codify the Flores settlement. The INS is
already doing so through administrative action. The INS has
been operating under procedures implementing the agreement and
a proposed rule was published in 1998. On January 14th, 2002,
the INS issued a notice extending the public comment period in
order to give the public an opportunity to discuss custody and
care issues with the benefit of three more years of experience.
After receiving these comments, we intend to make the
publication of the final rule a priority. Should the final rule
not be in place by the time of the expiration of the
settlement, we have agreed that the Flores settlement shall
remain in force until 45 days after the final rule is
published.
The Commissioner directed his staff to implement as
quickly as possible the recommendations of the Department of
Justice Office of the Inspector General regarding improvements
to general policy and procedures. While this review indicated
that the INS has made significant progress since signing the
Flores agreement, the report noted several areas where
improvement is needed. These include the need to articulate
juvenile standards similar to those issued for adult detention,
a variety of operational and custody management policies, and
increased support for the field staff working with
unaccompanied juveniles. The Commissioner has directed his
staff to use the review and recommendations in all of our
future planning and policy updates.
The INS will review and develop field guidance that
identifies ways in which parole and withdrawals, in appropriate
cases, may be used as alternatives to placing unaccompanied
juveniles in proceedings.
The INS will work with Congress, other agencies, and
the public to develop comprehensive and creative strategies for
addressing the wide range of juvenile issues in immigration
policy. The Office of Juvenile Affairs will hold regular
meetings with the public on the new initiatives the INS is
undertaking.
I have already noted that the INS is committed both to minimizing
the need for the secure detention of unaccompanied juveniles and
continuing its successful practices of seeking out alternatives to
detention. These commitments involve the long-term goal of
strengthening the Office of Juvenile Affairs in its new location within
the Commissioner-s office. The INS has dedicated staff working on
issues and activities related to juveniles in service custody. These
men and women have many years of experience in child welfare, juvenile
justice, victim's issues, residential services, alternatives to
detention, and the management of grants designed to provide appropriate
services to juveniles. The establishment of an office reporting
directly to the Commissioner will guarantee consistency,
accountability, and integrity in the agency-s treatment of juveniles.
As part of our initiative on juvenile policy, the INS will also
continue work towards:
Development of alternatives to secure detention. While
the INS has made substantial progress in developing shelter
care, it is critical that the full array of alternatives, from
intake assessment and placement tools to non-secure
alternatives to detention, is considered. If the INS is to be
successful in this area, we must develop the infrastructure to
support these services, create opportunities to adopt the best
services available and allocate the necessary resources to
carry out our mission.
Reviewing, in cooperation with the Public Health
Service, current procedures for determining age. Currently INS
uses dental exams and wrist x-rays to determine the age of an
individual in our custody or whose age is in question due to
false reporting, language, or other circumstances. A review of
the effectiveness of this approach, as well as a search for
other methodologies, will be conducted in consultation with the
Public Health Service. Refinement of age determination
procedures can better ensure that those under the age of 18 are
treated appropriately, and ensure that we are able to protect
juveniles in our custody from adults falsely representing their
age.
Studying the efficacy of expanding the home placement
assessment model currently in place for certain groups of
children at risk from smugglers or traffickers as a placement
tool.
Making further revisions to existing Juvenile
Detention Standards. As indicated earlier, we will review and
update existing polices including the use of restraints,
solitary confinement, and strip/pat searches and issue
additional training and guidance as necessary. The INS will
continue and enhance its efforts to solicit input from advocacy
groups and experts to develop standard operating procedures for
juvenile facilities, similar to the approach adopted in the
development of standards for adult facilities.
Continuing to improve accountability and quality of
service within the INS including: the integration of the
juvenile management information system that was developed for
the Flores agreement into the agency data platform; updating'
Juvenile Aliens: A Special Population, Juvenile Protocol
Manual, Juvenile Detention & Shelter Care Programs' on all
related practices, policies, and procedures to serve as
standard operating procedures for all of INS; the development
of a training plan for all INS staff that work with or are
responsible for juveniles; and the development of a strategic
planning process that includes input from the broad immigration
community and the public.
These commitments represent an immediate response to many of the
problems and concerns that have come to light regarding the detention
of juveniles and their access to benefits and protections. But the INS
vision for children's issues does not end with short-term solutions. We
are committed to providing the Office of Juvenile Affairs the resources
and support it needs, within the INS, to ensure that all juveniles are
treated with care, dignity, and compassion. Both the INS and the
Executive Office for Immigration Review have worked together to discuss
and develop alternative approaches to adjudicating children's claims.
We invite members of Congress and the advocacy community to participate
with the Commissioner in discussions of how best to serve the interests
of juveniles in our care.
S. 121
Allow me to address more of the specific provisions of S. 121. The
Immigration and Nationality Act prohibits the government from paying
for attorneys to counsel unaccompanied juveniles in removal
proceedings. The Department of Justice supports the principle of
providing counsel for these juveniles.\1\
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\1\ It should be noted that the State Department has advised that
it has concerns with this legislation as drafted, notably, its effect
on U.S. policies in the area of international child abductions and on
the rights of parents outside the United States.
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The bill also calls for the adoption of a guardian ad litem
program, which may have value. However, great uncertainty remains about
how a guardian ad litem would operate in practice. Questions arise,
such as the ability to do home assessments for juveniles thousands of
miles from home, and the relationship between a guardian ad litem and
an attorney representing the juvenile in legal proceedings. Therefore,
it may be the most prudent course to look at well-crafted pilot
projects, with real deadlines, so we can all examine what policy makes
the most sense in this area.
INS asylum regulations acknowledge that unaccompanied minors may be
exempt from the one-year filing deadline for asylum claims. In
addition, the INS has already recognized the value of adult support in
the context of asylum office interviews. Our 'Guidelines on Children's
Asylum Claims' encourage the presence of a trusted adult--other than
the child's attorney--during an asylum interview to assist the child in
understanding the process and to feel comfortable during the interview.
While S.121 goes far beyond the role envisioned in the Children's
Guidelines, the Department believes that this is an issue where we can
find common ground and can work with the committee to further refine
the concept. In the interim, the INS will update and revise the
Children's Guidelines to reflect new developments in law and policy and
to provide supplemental training following publication of the
Guidelines.
S. 121 also provides for placement of an Office of Children's
Services within the Department of Justice. Given the fact the duties of
this office will be those for which the INS has long had primary
responsibility, it is not apparent that creating a separate office that
attempt to replicate INS functions with respect to unaccompanied minors
offers any advantage that would outweigh the additional costs and
complexities inherent in taking such action.
INS Programs
The INS is responsible for the custody and placement of
unaccompanied juveniles in its care--although we ``detain'' these
juveniles, the vast majority of them are placed in residential care
facilities or foster homes. Nonetheless, the INS retains ultimate
responsibility for their custody and treatment.
There are a wide range of placement programs which the INS
utilizes. Of the 5,385 juveniles in INS custody during FY 2001, almost
50%, or 2,417 juveniles were eventually placed with a parent or
relative. For all juveniles, the average length of stay was 43.5 days,
while the median length of stay was 15 days. The majority of these
juveniles were male, and their average age was between 15 and 17 years.
Although these juveniles came from around the world, their countries of
origin were most frequently, in rank order, El Salvador, Honduras,
Guatemala , Mexico, and Colombia.
The task of managing a program to provide special care and
treatment for juveniles ranging in age from infancy to near-adulthood
is difficult, particularly when one takes into account the cultural and
language barriers that must be overcome. The task is made even more
complex by the need to protect many of these children from smugglers
and traffickers, or others who would prey upon and take advantage of
vulnerable children.
INS staff have worked hard to meet the needs of these juveniles and
to develop significant programs that limit the number of juveniles who
are ever placed in a secure detention facility. In just four years from
FY 1997 to FY 2001 the number of available beds in non-secure
facilities has increased from 130 to almost 500. The INS has opened a
family shelter care facility at the Berks County Youth Center, near
Philadelphia, and has plans to establish similar family shelter care
facilities in the Central and Western regions.
The INS has made significant strides in its shelter care programs.
We currently administer just over $18 million through 11 grant-funded
programs that provide shelter care for unaccompanied juveniles. These
programs are located in Florida, Texas, California, Illinois, and
Georgia. They have a combined capacity of 369 beds and range in size
from 4 to 70 placements. These facilities are run by profit and
nonprofit agencies, including several faith-based organizations, all of
which have special expertise in migrant and refugee issues. We will
continue to review and expand these alternatives.
The INS supports the principles of S. 121. While we have some
specific areas of concern with S. 121, we look forward to the
opportunity to work with the Subcommittee to address these issues.
I look forward to answering any questions.
Chairman Kennedy. Well, thank you both very much.
I was interested, Judge Creppy, if you could just describe
the situation. You have given us a good assessment about the
concerns that you have with the legislation, but what is really
happening out there? What do you find is really happening? How
much of a problem is this? How much of a concern is this to you
and to your colleagues?
Judge Creppy. Well, I think it is a serious concern in that
our job primarily is to ensure that everyone gets a fair
hearing. In doing so, if it means continuing the case two,
three, four, five times until we get somebody that will
represent a juvenile, that is what an immigration judge is
going to do.
As an example, in Phoenix we had the private bar there
agree to take juvenile cases pro bono, but they did it for a
number of months and the burn-out, taking one case after the
other--you start to whittle down those who have the willingness
to do it.
So I think juveniles having representation is a very key
component, and I think that this bill is right on point in
terms of recognizing, under certain circumstances, that
representation at Government expense may be needed to ensure
that an individual gets a fair hearing. So we support the bill
in that vein.
I think the guardian ad litem is another key component
because I believe that the attorney and the guardian ad litem
play different roles. I think people often confuse the roles of
the guardian ad litem with that of the attorney. The guardian
ad litem is supposed to act as the parent for the child, not as
the attorney for the child. So I think once again that Senate
121 is right on point.
But, again, I would just say that there are questions that
we need to explore, to debate, but I do think the end result
will be adopting two components of that nature will improve the
process.
Chairman Kennedy. We will have a 6-minute rule.
Let me just outline what has been the central concern, and
that is that there are too many children that are falling
through the cracks. We have no system now that has recognized
that we are going to treat these children as children first.
Later in our hearing, we will hear from Wendy Young, who says
``children first and newcomers second.''
As I understand it, the thrust of this whole legislation is
that we are going to systematically and comprehensively give
responsibility for the care and the attention and the review
for each child. That is not happening now, that is not
happening now. I mean, neither of you have even suggested that
it is happening now.
We know enough about the Immigration Service that it has
two functions. One is a law enforcement and one is a support
function. The law enforcement is to keep people out that
shouldn't be here, and they have a very important
responsibility of making sure that that is the case. On the
other hand, it is to support those that have legitimate
interests in coming here.
The review of the history of responsibility that is given
to this program would demonstrate, I think, quite clearly that
this has been more of a law enforcement function rather than it
has been in terms of a support function to the most vulnerable
people in our society, which are the children in our society.
That is what we are looking to you for your reaction and
how we are going to deal with this. You can say, well, we are
moving the chairs around on the deck of the ship, which all of
us have seen at various times before. But we have to understand
that we have got a major problem. It is a very real problem,
and it is among the most vulnerable people in our society.
Even if we are able to say that this kind of new
organization makes some sense, it can be altered and changed
tomorrow. That is why the importance of legislating and getting
this kind of thing right is of such importance. I wish we had a
bit more of the kind of urgency and the kinds of concerns
reflected because, as has been pointed out, almost half, 40
percent, of the children are alone and lack relatives in the
United States, rendering them particularly vulnerable.
We know very well that when these children appear before
INS judges, the outcomes of those cases are twice as favorable
to the child as if they do not. I mean, those are statistics.
There may be some other justifications or reasons, but those
are statistics and those are inherently wrong on their face.
What we are trying to find out is, one, about your
suggestions, and I think there have been good suggestions made
about various provisions of the legislation, about how it ought
to be tailored. But we basically are interested in what kind of
assurance you are able to give us that the current situation is
going to be altered and changed, and that there is going to be
accountability, responsibility, a systemic kind of
responsibility for each and every child all of the time.
That is what, I think, is the thrust of this legislation
and is essential if we are going to really deal with these
children in a humane and decent kind of way. I am just
interested in why you think the recommendations you made in
terms of the restructuring in the Justice Department and INS
are going to provide the kinds of protections that have been
included in the legislation.
Judge Creppy. Well, Senator, I just want to comment that I
can assure you that in the immigration hearing process we go
through to great lengths to ensure that juveniles get fair
hearings, almost to the point where judges will call on
attorneys that practice before the court and ask them, will you
take the case.
Now, I no longer work for the INS. As you know, the
Executive Office for Immigration Review is a separate agency
from the INS.
Chairman Kennedy. That is right.
Judge Creppy. So the judges are not Immigration and
Naturalization Service judges. So I can't really speak to the
custody issues, the apprehension issues. But what I can tell
you and what I can assure you is that any juvenile appearing in
an immigration court, we go to great lengths to ensure that
there is somebody that will represent the juvenile. The judges
are trained extensively to handle these types of issues.
Chairman Kennedy. Mr. Anderson?
Mr. Anderson. Well, one of the differences would be under
the INS restructuring. The Office of Juvenile Affairs would not
be in an enforcement office; it would actually be a separate
office in neither the service or enforcement part of the INS
and it would actually be reporting directly to the
commissioner.
We think by giving that attention and, essentially, when
necessary, the line authority of the commissioner on any
particular case, that will make a significant difference. You
know the commissioner and when he wants something done, it is
going to get done. That is why we want to make it
institutionalized in the whole restructuring and it is not just
an ad hoc task force.
In addition, we do also want to have some of the other
reforms that have been talked about in terms of dedicated case
management officers whose only duties will be juveniles. That
is something that is continuing to develop and I think that
also will get at the concern you have expressed about children
being able to fall through the cracks.
So it is not any one thing; I think it is a whole series of
measures. There have been improvements, but as I note in the
testimony, we are not satisfied and we would like to see
significant improvements continue.
Chairman Kennedy. My time is up, but as I understand it,
Judge Creppy, at least half of the children now go
unrepresented, despite the best efforts of the judges. Is that
your understanding?
Judge Creppy. My understanding is that no child will
proceed to a hearing that needs an attorney to assist them in
that hearing.
Now, I have heard the Senator talk about statistics and
data, but the problem with the system--and we are working to
improve the system--is that we have no accurate way to account
for the number of juveniles coming through the present system.
So when people throw out statistics, it is a guesstimate.
So I can't speak to if all or a few, but I can say that a
great majority that go through our system will get
representation through pro bono representation, through judges
asking attorneys and friends to take the case, and that no
juvenile gets a hearing alone when a judge feels that he or she
does not have the capacity to handle those proceedings.
Chairman Kennedy. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Senator Brownback, it is really your call.
Senator Brownback. Please go ahead.
Senator Feinstein. Thank you.
Senator Brownback. And then I do have some questions I
would like to ask.
Chairman Kennedy. Sure.
Senator Feinstein. Thank you.
I am interested in the last question Senator Kennedy asked
because according to the Executive Office for Immigration
Review, in removal cases undocumented children are
unrepresented 50 to 80 percent of the time.
Now, is that your review? Is the Executive Office for
Immigration Review your office?
Judge Creppy. The immigration court falls under the
Executive Office for Immigration Review, yes, Senator, that is
correct. But I can't speak to where those statistics came from
because I can tell you that our system does not accurately
track statistics like that. We don't have a system that tracks
the date of birth of those respondents.
Senator Feinstein. So you are saying those numbers are
wrong, Judge?
Judge Creppy. I would say that those numbers are not
accurate. I can't speak to them without having seen them, but I
can speak to that we do not have a system that can accurately
give you those types of numbers. We do not have such a system.
Senator Feinstein. Then if you don't have a system, would
it be fair to say that you don't really know whether it is true
or not? I mean, you can't sit on all cases.
Judge Creppy. No, I don't sit on all cases. This is why I
am saying that there is no accurate way to know the truth or
falsity of it. But what I can base my statement on is that I
have served in every court in the United States. We have 52
courts throughout the United States and I have inquired from
the judges, how do you handle juvenile cases coming before your
court? And my understanding is that the majority of
unaccompanied juveniles that come before that court get some
type of representation or they have a capacity to go forward.
Senator Feinstein. I would very much doubt that, based on
what we have seen, but I think I would like to know formally
from INS then--this is a major discrepancy--whether those
numbers are right or wrong, if you don't mind.
Mr. Anderson. Sure. We will get you that, Senator.
Senator Feinstein. I also understand that the Executive
Office for Immigration Review, in cooperation with NGO's, non-
governmental organizations, did try to put in place the pilot
project in Phoenix to ensure that children had legal
representation and the assistance of guardians ad litem. I also
am told that the project ultimately did not test the use of
guardians ad litem.
Judge Creppy. That is correct.
Senator Feinstein. So there really is no use of guardians
ad litem at the present time. Is that correct?
Judge Creppy. Right. There is sort of an informal use in
some courts where they ask somebody, will you act as a
guardian. But we tried to do it in Phoenix and we termed it
``the friend of the child,'' and the problem with it was it
never got off the ground because it became a resource question
and we could never get people to do it. So we never tested
that. That is correct, Senator.
Senator Feinstein. So you are saying you couldn't find
suitable guardians?
Judge Creppy. I think when Wendy Young testifies, she
primarily led that charge trying to set up the ``friend of the
child'' for our pilot project. I believe that the reason that
it never got off the ground is it was a question of funding,
that we couldn't find individuals to do it.
Senator Feinstein. Now, let me ask you this question. I
have also heard that INS blocked the use of guardians ad litem,
saying that such use would require legislation. True or false?
Judge Creppy. Well, I don't want to answer true or false.
They raised a question as to whether or not having a ``friend
of the child'' would interfere with their obligation as being
the custodian of the child. So there was a question there that
had to be resolved. So I don't know if I would call it a block,
Senator, but they did raise it as an issue.
Senator Feinstein. And after they raised it as an issue,
you didn't proceed with it. Is that correct?
Judge Creppy. Well, my understanding was that we didn't
proceed with it because there weren't sufficient resources to
get the program off the ground. So I can't say that INS caused
us not to proceed with it.
Senator Feinstein. Does INS want to respond?
Mr. Anderson. Well, obviously this was before my time, but
my understanding is that there were some questions about how
the guardian ad litem would work. But what I can say is if
there was legislation and it did specifically dictate to have a
pilot project, it would definitely happen.
Senator Feinstein. This is the catch-22 because we are
told--and I know you don't like legislation, but we are told
you are not going to go ahead with the guardian ad litem
because it needs legislation. Yet, you don't want the
legislation.
Mr. Anderson. I am not sure that that was the reason why
the guardian ad litem pilot project didn't go forward. It is my
understanding that wasn't the reason. I will further
investigate it, but again as stated in the testimony, we do
support having a pilot project or a series of pilot projects,
having them well-structured, having specific deadlines for
reports so there can be assurance that we can actually test
this and get experience and then know how to adapt this,
because it would be an innovation and with any innovation it
may work well or there may be ways we would want to fix it.
Senator Feinstein. Right. Now, I think all of don't want
children to fall in the hands of smugglers. It is true that we
left a lot of this in terms of defining the regs under which
the program would function up to the Department.
In Section 202(a)(4), we would require the director of the
Office of Children's Services, who would be appointed by the
Attorney General, to take steps to ensure that unaccompanied
alien children are protected from smugglers or others seeking
to victimize or otherwise engage such children in criminal,
harmful, or exploitative activity.
If there is any way you feel we should be more precise in
this, we would surely like to hear it. But the purpose of this
was to give you the full ability to set regulations, to the
best of your ability, to be able to protect children based on
the actual experience that the immigration judges and others
have had in these situations. I don't know a better way to do
it. If you have one, we would surely like to have it.
Mr. Anderson. Well, clearly, protecting juveniles from
smugglers is already INS policy. A restatement of that I don't
think would affect that.
Senator Feinstein. Well, the problem you had with the
attorney provision, having NGO's provide specific attorneys
that would be certified by you as competent to do this work,
was, well, they might fall in the hands of smugglers. You just
said that earlier, or one of the two of you said it.
Mr. Anderson. I am not sure having attorneys would
necessarily make someone vulnerable to smugglers. I think the
issue that needs to be decided on a particular case, especially
if there is some concern that the person was smuggled in, if
they were immediately released out to someone what would be the
security of the particular juvenile. I mean, those are the
types of dilemmas that people face.
Senator Feinstein. There is no question about that, but we
are talking about, No. 1, wherever it is possible, return the
child to the parent.
Mr. Anderson. Yes.
Senator Feinstein. We all believe in family reunification.
Second, to find a suitable placement for the child. Right
now, the alternative would be, I guess, if you released a
child, where do they go right now.
Mr. Anderson. Well, I mean a child could be released into
foster care if suitable foster care is found
Senator Feinstein. Right, so that wouldn't change. There
would still be foster care.
Mr. Anderson. Or in a residential care facility.
Senator Feinstein. That wouldn't change.
Mr. Anderson. And those combined come out to about 80
percent.
Senator Feinstein. So that wouldn't change, so I don't
understand what your concern is. We are trying to strengthen
your hand to see that the circumstances a child is in are
appropriate for that child and keep them out of circumstances
which many of them fall in today, extended detention.
Mr. Anderson. Well, again, we support many elements of the
legislation and we want to keep working with the Committee on
what the right balance is, on what can be administratively
flexible, and then what would be helpful for a statute.
Senator Feinstein. Well, we would very much like to work
with you because we would like to move this bill.
Mr. Anderson. Terrific.
Senator Feinstein. Thank you very much. Thanks, Mr.
Chairman.
Chairman Kennedy. Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman.
Judge Creppy, I would like to ask you, in your personal
experience on these proceedings, it seems to me important that
we treat children and adults differently in these proceedings,
particularly young juveniles that would not be able to
comprehend things nearly as well.
Could you describe based on your experiences to what extent
unaccompanied children understand what is happening to them in
these hearings?
Judge Creppy. Again, I think as Senator Feinstein pointed
out, I don't sit on every case, since we do 270,000 cases.
Senator Brownback. I am asking about your experience.
Judge Creppy. My experience is that the judges go to great
lengths to ensure that the story gets out, that there is
somebody that can assist them so that they can rule on the
particular case.
Senator Brownback. Has that been your personal experience
in these cases?
Judge Creppy. Yes, sir.
Senator Brownback. Have you had cases where you have
adjudicated where there has been a child 10 years or younger of
age?
Judge Creppy. Me, personally, as the chief judge?
Senator Brownback. Yes.
Judge Creppy. No, I have not, but I have been in courts
where other judges have. And again, as I indicated earlier, I
did do a survey of all of our courts which involved our judges
and asked them the methods which they use to try to make the
child comfortable within the court setting so that they could
get the story out.
Now, what I can speak to are the number of things that I
have done for the judges in terms of training, communications,
providing them with books and materials, having some of the top
experts in the country involving children's issues speak to
them and train them to sensitive them to these types of issues
so that when they do appear before the court, they are able to
handle it because I think that each case is different and I
think that they have to use their discretion and their training
and background to decide what will constitute a fair hearing
for this particular child.
Senator Brownback. Mr. Anderson, you are long familiar with
this problem from sitting on this side up here, and this has
been raised in the past. I understand from the Office of the
Inspector General, there are approximately--and you said in
your testimony about 5,000, and the OIG found about 4,700, plus
or minus, unaccompanied alien children each year into U.S.
custody.
It seems to me that the problem that we have here is that
in many of the cases here then when these children are
detained, they are not detained in INS facilities. They are
detained in contracted-for or local facilities that the INS has
limited control over. Maybe that is not the correct term to
use, but these aren't probably the facilities that the INS
would put these children in if they had that choice.
Am I correct that this is the nature of the problem and
that you are not really in control of the areas where these
children are being detained?
Mr. Anderson. Well, we do have contracts, and I don't know
if in every case, but I just went up to the Burks facility we
have in Pennsylvania. I know we have been trying to get the
Subcommittee staff up there, and any of the members. We
actually have a facility in San Francisco that you might be
interested in when you are back in the State, Senator.
It is worth seeing these places up close because at the
residential care facility, for example, in Pennsylvania there
is a person on staff there from INS that is able to watch what
is happening. And there is a mix of--while it is primarily at
the Burks facility, what you call non-secure, there are
actually even families there with children.
My observation was that there were education services going
on. I mean, kids were going basically 4, 5, 6 hours a day for
school. There were computers there to work with. There is
health care on staff.
Senator Brownback. Because my time is short, I want to get
at a couple of other points here. In my observation, though,
what I have seen in other places where there are not INS
facilities, you are contracting with local law enforcement to
do this, which sometimes is frustrated with the INS. I can tell
you from what I get in Kansas that they don't feel like they
are getting sometimes the guidance or they are just told, look,
just release the people that you have taken into custody.
I think that is probably the area where we are having the
issue, isn't it, that you are not in strong control of those
facilities? Maybe put it another way, could you set a level of
standards in these cases that then have to be met by local
contractors?
Mr. Anderson. Well, we do have standards. We have the
American Correctional Association standards, for example, in
those cases. In other standards, we have our own field guidance
on people going from INS to keep watch on these facilities.
This is an area where the commissioner wants to have continued
review and oversight, and that is part of the juvenile policy
initiative to make sure in all of these cases that we are
having the proper oversight of all the places that we contract
with.
Senator Brownback. Well, I want to work with you on this,
but I am hearing from too many reputable places that we have
got problems in too many places. I am hopeful that you can stay
around for the next panel that is up to be able to hear what
people are saying to us that is taking place. You are new in
and the administration is new in. This is a good chance. You
mentioned that the commissioner has no vested interest in the
status quo. I think there is a good shot at being able to do
some serious work here.
One final question I would ask you about because I am
struck by the number here is according to your statement the
average length of stay for a juvenile in detention was 43.5
days. The median length of stay is only 15 days.
Now, if I am understanding this correctly, if a case then
really isn't resolved quickly in the first couple of weeks,
then the juvenile is probably going to be detained for a couple
of months. Is that the situation?
Mr. Anderson. There are cases that go on for a long time. I
can turn that over to my co-panelist. It is not his fault,
obviously, but I mean this is a more elaborate problem.
Essentially, it is because the proceedings are taking a very
long time. I mean, that is the issue.
Senator Brownback. We want to particularly look at juvenile
cases. If they are being detained for lengthy periods of time,
we surely want to look at that. I think we need to look at it
on any length of time, but some of these go for long periods of
time.
Mr. Anderson. Right.
Senator Brownback. Mr. Chairman, I think the next panel
will be an illuminating one as well and one that can share and
enlighten, I would hope, as well both the individuals and the
branches that you represent here today.
Chairman Kennedy. Thank you.
It seems to me we want a seamless web so that any of these
children that are coming into the system are going to be
followed and tracked. At all times, we are going to know where
they are, what their circumstances are. You are going to have
child support systems, child welfare systems that are out
there, the trained people that are going to be following them.
And at any given time on these computers, we are going to know
the circumstances and someone is going to take an active review
all the time in monitoring these and moving this process
through.
That is what we are going to try and do and we want to work
with you to try and do it, but there is just too much out there
that says that too much is falling through the cracks. I am
just not convinced that just moving and rearranging the
authority and responsibility on this--I know that you want you
to do the job and I know that the INS commissioner wants to do
the job, but I think that is what this legislation is
attempting to do.
I think we want to work with you in finding ways to try and
make it efficient and effective and responsive, but it isn't
working now in the way that it should. We appreciate it very
much. And I would join Senator Brownback; I hope you can stay
and listen to our next panel.
Yes, Senator?
Senator Feinstein. Just one quick question.
Chairman Kennedy. Sure.
Senator Feinstein. You mentioned a place in San Francisco.
Well, my daughter is a juvenile court judge in San Francisco
and I asked her about it. She said because San Francisco is a
sanctuary city, INS contracts with another county, Sonoma I
believe she said, and the children are there, not in San
Francisco. So if that is different, I would surely like to go
and see where it is.
Mr. Anderson. It is in Castro Valley.
Senator Feinstein. Well, that is not San Francisco.
Mr. Anderson. Right, outside of San Francisco.
Senator Feinstein. Thank you very much.
Mr. Anderson. I meant outside of San Francisco.
Chairman Kennedy. Thank you very much.
Mr. Anderson. Thank you.
Chairman Kennedy. If our young people want to just stretch,
they can stretch. I know you probably have to go, but our next
witness is a young person, Edwin Munoz. He is 14 years old, and
maybe the young people would like to listen to him, if you have
a minute.
Well, they have to go. Thank you very much.
We thank Edwin Munoz for being here. He is a member of our
next panel. We want to thank him very much. Edwin applied for
asylum because he feared that he would be killed if he were
deported to his native Honduras. Like many other unaccompanied
children, while awaiting a decision in his case, Edwin was
housed not in a shelter but in a facility with violent juvenile
offenders. Unlike other children, Edwin had access to a lawyer.
We would like to thank you for coming here. I know it takes
a lot of courage to share your story. We will hear from you in
just a moment.
For the past 7 years, Wendy Young has served as the
Director of Government Relations and U.S. Programs for the
Women's Commission for Refugee Women and Children. Ms. Young
also oversees the Women's Commission's Detention Asylum Project
that addresses the critical protection needs of women and
children asylum seekers in the U.S. She has made dozens of
visits to detention centers and has written extensively. It is
a pleasure to have her here.
Andrew Morton is an associate in the government relations
group at Latham and Watkins. Mr. Morton worked as a campaign
consultant for numerous Republican candidates, as an aide in
the National Republican Congressional Committee, and on the
majority staff of the House Committee on the Judiciary. Mr.
Morton has been instrumental in an effort entitled the Child
Refugee Project, which has provided pro bono legal
representation for dozens of unaccompanied alien juveniles in
INS custody. Mr. Morton and his law firm have received numerous
awards for their excellent work.
Julianne Duncan currently serves as Director of Child
Services for the United States Conference of Catholic Bishops.
Dr. Duncan has an extensive background in refugee child welfare
and mental health programs, having worked in Washington State
for Lutheran Social Services.
I would point out that is from the Lutheran Immigration and
Refugee Services. They are one of the very best, I must say as
someone who has watched them over many years.
So, Edwin, we want to thank you. As you can see, we invited
the other children here and they are very interested in what is
going on. We are trying to make sure that children are treated
the way that you would want them to be treated, and because you
are here it is going to help us try and do that. So that is why
your presence here is so important. We admire your courage in
being here and speaking to us, and also for all the hardships
you have gone through. So we thank you very, very much.
You take your time. There is no hurry.
STATEMENT OF EDWIN LARIOS MUNOZ, GRAND RAPIDS, MICHIGAN
[TESTIFYING THROUGH AN INTERPRETER, ERIC UNTERNAHRER]
Mr. Munoz. Thank you for being here. It is a privilege to
be in front of Congress. I am here to tell you my story about
what happened when I was in custody of the INS and all the bad
things that happened, and I hope that me being here, things can
resolve themselves and other children will not be treated like
I was.
My name is Edwin Larios Munoz. I am 15 years old and in the
eighth grade at Thornapple Kellogg Middle School in
Middleville, Michigan. I live with my foster parents. I enjoy
math and soccer and want to be an FBI agent when I grow up.
I am a refugee here in the United States. I was born in San
Pedro Sula, Honduras. I could not stay in my country because of
the abuse I went through for years. After my father died when I
was 4, my mother abandoned me. I ultimately ended up living
with my cousin.
For 6 years, from when I was 7 to when I was 13, my cousin
forced me to work on the streets and give him money. When I
didn't earn enough money, he punished me, beating me with a
noose, car tools, and other objects, leaving scars on my body,
on my knees, legs and arms.
I did not report it to the authorities because my cousin
threatened to throw me out into the street. I also did not know
how to report him and did not think the police would protect a
child like me. I did not want to live on the streets because I
had heard that the authorities and gangs kill children living
on the streets. I had no other choice but to look for safety
and a real family in the United States.
I had heard wonderful things about the United States and
how children were treated better there. On or around March of
2000, I left Honduras with 100 lempira, around $15. I had to
walk and beg for rides, and work for food and housing the whole
way through Honduras, Guatemala, and Mexico. I finally arrived
in Tijuana in August of 2000.
After crossing the border by San Ysidro, California,
however, my problems with Immigration began. On August 19,
2000, the U.S. Border Patrol officers in green uniforms
arrested me and took me away in handcuffs. They held me 4 days
locked up and alone in a cell. They gave me very little food,
and bad food, and did not let me outdoors. They did not explain
anything to me about what was happening that I could
understand. I did not get to make any phone calls or speak with
a lawyer. I felt very sick to my stomach and head because of
the food and because I was locked up all day.
I was then taken in shackles to South West Key, a place in
San Diego for immigrant children paid for by the INS. I could
not wear regular clothes, but had to wear their uniform, with
flip-flops. They had some classes and recreation outside. I
never saw a counselor or social worker in order to talk about
my problems in Honduras.
The other boys from other countries there picked on me
because I was smaller and from Honduras. When I complained to
the guards about the boys' treatment, South West Key officials
told me to ignore it. They did not tell the boys to stop.
After 2 weeks at South West Key, an immigration officer
arrived. He took me away in shackles, but did not explain why
or where we were going. I was brought to San Diego Juvenile
Hall, a jail for juvenile criminals. This is the worst place I
have ever been in my life.
When I arrived, they forced me to wear a prison uniform,
with flip-flops. They then locked me in a cell by myself,
without windows. They told me they had to isolate me because I
looked very young and that they needed to verify my age. I
spent 3 days in the cell sad and afraid.
When they finally released me from the cell, I was placed
in another cell with a United States citizen boy who had
serious problems with the law. He was not as bad as the other
boys in the jail who were there for murder, having weapons,
violence, or theft.
I spent around 8 months in this jail. I was locked in the
cell around 18 hours a day, since we were only allowed out for
a few hours a day for classes. We also had outdoor exercises
twice a day for 20 minutes in a fenced-in area. Every time we
walked, we had to walk silently with our hands crossed to avoid
punishment.
The officers did not know why I or other children picked by
the INS were being held there. They treated us the same as
others, as criminals. They were mean and aggressive and used
lots of bad words. They hit me with their sticks and shoved me
and other boys when they thought that we were not following
their orders.
Many of the other boys were violent, frequently looking for
a fight. Whenever there was a fight, the officers would order
all of us into a cover, crouching position and often used
pepper spray. Sometimes, the pepper spray would hit children
like me who had nothing to do with the incident. I was sprayed
twice and it made my eyes sting and I was afraid I would go
blind.
I lost weight and was usually sick at this jail, since I
could not eat the food, which was different from the food in
Honduras, and the jail always smelled like urine. I cried a lot
in the cell, wondering why everything was turning out so bad
for me here in the United States and wondering if I would ever
be free.
After around 6 weeks in detention, I was taken in hand and
leg shackles to the immigration court. At my first court, there
were many adult criminals in the courtroom. I was scared and
afraid that I would be deported. The judge asked me what I
wanted to do in my case and I told him I needed to find a
family to live within the United States.
He said he would give me another date and help me find a
lawyer to represent me. Several weeks later, I returned to
court, again in shackles. There was a nice, free lawyer for me,
a good man, Manuel Sanchez, who was willing to represent me.
Together, we prepared my case for asylum and the judge granted
me asylum in July of 2001. It was hard to prepare my case in
jail, even with my attorney Manny. I could not call him for
free, and every time he visited they made me take off all my
clothes to search my body. This embarrassed me.
I did not like going to the court, even though I would get
to be outside. Every court trip meant wearing shackles, even at
my final hearing when I was able to tell the judge my whole
story. There was no way I could have won the case without an
attorney or Manny. I did not even know that asylum existed
before Manny, and I could not fill out all those papers in
English and did not know what to do in court.
There was no one to complain to about the jail, since I
could not trust the jail officials and never saw an INS
officer. INS only came to take me to court in shackles. I once
complained to the judge about how horrible the jail was to see
if I could be taken somewhere else. The judge said he could not
do anything for me; only INS could. The INS attorney did not
say or do anything to help me get out of this jail. After
winning my asylum, I was brought back to the jail again in
shackles. I stayed in the jail another month-and-a-half,
wondering why, if I had won this asylum, I was still in jail.
Would I ever be free?
Finally, they arranged for me to go with Bethany Christian
Services to a foster family in Michigan. I was transported out
again in shackles. I asked the INS officer, why do I need
shackles? He told me to prevent my escape. Why would I want to
escape if I had won my asylum? Your asylum, he said, that is
just a piece of paper we can throw away, put you in jail, and
then send you back to your own country. It took a while for me
to feel at home in Michigan. I still have horrible memories
over what I went through with the INS and at the San Diego
jail.
I saw many children like me who gave up fighting their
immigration cases and accepting deportation because they hated
the jail and did not have lawyers like Manny to help them. I am
happy that there are people like you who care to help people
like me with their problems with the INS. I would like to see
that they treat children better so that no child has to go
through what I went through with the INS.
I know that there is a proposed law right now that would
help that happen, and I am very glad because I don't think any
child should have to go through what I did. I know it is bad
because I went through it myself.
I hope what I have said today has been of some importance.
I had horrible experiences and it was the fault of Immigration
that I went through these experiences. I also think that there
could be another place besides jail where people like me could
be put because it was horrible in the jail. I had very bad
experiences in the prison. It was really bad there, and I
almost wish that I would have stayed in Honduras rather than
come here and pass time in the prisons.
Chairman Kennedy. Well, we want to thank you very much,
Edwin. Thank you very, very much for being here.
[Applause.]
Chairman Kennedy. How are you liking school now? Do you
like Michigan? It is a little cold out there, isn't it? You
come to Massachusetts.
[Laughter.]
Chairman Kennedy. Well, I will tell you your worst days are
behind you, and I think you will find that that family that has
welcomed you cares for you and loves you. And I think you will
find people around the community are so happy that you are
here. We are so happy that you are here and we admire you very,
very much, and we think you would be a very good FBI agent.
They will be very lucky to get you. I hope the United States
will live up to your dreams because we are all trying to make
it that way.
We want to thank you very much. Maybe after the hearing
here, we will get a chance to see you a little bit and talk to
you personally.
Mr. Munoz. I would like to meet you.
Chairman Kennedy. Very good, OK.
[The prepared statement of Mr. Munoz follows:]
Statement of Edwin Larios Munoz, Grand Rapids, Michigan
My name is Edwin Larios Munoz. I am 15 years old and in eight grade
at Thornapple Kellogg Middle School in Middleville, Michigan. I live
with my foster parents. I enjoy math and soccer and want to be an FBI
agent when I grow up. I am a refugee here in the United States. I was
born in San Pedro Sula, Honduras.
I could not stay in my country because of the abuse I lived with
for years. After my father died when I was four, my mother abandoned
me. I ultimately ended up living with a cousin. For over seven years,
from when I was 7 to when I was 13, my cousin forced me to work on the
streets and give him the money. When I didn't earn enough money, he
punished me, beating me with a noose, car tools and other objects,
leaving scars on my body, like the knees, legs and arms. I did not
report it to the authorities because my cousin threatened to throw me
out onto the street. I also did not know how to report him and did not
think the police would protect a child like me. I did not want to live
on the streets because I had heard that the authorities and gangs kill
children living in the streets. I had no other choice but to look for
safety, and a real family, in the United States. I had heard wonderful
things about the United States and how children were better treated
here.
On or around March, 2000, I left Honduras with about 100 lempira,
around $15. I had to walk and beg for rides and work for food and
housing the whole way through Honduras, Guatemala and Mexico. I finally
arrived in Tijuana in August, 2000.
After crossing the border by San Ysidro, California, however, my
problems with immigration began. On August 19, 2000, the U.S. Border
Patrol officers in green uniform arrested me and took me away in
handcuffs. They held me four days locked up and alone in a cell. They
gave me very little and bad food and did not let me outdoors. They did
not explain anything to me about what was happening that I could
understand. I did not get to make any phone call or speak with a
lawyer. I felt very sick to my stomach and head because of the food and
because I was locked up all day.
I was then taken in shackles to South West Key, a place in San
Diego for immigrant children paid for by INS. I could not wear regular
clothes but had to wear their uniform with flip-flops. They had some
classes and recreation outside. I never saw a counselor or social
worker to talk about my problems in Honduras. The other boys from other
countries there picked on me because I was smaller and from Honduras.
When I complained to them about the boys' treatment, South West Key
officials told me to ignore it. They did not tell the boys to stop.
After two weeks at South West Key, an immigration officer arrived.
He took me away in shackles but did not explain where and why.
I was brought to San Diego Juvenile Hall, a jail for juvenile
criminals. This was the worst place I have ever been in life. When I
arrived, they forced me to wear a prison uniform with flip-flops. They
then locked me in a cell by myself without windows. They told me that
they had to isolate me because I looked very young and that they needed
to verify my age. I spent three entire days in the cell, sad and
afraid.
When they finally released me from the cell, I was placed in
another cell with a United States citizen boy who had serious problems
with the law. He was not as bad as the other boys in the jail who were
in for murder, weapons, violence or theft.
I spent around six months in this jail. I was locked in the cell
around 18 hours a day Since we were only allowed out for a few hours a
day for classes. We also had outdoor exercises twice a day for twenty
minutes in a fenced-in area. Every time we walked we had to walk
silently with our hands crossed to avoid punishment.
The officers did not know why I or other children picked up by INS
were being held there. They treated us the same as the others, as
criminals. They were mean and aggressive and used a lot of bad words.
They sometimes hit me with their sticks and shoved me and other boys
when they thought that we were not following their orders.
Many of the other boys were violent, frequently looking for a
fight. Whenever there was a fight, the officers would order all of us
into a cover, crouching position and often used pepper-spray. Sometimes
the pepper-spray would hit children like me who had nothing to do with
the incident. I was sprayed twice and it made my eyes sting and I was
afraid that I'd go blind.
I lost weight and was usually sick at this jail since I could not
eat the horrible food and the jail constantly smelled like urine. I
frequently had nightmares at the jail that the guards and other boys
were going to kill me. I cried a lot in the cell wondering why
everything was turning out so bad for me in the United States and if I
would ever be free.
After around six weeks in detention, I was taken in hand and leg
shackles to the immigration court. At my first court, there were many
adult criminals in the courtroom. I was scared and afraid that I would
be deported. The Judge asked me what I wanted to do in my case and I
told him I needed to find a family to live with in the United States.
He said he'd give me another date and help me find a lawyer to
represent me.
Several weeks later, I returned to court, again in shackles. There
was a nice, free lawyer for me, Manuel Sanchez, who was willing to
represent me. Together, we prepared my case for asylum and the Judge
granted me asylum in January, 2001.
It was hard to prepare my case in the jail even with my attorney
Manny. I could not call him for free, and every time he visited, they
made me take off all my clothes to search my body. This embarrassed me.
I also did not like going to court since, even though I'd get to see
the full outdoors, every court trip meant wearing shackles, even at my
final hearing when I was able to tell the Judge my whole story.
There was no way I could win my case without an attorney or Manny.
I did not even know that asylum existed before Manny and I could not
fill out all those papers in English and did not know what to do in
court.
There was no one to complain to about the jail since I could not
trust the jail officials and never saw an INS officer. INS only came to
take me to court in shackles. I once complained to the Judge about how
horrible the jail was to see if I could go back to South West Key. The
Judge said that he could not do anything for me, only INS could. The
INS attorney did not say or do anything to help me get out of this
jail.
After winning my asylum, I was brought back to the jail again in
shackles. I stayed in the jail another month and a half, wondering why
if I won this asylum, I was still in jail. Would I ever be free?
Finally, they arranged for me to go with Bethany Homes to a foster
family in Michigan. I was transported out again in shackles. I asked
the INS officer why do I need shackles. He told me to prevent my
escape. Why would I want to escape if I won my asylum? Your asylum, he
said, that's just a piece of paper we can rip up, put you in jail and
send you back to your country.
It took a while for me to feel at home in Michigan. I still have
horrible memories over what I went through with INS and at the San
Diego jail. I saw many children like me who gave up fighting their
immigration cases and accepting deportation because they hated the jail
and did not have lawyers like Manny to help them.
I am happy that there are now people like you who care to help
children like me with their problems with INS. I'd like to see that
they treat children better so that no child has to go through what I
went through with INS. Thank you for listening to me.
Chairman Kennedy. Wendy?
STATEMENT OF WENDY A. YOUNG, DIRECTOR OF GOVERNMENT RELATIONS
AND U.S. PROGRAMS, WOMEN'S COMMISSION FOR REFUGEE WOMEN AND
CHILDREN, FALLS CHURCH, VIRGINIA
Ms. Young. Good afternoon. On behalf of the women's
Commission for Refugee Women and Children, I would like to
thank you for the opportunity to testify regarding the
treatment of children held in the custody of the INS. I would
like to request that my full written testimony be submitted for
the record.
The Women's Commission has identified significant
procedural gaps in U.S. policy and practice that jeopardize the
protection of newcomer children. We strongly support S. 121
which, if enacted, would represent the first time that the
needs of unaccompanied minors are addressed comprehensively and
that they are treated as children first and newcomers second.
We wish to express our appreciation to Senators Feinstein,
Kennedy, Durbin, and the other cosponsors of S. 121 for their
leadership on this legislation.
The INS detains almost 5,000 unaccompanied children a year.
In addition to Edwin, we are joined in the audience today by
other young people who were held in INS custody. I would like
to ask them to stand as a group for just a moment.
Chairman Kennedy. Do you want to stand?
[The children stood.]
Chairman Kennedy. Well, you will give us their names and we
will make sure that they are in the record. Thank you very
much.
Ms. Young. Thank you.
Children held in INS custody range in age from toddlers to
teenagers and represent many nationalities. Many are fleeing
armed conflict and human rights abuses. Others have been
abused, abandoned or neglected by their families. Some children
have been trafficked. All, without question, deserve
comprehensive care that is sensitive to their age, past
experience, and displacement.
The Juvenile Affairs Division within the INS Detention and
Removal Branch is currently responsible for the care and
custody of children. Its work is generally carried out through
INS regions and districts, each of which has a designated
juvenile coordinator. These coordinators are detention and
removal officers who lack child welfare expertise. Moreover,
the national juvenile coordinator enjoys only dotted-line
authority over these officers. This disconnect leads to
decentralization, a lack of accountability, and inconsistent
practices, often at the child's expense.
The INS is responsible for the care and custody of
unaccompanied children at the same time that it oversees their
apprehension, detention, and removal. This is an irreconcilable
conflict of interest that repeatedly results in the INS
favoring its law enforcement goals over the needs of the child.
For example, the INS frequently denies release from
detention to children who have been granted asylum by an
immigration judge because the agency itself has decided to
appeal that grant. The INS has blocked children from pursuing
special immigrant juvenile status by refusing to allow the
child to proceed to juvenile court to determine whether the
child has been abused, abandoned or neglected.
The INS has also encouraged children to agree to voluntary
departure from the United States even when children have
earlier expressed a fear of return. And in some cases, the INS
has returned children under questionable circumstances. A
juvenile coordinator admitted to us that she was aware of
Chinese children who were arrested and jailed upon their
return. A 13-year-old Honduran was deported even though his
asylum claim was still pending.
The INS restructuring proposal is largely cosmetic and will
not resolve the conflict of interest. Children are inherently
different from any other population that the INS encounters and
no matter where the box is moved on the organizational chart,
the agency will still lack the child welfare expertise to get
the job done.
Moreover, under the INS proposal, it is unclear who would
make release and placement decisions on behalf of children.
Such authority may well be retained by INS enforcement
officers. Comprehensive reform by way of S. 121 is essential.
The Flores agreement requires the INS to release children
to parents, relatives or other responsible entities, or to
otherwise place them in the least restrictive setting possible.
However, the INS often fails to release children even when
family is available. Service providers in Houston report that
family reunification has dropped from 75 to 35 percent.
Family reunification is especially problematic when the INS
is aware that a child has an undocumented relative in the U.S.
The INS has refused to release a 16-year-old Guatemalan who has
been detained for 8 months in multiple facilities, including at
one point an adult prison, because they are aware that his
undocumented brother resides in the United States. A Federal
judge recently expressed outrage at the arbitrariness of this
decision. An 8-year-old Nigerian girl was detained for 15
months before finally being released to her aunt, despite the
documented deterioration in her mental well-being.
One-third of children spend anywhere from a few days to
more than a year housed in secure detention facilities designed
for youthful offenders, including delinquents who have
committed violent felonies such as assault, murder, and school
shootings. A 14-year-old Honduran asylum seeker shared a cell
for 4 months with a boy serving time for assault with a deadly
weapon. Such commingling of non-offenders with delinquents is
common.
Children are subject to hand-cuffing and shackling even at
times during their immigration hearings. Translation assistance
is rare. In some facilities, access to the outdoors is
extremely limited. Education programs are often conducted in
English. Children are sometimes cutoff from religious services
in their chosen faith. Children are frequently transferred from
facility to facility even when represented, and then without
prior notice to counsel. Children are sometimes misclassified
as adults and are commingled in adult detention centers or
prisons.
Also missing is the critical assistance of professionals
who can aid children with their immigration cases. Less than
half the children are represented by counsel, and U.S. law
fails entirely to appoint them guardians ad litem. This results
in ludicrous situations. In one case, an 18-month-old toddler
appeared before an immigration judge with no attorney or other
adult to help her.
In conclusion, the Women's Commission is gravely concerned
that consideration of the best interests of the children, the
cornerstone of child welfare policy, is a concept that
continues to elude the policies and practices of the INS.
We strongly support the approach of S. 121, which shifts
the care and custody of children to an appropriate office and
leaves the INS to perform the function it does best, the
enforcement of U.S. immigration laws. S. 121 puts in place the
structure and resources to quickly identify an appropriate
outcome in each child's case, safely repatriating those
children who are not eligible for relief and quickly moving
those children who are into stable, home-like settings where
they can begin their lives anew.
One true measure of a society is its treatment of children.
We urge Congress to expeditiously pass S. 121, legislation that
ensures a holistic, humane, and effective approach to newcomer
children.
Thank you again, Mr. Chairman, for the opportunity to
appear before you.
[The prepared statement of Ms. Young follows:]
Statement of Wendy Young, Director of Government Relations and U.S.
Programs, Women's Commission on Refugee Women & Children, New York, New
York
I. Introduction
Isau is a 13-year-old boy from Honduras. He fled his homeland and
came to the United States to escape severe abuse at the hands of his
stepfather, who beat Diego with pieces of wood, rods, and a machete
handle and burned him with various hot objects. His mother would
disappear for months leaving Diego at the mercy of his stepfather.
Diego finally fled his stepfather's home and began living on the
streets. There, however, he was targeted by government death squads and
youth gangs.
The Immigration and Naturalization Service apprehended Diego upon
his arrival in the United States and initially placed him in a
children's shelter in Houston. It then denied Diego access to juvenile
court in order to determine whether he was abused, abandoned, or
neglected and eligible for long-term foster care, a finding that would
have potentially rendered him eligible to remain in the United States
under the Special Immigrant Juvenile program. Meanwhile, Diego appeared
in immigration court, without the assistance of counsel, where he was
denied asylum. After a pro bono attorney agreed to represent him, Diego
filed an asylum appeal, a Convention Against Torture claim, and a
withholding of deportation claim. The INS then transferred him to the
Liberty County Juvenile Detention Center, one and a half hours drive
from Houston where his attorney was based. A year later, the INS
unlawfully deported Diego back to Honduras while his appeal was
pending. Diego's attorney has since been trying to locate the boy but
has been unable to find him. Diego spent two years in detention before
his deportation, including more than one year in secure detention.
Good afternoon. My name is Wendy Young. I am the Director of
Government Relations and U.S. Programs for the Women's Commission for
Refugee Women and Children, a nonprofit organization which seeks to
improve the lives of refugee women and children around the world by
acting as an expert resource and engaging in a vigorous program of
public education and advocacy. On behalf of the Women's Commission, I
would like to thank you, Mr. Chairman and members of the Subcommittee,
for the opportunity to testify regarding the treatment of children held
in the custody of the Immigration and Naturalization Service (INS).
In 1996, the Women's Commission launched an assessment of U.S.
detention and asylum policy and its impact on women and children
seeking refugee protection in the United States. As part of this
project, we have visited 18 facilities used to hold children in INS
custody and have monitored numerous immigration court proceedings
involving children. This research included a four-state assessment in
August 2001 of the treatment of children detained by the INS. This
study focused primarily on the use of secure facilities, or juvenile
detention centers, by the INS. We also worked with the INS to develop
``Guidelines for the Adjudication of Children's Asylum Claims,''
released in December 1998. In addition, we have acted as an expert
resource to attorneys and other service providers working with children
around the country.
This work has revealed significant procedural gaps in asylum and
immigration law and policy that jeopardize the protection of newcomer
children. Too often, the U.S. immigration system is a ``one-size-fits-
all'' process designed for adults that fails to take into account the
unique needs of children. As a result, children may be denied asylum or
other forms of immigration relief for which they may be eligible and
returned to unknown fates in their home countries. They may also endure
prolonged detention, often in secure juvenile detention centers in
harsh and punitive conditions that fail to address their unique
protection needs.
The Women's Commission strongly supports the Unaccompanied Alien
Child Protection Act (S. 121). We would like to express our
appreciation to Senator Dianne Feinstein, Senator Edward Kennedy,
Senator Richard Durbin, and the other co-sponsors of S. 121 for their
leadership on this critical legislation. If enacted, this legislation
would represent the first time that the needs of unaccompanied minors
who arrive in the United States are addressed systematically and
comprehensively, thus ensuring that children are treated as children
first and newcomers second. It would accomplish this by establishing a
structure specifically to care for newcomer children, by mandating
procedures for appropriate custody and placement decisions, and by
providing the legal and social services to children that they require
to assist them in their immigration proceedings.
What S. 121 does not do is create new forms of immigration relief
for children. Instead, it ensures that children are appropriately cared
for while their eligibility for relief is determined. It also creates a
more efficient system that will lead to quicker decisions in children's
cases. S. 121 will be more cost-effective by decreasing the use of
secure settings, and will ensure that children who are denied relief
are returned efficiently and safely.
This testimony will provide an overview of the current treatment
that children receive and will establish the need for legislative
reform such as that envisioned under S. 121.
II. Why Children Come to the United States
In each of the past three fiscal years (1998-2000), the INS has
reported an annual total of almost 5,000 unaccompanied children in its
custody. On any given day, the agency averages between 400 and 500
children in its care.\1\ These children range in age from as young as
six months up to 17-years-old. They come from many countries, with the
top nationalities being Honduran, Guatemalan, Salvadoran, Mexican, and
Chinese. In its own research, the Women's Commission has followed the
cases of children from Kosovo, the Democratic Republic of Congo,
Burundi, Sierra Leone, Somalia, Algeria, Afghanistan, Nigeria, Haiti,
India, Colombia, and other troubled countries.
---------------------------------------------------------------------------
\1\ ``Unaccompanied Juveniles in INS Custody,'' Office of the
Inspector General, Report Number I-2001-009 (September 28, 2001).
---------------------------------------------------------------------------
Children come to the United States for a variety of reasons.
Increasingly, children are searching for protection from armed conflict
and human rights abuses in their homelands, which may render them
eligible for asylum.
Human rights violations inflicted on children may be age-specific,
such as recruitment as child soldiers, child prostitution, sexual
servitude, child labor, street children abuses, child marriages, female
genital mutilation, and slavery. Other children have been abused,
abandoned, or neglected by their families, and thus may be eligible for
Special Immigrant Juvenile status. Some children are smuggled or
trafficked into the United States, and may be eligible for relief under
the recently enacted trafficking legislation.
Unaccompanied children arrive in the United States in several ways.
They may arrive alone either by crossing a U.S. border or through a
U.S. port of entry. Some arrive in the company of a family friend or
distant relative who is not the child's traditional caregiver. Some
arrive in the company of a smuggler who has been paid to facilitate the
child's arrival. Still others are trafficked into the United States by
organized criminal enterprises. Approximately 40 percent of children
are truly alone and lack relatives in the United States, rendering them
particularly vulnerable.
Regardless of their mode of arrival or country of origin, children
who arrive alone in the United States are indisputably a population in
need of comprehensive care that is sensitive to their age, culture,
past experience, and displacement.
III. The Justice Department Structure to Oversee Children in INS
Custody has Changed Over the Years
Over the years, the Department of Justice has shifted jurisdiction
over the care and custody of newcomer children from office to office.
For many years, shelters which housed children in INS custody were
overseen by the Community Relations Service (CRS), an agency that is
within the Department of Justice but separate from the INS. CRS
maintained a small staff of social workers to administer the children'
shelters, the running of which was contracted out to private nonprofit
agencies.
However, the INS absorbed the functions of CRS related to
immigration in 1996. The CRS staff charged with the oversight of the
shelters moved to the INS as well. Both the staff and their continuing
operations were housed in the Humanitarian Affairs Branch (HAB). HAB is
commonly recognized for its service orientation and centralized
operations within the overall INS structure.
Despite the concerns of outside experts, the INS decided in 2000 to
consolidate all of its children's programs into its Detention and
Removal branch, a department intrinsically tied to the agency's law
enforcement functions. Nongovernmental organizations, concerned about
the handling of children in INS custody, feared that the transfer of
authority would further aggravate the inherent conflict of interest
between INS enforcement responsibilities and the agency's ability to
provide child welfare services.\2\
---------------------------------------------------------------------------
\2\ See letter from Ralston H. Deffenbaugh Jr., Lutheran
Immigration and refugee Service, on behalf of more than 50 non
governmental organizations and individuals, to Doreis Meissner,
Immigration and Naturalization Service (October 17, 2000).
---------------------------------------------------------------------------
The concerns of immigrant and refugee advocates proved well-
founded. Increasingly, since the Detention and Removal Branch assumed
control over children's programming within INS, enforcement concerns
have dominated decisions which are made on behalf of child newcomers.
The agency has demonstrated a consistent pattern and practice of
neglecting the needs of children in favor of its deportation functions,
budgetary concerns, and administrative and logistical priorities.
Moreover, the staffing structure of the INS has exacerbated the law
enforcement approach the agency has favored toward the handling of
children in its care. INS staffing for children's programs is highly
decentralized. While decentralization characterizes most INS programs,
it carries particularly troubling consequences for children.
The INS Juvenile Affairs Division is the central office which
directs and oversees juvenile and family detention and shelter care. In
practice, however, this supervision is largely implemented through the
INS regional and district offices across the country. There are three
INS regions and 33 INS districts, all of which function with tremendous
autonomy and little accountability to INS headquarters in Washington,
DC.
Each region and district has a designated juvenile coordinator.
These coordinators, however, are generally not individuals with child
welfare expertise but are detention and deportation officers who are
charged with overseeing the handling of children in that particular
district. In some districts, the appointment as juvenile coordinator is
a permanent appointment, but in most cases, it is a temporary
assignment and may even be performed on a part-time basis.
Each of the three INS regions are staffed by a regional juvenile
coordinator. These posts are full-time, permanent positions.
The line authority over and supervision of the regional and
district juvenile coordinators are through the district and regional
structures. While counter intuitive, the national juvenile coordinator
enjoys only dotted line authority over these officers. This disconnect
leads to decentralization, a lack of accountability, and inconsistent
practices with regard to children from district to district and region
to region.
IV. INS Experiences a Conflict of Interest with Children in Its Custody
It is often noted that the INS has been given a complex mandate
that is simultaneously both law enforcement and service oriented.
Perhaps nowhere is this more true than with children in the custody of
the INS. The INS is responsible for the care, custody, placement and
legal protection of unaccompanied children who arrive in the United
States at the same time that it is also responsible for their
apprehension, detention, and removal. As a result, the INS is presented
with an inherent conflict of interest, under which it is simultaneously
acting as a service provider and a law enforcement agency. This
conflict ultimately clogs the system with inefficiencies and inequities
and threatens the best interests of the children in question. Moreover,
the situation is made worse by the fact that the INS simply lacks the
requisite child welfare expertise to appropriately care for children in
its custody.
This conflict of interest was exacerbated in 2000, when the INS
consolidated its children's programs under its Office of Field
Operations, Detention and Removal branch. By doing so, it removed
oversight of the children's shelters from the HAB, which included staff
experienced in child welfare.
Since the consolidation of children's programs under the Detention
and Removal branch, we have witnessed a trend toward further favoring
law enforcement goals over the needs of the child. Following are just a
few examples of how the INS leverages its custody of children to
advance its law enforcement goals:
The INS has frequently denied release to children who
have been granted asylum by an immigration judge, because the
agency itself has decided to appeal the grant and has deemed
the child a flight risk.
The INS has blocked abused children from pursuing
Special Immigrant Juvenile visas. For children in its custody,
the INS retains the authority to consent to the jurisdiction of
a juvenile court for a determination as to whether the child is
eligible for long-term foster care due to abuse, abandonment,
or neglect. Such a determination is required before a child can
pursue a Special Immigrant Juvenile visa. Consistently, the INS
refuses to allow the child to proceed to juvenile court, thus
cutting the child off from a critical form of protection that
would otherwise offer the child protection from domestic
violence or life on the streets.
The INS has increasingly required undocumented
relatives to appear at its offices to accept custody of
children, at which time it issues a Notice to Appear to the
relative. It adheres to this policy even when other relatives,
responsible adults, or licensed placements are available and
willing to accept the child. This acts as a tremendous
deterrent against parents and others stepping forward to care
for their children. Perhaps even more significant is the guilt
caused to the children, who are effectively being used as bait
to lure the parent to appear. It also often results in the
prolonged detention of the child.
Service providers have reported cases in which the INS
has encouraged children to abandon their pursuit of immigration
relief. In Houston, for example, service providers reported
that the INS juvenile coordinator told a child that ``The judge
won't buy your story, and you'll end up being in detention for
a long time.'' Service providers in Spokane reported that the
juvenile coordinator encourages children to agree to voluntary
departure from the United States.
The INS in some cases has returned children under
questionable circumstances. The San Francisco juvenile
coordinator admitted that she was aware of Chinese children who
were arrested and jailed upon their return to China, especially
those returned to Beijing. A Honduran 13-year-old was deported
by the INS Houston District, even though his claim to asylum,
relief under the Convention Against Torture, and SIJ petition
were still pending adjudication.
V. The INS Restructuring Proposal Will Not Resolve the Conflict of
Interest the INS Experiences with Children in Its Custody
The INS has recently announced steps to reform its policies and
practices with regard to children as part of its overall
``Restructuring Proposal.'' \3\ The heart of the proposal is to
separate the agency's service and law enforcement functions into two
bureaus, which would continue to report to the INS Commissioner.
Certain departments would not be lodged in either the service or the
law enforcement branch, including a new ``Office of Juvenile Affairs,''
reporting to the INS Commissioner.
---------------------------------------------------------------------------
\3\ ``Restructuring Proposal,'' Immigration and Naturalization
Service (November 2001).
---------------------------------------------------------------------------
The INS has stated that the mandate of the Office of Juvenile
Affairs will be to act as the central policy office on children's
matters and to direct national programs to address the needs of
unaccompanied minors in INS custody. It has indicated that this will
include responsibility for developing research-based best practices and
service approaches, ensuring consistent application of policies and
procedures, facilitating family reunification, and developing effective
case management systems.\4\
---------------------------------------------------------------------------
\4\ Ibid., p. 26.
---------------------------------------------------------------------------
However, we believe that the INS's proposal will not got far enough
to truly reform the agency's practices toward children. While this
change reflects the INS's growing awareness that it must revamp its
treatment of children, it does not promise the kind of meaningful
reform that would ensure that children receive appropriate care while
their eligibility for immigration relief is being determined.
First and most critically, children are inherently different from
any other population that the INS encounters. In contrast to adults,
who are typically able to understand at least the fundamentals of the
immigration system as they seek to regularize their immigration status,
children lack the capacity to appreciate the complexities of U.S.
immigration law and to make decisions that will fundamentally affect
their futures.
Second, the INS's proposal fails to address the fundamental
conflict of interest that the INS experiences when charged with both
the care and custody of children at the same time that it is seeking
their removal from the United States. These dual functions are
diametrically opposed and fundamentally irreconcilable.
Because the INS is dominated by enforcement concerns at the same
time that it is completely lacking in child welfare expertise, its law
enforcement functions frequently override consideration of the best
interests of the children in its custody.
Third, it is unclear who would have the authority to make placement
and other critical service decisions on behalf of children under the
INS Restructuring Proposal. Such authority may well be retained by INS
enforcement officials, who lack the child welfare expertise to
determine the most appropriate care arrangements for children.
Currently, the INS National Juvenile Coordinator in Washington, DC
only has ``dotted line'' authority over regional and district juvenile
coordinators, who remain under the supervision of their respective
districts and regions. This results in decentralization, inconsistency,
and a lack of accountability. The INS Restructuring Proposal does not
appear to address this structural flaw.
Fourth, the INS proposal is only an administrative measure that
does not carry the force of law. Nothing would prevent future
Administrations from revisiting these changes and reverting to old
structures. History has already shown the tendency of the Department of
Justice to shift jurisdiction over children's programming from office
to office.
Most importantly, the INS proposal will not resolve the endemic
management issues within the agency that favor law enforcement over
service. The proposal itself acknowledges this dilemma when it notes
that ``reorganization should not be seen as a panacea for all the
challenges the INS faces.'' The chronic failure of the INS to address
critical protection issues confronted by children in its care and the
lack of transparency in INS operations are issues that are likely to
continue to plague the agency.
Concerns about the INS' handling of children have been raised by
immigration, refugee, and child welfare experts for almost two decades.
Improvements have been made incrementally in some areas while in other
aspects INS practices have deteriorated. Without fundamental changes in
infrastructure, staffing, attitude and philosophy, the changes proposed
under the INS Restructuring Proposal are likely to remain cosmetic at
best. We cannot allow children to continue to pay the price while we
give the INS yet another opportunity to experiment with their care.
VI. INS Compliance with Class Action Settlement Agreement that Guides
Placement Decisions is Inconsistent
the flores agreement
The legal framework for the custodial care and treatment of
unaccompanied newcomer children derives from a consent decree known as
the Flores v. Reno settlement agreement.\5\ Filed as a class action
lawsuit in U.S. federal court in 1985, the Flores case challenged the
constitutionality of policies and practices regarding the detention and
release of unaccompanied children taken into custody by the INS. The
case went to the U.S. Supreme Court before being remanded to the court
in which it originated, the District Court of the Southern District of
California, at which point the plaintiffs and the government reached a
settlement in 1996.\6\
---------------------------------------------------------------------------
\5\ Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-
4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/FloresSettle.html.
\6\ Reno v. Flores, 507 U.S. 292 (1993).
---------------------------------------------------------------------------
The Flores agreement addresses a range of custody issues pertaining
to children, including release to family members or other responsible
entities, placement, transportation, monitoring, and attorney-client
visitation. In addition, the agreement delineates minimum standards of
care for licensed programs with which the INS contracts for the
placement of children in its custody, such as access to health care,
recreation, education, religious services, and legal representation.
The Flores agreement is premised on the notion that the INS must
treat children in its custody with ``dignity, respect, and special
concern for their vulnerability as minors.'' \7\ It requires the INS to
release children without unnecessary delay unless detention is required
to secure the child's appearance in court or to ensure the safety of
the child or others.\8\ The agreement lays out in order of preference
categories of relatives, unrelated adults, and licensed child care
settings to which children are to be released.\9\
---------------------------------------------------------------------------
\7\ Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-
4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/FloresSettle.html.
\8\ Ibid., paragraph 14.
\9\ Ibid.
---------------------------------------------------------------------------
The agreement also requires the INS to place children for whom
release is pending, or for whom no release option is available, in the
least restrictive setting possible that is appropriate to the child's
age and special needs.\10\ However, the agreement defines exceptions to
this general rule for children whom the INS has deemed escape risks,
children who are believed or found to be criminal or delinquent,
children whom the INS actually believes to be over the age of 18,
children who present a risk to their own safety or that of others, or
in cases of an emergency or influx of children.\11\ In such cases, the
INS can place the minor in an INS-contracted facility or a state or
county juvenile detention facility that has separate accommodations for
minors. Under Flores, however, the child is supposed to be housed
separately from the delinquent population in the facility.\12\ Any
child placed in a medium secure or secure facility must also be
provided a written notice of the reasons why.\13\
---------------------------------------------------------------------------
\10\ Ibid., paragraph 11.
\11\ Ibid., paragraph 12, 21.
\12\ Ibid., paragraph 12.
\13\ Ibid., paragraph 24.
---------------------------------------------------------------------------
The Flores agreement has become a critical yardstick against which
to evaluate INS practices with regard to children in its custody. It
also provides the opportunity to challenge in federal court the
placement of a child in a secure setting.\14\
---------------------------------------------------------------------------
\14\ Ibid.
---------------------------------------------------------------------------
However, at least until recently, INS compliance with Flores has
remained almost entirely self-initiated and self-monitored.\15\
Attorneys for children and others concerned about the treatment of
newcomer children have lacked the resources to challenge violations of
the Flores requirements. Moreover, the INS itself--as it has for its
detention policies and practices overall--has delegated the vast
majority of its detention authority over children to its district and
regional offices. As a result, release and placement decisions for
children have frequently remained ad hoc, arbitrary, and inconsistent,
with insufficient attention given to what is in the best interests of
each child.
---------------------------------------------------------------------------
\15\ A number of agencies are beginning to monitor INS compliance
with the Flores agreement. These included the American Bar Association,
the Center for Human Rights and Constitutional Law, the Florida
Immigrant Advocacy Center, the Southern Poverty Law Center, and the law
firm of Latham & Watkins.
---------------------------------------------------------------------------
Release to Family and Other Responsible Parties
The Flores agreement spells out a list of parties to whom children
may be released in order of preference. These include:
A parent;
A legal guardian;
An adult relative;
An adult individual or entity designated by the parent
or legal guardian as capable and willing to care for the child;
A licensed program willing to accept custody; or
An adult individual or entity seeking custody, at the
discretion of the INS, when there appears to be no likely
alternative to long term detention and family reunification
does not appear to reasonably possible.
Increasingly, the INS has failed to exercise release of children
even when one of these options appears available. Service providers in
Houston, for example, report that family reunification for children
held in the custody of the INS Houston District has dropped from 75
percent to 35 percent. Providers indicated that this shift in policy
began when the INS consolidated children's programs under its Detention
and Removal branch in 2000.
Family reunification is particularly problematic in cases involving
release to undocumented parents or relatives. In such cases, the INS
has increasingly moved toward requiring the undocumented individual to
come forward to accept his or her child relative, even when a U.S.
citizen or permanent resident relative is available to facilitate the
reunification. In effect, the INS has interpreted the list of possible
sponsors under Flores not as a preferential delineation of parties but
as a hierarchical list.
In such cases, the INS then often places the undocumented relative
into removal proceedings by issuing him or her a ``Notice to Appear.''
The child in effect is used as bait to force the relative to appear
before the INS. The Women's Commission has documented that this is now
the practice in the Seattle, Los Angeles, Houston, Philadelphia,
Phoenix, and Miami Districts. It may be the policy in other districts
as well.
One Houston service provider observed, ``The INS often cites the
best interests of the child when it refuses to release a child to a
family member. But, in fact, they are using the best interests
principle as a barrier to family reunification.'' Another service
provider in Los Angeles noted, ``This puts the kids in a terrible
position. They feel guilty that their family member has to risk their
own situation in order to pick them up.''
A case is currently pending before the U.S. District Court for the
Southern District of Florida regarding treatment of a Guatemalan boy
who has been held in INS custody for several months, transferred from
facility to facility (including at one point to an adult prison), even
though there are licensed shelters which have indicated their
willingness to care for the boy. The boy is currently housed in a
hotel, where he has been held in isolation for three weeks. In the
course of a preliminary hearing on the boy's request for a temporary
restraining order, the INS Miami District juvenile coordinator
indicated that he would not release the boy to a licensed shelter
program as required under the Flores agreement, even if petitioned to
do so, because the INS was aware that the boy had an 18-year-old
undocumented brother in the United States. The juvenile coordinator
stated:
``I would recommend denial [of release] in this case because. .
.we already know that he has blood relatives in this country
who are circumventing the law and refusing to come forward
because they would be subjected to an immigration arrest. . .
.So I'm not going to allow release to a non-relative when we
know that there are relatives in the United States.'' \16\
---------------------------------------------------------------------------
\16\ Transcript of Hearing, A.L.S. v. Ashcroft, case number 02-
20421-CIV-MORENO (U.S. District Court, Southern District of Florida),
p. 40.
---------------------------------------------------------------------------
The district court judge then responded:
``I am outraged that someone would have made up his mind before
hearing any evidence whatsoever. . . .Because right now what I
have heard is that the INS is telling the petitioner, 'Don't
file any petition, because before we even consider whether to
release him in accordance with the regulations, I made up my
mind and I am not going to do it.' '' \17\
---------------------------------------------------------------------------
\17\ Ibid., p. 42.
Placement in Shelter Care
Since the Flores agreement has been in place, the INS has increased
its shelter care space to approximately 400 beds. The majority of these
shelters are institutional in nature and offer an environment of ``soft
detention.'' The children are allowed to wear street clothing, are
offered educational classes, and are housed in dormitory-style
accommodations rather than being locked in cells or cell pods.
Occasionally, they engage in recreational or educational trips off-site
in the company of shelter staff. However, the children's activities are
closely monitored, the doors are frequently locked or alarmed, the
premises may be fenced, and children are not allowed to leave the
facility unless accompanied by facility staff.
Moreover, children may languish in the shelters for prolonged
periods, despite the fact that the shelters are set up for short-term
care only. The Women's Commission followed closely the case of an
eight-year-old Nigerian girl who was held in a Miami shelter for 15
months. Fega had begun to lose her ability to speak her native language
and was instead speaking a combination of Creole, Spanish, and English
by the time the INS finally released her to her aunt. A social worker
documented a deterioration in her mental well-being as a result of her
prolonged institutionalization.
The INS also has a limited foster care program, offering
approximately 36 placements nationwide. These foster homes are
generally used for young children, girls, long-term detainees for whom
there is no sponsor, or children with special needs.
The limited foster care available to place children in INS custody
is of grave concern. Foster care offers a home-like environment to
children and an alternative to institutional care. It also is a much
cheaper alternative to detention than either a secure facility or a
shelter.
VII. Children are Often Held in Secure Facilities
As a result of a lack of readily available bed space, poor case
management, and often questionable placement decisions by the INS, a
significant percentage--an estimated one-third--of children in INS
custody spend at least some time housed in secure juvenile detention
centers, designed for the incarceration of youthful offenders. Children
in INS custody may be detained in such settings for anywhere from a few
days to more than a year.
The Flores agreement theoretically limits the use of such
facilities to just five narrow categories of children:
Children who have been charged with or are chargeable
with a crime or a delinquent act, unless that is an isolated
offense that does not involve violence;
Children who have committed or threatened to commit a
violent or malicious act while in INS custody;
Children who have been disruptive while placed in a
non-secure setting;
Children who have been deemed a flight risk; and
Children who must be held in secure facilities for
their own safety.
Under Flores, children who do not fall into one of these categories
must be placed in the least restrictive setting possible within the
first three to five days after apprehension by the INS. However, in
1999 only 675 cases out of 1,958 incidences of children placed in
secure confinement were suspected or adjudicated delinquent.\18\ In
2000, non-delinquent children accounted for 1,569 of the 1,933
instances of secure detention.\19\ We believe that the INS is
consistently overusing secure confinement, placing children there who
should have been in shelter or foster care. When the Women's Commission
visited the Yuma County Juvenile Justice Center in Arizona, the
facility administrator told us that he assumed that the children the
INS had placed in the facility had been adjudicated delinquent. He
asked, ``Why else would they be here?''
---------------------------------------------------------------------------
\18\ Tom Brune, ``INS Housing Children in Jails,'' Newsday, p. A5
(February 4, 2000).
\19\ ``Unaccompanied Juveniles in INS Custody,'' Office of the
Inspector General, Report Number I-2001-009 (September 28, 2001), P. 2.
---------------------------------------------------------------------------
Often the children themselves and their attorneys are unaware of
the reasons for their placement in secure facilities. Placement
decisions are generally made at the local level by INS district
offices, and are rarely reviewed. While under the Flores agreement
placement decisions can be challenged in federal court, this remains an
unrealistic option for most children, particularly those who are
unrepresented by counsel. Furthermore, in many cases it appears that
once placement decisions are made, they are never subsequently
reviewed, leaving some children languishing in secure settings for
prolonged periods.
The INS frequently justifies its placement of children in secure
settings under a significant exception included in the Flores agreement
that suspends application of the least restrictive setting requirement.
In cases of emergencies or an influx of children, the INS may place a
child in any facility having space, including a secure facility. The
agreement defines an ``emergency'' to include natural disasters,
facility fires, civil disturbances, and medical emergencies. The term
``influx'' is defined as those circumstances in which the INS has more
than 130 children eligible for placement in non-secure settings in its
custody.
The influx exception is particularly problematic. The threshold
number of 130 was agreed upon by the parties to the Flores settlement
at the time of negotiation, as that was the number of shelter and
foster bed placements that was then available to the INS. Since the
agreement took effect, however, the INS has expanded its shelter and
foster care program to approximately 400 beds. Because the threshold
number embraced by the agreement has not kept pace with this reality,
in effect the exception has overtaken the rule. In fact, the Women's
Commission found in its August 2001 assessment of juvenile detention
centers used by the INS that in many cases the INS justified placement
of children in secure facilities by citing the influx exception. In the
San Diego Juvenile Hall, for example, some of the children had notices
of secure placement in their possession that cited the influx
exception. Some had been in the facility for several months. The
delegation had also learned that at least one INS shelter had been
running under capacity for most of the year.
This has been a consistent practice by the INS over the years. When
the Women's Commission visited the Liberty County Jail in 1998, 83
children in INS custody were detained in the facility. The Houston
Juvenile coordinator justified these placements by stating that there
had been an ``influx'' of children. The Women's Commission, however,
learned that in fact there were several beds open in the Houston
shelter at the same time, a facility that is less than two hours away,
undermining the INS District's assertion that it had experienced an
influx of children.
Children are also sometimes arbitrarily labeled as ``flight
risks.'' This has become increasingly common for children who are
denied relief by an immigration judge and whose cases are on appeal to
the Board of Immigration Appeals. The INS will frequently transfer such
children to secure detention facilities. The San Francisco juvenile
coordinator told the Women's Commission in August 2001 that it is the
policy of the district to deem any child who has been issued a final
order of removal a flight risk and move him or her to a secure
facility, unless the child is very young.
The juvenile detention centers from which the INS rents space are
typically harsh and punitive in their environment. They are designed
for the detention of youthful offenders and very often hold youth who
have committed serious crimes. The facilities which the Women's
Commission visited included in their populations young people who had
committed violent felonies such as assault and battery, murder, and
school shootings. In the secure facilities, the children often become
indistinguishable from the general population. They are typically
forced to wear prison uniforms or institutional wear.
One 14-year-old Honduran asylum seeker remarked to the Women's
Commission, `` I crossed a border, no more. But they treat me as if I
am a criminal.
Other boys here have used weapons and drugs. All I did was cross a
border. I look at these four walls and go crazy.'' The boy had been
held at the San Diego Juvenile Hall for four months.
Children are allowed little privacy in the secure facilities. For
example, during a Women's Commission's visit to the San Diego Juvenile
Detention Center, a male guard was overseeing the girls' wing. From his
control station, the girls' toilets and showers were in plain view. The
doors to the toilets and showers, moreover, were only two to three feet
in height, offering little privacy. Ironically, the boys' wing was
monitored by female guards. Again, the toilets and showers were almost
completely exposed to view and offered little privacy.
Children in INS custody, moreover, may remain in secure detention
for prolonged periods, in some cases much longer than the children who
are held in county custody. For example, the administrators at the D.E.
Long facility in Oregon indicated that Chinese children in the custody
of the INS had remained in the facility for a prolonged period, noting
``Our [county] kids are here for 30-90 days. We're just not equipped to
handle a longer stay.'' One Chinese girl was detained in the facility
for approximately six months before being granted asylum. Even then, it
took the INS several more weeks to release her to her uncle.\20\
---------------------------------------------------------------------------
\20\ Julie Sullivan, ``Political Asylum and a Child Behind Bars,''
The Oregonian, p. A1 (December 10, 1999).
---------------------------------------------------------------------------
Many of the secure facilities used by the INS, of which there are
approximately 90 nationwide, are located in rural areas far from the
legal and other services that can assist children through their
immigration proceedings.
The remote location of many of these facilities has led to the use
of video conferencing to conduct the children's immigration hearings in
some INS districts, such as Philadelphia and Seattle. The use of video
conferencing raises serious due process concerns, particularly for
children.\21\ Attorneys who represent children held at Martin Hall in
Spokane, Washington reported that their child clients are very confused
by the video conference process, and in at least one case, reacted by
answering ``no'' to every question the immigration judge posed. An
attorney observed, ``Video hearings are a nightmare.''
---------------------------------------------------------------------------
\21\ See Beth Lyon, ``Detainees Isolated in Remote County Jail for
Hearings by Video,'' Detention Watch Network News (February 1998)
---------------------------------------------------------------------------
Some facility staff have questioned the placement of INS-detained
children in secure settings and the treatment they receive there. A
caseworker who had worked at Martin Hall left his position at the
facility partly out of concern over the treatment of children in INS
custody. He indicated that the INS-detained children were viewed as a
source of funding for the three counties which operate Martin Hall, and
that the facility administration discouraged him from working with the
children. He reported that his supervisors told him, ``Don't spend your
time with the INS kids, they'll all be deported anyway.''
VIII. Children in INS Custody Are Frequently Commingled with Youthful
Offenders
The Flores agreement forbids the commingling of children in INS
custody with the general population of youthful offenders in secure
facilities.\22\ However, the Women's Commission has documented numerous
violations of this requirement, including in the Liberty County
Juvenile Detention Center, TX; the Yuma County Juvenile Hall, AZ; the
San Diego Juvenile Hall, CA; Martin Hall, WA; and D.E. Long Juvenile
Detention Center, OR. In some cases, INS-detained children share cells
with youthful offenders. The Women's Commission interviewed a 14-year-
old asylum seeker from Honduras in the San Diego facility who had
shared a cell for four months with a boy serving time for assault and
battery.
---------------------------------------------------------------------------
\22\ It should be noted that the INS limits its reading of the
Flores prohibition on commingling to apply only until a child is
formally placed in secure.
---------------------------------------------------------------------------
The Office of the Inspector General also found that the majority of
secure facilities used by the INS did not segregate INS-detained
children from delinquent youth.\23\ It reported that 34 out of 57
facilities did not have procedures or facilities to properly segregate
delinquent from non-delinquent youth. It further extrapolated that of
the 1,933 instances of secure placement in 2000, 484 were likely to
have been placement of non-delinquent children with delinquent children
in facilities where the two populations are commingled.\24\
---------------------------------------------------------------------------
\23\ ``Unaccompanied Juveniles in INS Custody,'' Office of the
Inspector General, Report Number I-2001-009 (September 28, 2001), p. 2.
\24\ Ibid.
---------------------------------------------------------------------------
The INS generally provides little information to the juvenile
detention centers about the children it places with them. This makes it
extremely difficult for the facility to distinguish any special needs
that the child may have.
The administrator at the San Diego Juvenile Hall indicated that the
INS provides scanty information about the children who are held at the
facility. No files are transferred to the facility outlining why the
child is in INS custody or the status of the child's immigration
proceedings. The INS only provides the child's name, his ``A'' number,
and the dates on which the child is to appear in immigration court.
Facility administrators at the D.E. Long Juvenile Detention Center
also expressed concern about the lack of information provided to the
facility about children in INS custody. The facility received extensive
media coverage when it was revealed that eight Chinese youth seeking
asylum were housed there in 1999. One administrator observed, ``We
found out more about the children from the interpreter than we did from
the INS. The INS only gave us rudimentary information. No records came
with the kids. We don't know if the kids are just undocumented or if
they have been adjudicated delinquent. The INS doesn't differentiate
between them.''
The Office of the Inspector General reported that the juvenile
coordinators in half of the INS Districts it visited failed to visit
detained children on a weekly basis, as required under internal INS
policy. This failure is in part due to heavy work loads and in part due
to the remote location of many facilities.\25\
---------------------------------------------------------------------------
\25\ Ibid., p. 3.
---------------------------------------------------------------------------
IX. Children are Often Subject to Handcuffing and Shackling
INS policy regarding the handcuffing and shackling of children
during transport varies among districts. The San Francisco District,
for example, does not handcuff or shackle children. The Los Angeles
District does, however. Moreover, at the Tulare County Juvenile
Detention Facility, a center that until recently was used by both
districts, the facility administrator indicated that INS-detained
children are shackled whenever they are taken outside their cell pod,
including to go to the medical clinic on-site at the facility. During
the Women's Commission's visit, it witnessed children in shackles
squatting against a wall outside the medical clinic.
The San Diego Juvenile Jail has a blanket policy requiring the use
of restraints when children are transported or when they misbehave
while in the facility. This includes handcuffs, shackles, and waist
chains. Children in INS custody are not exempt from this policy.
Children in INS custody at the San Diego facility are also subject
to strip searches. Ironically, children who are status offenders are
exempt from this policy. However, INS-detained children who have not
committed a crime are still subject to strip searches. Strip searches
are conducted after any visit the child receives with the exception of
attorney visits.
Children held at Martin Hall are subject to handcuffing and
shackling when transported to the federal building in which their video
hearings are conducted. They remain shackled during the hearing. The
INS, however, indicated that this policy is in place due to the U.S.
Marshals Service and disavowed responsibility itself, despite the fact
that the children are in INS custody. The Seattle juvenile coordinator
also noted that any use of handcuffs and shackles inside of Martin Hall
is subject to the policies of Martin Hall, again disavowing any
responsibility on the part of the INS.
Facility administrators at the D.E. Long facility indicated that
they witnessed children in INS custody subjected to handcuffing and
shackling when transported.
The San Diego Juvenile Hall administrator also indicated that the
staff at the facility frequently use pepper spray to control the youth.
X. Conditions of Detention Generally Fail to Meet the Needs of Children
Many of the secure facilities used by the INS are simply not
equipped to meet the needs of newcomer children in immigration
proceedings. This includes even basic communication, as translation
assistance is rarely available in the juvenile detention centers with
which the INS contracts and is often not even available in the INS
shelters. In the Liberty County Juvenile Detention Center, for example,
a Chinese boy appeared upset when he reported to the Women's Commission
that there was no one in the facility who could speak Chinese. He also
reported that he attends classes in the facility, but that he does not
speak in class because his English was not good enough. A Guatemalan
boy was transferred from a Miami shelter to an adult prison, because he
failed to comply with instructions given to him by the shelter staff.
However, he did not understand the instructions because he speaks only
Mam and the staff spoke only Spanish.
The administrator at the San Diego Juvenile Hall conceded that the
diversity of languages spoken by INS-detained children and the lack of
translation services are difficult for the facility to handle. He
stated, ``It's hard for us. It creates a lot of problems.''
The Portland INS District resisted providing adequate translation
services to assist children who were detained at the D.E. Long
facility. In response to a request from the facility for additional
Chinese interpretation services, the INS responded that it would
provide 12 hours of such services. When the facility advised the INS
that it would need more than 12 hours of such services, the INS
informed the facility that it would authorize further services on an
emergency basis but that pre-approval for those expenses would be
required. The INS officer also indicated that ``he was spending
taxpayers' money and had to be very judicious in this regard.'' \26\
---------------------------------------------------------------------------
\26\ E-mail from Ron G. Pitney to Rich K. Scott regarding ``INS
Interpreter Services for Young Ladies'' (May 21, 1998).
---------------------------------------------------------------------------
In some facilities, access to the outdoors is extremely limited.
Children held at Martin Hall in Washington are not allowed outside
every day. When they are allowed outside, it is typically for 20
minutes at a time before classes. During the weekends, time outside is
extended to 1-2 hours. The outdoor area is an extremely small cement
area. A Guatemalan teenager held at Martin Hall told the Women's
Commission that the children do not go outside at all on some days.
When they do go outside, there is no sports equipment available. He
said, ``We just stand around and talk.''
Education programs at many of the facilities used by the INS are
conducted in English. Moreover, they are often based on the assumption
that children will be in the facility for a short period of time, and
thus the classes are repetitive for children held for prolonged
periods.
Access to telephones is inconsistent among facilities. In secure
facilities, children are typically forced to rely on collect calls or
phone cards to make long distance calls, even to their attorneys. This
undermines the ability of children without financial resources to reach
out to their lawyers and families. Privacy is also an issue in some
facilities, as the telephones are sometimes located in common areas.
Children are also often cut off from religious services in their
chosen faiths. This is sometimes due to the remote rural locations of
the facilities. For example, the chaplain at the Tulare County Juvenile
Detention Facility was only able to arrange visits from representatives
of the Catholic and Evangelical faiths, even though many of the
children held there were Buddhist. The San Diego Juvenile Hall provides
Catholic and Protestant religious services, but is unable to provide
Muslim or Buddhist services, as there are no representatives of those
faiths available in the community.
XI. Access to Secure Facilities Is Difficult for Human Rights Groups
In August 2001, the Women's Commission sought access to twelve
secure facilities used by the INS in California, Washington, Oregon,
and Texas.
To obtain access to the facilities, the Women's Commission wrote
letters to the INS National Juvenile Coordinator and the local
facilities themselves several weeks before the scheduled start of the
tour. The INS Juvenile Coordinator expressed his support for the
assessment. All but one center expressed its willingness to allow
access to the Women's Commission, although in some cases the facility
administrators indicated that they would also have to obtain approval
from the INS district and/or regional offices. The administrator of the
Marin County facility outright denied access for a visit, with the
justification that a visit had recently been conducted by the law firm
of Latham & Watkins and that he was disinclined to allow another visit.
Given the cooperation from INS headquarters in Washington, DC, the
delegation fully expected to receive a similar level of openness at the
district and regional levels. However, this did not hold true. In the
majority of cases, the delegation met with opposition when it
approached the regional and district INS staff.
Unfortunately, this resulted in the outright denial of access to
some facilities and limitations to access in others. The Houston INS
District forbid the delegation entrance entirely. Therefore, the
delegation was only able to visit the Liberty County facility, and then
only because it accompanied an attorney of a child detained there. As
the visit was conducted under the rubric of an attorney/client visit,
however, the delegation was unable to tour the facility. The delegation
was denied any form of access to the Medina County Juvenile Detention
Facility and the Catholic Charities Children's shelter. It should be
noted that the Women's Commission was granted access to the Catholic
Charities shelter in 1998, at which time it was impressed with the
openness of the facility and the professionalism of the staff. That
same year, it was also given full access to the Liberty County
facility, about which it raised serious concerns regarding the punitive
conditions of detention in the facility.
The Women's Commission delegation's ability to access the
facilities used by the San Francisco and Los Angeles INS Districts was
somewhat more successful than in Texas, but still hampered by
restrictions placed on the visits. It was allowed to tour Central
Juvenile Hall, Los Podrinos Juvenile Hall, and Tulare County Juvenile
Detention Facility, but was denied the ability to speak with INS-
detained children.
This denial was particularly disturbing in the case of the Tulare
Juvenile Detention Center. The delegation drove three and a half hours
from Los Angeles to rural central California to reach the facility,
accompanied by a Chinese interpreter, who was to facilitate interviews
with several Chinese children detained in the center. The delegation
had obtained the written permission of the attorney representing the
children to interview her clients. Once the delegation arrived at the
facility, however, the San Francisco INS District juvenile coordinator
informed its members that they would not be allowed to speak with the
children. The INS regional juvenile coordinator indicated that the
prior approval of the children's attorney was insufficient to
facilitate access, stating that he had no means to authenticate the
letter, despite the fact that the letter was on letterhead and
indicated the attorney's willingness to confirm her consent by
telephone. Even after an on-site telephonic conversation with INS
headquarters, the INS stood behind the position of the regional and
district juvenile coordinators.
The delegation's subsequent visit to the San Diego Juvenile Hall
further confirmed the arbitrariness of INS policy regarding access to
juvenile detention centers. The delegation met with no resistance from
the San Diego facility administrators, was provided a thorough tour of
the facility, and was allowed to speak with INS-detained children in
private. The delegation had notified both the facility and the INS
National Juvenile Coordinator of its intent to visit the facility, but
in this case, the facility administrator apparently felt no need to
confer with the INS San Diego District office.
The delegation encountered further inconsistencies in INS policy
during its visits to facilities in Washington and Oregon. Its visits to
the Spokane County Juvenile Detention Center and the Grant County
Juvenile Detention Center were open and unrestricted. However, it
should be noted that the INS rarely uses either facility, and in fact,
did not have children detained in either location at the time of the
Women's Commission's visit.
The delegation did encounter resistance to its visit to Martin
Hall, which is used regularly by the INS. The INS Seattle District
juvenile coordinator attempted to prevent the delegation from speaking
with the children in INS custody. However, the delegation overcame her
refusal because the children's attorney had accompanied the delegation
and he insisted that the delegation be allowed to speak with his
clients. The administrators of the D.E. Long Juvenile Detention Center
in Oregon cooperated in the delegation's visit and provided a full tour
of the facility. However, the INS has greatly curtailed its use of the
Long center.
The repeated denial of access to the Women's Commission delegation
was troubling on a number of fronts. First, there currently exists no
written policy on access to children's facilities, even though the INS
has issued written guidelines for such visits to adult detention
centers.\27\ The delegation operated in good faith and relied on the
expression of cooperation from the national juvenile coordinator. The
ability of local INS officers to override the authority of the INS
headquarters is confusing and reflective of a flawed management
structure that permeates the policies and procedures for handling
children in the custody of the INS. Subsequent to the delegation's
tour, INS headquarters indicated that it would develop a written access
policy but to date no such policy has been issued.
---------------------------------------------------------------------------
\27\ Immigration and Naturalization Service, Detention Operation
Manual, ``Visitation'' (September 20, 2000).
---------------------------------------------------------------------------
Second, the ability of human rights organizations such as the
Women's Commission to evaluate U.S. treatment of children newcomers
hinges on access to such facilities. Such organizations can play a
valuable role in assessing current practices and offering
recommendations for reform.
Third, the INS's denial of access to the Women's Commission
delegation was also questionable in its legality in one important
aspect. An attorney designated under the Flores agreement as an
attorney of record for all children in INS custody with regard to their
conditions of confinement was a part of the Women's Commission
delegation. Under the Flores agreement, such attorneys are to be given
unfettered access to children in INS detention. The INS failed to
adhere to this Flores requirement, however, even for this attorney. Its
stated rationale for this was that the attorney was ``switching hats''
and that for purposes of the Women's Commission delegation was unable
to act as a Flores attorney. It persisted in this justification even
when the Women's Commission agreed to back off its own request for
access in order to facilitate a Flores visit by the Flores attorney,
even though under the agreement such attorneys may designate additional
parties for purposes of a Flores visit.
The INS would be better served if it welcomed a public/private
partnership with organizations with expertise in immigration, refugee
protection, and children's rights and was transparent about its
policies and practices, including access to children's facilities.
While clearly the INS must regulate visits to the facilities in order
to ensure the safety of the children and the smooth operation of the
facilities, an arbitrary denial of such visits, or an effort to create
an artificial impression of conditions in such facilities, does not
serve either goal.
XII. INS-Detained Children are Sometimes Wrongfully Held in Adult
Detention Centers
The Women's Commission has followed many cases in which youth under
18 years of age have been incorrectly identified by the INS as adults.
This misclassification as adults carries serious consequences for the
handling of the youth's cases and their placement in detention. Adults
may be immediately returned to their home countries under the system of
expedited removal unless they express a fear of return, whereas
children under age 18 may not.\28\ Moreover, young people misidentified
as adults may be commingled with adults in adult INS detention centers
or prisons.
---------------------------------------------------------------------------
\28\ ``Unaccompanied Minors Subject to Expedited Removal,''
Memorandum from the INS Office of Programs (August 21, 1997).
---------------------------------------------------------------------------
Mekabou Fofana, a Liberian teenager, described his experience in
detention after the INS misclassified him as an adult,
``I arrived at JFK International Airport on July 11, 1999, nine
days before my 16th birthday. . . .I was taken to the Wackenhut
Detention Center in Queens, New York. I was held at an adult
facility even though I was a minor, because the INS claimed
that they could tell that I was over 18 from a dental
examination. I was detained at Wackenhut for about six months.
I was very sad at Wackenhut because I was put with adults and I
wasn't supposed to be with them. . . .I was transferred to
Lehigh County Prison, a criminal prison in Pennsylvania--moving
me far from my family and my pro bono lawyers. I was detained
there with criminals for one week. I felt like I was treated
like a criminal. I was the youngest one among them and was very
scared that the criminal detainees would hurt me. My cellmate
had killed someone and would tell me about the crimes he had
done. I was so afraid that I couldn't sleep at night. . . .I
was transferred to York County Prison, another remote detention
facility in Pennsylvania. I was detained there about five
months....I felt like my life was finished. I was too young to
be there.'' \29\
---------------------------------------------------------------------------
\29\ Testimony of Mekabou Fofana, before the Senate Committee on
the Judiciary Immigration Subcommittee (May 3, 2001).
Mekabou was detained as an adult for one and a half years before
being granted asylum by the Board of Immigration Appeals.
To determine the age of young people whose age is not readily
apparent, the INS relies primarily on dental radiography exams. Such
exams base age assessments on the eruption patterns of teeth. Dental
experts have questioned the use of such exams for definitive age
determinations. For example, in a letter to the Women's Commission, Dr.
Herbert H. Frommer, DDS, Professor and Chair of Radiology at New York
University, concluded, ``It is my opinion that it is impossible to make
an exact judgement based on radiographs of whether an individual is
above or below the age of 18.'' \30\ Other experts have echoed Dr.
Frommer's concerns.\31\
---------------------------------------------------------------------------
\30\ Letter from Herbert H. Frommer, DDS, Professor and Chair of
Radiology New York University, to Rachel K. Jones, Fellow, Women's
Commission for Refugee Women and Children (August 7, 1997).
\31\ See letter from Neil Serman, BDS, DDS, MS(Rad), Professor and
Head, Division of Oral Radiology, Columbia University School of Dental
and Orayl Surgery, to Rachel Jones, Fellos, Women's Commission for
Refugee Women and Children (August 21, 1997) (noting that there is
great variation in age in eruption patterns of teeth); Alan Elsner,
``New York Dentists Can Settle Fate of Migrants,'' Reuters (January 11,
2002) (citing concerns from dental experts that dental x-rays cannot
accurately identify a person's age).
---------------------------------------------------------------------------
These concerns are also shared by the Department of State. It
discontinued the use of bone testing to establish age in 1998 out of
recognition that ethnic and individual variations in development may
also be exacerbated by cultural differences, malnutrition, and
disease.\32\
---------------------------------------------------------------------------
\32\ Alan Elsner, ``New York Dentists Can Settle Fate of
Migrants,'' Reuters (January 11, 2002).
---------------------------------------------------------------------------
XIII. INS Transfer Policies for Children
The INS has designated all bed spaces as ``national.'' This means
that any INS district can request transfer and placement of a child to
wherever a shelter, foster care, or secure placement is available. This
policy is critical to ensuring that the Flores mandate of placement in
the least secure setting possible is fulfilled, as many INS districts
lack shelter care facilities in their jurisdictions. However, it also
means that children are frequently transferred hundreds or thousands of
miles from their original port of arrival into the United States, even
if their family members or attorneys are located at that site.
Transfers of children, in fact, occur frequently and often seem to
be conducted for arbitrary reasons that have more to do with the
logistical concerns of the INS than to do with the best interests of
the child. Moreover, the attorney representing the child is often not
notified of the transfer ahead of time, even though this is required
under the Flores agreement.
The experience of three Guatemalan youth demonstrates the
disruption caused by transfers. In March 2001, three Guatemalan youth
ranging in age from fifteen to seventeen were given 30 minutes notice
in which to pack their bags and prepare for transfer from Miami to
Chicago. Two of the three youngsters had been held in a Miami shelter
facility for more than a year. The third had recently arrived and was
scheduled for her first immigration court appearance the next day.
Despite this, their attorney, who works for a local charitable
organization, was not notified of the transfer and only found out when
she arrived at the shelter the next day. The INS meanwhile had
convinced the immigration judge to change venue over the case to
Chicago, thus precluding her continued representation of the three
youth. The attorney was given several justifications for the transfer
from the INS Miami District, including a lack of bed space and an
influx of Colombian children. However, she discovered that the shelter
in Miami was in fact not full and that only three Colombian children
were housed there.
XIV. Children Lack the Services Needed to Navigate the U.S. Immigration
System
Also absent in the current system for children in INS custody are
professionals who can assist children through their immigration
proceedings. Less than half of the children in INS custody are
represented by counsel. U.S. law also fails to appoint guardians ad
litem to unaccompanied children.
The Women's Commission was pleased and encouraged by the INS's
issuance of ``Guidelines for Children's Asylum Claims'' in 1998. The
United States is only the second country in the world to establish a
framework for the consideration of children's asylum claims. The
Guidelines are groundbreaking in their comprehensive establishment of
legal, evidentiary, and procedural standards to guide adjudicators.
However, the continuing success of the Guidelines in identifying
and ensuring protection of refugee children will hinge in large part on
the adequacy of the assistance they are provided to navigate U.S.
asylum law. Children must be provided the assistance of counsel and
guardians ad litem to identify any relief for which they may be
eligible and to advocate for such relief in immigration court. Asylum
proceedings are extraordinarily complex, and a recent study revealed
that represented asylum seekers are 4-6 times more likely to win their
asylum cases.\33\ The ability of children who remain unrepresented to
win their cases is even more questionable given their inherent lack of
capacity to understand the proceedings in which they have been placed.
---------------------------------------------------------------------------
\33\ Memorandum from Andrew Schoenholtz, Georgetown University
Institute for the Study of International Migration (Washington, D.C.:
September 12, 2000).
---------------------------------------------------------------------------
The American Bar Association, working in cooperation with
charitable organizations, local bar associations, and law firms such as
Latham & Watkins, has done an extraordinary job of raising awareness
about the needs of children in immigration proceedings and increasing
the pro bono services available to them. However, the practical reality
for most detained children is that they cannot afford or cannot access
legal counsel. Moreover, they may not be aware of the importance of
counsel to their cases. In addition, the sheer number of detention
facilities in which children in INS custody are detained, combined with
the remote location of many of these facilities, create innumerable
obstacles which charitable legal services organizations lack the
resources to overcome. The lack of legal representation results in
sometimes ludicrous situations; in one case, an 18-month-old toddler
appeared at a master calendar hearing before an immigration judge with
no attorney or other adult representative to help her.
Also out of step with the practice of other countries, as well as
the practice in other areas of U.S. law such as abuse and neglect
proceedings, is the fact that unaccompanied children in immigration
proceedings are not appointed guardians ad litem. A guardian could
facilitate the child's participation in his or her immigration
proceeding by helping the child to understand the proceedings and
encouraging the child to participate to the fullest extent possible in
the proceedings. The guardian could also gather information regarding
the reasons why the child is in the United States, advising the child's
attorney and the immigration judge about the circumstances of the
child.
The experience of two young Indian children who appeared before an
immigration judge in Chicago demonstrates the efficacy of appointing
guardians ad litem to unaccompanied children. The attorney representing
the children had struggled to understand the children's situation and
reasons for being in the United States. After the immigration judge had
agreed to the appointment of a guardian, who was a trained social
worker, the guardian quickly determined that the 8-year-old boy wished
to return to his parents in India, who then readily agreed to accept
his return. The 11-year-old girl, on the other hand, revealed for the
first time to the guardian that she had been subjected to severe child
abuse and had been sold by her parents to traffickers. The guardian
testified at their immigration hearing and the child was granted
asylum.
The lack of adult assistance available to children asylum seekers
means that many of them give up hope and agree to deportation; in some
cases, children had actually earlier espressed a fear of return. In
other cases, children are forced to struggle through their immigration
proceedings alone with an inadequate understanding of the laws and
procedures that dictate the handling of their cases.
XV. Conclusion
The Women's Commission remains gravely concerned about the
disturbing lack of attention to the needs and rights of children asylum
seekers and other young newcomers who are in the custody of the INS.
The frequent failure to make individualized determinations with regard
to each child's placement and psycho-social needs leads to an
inconsistent and ad hoc system based more on the logistical needs of
the agency charged with their care and its institutional bias toward
law enforcement than on the needs of the child. Consideration of the
best interest of the child, the cornerstone of child welfare policy and
practice, is a concept that continues to allude the policies and
practices of the INS. While we appreciate INS Commissioner James
Ziglar's stated commitment to improving the agency's handling of
children, we do not believe that the agency has the expertise to
adequately take into account the unique needs of this vulnerable
population.
We strongly support the approach of S. 121, which shifts the care
of custody of children to an appropriate office with no interest in the
outcome of the child's immigration proceedings and leaves the INS to
perform the functions it does best: the enforcement of U.S. immigration
laws. The development of an Office of Children's Services and the
provision of legal counsel and guardians ad litem to unaccompanied
children is not only a humane solution to the problems outlined above,
it is also a cost-effective solution. S. 121 puts in place the
structure and resources necessary to quickly identify an appropriate
outcome to each child's case, safely returning those children who are
not eligible for relief from removal to their homelands and quickly
moving those children who are provided relief into stable, home-like
foster care settings where they can begin their lives anew.
In conclusion, one true measure of a society is its treatment of
children. The United States must acknowledge and uphold and rights and
needs of newcomer children in order to live up to its reputation as a
leader in human rights and a nation that cherishes and protects
children. We urge Congress to expeditiously pass S. 121, legislation
that ensures a holistic, human, and effective approach to newcomer
children.
Thanky you for considering out input on this. I would be happy to
address any questions you may have.
Chairman Kennedy. Very, very helpful and knowledgeable, but
troubling comments. Thank you.
Mr. Morton?
STATEMENT OF ANDREW D. MORTON, LATHAM AND WATKINS, WASHINGTON,
D.C.
Mr. Morton. Good afternoon, Chairman Kennedy, Senators
Brownback and Feinstein. We thank you for convening this
hearing.
I appreciate the opportunity to share my experiences
working on behalf of the vulnerable population of unaccompanied
alien juveniles in INS custody. We appreciate your support of
the Unaccompanied Alien Child Protection Act, bipartisan
legislation that will bring objectivity, efficiency, and
accountability to the custodial care of these children.
My testimony today focuses on a key deficiency in the
current system of custodial care for these unaccompanied alien
juveniles, the need for safeguards of legal counsel while
children are detained through the pendency of an immigration
proceeding. This bill would foster a network of pro bono
private attorneys, as well as create a safety net of court-
appointed counsel for those rare instances where pro bono
representation is not available.
In the seminal case establishing a child's right to counsel
under domestic law, Judge Fortas wrote, ``The juvenile needs
the assistance of counsel to cope with problems of law, to make
skilled inquiry into the facts, to insist upon regularity of
the proceedings, and to ascertain whether he has a defense and
to prepare and submit it. The child requires the guiding hand
of counsel at every step in the proceedings against him.''
Those words ring as true today as 35 years ago, and as true
for undocumented minors as for juveniles in domestic
proceedings. Mr. Chairman, they should ring as true for members
of this Congress as they did for the Justices of the U.S.
Supreme Court.
During the adjudication of every removal proceeding, the
Government is represented by INS staff attorneys who are
trained and experienced in prosecuting violations of
immigration law. In contrast, more than half of unaccompanied
juveniles now appear in court with a lawyer, a guardian or
adult assistance of any kind. Without such objective and
informed support, it is impossible to ensure a detained child's
due process rights and it is not feasible to expect a
determination truly based on a full consideration of each
child's individual circumstances.
This lack of legal assistance is especially troubling,
given the life-altering decisions that are reached in asylum
cases and other immigration-related adjudication. Alarmingly,
these same children that we do not permit to be unaccompanied
in some department stores and movie theaters are expected to
fend for themselves alone in a court of immigration law.
Notably, in other legal proceedings, children regularly are
appointed attorneys to assist them through the process. For
juvenile appearances in many State courts, ranging from
delinquency hearings, to civil suits, to allegations of
parental abuse and neglect, States, including Massachusetts,
Kansas and California, mandate the appointment of counsel to
ensure a fair and objective adjudication for minors who are
ill-equipped to represent themselves.
Surprisingly, under the present system INS functions as
legal guardian for each and every one of these children. Thus,
the responsibility to care for the well-being of these
juveniles lies with the very agency whose primary mission is to
secure the deportation of undocumented aliens. The obligation
to ensure decisions in the child's legal interest falls upon a
Government bureaucracy with no child welfare expertise and with
an incurable predisposition toward law enforcement motives.
Every daily assessment affecting custodial care, and more
critically the final determinations of appropriate substantive
relief, constantly is vulnerable to this unsettling conflict of
interest. INS now has the incompatible yet simultaneous roles
as caregiver, prosecutor, and jailer.
And most troubling, in the absence of counsel to advocate
and safeguard a child's legal interests, each and every INS
decision respecting the well-being of a detained and
unrepresented child remains completely unchecked. My written
testimony outlines the litany of examples that document this
conflict and its appalling effects.
As Americans, we never would stand for a system where the
district attorney serves as public defender in the same case.
For these same reasons, the INS, with its primary mission of
immigration law enforcement, simply cannot ensure the legal
interests of an unrepresented child. They should not want that
responsibility, they should not have that responsibility. The
system is to blame and the system must be fixed.
Without appropriate legal assistance, many abused,
abandoned and neglected children with valid claims to asylum or
the special immigrant juvenile visa face tremendous obstacles
to accessing these legal remedies. By the same token, without
counsel to review each child's circumstances, the system is
clogged with the inefficiencies of cases for which there is no
substantive relief.
Often, it will be the conclusion of an attorney that no
legitimate immigration claim is available and the client
properly is advised to accept voluntary departure. This was
exactly the case in Latham and Watkins' first child refugee
case. Without this legal analysis, countless children risk
being removed and returned to violent situations and subjected
to further human rights abuses. The role of counsel simply
cannot be underestimated in these high-stakes proceedings which
necessarily result either in securing appropriate immigration
relief or, on the contrary, to the potentially uncertain fate
of deportation.
As Judge Creppy has testified, immigration judges are
reluctant to issue a final order of removal against an
unrepresented child, and instead continue the case, in his
words, two, three, four, five times, resulting in protracted
detention in juvenile jails and institutional shelters. Not
only does this prolong confinement and inflict an unnecessary
and substantial emotional cost on these young children, but at
contracted daily rates of up to $250 a day, the lack of
representation inflicts a substantial cost on the budget as
well, needlessly wasting taxpayer dollars on extended detention
and repeated court proceedings. Having the assistance of
counsel for these juveniles invariably would speed the
adjudication process and minimize both the emotional harm of
detaining a child and the senseless taxpayer cost of an
inefficient system.
Mr. Chairman, the advocacy of an attorney for alien
juveniles is essential to secure bedrock American principles of
due process and equal justice under law. Moreover, access to
counsel is of paramount importance to safeguard against the
conflict of interest and unchecked authority inherent in INS
legal custody.
By implementing a system to grant representation to
unaccompanied alien juveniles, the entire immigration process
will be resolved in a manner that is more effective, more
efficient, and more just. Mr. Chairman, I urge your support of
the Unaccompanied Alien Child Protection Act and I welcome your
questions.
Thank you.
[The prepared statement of Mr. Morton follows:]
Statement of Andrew Morton, Attorney, Latham & Watkins, Washington,
D.C.
``The juvenile needs the assistance of counsel to cope with
problems of law, to make skilled inquiry into the facts, to insist upon
regularity of the proceedings, and to ascertain whether he has a
defense and to prepare and submit it. The child requires the guiding
hand of counsel at every step in the proceedings against him''--Justice
Abe Fortas, In re Gault \1\
---------------------------------------------------------------------------
\1\ 387 U.S. 1 (1967).
---------------------------------------------------------------------------
Chairman Kennedy, Senator Brownback, Senator Feinstein, members of
the Committee-good afternoon, and thank you for convening this hearing
on the conditions of confinement and governing legal standards faced by
unaccompanied alien juveniles detained by the Immigration and
Naturalization Service (INS). My name is Andrew Morton, and I am an
Associate practicing with the Government Relations Group of the law
firm of Latham & Watkins (``Latham''), which currently includes over
1,400 attorneys in twenty offices throughout the world. I appreciate
the opportunity to testify and share my experiences working on behalf
of this vulnerable population of children.
I also strongly encourage your support of S. 121, the
``Unaccompanied Alien Child Protection Act''-critical bipartisan
legislation that would bring objectivity, efficiency, and
accountability to the system of custodial care affecting these
children.
I. THE NEED FOR COUNSEL IN JUVENILE REMOVAL PROCEEDINGS
My testimony today focuses on a key deficiency in the current
system of custodial care for the nearly five thousand unaccompanied
alien juveniles apprehended annually by the INS-the critical need for
these children to receive the guidance and safeguards of legal counsel
while detained through the pendency of an immigration proceeding.
Enacting S. 121, the ``Unaccompanied Alien Child Protection Act,''
would remedy this need by fostering a network of pro bono private
attorneys, as well as by creating a safety net of court-appointed
counsel for the rare instances where pro bono representation is not
available.
These unaccompanied alien children detained and taken into legal
custody by the INS range in age from toddlers to teens. Most lack even
the most basic English skills, to say nothing of understanding the
complex legal provisions that govern the standards of detention and
various forms of substantive immigration relief. Many are the victims
of smuggling and trafficking operations, meaning that they had no
involvement and should not be punished for the circumstances that led
to their undocumented arrival in the United States. Perhaps for the
first time, each unaccompanied juvenile is experiencing separation from
family, so quite understandably they become frightened, confused, and
depressed. Frequently they are detained in facilities with no one to
whom they can speak in their native language-or even are restricted to
an ``English only'' rule in some facilities when fortunate enough to be
detained with another native speaker. In any event, the vast majority
are without the guidance and support of a responsible adult to speak on
their behalf, let alone competent legal counsel to evaluate their
situation and advise them of their rights.
In the seminal case establishing a child's right to counsel in
domestic law, Justice Abe Fortas wrote that ``[t]he juvenile needs the
assistance of counsel to cope with problems of law, to make skilled
inquiry into the facts, to insist upon regularity of the proceedings,
and to ascertain whether he has a defense and to prepare and submit it.
The child requires the guiding hand of counsel at every step in the
proceedings against him.'' \2\ His words ring as true today as thirty-
five years ago, and as true for undocumented minors as for juveniles in
domestic proceedings. Mr. Chairman, they also should ring as true for
the members of this Congress as they did for the Justices of the United
States Supreme Court.
---------------------------------------------------------------------------
\2\ In re Gault, 387 U.S. 1 (1967).
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During the adjudication of every undocumented child's removal
proceeding, the government is represented before immigration judges by
INS staff attorneys who are trained and experienced in prosecuting
violations of immigration law. Of these nearly five thousand
unaccompanied juveniles apprehended annually by INS, however, as many
as 80% appear in an immigration court without the benefit of a lawyer,
a guardian ad litem, or adult assistance of any kind. Often these
children are placed in remote contract facilities-great distances from
urban centers where willing pro bono attorneys may be located and
trained. Without such objective and informed assistance, it is
impossible to ensure that a detained child's due process rights are
respected. Moreover, it is not feasible to expect a proper
determination in their case that truly is based on a full consideration
of the individual child's circumstances. This lack of legal assistance
is especially troubling given the life altering decisions that are
reached in asylum cases and other immigration related adjudication.
Alarmingly, these same children who we do not permit to be
unaccompanied in some movie theaters and department stores are left to
fend for themselves in a court of immigration law.
In United States legal proceedings apart from the context of
immigration, children regularly are appointed attorneys to assist them
through the process. In fact, for a wide variety of juvenile state
court proceedings-ranging from delinquency charges, to civil suits, to
allegations of abuse and neglect-states such as California, Kansas,
Massachusetts, Ohio, and Pennsylvania mandate the appointment of
counsel to ensure a fair and objective adjudication to the benefit of
minors, who invariably are ill-equipped to represent themselves.\3\
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\3\ See, e.g. Cal. Welfare and Institutions Code Sec. 317 (2002)
(``Where a child is not represented by counsel, the court shall appoint
counsel for the child. . . .''); Iowa Code Ann. Sec. 232.126 (2000)
(``The court shall appoint counsel or a guardian ad litem to represent
the interests of the child . . . unless the child already has such
counsel or guardian.''); Kan. Stat. Ann. Sec. 60-217 (2000) (``[T]he
court shall appoint a person who is an attorney to serve as guardian ad
litem for a child. . . .''); Mass. Gen. Laws ch. 119, Sec. 29 (2001)
(``[A] child shall have and shall be informed of the right to counsl at
all hearings, and if said child is not able to retain counsel, the
court shall appoint counsel for said child.''); Ohio Rev. Code Ann.
Juv. R.4 (2001) (``Every party [in a juvenile proceeding] shall have
the right to be represented by counsel. . . . When the compliant
alleges that a child is an abused child, the court must appoint an
attorney to represent the interests of the child.''); PA, Cons. Stat.
Ann. TiT. 42, Sec. 6311 (2002) (``[T]he court shall appoint a guardian
ad litem to represent the legal interest and the best interests of the
[dependent] child. The guardian ad litem must be an attorney at law.'')
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Surprisingly under the present system, however, the responsibility
to care for the well-being of these juveniles lies with the INS itself-
the very agency whose primary mission is to secure the deportation of
undocumented aliens-which accepts and maintains the legal custody of
each and every one of these children. In essence, the sensitive
obligation to ensure decisions in the child's legal interests falls
upon a government bureaucracy with absolutely no child welfare
expertise, and with an incurable predisposition towards law enforcement
motives. Thus, daily assessments affecting custodial care-and more
critically the final determinations of appropriate substantive relief-
constantly are vulnerable to the agency's inherent conflict of
interest, given INS's incompatible yet simultaneous roles as caregiver,
prosecutor, and jailer. And most troubling, in the absence of legal
counsel to advocate on behalf of a child and safeguard legal interests,
each and every INS decision respecting the well-being of a detained and
unrepresented child remains completely unchecked.
As Americans we would not stand for a system where the district
attorney serves as a public defender, or where an arresting officer is
appointed the guardian ad litem for a juvenile. For the same reasons,
Mr. Chairman, the INS with its primary mission of immigration law
enforcement simply cannot be expected to ensure the legal interests of
an unrepresented child. The system is to blame for this ineffectual
situation, and that system must be fixed.
II. RESPONSIBILITIES OF COUNSEL FOR UNACCOMPANIED JUVENILES
Effective representation for these vulnerable children includes all
aspects of ensuring the legal interests of the child that arise during
often complicated and protracted immigration proceedings. Such issues
include conferring with the INS to secure that a child is detained in
the least restrictive setting appropriate; evaluating the child's
ability to access any available forms of immigration relief; filing
applications, pleadings, and motions before immigration judges;
representing the child during hearings and asylum interviews;
safeguarding proper INS compliance with transfer and age determination
requirements; and attempting to reunite children with parents or
suitable adult relatives living in the United States or abroad.
Because the current system lacks a procedure for ensuring that
every child is afforded the opportunity to receive appropriate legal
assistance, however, many abused, abandoned, and neglected children
with valid claims to asylum or the special immigrant juvenile visa face
tremendous obstacles in accessing these legal remedies. By the same
token, without counsel to review each child's circumstances, the system
is clogged with the inefficiencies of cases for which there is no
substantive relief available-often it would be the conclusion of an
attorney that no immigration relief is available, and the client
properly is advised to accept voluntary departure. But without this
objective legal analysis, countless undocumented children in the United
States risk being removed and returned to violent situations in a home
country where they will be subjected to further human rights abuses.
The role of counsel simply cannot be underestimated in these high-
stakes proceedings, which necessarily result either in securing
appropriate immigration relief, or on the contrary to the potentially
uncertain fate of deportation.
Knowing this, immigration judges may be reluctant to issue a final
order of removal against an unrepresented child and instead choose to
continue the case, necessarily resulting in protracted detention in
juvenile jails and institutional INS shelters. Not only does this
prolonged confinement inflict an unnecessary and substantial cost on
the emotional development of these young children, but at contracted
daily rates of up to $250/day, the consequence of having children
appear without representation inflicts a substantial cost on the budget
as well-needlessly wasting taxpayer dollars spent on extended detention
and repeated court proceedings. Having the assistance of counsel for
these juveniles, however, invariably would lead to structural
improvements that will speed adjudication, and minimize both the
emotional harm of detaining a child and the taxpayer cost of an
inefficient system.
Furthermore, apart from the unassailable need for counsel when
navigating the various forms of potential substantive immigration
relief, the presence of an attorney is critical to secure rigid
adherence with the laws and regulations that govern a detained
juvenile's conditions of confinement. Over the past year, Latham
attorneys have inspected numerous facilities that contract with the INS
to house unaccompanied minors, and have conducted interviews with
countless detained children. During the course of this review and
oversight, our efforts have uncovered widespread and egregious
violations of the conditions of confinement mandated by the Flores v.
Reno consent decree, a 1997 settlement agreement that forms the basis
of legal standards to which the INS must adhere when taking legal and
physical custody of an unaccompanied minor.\4\ Many of these findings
were confirmed by the Department of Justice Office of the Inspector
General's ``Report on Unaccompanied Children in INS Custody'' \5\
(``OIG Report''). Representative examples of violations include the
following:
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\4\ See Stipulated Settlement Agreement, Flores v. Reno, Case No.
CV-85-4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/floresSettle.html.
\5\ U.S. Department of Justice, Office of the Inspector General,
Unaccompanied Juveniles in INS Custody, Rep. No. I-2001-009 (Sept. 28,
2001), available at http://www.usdoj.gov/oig/i0109/index.htm
[hereinafter Report].
`` Children must be placed in the ``least restrictive setting
appropriate'' \6\ under the circumstances, however, last year
INS detained nearly two thousand children in secure facilities
(i.e., juvenile jails), and more than eighty percent of these
minors were non-delinquent juveniles.\7\ This is the case
notwithstanding the INS's continuing obligation to transfer a
non-delinquent juvenile from secure confinement into a licensed
shelter care program ``as expeditiously as possible.'' \8\
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\6\ Flores para. 11 (``The INS shall place each detained minor in
the least restrictive setting appropriate. . .'').
\7\ See Report, ch. 2 (documenting that non-delinquents accounted
for 1,569 of the 1,933 secure detentions).
\8\ Flores para. 12(A)(3).
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`` Non-offender alien juveniles in secure confinement must at
all times be provided with sight-and-sound separation from
adjudicated delinquents,\9\ yet the majority of the secure
facilities housing undocumented minors have no such segregation
procedures in place.\10\ In fact, many of these facilities
commingle non-offenders with delinquents as a matter of
necessity, lacking the physical structure to separate the two
populations. In one instance during a Latham inspection, a non-
offender INS detainee was assigned to share a tiny jail cell
with a violent juvenile delinquent convicted of felony drug
possession and assault with a deadly weapon.
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\9\ See Flores para. 12 (``[M]inors shall be separated from
delinquent offenders.'')
\10\ See Report, ch. 2 (noting that thirty-four of fifty-seven
secure facilities housing INS juveniles in FY 2000 cannot guarantee
segregation of non-delinquent INS juveniles from the population of INS,
county, and state delinquent juveniles).
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`` Flores provides for the prompt release of unaccompanied
minors to responsible adults based on an established ``order of
preference,'' which includes parents, designated legal
guardians, and close relatives.\11\ Current INS procedure,
however, does not permit an unaccompanied minor's released to
appropriate related adults when the agency believes that an
undocumented parent is in the United States. Instead, INS may
use the minor as bait, requiring the undocumented parent to
come forward under a threat of the child's protracted
detention, and then placing the parent into removal proceedings
on arrival to claim their children.\12\
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\11\ Flores para. 14; see also Report ch. 4 (``The Flores
agreement, while preferring a parent or legal guardian, did not seem to
prohibit passing over them to one of the family members specified.'').
\12\ See Report, at Exsec. Summary (``An undocumented parent must
report to an INS officer and enter immigration court proceedings before
the INS will release the juvenile. If the parent is unwilling to come
forward, the juvenile will remain in INS custody, even when another
acceptable sponsor is available'').
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`` INS policy specifically prohibits a contract facility from
the use of restraints for non delinquent juveniles.\13\ Latham
interviews and the OIG Report confirm, however, that standards
are not in place to document compliance, more than one half of
facilities ignore this procedure, and non-delinquent children
routinely are shackled during transport, movement within
facilities, and appearances in immigration court
proceedings.\4\
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\13\ See Immigration and Naturalization Service, Detention and
Deportation Officers' Field Manual, at VII.C.2.a (``Agencies handling
non-criminal juveniles under contract or inter-agency agreement with
the Service do not have the authority to restrain such juveniles.'').
\14\ See Report, ch. 2 (``Contract guards and secure facilities
under contract with the INS or that have signed interagency agreements
with the INS, as a regular course of action, restrain in INS's
unaccompanied non-delinquent juveniles during transport.'').
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III. THE LATHAM & WATKINS CHILD REFUGEE PROJECT
In March, 2001, after learning of this vast need for representation
of unaccompanied alien juveniles, Latham created a firm-wide pro bono
effort titled the ``Child Refugee Project.'' The project involves three
aspects of legal representation, each benefiting this largely unaided
and at risk population of undocumented minors. First, the firm serves
as pro bono counsel to the Women's Commission for Refugee Women and
Children, a non-profit research and advocacy organization dedicated to
protecting refugee women and children around the world. Together,
Latham and the Women's Commission-in conjunction with dozens of non-
profit advocacy groups-formed a wide-ranging coalition to support S.
121 and H.R. 1904, the ``Unaccompanied Alien Child Protection Act.''
Owing to extensive efforts by the dedicated members of this coalition,
the bill enjoys broad bipartisan support in both chambers of Congress.
In addition, Latham became co-counsel with the Center for Human
Rights and Constitution Law (CHRCL), the non-profit legal service
provider that served as attorneys to the plaintiff class of
unaccompanied alien juveniles in the landmark Flores case. Despite the
INS's failure over the past five years to promulgate regulations that
would codify these requirements, the settlement agreement contained a
sunset provision that this month would have resulted in the expiration
of these legal standards, leaving unaccompanied children with no basis
for a legal challenge to individual conditions of confinement. Through
persistent discussions with the INS, however, Latham and CHRCL were
able to negotiate the republication of a proposed rule that will codify
the agreement into regulations.\15\ Further, the negotiations led to a
stipulation that modifies the sunset date of the Flores consent decree-
extending the required adherence of its provisions until 45-days after
the INS publishes those regulations as a final rule.
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\15\ Processing, Detention, and Release of Juveniles, 64 Fed. Reg.
39,759 (proposed July 24, 1998) to be codified at 8 C.D.R. pt. 236).
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Finally, through this project, Latham's lawyers around the country
provide individual pro bono counsel and services to ensure the
appropriate conditions of confinement for otherwise unrepresented alien
juveniles in INS custody, as well as to assist these children with
navigating the complexity of immigration and asylum proceedings.
Latham's individual child refugee clients come from a wide variety of
troubling backgrounds, circumstances, and ages, including: Honduran and
Guatemalan youth who have fled the documented genocide of street
children in those countries; young Chinese and Indian children who have
been the victims of trafficking and smuggling operations; and many
other victims of unspeakable persecution-including intended victims of
forced labor, sexual servitude, parental abuse and neglect, forced
marriages as child brides, or female genital mutilation.
Since the project's inception not quite one year ago, Latham
lawyers and staff have donated more than six thousand hours in pro bono
services on behalf of refugee children. To date, the project has
resulted in an equivalent of more than $1.4 million donated to
representation and advocacy on behalf of unaccompanied alien children,
helping to ensure that every child's legal interests are protected.
Additionally, Latham's lawyers are working in partnership with various
child advocacy groups and legal service providers across the country
including: the Midwest Immigrant & Human Rights Center, the Florida
Immigrant Advocacy Center, the Florence Project, Catholic Legal
Immigration Network Incorporated, Hebrew Immigrant Aid Society, the
Pennsylvania Immigration Resource Center, Casa Cornelia, and the San
Francisco Bar Legal Services Program.
For its commitment to pro bono legal efforts-including these much-
needed services to unaccompanied alien juveniles-in 2001, Latham's pro
bono program and the Child Refugee Project won numerous awards from
many organizations, including: the National Law Journal pro bono
recognition; the District of Columbia Bar Association's ``pro bono Firm
of the Year''; the Bar Association of San Francisco's ``Outstanding Law
Firm in Public Service''; and the Los Angeles Public Counsel's ``Law
Firm of the Year.''
To expand further the universe of dedicated law firms addressing
this pressing need for pro bono assistance, the American Bar
Association (``ABA'') leadership mobilized to address the plight of
detained immigrant and refugee children, launching the Detained
Immigrant and Refugee Children's Emergency pro bono Representation
Initiative (``Initiative''). Through the Initiative, the ABA has
provided ten grants to major detention sites for comprehensive pro bono
legal care programs for immigrant and refugee children detained in
Arizona, California, Florida, Georgia, Illinois, Pennsylvania and
Texas, and is developing two additional programs in New York and
Washington State. In August, 2000, the ABA sponsored a national summit
for pro bono attorneys and grantees in Chicago resulting in the
training of more than 115 pro bono attorneys from over twenty-five
states. Through the coordination and training of the ABA, participating
state and local bar associations, and pro bono legal service agencies,
Latham and other private firms thus far have donated over $3.5 million
in billable hours representing detained alien children across the
country.
Regrettably, even the admirable and extensive efforts of these
concerned private organizations have only scratched the surface of
providing representation for unaccompanied alien children. For both
institutional and jurisdictional reasons, the INS itself would not and
cannot provide counsel to the detained children in its legal custody-
rectifying this situation is a problem that requires the congressional
action of a legislative solution, and promptly enacting S. 121, the
``Unaccompanied Alien Child Protection Act'' would do just that.
IV. CONCLUSION
Mr. Chairman, the advocacy of an attorney for alien juveniles is
essential to secure the bedrock principles of due process and equal
justice under law. Moreover, for these vulnerable children, access to
counsel is of paramount importance to safeguard against the conflicts
of interest and unchecked authority inherent in the current system of
INS legal custody. By implementing a system to grant legal
representation to unaccompanied alien juveniles, however, the entire
immigration process will be resolved in a manner that is more
effective, more efficient, and more just.
Therefore, Mr. Chairman, I urge your support of S. 121, the
``Unaccompanied Alien Child Protection Act,'' and I welcome any of your
questions. Thank you.
Chairman Kennedy. Julianne Duncan?
STATEMENT OF JULIANNE DUNCAN, DIRECTOR, OFFICE OF CHILDREN'S
SERVICES, MIGRATION AND REFUGEE SERVICES/U.S. CONFERENCE OF
CATHOLIC BISHOPS, WASHINGTON, D.C.
Ms. Duncan. I am Julianne Duncan. I am responsible for
children's services at Migration and Refugee Services of the
United States Conference of Catholic Bishops. I come before you
today as a child welfare professional with 25 years of
experience in the field, predominantly with refugees and
immigrant children.
I also testify today on behalf of Lutheran Immigration and
Refugee Service. Our two agencies both offer child welfare
services to unaccompanied alien children, including foster care
placement and family reunification services. On behalf of our
agencies, I would like to thank you for convening these
hearings, and I would like especially to thank Senator
Feinstein for her great advocacy in this very important cause.
Mr. Chairman, the main theme of our testimony today is that
child welfare principles should govern our Nation's treatment
of unaccompanied children. In every child welfare system in the
United States, the best interests of a child is placed ahead of
other concerns. Unfortunately, and tragically, this is not the
case in the system which handles unaccompanied alien children.
We think that we must conform our handling of these
vulnerable children with the principles endorsed and legislated
by this very body for United States children: first, that a
child's best interests are primary; that children are placed in
the least restrictive setting possible; and that permanency
planning is a central component of any child welfare system.
Children, no matter what their country of origin, should not be
mistreated simply because they lack documentation.
Before I proceed, I would like to reaffirm our agency's
support of the entirety of Senate bill 121, the enactment of
which would enshrine child welfare principles into our handling
of unaccompanied alien children. In particular, we strongly
support the creation of a new Office of Children's Services
within the Department of Justice. We support the requirement
that attorneys be made available for unaccompanied children. We
support the streamlining of procedures for making special
immigrant juvenile visas available for children who qualify and
the establishment of appropriate standards of care.
The more specific focus of my testimony today is the
requirement that INS more liberally use alternatives to
detention, such as foster care and family reunification
services, as well as that guardians ad litem be appointed to
assist unaccompanied alien children.
Our two agencies work with INS to identify and screen
prospective foster care settings, including families and small-
group homes, for unaccompanied alien children who await
adjudication of their asylum claims. We believe that foster
care can provide an appropriate, secure setting for a
vulnerable child.
In fact, however, INS rarely uses foster care as an
alternative to detention. During fiscal year 2001, our two
agencies combined provided foster care homes to only 16 child
asylees, including Edwin. These are children who waited in
various INS detention facilities until their cases could be
finally adjudicated. In addition, we provided care for seven
children whose asylum claims were still in process.
The average length of stay in detention for those children
whose asylum claims were granted and who were eventually placed
in care--their average length of stay in detention was 8
months.
Since the beginning of fiscal year 2002, we have placed
only one child in foster care. This is in spite of the fact
that our agencies have the capability to place several hundred
children in foster care. Between us, we have recently placed
more than 600 refugee and asylee children, placed predominantly
from overseas.
Chairman Kennedy. Your point isn't that they have to stay
in detention while they are looking for someone. You are
suggesting now that you would be able to place them very, very
quickly. Do I understand this part of your testimony?
Ms. Duncan. Yes, that is right.
Chairman Kennedy. There is a lot of availability out there,
is what I am hearing from you.
Ms. Duncan. That is right. We can increase capacity if
capacity is needed, but right now we have unused capacity.
In regard to family reunification, another task of our two
agencies is that we provide family reunification services for
Chinese and Indian unaccompanied alien children, including
locating and identifying whether or not these are true family
members and assessing the suitability of the home. We do
believe that this is an alternative to detention that is
underutilized as well, especially for children who are awaiting
their asylum hearings.
Guardians ad litem, we think, are of just invaluable
assistance to children who are in the custody of the Federal
Government. The bill proposes that a guardian ad litem,
normally a child welfare professional, would be appointed to
look after the well-being and best interests of the child. The
legislation spells out the qualifications and duties of the
guardian, who is charged with interviewing the child and
investigating the child's situation so that the courts can
understand the full range of circumstances of the child and can
assist in developing a long-term plan for the child's care.
The guardian ad litem could also accompany the child
throughout the immigration proceedings, advising the child of
his or her situation and ensuring that a child's best interests
are served. Guardians are routinely appointed for children in
State and local child welfare systems and in any situation in
which a parent is not available to look out for the child's
welfare. It is not an unusual concept in the United States
child welfare system.
Guardians are especially necessary for unaccompanied
children who are alone. They have no adult guidance, they are
in a new culture, and they are in a land with a different
language and an extremely complex system. Guardians ensure that
the due process rights of children are respected and that a
determination of the case is based on a full consideration of
the child's circumstances.
The role of the attorney is to represent the child in the
immigration proceedings. The guardian looks out after the best
interests of the child both in terms of treatment in the United
States, making sure that basic needs are met, and that an
appropriate long-term plan of care is instituted.
We think that the guardians would not only benefit the
child; we think it would also benefit the system. With full
knowledge of the circumstances and a trusted adult, a child is
much more likely to provide information which is helpful in
resolving their plight. The decisionmakers would have complete
information upon which to make a judgment about a case.
In earlier testimony, two of the gentlemen testifying for
the Government have made much of the difficulties of
designating and implementing a guardian ad litem program and
the difficulty of conducting home assessments overseas. I would
like to speak to those points very briefly.
Chairman Kennedy. Very quickly.
Ms. Duncan. Guardian ad litem programs exist in most
States. Almost all State and local courts have them. It is not
impossible to do this. Our agencies would be prepared to
assist.
Overseas home assessments are also not insurmountable
problems. Each of our agencies has considerable experience in
conducting both domestic and foreign home assessments. Other
international agencies do this work as well. The International
Committee for the Red Cross and the International Organization
for Migration both do this work in certain circumstances. We
are prepared to assist in the design of an appropriate program.
My final thought: While I understand that the INS is
creating a new Office of Juvenile Affairs, from a child welfare
perspective I agree with my colleagues that charging one agency
with responsibility both for law enforcement and for child
welfare planning cuts against all the principles that we
operate on within the United States. Child welfare planning and
detention and enforcement are separate functions in State and
local child welfare systems. We believe that they should be
separate in the case of alien minors as well.
Thank you.
[The prepared statement of Ms. Duncan follows:]
Statement of Julianne Duncan, Office of Children's Services, Migration
and Refugee Services/United States Conference of Catholic Bishops,
Washington, D.C.
I am Julianne Duncan, Director of Children's Services for Migration
and Refugee Services of the United States Conference of Catholic
Bishops (MRS/USCCB) I testify today on behalf of MRS and the Lutheran
Immigration and Refugee Service (LIRS).
Mr. Chairman, I would like to thank you for your leadership in
holding this hearing and for the leadership you have shown in
advocating on behalf of immigrants and refugees over the years. I would
also like to thank Senator Brownback, who has shown special sensitivity
and attention to the plight of immigrants and refugees.
Most particularly, I would like to extend the bishops' gratitude to
Senator Dianne Feinstein, Representative Zoe Lofgren and Representative
Chris Cannon, who are the primary sponsors of the Unaccompanied Alien
Child Protection Act of 2001. Senator Feinstein's leadership and
foresight, in particular, in introducing this important legislation has
been instrumental in bringing attention to the plight of Unaccompanied
Alien Children and will be critical to ensuring its passage in the days
ahead.
The Lutheran Immigration and Refugee Service (LIRS) was founded in
1939 and has helped resettle more than 280,000 refugees from all over
the world. A hallmark of LIRS' work has been its work on behalf of
Unaccompanied Alien Children, including family reunion services and
foster-care placement to children who enter the United States alone.
LIRS has long been concerned about our government's practice of
detaining immigrant children.
LIRS advocates for just, compassionate policies for all newcomers
to the United States and administers a fund from Lutheran and
Presbyterian churches that provides grants to independent grassroots
programs to serve particularly vulnerable newcomers, including children
in detention.
MRS/USCCB is the resettlement agency of the U.S. Catholic bishops
and provides foster-care, family reunification, and other child welfare
services to unaccompanied minors who enter the United States. During
calendar year 2000, we assisted a number of unaccompanied alien minors
obtain foster-care families and reunify with immediate or extended
family members. We also have resettled 250 unaccompanied refugee minors
in the United States during the past year.
The U.S. Catholic Bishops have spoken out on behalf of children,
especially immigrant and refugee children. Upon the introduction of the
Unaccompanied Alien Child Protection Act, Bishop Nicholas DiMarzio,
chairman of the USCCB Committee on Migration, stated that the
legislation was necessary to reverse our nation's shameful treatment of
children: ``Our country must employ a national policy which protects
children and is governed by the best interest of the child. Because of
their special vulnerabilities as children and the special circumstances
in which they enter our country--alone and without support--we must
provide special care to these children, no matter their country-of-
origin.'' \1\ Thus, from the perspective of the Catholic Church, all
children around the world deserve special care and consideration and
that care is preferably provided within a family setting.
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\1\ Statement of Bishop Nicholas DiMarzio, Chairman, NCCB Committee
on Migration, On The Unaccompanied Alien Child Protection Act of 2000,
Office of Migration and Refugee Services, September 27, 2000.
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Together, MRS/USCCB and LIRS have resettled unaccompanied refugee
minors for 25 years, providing child welfare services to more than
12,000 unaccompanied children. We also work with the Immigration and
Naturalization Service (INS) to provide family reunion services to
Chinese and Indian youth and to place asylee children into foster-care
services. We speak with one voice today united in our support for the
Unaccompanied Alien Child Protection Act of 2001.
Summary of Recommendations in Testimony
The bulk of our testimony will focus upon our support for
provisions in S. 121 that promote alternatives to detention for
Unaccompanied Alien Children, the need for and availability of expanded
use of foster care for these children, the need for guardians ad litem
to make recommendations about what is in their best interests, and the
urgent need for Congress to legislate changes in the care and custody
of Unaccompanied Alien Children rather than depending on yet another
administrative restructuring of the entities charged with these
responsibilities.
We also wish to take this opportunity to express our strong support
for other important aspects of the bill. In particular, we urge that,
as the Committee moves to markup this legislation and report it to the
full Senate, at a minimum, it maintains the following important aspects
of the legislation:
the creation of an office within the Department of
Justice to handle children's care and custody issues that is
separate from the Immigration and Naturalization Service (INS);
the provision of access to counsel for Unaccompanied
Alien Children so as to help them navigate the legal processes
in which they are involved;
the provision of impartial guardians as litem to
investigate Unaccompanied Alien Children's circumstances and
make recommendations on what would be in their best interests;
the enactment of standards of detention that ensure
that Unaccompanied Alien Children are not mistreated by being
placed in facilities with adults, in facilities with juvenile
offenders, and are not unnecessarily restrained;
the enactment of unambiguous standards ensuring that
Unaccompanied Alien Children are placed in the least
restrictive settings possible pending the resolution of their
immigration situation, and that those settings take into
account their educational, health, recreational, and spiritual
needs;
the enactment of standards favoring the release of
children to responsible caregivers if the children are not a
danger to themselves or the community;
the establishment of family reunification as a desired
principle in placement decisions; and
reforms in the Special Immigrant ``J'' visa to make it
a more useful option for permanent protection to abused,
neglected, and abandoned children.
The Government's Special Responsibility to Unaccompanied Alien Children
The main theme of our testimony today is that Unaccompanied Alien
Children should be treated under the same standards and be afforded the
same child welfare protections that are available to other children in
the United States. Such standards were developed to protect children as
vulnerable human beings; they should not discriminate based upon legal
status or national origin, but they currently do. These fundamental
principles of making decisions based on the best interest of the child,
of placing children in the least restrictive setting, and of moving
children towards permanency as soon as possible are absent from current
laws and regulations governing our treatment of Unaccompanied Alien
Children.
Indeed, Congress itself already has ensured that these protections
are incorporated for U.S.-citizen children in child welfare systems in
the United States. Under the Federal Adoption Assistance and Child
Welfare Act of 1980, Congress requires that a child's case plan be
designed to achieve placement in the least restrictive, most family-
like setting available, consistent with the best interest and special
needs of the child. The same law, which governs the treatment of
children in the foster care system of the United States, defined child
welfare services as social services that seek to: 1) promote and
protect the welfare of all children; 2) prevent or resolve problems
which may result in the maltreatment or delinquency of children; 3)
prevent the unnecessary separation of children from their families; 4)
reunite families and children; and 5) assure adequate care of children
away from their home.
S. 121 would enshrine these fundamental protections into law for
Unaccompanied Alien Children as well, bringing the treatment of these
children into alignment with other domestic approaches to helping
children in need. It also would bring the United States up to date with
Canadian and European guidelines which have developed over time to deal
appropriately with alien children in their societies.
Principles that Should Govern Treatment of Unaccompanied Alien Children
Because of our long experience in caring for and advocating on behalf
of unaccompanied minors, Mr. Chairman, our testimony today will point
out changes in law we believe are required, as laid out in Senator
Feinstein's bill, to reform the current system. In the view of MRS/
USCCB and LIRS, our government's treatment of Unaccompanied Alien
Children should be governed by the following principles:
The Federal government has a special responsibility to
ensure that Unaccompanied Alien Children are treated with
dignity and care. Children are our most precious gifts. Their
youthfulness, lack of maturity, and inexperience make them
inherently vulnerable and in the need of the protection of
adults. Unaccompanied Alien Children are among the most
vulnerable of this vulnerable population. They are separated
from both their families and their communities of origin, they
are often escaping persecution and exploitation, they often
find themselves in a land in which the language and culture are
alien to them, and they are thrust into complex legal
proceedings that even adults have great difficulty navigating
and understanding.
Unaccompanied minors should be held in the least
restrictive setting as possible, preferably with family members
or with a foster family. Secure facilities should be used on a
very limited basis and only when absolutely necessary to
protect a child's immediate safety or the safety of the
community.
Minors should be reunited with parents, guardians, or
other family members within the United States as soon as
possible. While a family is in temporary detention, they should
not be separated unless it is in the best interest of the
child.
Because of their special vulnerability and inability
to represent themselves, unaccompanied children should be
provided with legal representation and guardians as litem to
assist them in immigration proceedings and to see that care and
placement decisions are made with a child's best interest in
mind.
Mr. Chairman, these principles are not currently governing U.S.
policy toward Unaccompanied Alien Children in the United States.
Instead, thousands of children each year are held in detention, some
with juvenile criminal offenders, with little or no access to legal
assistance and with decreasing ability to reunite with family members.
Some children are detained for months awaiting their asylum hearing,
while others are deported immediately back to their country-of-origin
without substantial attempts to locate their parents or immediate
family members.
Moreover, as a child welfare expert with knowledge of the foster
care and juvenile justice systems, I find it shocking to see how
children in INS custody are treated. Equally disturbing is that
children in immigration proceedings are not ensured legal
representation, a practice which is not accepted in other types of
court proceedings.
The Unaccompanied Alien Child Protection Act of 2001, introduced by
Senator Feinstein, would reform U.S. policy governing Unaccompanied
Alien Children. It would ensure that children are provided appropriate
child welfare services and are placed in an appropriate settings. The
legislation would create a new office within the Department of Justice,
staffed by child welfare professionals, to handle the care of
unaccompanied children who enter the United States. It also would
require the appointment of guardians as litem to look after the best
interests of the child and it would provide for attorney representation
of these children in any immigration proceeding. The bill also would
encourage family reunification or other appropriate placement for
Unaccompanied Alien Children whenever possible.
U.S. treatment of Unaccompanied Alien Children
``After I was transferred, I was always put in handcuffs for court.
It always made me feel like a criminal and not a refugee.'' \2\
---------------------------------------------------------------------------
\2\ Quotations are from interviews with unaccompanied alien
children conducted in August 2001 by Satish Moorthy, Human Rights
Coordinator, Center for International Studies, University of Chicago.
Interviews were conducted voluntarily and anonymously of children
already awarded asylum. Children are identified by interview. Interview
L is source of above quotation.
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Unaccompanied alien minors are children under 18 years of age who
are found in the United States without legal status and who have no
parent or guardian to care for them. Many enter the United States to
escape persecution while others are smuggled into our nation or, in
some cases, are victims of trafficking subject to forced prostitution
or labor. An increasing number are victims of human rights abuses such
as child prostitution, street children abuses, child marriages,
slavery, and recruitment as child soldiers. Unaccompanied children come
to the United States from all parts of the world, most especially from
Central America, India, China, and some parts of Africa.
The Immigration and Naturalization Service (INS) is charged with
responsibility for apprehending, detaining, caring for, placement of,
legal protection of, and removal of Unaccompanied Alien Children. Many
unaccompanied children are apprehended by the INS and returned to their
country of origin, while others are placed in detention settings to
await their asylum hearing or removal hearing. A number are released to
relatives after a short amount of time. A handful are placed in
appropriate foster care settings.
Unaccompanied minors are particularly vulnerable because of
emotional and physical traumas they have experienced. Some of these
children may be victims of abuse, neglect, or abandonment, while
others, separated from their families, become depressed, moody,
withdrawn, or experience psychosomatic symptoms.\3\ Separated from
their communities of origin, unaccompanied children experience an
unfamiliar culture and loss of a social network. They should be treated
with special attention and care instead of shackled and placed in
detention.
---------------------------------------------------------------------------
\3\E.M. Ressler, N. Booth by, and D.J. Steinbock, Unaccompanied
Children: Care and Protection in Wars, Natural Disasters, and Refugee
Movement (New York: Oxford, 1988).
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Responsibility for the Care and Custody of Children should be placed
outside INS
``I don't know why they [INS] are so mean. They treat you like they
don't care about you. I wish they wouldn't make you feel so scared.
Sometimes you don't know what's going on. They don't tell you. And it's
worse when you don't speak the language.'' \4\
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\4\ Moorthy, Interview D.
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We strongly support the provision in S. 121 that creates an Office
of Children's Services within the Department of Justice and outside the
INS. Under S. 121, this new office would be charged with the custody,
placement, and release of Unaccompanied Alien Children and staffed by
child welfare professionals. We believe that such an office would
eliminate the current conflict of interest within INS and ensure that a
child's best interests drive decision-making in these cases.
Currently, the Detention and Removal branch handles the placement
of unaccompanied minors, a direct conflict of interest which sometime
pits a child's best interest against the INS' role as jailer and
deporter.\5\
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\5\ In the Houston district, providers indicate that family
reunfication for children's programs under the Detention and Removal
branch in 2000.
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Because of its role as enforcer of U.S. immigration law, the INS
has great difficulty in providing care for children it is charged with
removing from the country. All too often, it seems as though the INS'
enforcement concerns suspersede the best interests of the child.
There are many examples of this conflict in current practice in
which a child's needs are sacrificed. For example, unaccompanied minors
are regularly transferred from one facility to another without notice
to their attorney or family members. Children also are placed with
juvenile offenders ``as a safety precaution,'' regardless of their need
for a more nurturing and less threatening environment. And the INS
often appeals grants of asylum to unaccompanied minors, leaving them
languishing in detention for additional months while the appeal is
heard. Finally, the INS often denies consent to the jurisdiction of a
juvenile court for purposes of special immigrant juvenile visa (SIJ)
relief for children who are abused, abandoned, or neglected.
The Department of Justice has shifted responsibility for dealing
with Unaccompanied Alien Children from office-to-office over the last
twenty years:
Prior to 1996, responsibility for the care of these
children resided in the Department's Community Relations
Service (CRS), which contracted out to private nonprofit
agencies the responsibility of operating shelter facilities for
them. At the time, CRS maintained a small staff of social
workers to administer the program.
In 1996, the Immigration and Naturalization Service
took over the functions of handling these children. Initially,
the functions were handled by the International Affairs Office,
which also managed the INS's asylum and refugee operations.
In 2000, the INS moved responsibility for handling
these children to INS's Detention and Removal branch, much to
the dismay of child welfare advocates who feared that placing
control for care and custody of these children in the hands of
the agency responsible for removing them would exacerbate what
they viewed to be an already unacceptable situation, whereby
the INS was using care and custody issues as a tool in their
efforts to remove children, regardless of the merits of the
child's efforts to remain in the United States.
INS Commissioner James Ziglar recently announced plans to create
yet another structure for dealing with these children. He indicated
that soon he will create an Office of Juvenile Affairs which would be
directly under the supervision of the INS commissioner.
It is critical that the Committee retain the provision in S. 121
that would remove control of care and custody of Unaccompanied Alien
Children from the INS and, instead, place it into the new Office of
Children's Services that the bill would create.
First, the INS does not possess the child welfare expertise
critical to the care of vulnerable children. Unlike most adults,
children are less able to understand the complex immigration system or
articulate their needs. They also are in need of special attention and
care because of their youth.
Second, Commissioner Ziglar's proposal would not eliminate the ever
present and potential conflict-of-interest between enforcement goals
and the care of children. For example, it would not change the
decision-making authority of regional juvenile coordinators who
regularly place children in juvenile detention centers.
Third, an administrative change does not carry the effect of the
force of law, leaving future INS officials to alter any new structure,
however carefully planned.
Fourth, in a more general way, because of its role as enforcer of
our nation's immigration laws, it would be inappropriate and unworkable
for the INS to implement many of the much needed reforms included in S.
121, such as the appointment of attorneys and guardians as litem for
children.
Finally, in no other child welfare system in the United States is
the entity charged with enforcing the law also charged with the well-
being of the child. For example, in the foster-care system enforcement
officials become involved in investigating cases of child abuse and
grounds for removal, while child welfare professionals determine
appropriate placement and care. The same is true of the U.S. juvenile
justice system, in which law enforcement does not impinge upon the role
of the child welfare system, which is to rehabilitate a juvenile
offender, where appropriate.
Detention of Unaccompanied Alien Minors
``I was transferred to Reading, PA. I stayed in the shelter for 5
months. But they said I behaved bad. I remember that if you did
anything wrong they would make you do push ups and make you sit with
your head down for an hour. It made me feel so bad. They [the staff]
used to hassle me. The Chinese kids and I got into a fight, after that
I was transferred to a detention center in Berks County. It was a place
where there were criminals. I was there for 4 months. It was not right
how they treated me. I was not a criminal.'' \6\
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\6\ Moorthy, Interview K.
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As stated, MRS/USCCB and LIRS believe that children should be held
in the least restrictive setting, preferably with family members or a
foster-care family. An estimated 475 unaccompanied minors are in INS
custody at any given time, ranging between the ages of six months to 17
years old. Children may be detained in separate facilities from their
parents or family members and remain in secure facilities for months
until their status is resolved or they are removed to their country of
origin. Some of these detention facilities are INS shelter care, or
``soft'' detention, and others are juvenile facilities for convicted
offenders. During Fiscal Year 2000, the INS detained 4,136
unaccompanied children for more than 72 hours, placing one-third in
juvenile detention centers and a large majority of the remainder in
shelter care.
Of particular concern to us is the placement of children in secure
detention facilities with juvenile offenders, some of whom have
committed violent crimes. In these detention centers, children remain
confined and have few opportunities for education in their native
language or any field trips outside of the facility.\7\ They are
commingled with violent persons, sometimes in the same cell. The
psychological and emotional effects on a child in secure detention,
alone and often unable to speak the language, can be devastating. Upon
apprehension, INS sometimes transports these children by shackling
their legs and arms, despite the fact that they have committed no
criminal acts.
---------------------------------------------------------------------------
\7\ Human Rights Watch, Detained and Deprived of Rights: Children
in the Custody of the U.S. Immigration and Naturalization Service,
December 1998.
---------------------------------------------------------------------------
A recent report by the Office of the Inspector General of the
Department of Justice concluded that the INS often commingles non-
delinquent juveniles with juvenile offenders in secure facilities, a
violation of a court settlement known as Flores v. Reno. The settlement
stipulates that, absent evidence of delinquent behavior, unaccompanied
alien minors should be placed in the least restrictive setting
possible. According to the report, in FY 2000, 34 of 57 secure
facilities did not have proper procedures or facilities to segregate
non-delinquent from delinquent juveniles. During the same fiscal year,
the INS held 1,933 unaccompanied alien minors in juvenile jails, of
which 1,569 were non-delinquent juveniles. It further concluded that at
least 484 instances occured in which non-delinquent children were
commingled with delinquent children.\8\
---------------------------------------------------------------------------
\8\ U.S. Department of Justice, Office of the Inspector General,
Unaccompanied Juveniles in INS Custody, Report No. 1-2001-009,
September 2001, p. ii, 13.
---------------------------------------------------------------------------
The OIG also found that the INS commonly does not use readily
available bed space in shelter-care facilities to house non-delinquent
juveniles. Citing an exception in the Flores settlement which allows
for the placement of children in secure facilties as a result of an
``influx''--defined as 131 children at the time--the INS often places
non-delinquent juveniles in juvenile jails. This occurs despite the
fact that available shelter bed space has nearly tripled since the
settlement, from 130 to over 400.\9\
---------------------------------------------------------------------------
\9\ OIG Report, p. 10.
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In addition, the INS regularly transfers children from one facility
to another, often at different places throughout the country and
without notice to guardians or attorneys, a violation of the Flores
agreement. This leads to a lack of permanency and sense of isolation
for the child. It also limits the ability of guardians or attorneys to
maintain access to the child. In a recent case, a 16-year old Mayan boy
fleeing persecution in Guatemala was transferred seven times within two
months. Currently, he is being held at Berks County Youth Center in
Pennsylvania, 1200 miles from his attorneys in Miami.
Over the past year, MRS/USCCB and LIRS placed 16 children into
foster-care who went through their entire asylum proceedings while in
INS detention. Their average length of detention was eight months.
Children seeking asylum arguably are the most vulnerable of all
children but spend the most time in INS detention. In one case, twin
brothers fled physical abuse and separation in their native Honduras,
arriving here at the age of 14. They were held in an INS facility in
Texas. Due to a state regulation that children could not remain in the
shelter for longer than 3 months, they were transferred after 3 months
to foster care for one day and then returned to the shelter. This was
repeated again at 6 months. The brothers were held for 8 months before
they were granted asylum and permanently released to foster-care,
funded by the Office of Refugee Resettlement.
In another case, a 14-year old Honduran boy made his way to the
United States after his caretaker grandmother died, leaving him to live
on the street. Upon arriving in the United States, he gave himself up
to the INS because he was tired, cold, and hungry with no money and no
one to care for him. He then spent his next 11 months in INS detention.
Because of his young age, he was placed in foster care for 3 weeks.
Unfortunately, though, he later was transferred to a detention facility
for the next ten months. He says he missed being part of a family when
returned to the detention facility, where he often felt scared and
alone and felt he had no one to turn to for help.
The Unaccompanied Alien Child Protection Act of 2001 would help
ensure that children are placed in appropriate and less restrictive
settings. It would expand shelter care facilities and foster care
services as alternatives to detention; require family reunification or
other appropriate placement for children, wherever possible; and house
release decisions with child welfare professionals, not enforcement
personnel.
Access to Legal Remedies for Unaccompanied Minors
``A paralegal from the attorney's office would visit me and prepare
me for court. She was very great. After 10 months in the shelter, I got
asylum.'' \10\
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\10\ Moorthy, Interview L.
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Many children found in the United States without parent or guardian
have experienced persecution directed at them or their families and are
in need of protection. Under the current U.S. system, however, children
in INS custody often receive little information about legal resources
and often have no legal representation. Attorneys who do represent
unaccompanied minors have trouble doing so because children often are
transferred from one facility to another, sometimes in different parts
of the country. As a result, even those children with valid asylum
claims often have difficulty obtaining fair representation. According
to the Catholic Legal Immigration Network, Inc. (CLINIC) and the
Women's Commission on Refugee Women and Children, less than 11 percent
of INS detainees receive representation. Children detainees receive
even less assistance.\11\ Without appropriate legal assistance and
representation, children with valid asylum claims are less likely to
obtain asylum and more likely to be sent back to their countries of
origin and possible persecution.
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\11\ See Don Kerwin, ``Throwing Away the Key: Lifers in INS
Custody,'' Interpreter Releases 649 (May 11, 1998), and ``Protecting
the Rights of Children: The Need for U.S. Children's Asylum
Guidelines,'' Women's Commission for Refugee Women and Children,
December, 1998.
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Assuring representation by counsel is necessary for this particular
class of children, who face overwhelming obstacles in a complex
immigration system. S. 121 would permit the new Office of Children's
Services to develop relationships with non-profit organizations to
enhance their ability to represent children. The minimal cost of the
appointments of legal counsel, when such appointments are necessary,
would be offset by greater efficiencies and effectiveness for INS and
reduced court and detention time. In addition, S. 121 targets an
extremely limited class of beneficiaries. Similarly-situated children
in other child welfare systems are provided legal representation.
In addition, a child's asylum claim and well-being would be aided
by the appointment of a guardian as litem, an adult, preferably a child
welfare professional, who would look after the best interest of the
child in immigration proceedings and in decisions regarding appropriate
placement. The guardian as litem would investigate the circumstances of
a child's presence in the United States, and, using that information,
develop recommendations for the child's placement and avenues for legal
relief. Guardians are used for children in other areas of U.S. law,
such as in abuse or custody cases. Moreover, the INS Guidelines for
Children's Asylum Claims calls for the appointment of an individual to
play a guardians as litem role, explaining that a ``trusted adult'' can
help the child explain his/her asylum claim, assist the child
psychologically, and provide comfort and assistance for the child.\12\
---------------------------------------------------------------------------
\12\ Immigration and Naturalization Service, Guidelines for
Children's Asylum Claims, September, 1998.
---------------------------------------------------------------------------
S. 121 would address the lack of legal representation and other
assistance to children by requiring that all children have access to
legal counsel and that a guardian as litem be appointed for each child.
Legal counsel would be appointed to help children through the
complexities of immigration proceedings, representing their legal
interests in asylum court, and in filing the appropriate paperwork with
INS and other relevant agencies. A guardian as litem would make
recommendations to ensure that the child's best interests are served.
Additionally, S. 121 streamlines the procedure for vulnerable
children to obtain a special immigrant juvenile visa (SIJ), legal
relief which often is inaccessible to many children. Under legislation
enacted in 1990, unaccompanied alien minors who a children's court
determines should not be returned to their home country and are
eligible for long-term foster care (family reunification is not
possible) may obtain a special immigrant juvenile visa (SIJ) and legal
permanent residency.
Unfortunately, because of lack of knowledge of their rights and
access to representation, children often do not obtain this form of
relief. Moreover, the INS commonly does not pursue this avenue for
children and must ``expressly consent'' to a judge's order that the
visa was sought for relief for abuse and neglect and not primarily for
immigration purposes. Again, a conflict of interest arises in this
situation, in that INS maintains undue authority over a child's ability
to even seek legal relief at the same time it seeks to deport the
child. Despite the thousands of children detained by INS each year, INS
rarely allows children in its custody to apply for SIJS.
S. 121 revamps the system for the grant of a SIJ visa by granting
the new Office of Children's Services (OCS)--staffed by child welfare
professionals--the authority to certify to the Attorney General that a
child has been abused, abandoned, or neglected. This requirement
removes the conflict of interest that the INS has while also ensuring
the SIJ system is not abused. It also gives children fairer access to
juvenile courts and to possible relief and permanency.
Another area of concern which S. 121 addresses is children's access
to asylum protection. First, because of lack of access to legal
representation, most children are unable to navigate the complex legal
system to pursue asylum claims or other forms of relief. For those who
do obtain representation, their chances of relief are markedly
improved.\13\ The INS does not maintain statistics concerning the
percentage of children who win asylum, although reports from attorneys
and private organizations indicate it is very low.\14\ Second, once a
child wins asylum, the INS often appeals the decision, extending a
child's stay in detention.
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\13\ See Slipping through the Cracks: Unaccompanied Children
Detained by the Immigration and naturalization Service, Human Rights
Watch, April, 1997.
\14\ During FY 2000, USCCB and LIRS provided foster care services
to only 40 children out of a total of 4,614 detained by INS.
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In 1998, the INS took a step in the right direction by adopting
guidelines for asylum officers to use in adjudicating children's
claims. Known as the Guidelines for Children's Asylum Claims, the new
policy has aided asylum officers in their handling of juvenile cases.
Unfortunately, many children present their cases before immigration
judges who are not required to follow the guidelines in their decision-
making. Further, other immigration officers, such as enforcement
officials, have not been trained in the rights of children and their
special circumstances as outlined in the guidelines. S. 121 calls upon
the Executive Office for Immigration Review (EOIR) to adopt the
guidelines and requires all immigration officers and personnel who come
into contact with children to receive special training on the special
needs and circumstances of children asylum seekers.
Alternatives to Detention
``My foster care family cares for me and I care for them. It's
better than the shelter because I can be free and I have a home where
people care for me. It's the opportunity to have a family that I never
had before even in my home country. It makes me feel included. They
never exclude me from anything.'' \15\
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\15\ Moorthy, Interview G.
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In order to ensure that children are protected and cared for,
alternatives to detention are available and necessary which address a
child's special needs, especially the need for emotional security,
love, and attention. Studies have demonstrated that children are better
adjusted emotionally, psychologically, and mentally, when placed in a
family setting. LIRS and MRS/USCCB assist the INS by identifying family
members of children and, in the alternative, recruiting foster-care
families to provide a home for a child until an asylum claim is
adjudicated.
Despite the wide availability of foster-care settings, the INS
rarely uses this appropriate alternative to detention, regardless of
the fact that foster care ($55 per day) is much cheaper than detention
($200 per day). The INS has placed very few children in foster-care
settings, citing security concerns and the likelihood that children may
take flight. During FY 2001, LIRS placed 5 and MRS/USCCB 2 children in
foster-care settings pending the completion of immigration proceedings.
As child welfare providers, it has been the experience of LIRS and
MRS/USCCB that children do not take flight if appropriate services are
in place to ensure that they are safe and loved. For example, the
presence of a guardian as litem to explain the asylum process to a
child would help calm the child. In addition, requiring suitability
studies of families in countries of origin would help assure a child
that he/she would be safe upon return to their homeland.
Perhaps more troubling is that the INS does not follow any criteria
or guidelines for determining whether a foster-care setting is
appropriate for a certain child: those children who are placed in
foster care families often are done so on an ad hoc basis and only
following lengthy detention. For example, no guidelines or procedures
are in place for INS to identify a child victim of trafficking or a
child with other special needs.
MRS/USCCB and LIRS also help locate family members in the United
States for children and conduct suitability assessments of U.S.-based
families of Chinese and Indian youth and children granted asylum.
Absent mitigating circumstances, such as evidence of abuse, children
should be reunited with their families, especially their parents.
Suitability assessments are necessary in determining the validity of
family relationships, whether family members or relatives are willing
or able to care for a child, and whether there is a safe and
appropriate home.
Suitability assessments are an important tool in ensuring a child's
safety prior to placement. Therefore, S. 121 requires the INS to
conduct suitability assessments overseas for children repatriated to
their country of origin. Such a process is necessary to ensure that
children are not being sent back into an abusive family situation from
which they originally fled. Non-governmental organizations, such as
International Social Service, are able to conduct such assessments in
the child's country of origin.
Further, other countries ensure that children are returned to
safety in their home country. The United Kingdom, Norway, Switzerland,
and Holland will not return a child to their home country unless
country conditions are satisfactory and there is a suitable caregiver
available. Holland requests the International Organization on Migration
(IOM) to ensure that an appropriate caregiver exists in the home
country. Denmark notifies the Red Cross when a child is returned and
the Red Cross attempts to ensure that a caregiver is available.
Finally, Canada follows guidelines that require a child not be returned
unless a suitable caregiver has agreed and is able to assume
responsibility for the child and to provide appropriate care and
protection.\16\
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\16\ Children or refugees? A survey of West European policies on
unacompanied refugee children, Children's Legal Center, United Kingdom,
1992.
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Again, for flight reasons the INS is reluctant to place some
children with family members in the United States prior to adjudication
of their asylum claims. The Flores agreement spells out a list of
parties to which a child can be released. The list includes, in
descending order, parent(s), legal guardians, an adult relative, a
licensed program willing to accept custody, or another adult or
individual who INS approves and is willing to accept. Nevertheless, INS
consistently has failed to release children to relatives or even legal
guardians.
If a parent is undocumented, the INS requires a parent to report to
them for processing; otherwise the child remains in detention. The INS
also declines to place a child with a relative if an undocumented
parent is available but will not report. While we do not condone
undocumented migration, we oppose the practice of using children ``as
bait'' to apprehend undocumented migrants.\17\ Children should not be
punished or used in this manner. At a minimum, INS should place a child
with a legal relative even if an undocumented parent is present.
---------------------------------------------------------------------------
\17\ For more information, see ``Unaccompanied Juveniles in INS
Custody,'' U.S. Department of Justice, Office of the Inspector General,
Evaluations and Inspections Division. Report no. 1-2001-009.
---------------------------------------------------------------------------
The INS must use alternatives to detention for children on a more
regular basis. S. 121 requires family reunification or other
appropriate placements, such as foster-care, for children as well as
clear guidelines for the standards of care for children, including the
provision of education, recreation, health care, and access to an
interpreter and an attorney.
The Need for Congress to Legislate on this Issue
We are aware that there are some who have contended that the
principles embodied in S. 121 can be accomplished by an administrative
reorganization of the entities responsible for the care and custody of
unaccompanied children. Indeed, INS Commissioner Ziglar recently
announced a number of steps which he said would improve the treatment
of these children, at least hinting that this would obviate the need
for legislation.
We have no reason to doubt Commissioner Ziglar's sincerity.
However, we strongly believe that the reforms embodied in S. 121 must
be legislated by Congress and should not be left to either his ability
to harness a INS bureaucracy and field structure that is well known for
ignoring directives of the Commissioner, or left to the discretion and
whim of whomever is occupying the Commissioner's position at any given
time.
The United States government has a special responsibility to ensure
the well-being of children in its custody, regardless of their legal
status or national origin. This is especially the case for
Unaccompanied Alien Children. Since 1996 alone there have been three
separate administratively-mandated structures for the care and custody
of these children. Each time their conditions have grown worse, not
better. Commissioner Ziglar has just announced his intention to impose
yet another administratively-mandated structure. We strongly believe
that it is time for Congress to step in and set the direction and
policy for handling these children. S. 121 would accomplish this; these
children should not have to wait any longer.
Conclusion
Mr. Chairman, we believe that removing responsibility for the care
and custody of children from the culture of enforcement which pervades
the INS is essential. Approximately five-thousand Unaccompanied Alien
Children are found in our nation each year and are placed in the
custody of the federal government. They are not a threat to our society
and only seek our protection. As a leader in human rights around the
world, our treatment of unaccompanied alien minors is shameful and
undercuts our ability to defend the rights of others, especially
children, around the world.
It is time to conform how we treat Unaccompanied Alien Children
with the standards which govern our treatment of U.S. children.
Children, our world's most precious resource, should not be
discriminated against because of their lack of documentation or their
country of birth. Being undocumented should not equate with criminality
and we should not treat children as such. Instead, our system should
ensure that an Unaccompanied Alien Child's best interests are a primary
consideration, that their care and custody should take place in the
least restrictive setting possible, and that permanency planning
becomes a central component of an Unaccompanied Alien Child's care.
With long experience in caring for unaccompanied alien minors and
as advocates on their behalf, LIRS and MRS/USCCB ask the subcommittee
to consider more seriously the impact of U.S. policy on unaccompanied
alien minors. Mr. Chairman, it is incumbent upon our government to
fashion a system which places the welfare of a child, no matter their
country-of-origin, as primary, regardless of legal status. The
Unaccompanied Alien Child Protection Act would help reform our system
for handling unaccompanied minors appropriately and should be enacted.
Thank you for your consideration of our views.
Chairman Kennedy. Thank you very much.
I want to just thank Eric--is it Unternahrer?
Mr. Unternahrer. Unternahrer.
Chairman Kennedy. Unternahrer. We want to thank you very
much for being here. The idea that you are translating and
speaking and listening, doing all of those things at the same
time, is perplexing. We have trouble doing one of them up here
and doing it right, so we want to thank you very much for your
good work and your appearance.
Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman.
I am going to have to leave in a few minutes and the
chairman has graciously allowed me to make a comment or two, if
I could. No. 1, I would like to announce I am going to join the
Feinstein bill. It is a great piece of legislation.
[Applause.]
Senator Brownback. Thanks to Senator Feinstein for bringing
this forward. This is, to me, reminiscent of a hearing we held
about a year ago on asylum seekers where we were keeping these
people locked up for long periods of time for what appeared to
be not any good reason.
I think actually, Wendy, you testified at that hearing.
And, Mr. Morton, I don't know if you did or not.
Mr. Morton. I was sitting behind her.
Senator Brownback. But it was the same situation where we
have got these wonderful people that are fleeing a horrible
situation and they come here and they are locked up. It is even
worse when it is a child in the situation, like what Edwin so
bravely brought forward here today. It just doesn't make any
sense, where we have excess capacity, as Ms. Duncan was noting.
I know there are other ways to be able to handle this than
children sitting in jail. That is not necessary to do.
I am really hopeful that we can correct this because this
just doesn't need to take place the way it is. So I am very
appreciative of the hearing and I am very appreciative of the
legislation and the work of Senator Feinstein, who has worked
on this for some period of time and has brought it on forward.
I am hopeful we can get this passed.
I would note for Senator Hatch, who is ranking member of
the Committee, that he wanted to be here. He couldn't; he had a
conflict. He apologizes for that. He has got a statement that
he wants to put into the record and he wanted to discuss a bill
that he put forward that deals with an adjoining issue, but not
this one, the DREAM Act, a student adjustment bill. He wanted
to particularly thank Edwin Munoz for being here to testify.
Edwin, he had a present that he wants to give you today.
Chairman Kennedy. Is it one of his disks?
Oh, there we go.
Senator Feinstein. There is your FBI hat.
Senator Brownback. Would you care to come up? I want to
give this cap to you.
Senator Feinstein. Boy, you are on the spot.
Chairman Kennedy. You are on the ball here.
Senator Brownback. No, Edwin is.
Chairman Kennedy. Look back and see which staffer deserves
a gold medal on that one.
[Laughter.]
Chairman Kennedy. I know it was Senator Brownback's idea.
[An FBI cap was presented to Mr. Munoz by Senator
Brownback.]
Chairman Kennedy. Good for you, all right.
Senator Feinstein. There you go.
Chairman Kennedy. Well done, good for you. Congratulations.
[Applause.]
Senator Brownback. A fine young man.
Mr. Chairman, we should move forward aggressively. There is
no reason to delay on this. Thank you for holding the hearing,
and thank you really for pressing this issue, Senator
Feinstein.
Chairman Kennedy. Thank you, Senator Brownback.
I just would pick up on this point. Let me ask Mr. Morton,
Wendy, and Ms. Duncan, why not do it the way that has been
recommended in the earlier panel? Why not just do this under
the proposed restructuring plan that will place an Office of
Juvenile Affairs directly under the commissioner, with the
assurance that there would be responsibility under that program
for following through to give the kinds of protections intended
to be given under the Feinstein legislation? Why won't the
restructuring they talk about do the job?
Then, second, the judge mentioned some of the technical
matters. We always welcome ideas, particularly from those who
have experience dealing with these kinds of problems, and their
suggestions. Do you think any of these points that the judge
mentioned are insurmountable?
Ms. Young. First, let me thank Senator Brownback, even
though he has left, for joining in this effort. I think that is
very, very important.
In response to your first question, Senator Kennedy, first
of all something that I didn't have time to bring out in my
oral testimony but which is in my written testimony is if you
look back over the years, the Department of Justice has
actually moved these functions from office to office, with the
Community Relations Service, which is outside the INS, then
moving it within the Humanitarian Affairs Branch of the INS,
which is where the Asylum Corps is lodged, and then in 2000
moving it into the Detention and Removal Branch.
My point here is that unless this is statutorily codified,
what is to stop a future administration from moving this office
once again? I do appreciate Commissioner Ziglar's commitment to
looking at these issues and trying to find a new approach, but
I believe this is too critical an issue for Congress not to
step in and make sure that these kids are treated appropriately
this year as well as in coming years.
Second, I would like to flag again that I am very concerned
that the restructuring proposal does not outline clearly that
the officers who have the day-to-day responsibilities with
these children will, in fact, be reporting directly to that new
Office of Juvenile Affairs.
Mr. Morton. Wendy is a great client to have. She speaks so
well, I don't need to respond to your first question, but I
will address your second question.
With respect to attorneys, there are some implementation
issues, unquestionably. I believe that if we go with the
outlined structure in the bill, if we have an Office of
Children's Services, it will be very simple to move forward
with implementing programs such as right now we have with the
American Bar Association, grant programs which get pro bono
training, get pro bono counsel off the ground.
For as little as a $100,000 grant, you can establish a
program that can provide 100 to 150 pro bono lawyers in one
location. What that is going to do is if we codify this bill,
if we put the responsibility of INS to provide counsel for
these children, then that will give them an incentive to move
children to the areas where the counsel are located.
One of the problems now is that their incentive is not to
provide counsel. In fact, for their law enforcement motives, it
is not to provide counsel, and we see children in facilities
like Tulare Juvenile Hall three-and-a-half hours away from San
Francisco and Los Angeles. There is no way to expect pro bono
counsel to drive those lengths to take on a case and represent
those children.
If we put the incentive to have counsel, then they will
move these children where they should be located, near the
urban centers, near these programs, and we can move forward
with the implementation issues without a problem.
Chairman Kennedy. I might ask you if you would, then, Mr.
Morton, and the other members of the panel, if you have
technical recommendations I would invite you to work with our
staff in terms of dealing with them.
Ms. Duncan, is there anything that you wanted to add?
Ms. Duncan. No. I think I covered in my testimony that we
believe that the detention function is a separate function and
that the child welfare planning should not be housed in the
detention section.
Chairman Kennedy. I just want to underline your testimony
about the guardians ad litem. As I understand it, there are 900
programs. Every State in the U.S. has volunteer guardians.
While family court objectives in the system are somewhat
different from the immigration system, my question would be do
you believe that it is time that unaccompanied alien children
have someone to look out for their best interests and do you
think that the kind of training that they would need would be
generally pretty accessible to have them do the job?
Ms. Duncan. Yes, I do. I think that States and localities
have great experience providing this kind of service to
children and the service can be provided to alien children as
well.
Chairman Kennedy. Senator Feinstein?
Senator Feinstein. Thanks very much, Senator.
Ms. Young, let me begin with you. My understanding is that
you visited 18 facilities used by the INS to hold unaccompanied
children.
Ms. Young. That is correct.
Senator Feinstein. I want to ask you a question. What did
you see in those facilities, and do you think these changes
that INS wants to do are sufficient to solve an improve the way
INS handles these children?
Ms. Young. What we saw in visiting those 18 facilities was
a real spectrum and variety in facilities. The INS shelter care
facilities offer an environment of what we call soft detention.
Senator Feinstein. I missed that.
Ms. Young. They offer an environment of what we call soft
detention. In other words, it is a better environment than the
juvenile detention halls that the INS utilizes. Kids are
provided some educational services. They are wearing their own
street clothing. They do have some activities. However, the
facilities still remain highly monitored, sometimes fenced,
sometimes using security cameras, and the child is not free to
come and go as he or she pleases.
In addition, what we are concerned about in this facilities
is children may remain in those facilities for very, very long
periods of time. And whether better than the juvenile detention
centers or not, they are still institutional in nature and that
is not a good environment to leave a child in for a prolonged
period.
The juvenile jails stand in a category of their own. These
are facilities, it is very important to remember, that were
designed primarily to punish and to incarcerate youthful
offenders. And the children that we are talking about, the
large percentage of them, have in no way committed a crime of
any sort and, in fact, are seeking relief to which they are
rightly eligible under our immigration laws.
Senator Feinstein. Let me stop you right here. As Edwin
made his remarks, it is very clear that Edwin isn't a gang-
banger. It is very clear that he is a sensitive young man, and
anybody ought to be able to see that within the first 3 minutes
that they deal with him. On the other hand, there are those
problems out there.
If you automatically put a child in a situation--let's say
a teenager, let's say a 16-, 17-year-old--where they can go and
come before you have had the opportunity to do the necessary
classification, as they would say in the other sector, to know
what you are dealing with, that minor can just disappear, as
has been said up here by the Ariana Felix organization in
Tijuana, for example.
Ms. Young. I think what really is the heart of S. 121 and
is so critical that we put in place is that we make
individualized determinations in each and every child's case.
Senator Feinstein. That is right.
Ms. Young. Yes, there will be children whom the INS
encounters who may have some problem with the law, but we
should treat those children accordingly. I believe S. 121
really puts in place the structure so that we can make those
kinds of nuanced, sophisticated decisions on behalf of each
child.
Senator Feinstein. Mr. Morton, under the Constitution and
your interpretation of the law, is a child in this situation
entitled to representation?
Mr. Morton. I would not sit here and try to make a
constitutional claim for the right to counsel of alien
juveniles. In fact, there is a body of law that dictates how
many constitutional rights an alien has and a separate body of
law that dictates the constitutional rights that are extended
to children. And where these two intersect, I think that we
need to depend upon legislation to move forward with counsel
for juveniles.
Senator Feinstein. What I would like those people who have
helped us with the legislation to know is I went over the
legislation word by word the other day and we took some things
out and we tightened it up, and I would love for you to take a
look at it.
One of the aspects that concerned me was really whether
there should be in Justice. I think the Attorney General ought
to make the appointment and the head of the office ought to be
responsible to the Attorney General, not to the Commissioner of
INS. But my question to you who work in this area is does it
make sense to leave it within the INS as long as the reporting
chain is outside?
Ms. Young. If I could suggest perhaps that there is a
little bit of a model here that we could look at, which is the
fact that--I can't remember what year it was, but at one point
we did move the Executive Office for Immigration Review out
from underneath the INS and made it into a separate office
within the Department of Justice responding to the Attorney
General.
I think that is a model that we should really follow here.
I think it is a clean break. It separates those functions well.
I agree with you that probably there is some tightening that
needs to be done in this legislation, but I do believe that
this is a structure that we should leave intact within the
legislation.
Mr. Morton. I would agree with that and I would just also
say again I outlined in my testimony what we perceive to be
some very inherent conflicts of interest within a law
enforcement agency to provide for the interests of the child.
Keeping it with the INS, no matter where it is within INS,
it is still within INS. According to the restructuring plan, as
Wendy mentioned earlier, there is a great deal of ambiguity.
What kind of direct line authority would work its way down from
this Office of Juvenile Affairs?
We have had experiences with the current structure where it
is very clear that anybody who works with INS will tell you
these are fiefdoms; these are district directors who do not
feel like they report to headquarters. And we were told
directly from the districts that they do not report to the
juvenile director.
Unless there is a great deal of assurance that this new
office that they are proposing has direct line authority, can
make decisions, will take care of placements, will take care of
transfers, and will not be some policy office with nebulous
oversight of the system, then I just do not feel that that
would ever be the right solution.
Senator Feinstein. There is an infrastructure there, the
connection between the Border Patrol, not to have to set up a
whole other infrastructure, but to be able to utilize the good
part of what is there and then remove the bad part by law.
Mr. Morton. I would have to be assured that there was a
great deal of separation between the Enforcement Branch and the
children's services office. According to what has been proposed
thus far, it does not appear that this is anything more than a
policy with shared responsibility, where district directors,
district juvenile coordinators, Border Patrol-type people,
removal officers, detention officers, will be making the
decisions about care and custody of children.
Senator Feinstein. Well, all right, go back to Edwin's
case. He comes across the border. He is picked up by the Border
Patrol, who then takes him to an INS facility. Now, under our
plan, how do you see this functioning from the time the
individual is picked up by the Border Patrol?
Mr. Morton. Within S. 121, with the Office of Children's
Services?
Senator Feinstein. Yes.
Mr. Morton. Well, what the bill would do is transfer the
legal and physical custody of the child from INS Border Patrol,
local law enforcement, whoever picks up the child, and
transfers that custody to the Office of Children's Services,
the key being that the office is staffed with child welfare
professionals and has no vested interest in the outcome of the
case.
Senator Feinstein. You are talking about an imminent place
to keep him out of detention?
Mr. Morton. I think that within the first several days, we
are always going to be in a situation where the detention needs
are going to have to be met. Even under the governing law right
now, Flores v. Reno, that settlement agreement, within the
first 72 hours INS can detain children wherever they need to.
That includes secure facilities.
But once that window has past, once they have gone beyond
the 72 hours, they need to put the child into the least
restrictive setting appropriate, and that is what I envision
the Office of Children's Services would do. I don't think that
there is any way that we can ensure from the moment that they
get picked up that they would never be detained in an
unpleasant situation because the fact is that some of the
border-crossing areas, that is just the closest place to detain
the child.
But very soon thereafter, once the custody is transferred
to an agency without an interest in the outcome of the
immigration proceeding, I think that you would see a very
different set of circumstances for where these placements would
be made in areas like foster care, like shelter care, like
residential facilities, and that is just not the case right
now.
Senator Feinstein. My understanding is that at any given
time there are approximately 500 children that are going
through this process, and I just wonder if you can get done
what you have to get done within 72 hours.
Ms. Young. Can I jump in here for just a second?
Senator Feinstein. Yes, please.
Ms. Young. I think picking up on a phrase Senator Kennedy
used, I think the point here is to create, as best we can, a
seamless web for these children. There is the practical reality
and there is also the ideal. I think the practical reality is,
of course, the INS will probably be the agency that first
encounters these children and that they will need to have a
place to house these children.
The 72 hours is incorporated into S. 121 that custody be
transferred at that point from the INS to the Office of
Children's Services. However, I think if this bill were to
become law, we may be able to actually move toward the ideal,
my thought being that we would probably reach a point where the
Office of Children's Services might have services available
readily at those points where kids are encountered along the
border.
Senator Feinstein. Ms. Duncan?
Ms. Duncan. It is typical in county or State child welfare
systems to have a system of receiving care where children are
held in safe haven while their initial case parameters are
being determined. It is likely that INS will need to have some
sort of secure facilities while things are being sorted out.
But it is also probable that there could be safe haven
foster care settings or safe haven receiving care settings
where children could be held for a short period of time. Ten-
year-olds may not need to be in a security facility; 5-year-
olds probably don't. So it wouldn't happen right away, but the
Office of Children's Services could devise a series of
placements so that there are places for children to go.
Senator Feinstein. Thank you.
Edwin, let me just give you my thanks. You are a very brave
young man and I have no doubt that you are going to be
successful. If you study hard, who knows, you may even be head
of the FBI 1 day. I have a little thing to go you afterwards,
if I might.
Chairman Kennedy. Very good. We want to thank all of you
for excellent testimony, very helpful, a lot of very important
information and a great deal of thoughtful commentaries from
people who have really lived through this system in a very
important way. Their experience and insights, and most of all
their sense of compassion and decency has come through so well
today. I want to thank all of you very much for a very, very
helpful hearing.
The Committee stands adjourned.
[Whereupon, at 4:46 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
SUBMISSIONS FOR THE RECORD
March 12, 2002
The Hon. Edward M. Kennedy
Chair, Subcommittee on Immigration
Committee on the Judiciary
United States Senate
Washington, DC 20515
Mr. Chairman and members of the Subcommittee:
We the undersigned are writing on behalf of the Philadelphia legal
community to express our support for the Unaccompanied Alien Child
Protection Act (S. 121). This legislation is essential to ensure that
the best interests of the child will govern the care and custody of
unaccompanied minors who travel to this country seeking protection from
further persecution, abuse, mistreatment and neglect.
I. S. 121 cures the INS's conflict of interest with respect to
children in its custody in which the INS has favored prosecution over
care.
Currently, the U.S. Immigration and Naturalization Office (``INS
'') is charged with both the care and prosecution of children it takes
into custody. The INS role as custodian of unaccompanied minors is
severely compromised by its primary function as an enforcement agency.
This conflict perhaps is best exemplified by INS' refusal to
release children to parents without legal status unless the parents are
in removal proceedings. Even though other family members with legal
status may be available to take custody, the INS holds children as
`bait' until their parents place themselves in removal proceedings.
This practice places unnecessary stress on a child by pitting her
against her parents.
The INS is required to release children to relatives. However, it
frequently detains children despite the presence of close relatives who
are willing to care for them.
``Sara'' is a 14-year old girl from Eritrea. Her parents and
siblings were arrested 4 years ago for political reasons, but
Sara escaped arrest because she was spending the night at a
friend's house the night that the police came for her family.
She hid with friends of her family in a neighboring country and
then came to the U.S. in September 2001. Her aunt, who is a
legal permanent resident, lives in Ohio and was desperate to
have Sara released to her, but INS challenged whether their
relationship was valid. INS was provided with extensive
documentation, including the birth certificates of Sara and her
aunt, school records listing family members, and notarized
affidavits from family friends, tax documents from the aunt,
and the aunt's resident alien and social security cards but INS
continued to demand further documentation from Sara's
representatives. Sara was released to her aunt in March 2002,
nearly six months after she was placed in detention.
Even when family members seek custody, the INS often conditions
release on arbitrary and unreasonable demands, so that detention is
unnecessarily protracted. This prolonged, unnecessary detention is
psychologically damaging to the children and a needless expense to
taxpayers.
``Sonia'' a nine year old child was detained for over four
months although her father, present in the US and already in
court proceedings, produced all the necessary documentation for
her release within a few days of her arrival. This non-English
speaking child endured not only separation from her family, but
extensive weight loss due to dietary changes. She also
contracted the chicken pox and was held isolated in quarantine.
In Pennsylvania, children with active immigration cases have
remained in detention for over a year, even when less restrictive
alternatives are available and even mandated by the INS' existing
Flores agreement. Often this is due to INS' failure to use foster care
options while a child's case is pending.
The INS frequently shuffles children in detention from facilities
in one state to another. This unnecessarily prolongs the child's stay
in detention by delaying the proceedings while the hearings are
rescheduled in the local tribunal. Furthermore, it impacts the child's
access to legal representation. Many of these children were able to
secure pro bono counsel where they were first detained, but the
transfer forces them to search anew for local counsel who must then be
brought up to speed on their case.
The INS also arbitrarily and unfairly hinders the ability of
children victimized by abuse, abandonment and neglect to secure special
protections for which they are eligible. Last year, the Philadelphia
District INS refused to release from its custody six children who were
entitled to seek a dependency order from juvenile court in order to
obtain a Special Immigrant Juvenile Visa from the INS. In each of these
cases, the Philadelphia District INS ignored the fundamental principle
of acting in the best interest of the child and either ignored the
request and allowed the child to ``age out'', or denied the request
outright.
``Vladamir'' is a 17-year old boy from Azerbaijan. His parents,
who were Christians of Russian and Armenian ethnicity, were
killed by Muslims from the Azerbaijani ethnic group during the
civil war in Azerbaijan in the 1980's. Vladamir went to live
with a family friend in Russia, but had no legal immigration
status there. When he was 15, the family friend died and he
ended up living on the streets. As an orphaned child, Vladamir
is eligible for a Special Immigrant Juvenile visa, and asked
for INS to grant permission for him to pursue this visa in
December 2001. In March 2002, his request was denied.
One of the most crucial aspects of the proposed legislation is that
it offers a constructive solution to this untenable conflict of
interest. It is impractical and irresponsible to expect the INS to
balance the competing interests of prosecution and custodial care, and
we do not hold any other enforcement agency to this expectation. By
placing these children in the care of a special Office of Children's
Services, this would ensure that the physical and mental health of the
child are not disregarded in the face of the INS interest in
deportation.
II. S. 121 assures that children in INS custody will have access to
legal representation and counsel, as well as other essential health
care services
Each year, nearly 5,000 children arrive in this country without
lawful immigration status and no parent or legal guardian to provide
them with care and legal custody. A significant number of these
children are routinely placed in secure detention facilities by the
INS, further victimizing them. Placing the children under the care of a
newly created Office of Children's Services, charged with assuring
comprehensive care with a team-based approach to providing an array of
social, medical and educational services, supported by legal
representation, is a substantial improvement to the current system of
detention.
A host of legal, social and psychological issues surround children
in detention:
The legal needs of unaccompanied minors are complex,
ranging from developing a defense for their removal
proceedings, working towards their release to family members,
or securing their voluntary departure back to their country of
origin. Detained children frequently face linguistic barriers
and cultural isolation, in addition to experiencing trauma from
their extended separation from family.
Children detained by the INS often have experienced
emotional or physical persecution by individuals in their home
country; some have seen family and friends killed and/or
tortured; and others, are victims of abuse, abandonment or
neglect. Many of these children have suffered unspeakable
torture, the loss of family members and loved ones, hunger and
deprivation prior to their arrival in this country. INS
detention often compounds the anxiety and stress of these
children. Moreover, the detention causes many children to
abandon viable claims for relief because they cannot bear the
conditions of confinement.
Most troubling is the placement of children who suffer
from serious mental health problems in secure detention, a
practice the INS alleges is for their own protection.
Most of the detention facilities are located more than one hour
outside the nearest urban center. This significantly restricts access
to experienced immigration attorneys, social service providers and
interpreters to assist children with their legal case or address other
medical and/or mental health needs.
The Philadelphia District INS detains unaccompanied minors between
the ages of 7 and 17 at the Berks County Youth Center (BCYC). In 2001,
INS detained approximately 200 unaccompanied or separated children at
BCYC. BCYC is located nearly 1\1/2\ hours from Philadelphia, making it
difficult to recruit pro bono attorneys, secure interpreters and other
social services providers, and to meet the legal, medical and mental
health needs of the children.
BCYC consists of two medium secure units with 24 hour intensive
staff supervision and a high security or ``secure'' facility that holds
immigration detainees and U.S. citizen juvenile offenders.
The secure facility used by Philadelphia District INS is highly
punitive, depriving children of the most basic services. The children
are strip-searched after attorney visits, prevented from speaking any
language except English, handcuffed while transported and physical
restraints by staff are frequently reported for small transgressions.
``Jin'' was placed in Secure detention by INS after INS claimed
he acted out in shelter care. He was told that he would be sent
to secure detention until he learned to behave himself and
after a few days he would be brought back to ``regular
detention''. Weeks went by and this boy with no criminal
convictions sat languishing in a secure cell. He was not
allowed to speak his language and was stripsearched after
visits from his representative. Jin was so upset by his stay in
secure that whenever his representative visited him to discuss
his asylum case he only wanted to talk about how difficult it
was for him to stay in secure.
Sara, Sonia, Vladamir and Jin's experiences illustrate the need for
5.121. They are just a few examples of the thousands of unaccompanied
children whose best interests have been compromised as a result of the
system that combines care and custody with prosecution. Presently,
5.121 provides the only viable alternative to ensuring that the unique
needs of unaccompanied immigrant children are served.
We strongly encourage the members of this committee to take
advantage of the opportunity presented by S. 121 to adopt well-
established national and international conventions and laws
safeguarding the best interest of children. These reforms embody a
free, democratic and civilized society.
Heather M. Bendit
Philadelphia Bar Foundation
Judith Bernstein-Baker
HIAS and Council Migration Services
Rupal Parikh
Nationalities Services Center
Shelly D. Yanoff
Philadelphia Citizens for Children & Youth
Metty Vithayathil
Pennsylvania Immigration Resource Center
Phyllis Grady
Amnesty International
Michele Pistone
Villanova Law School
Joy VanBerg
Lutheran Children & Family Services
Marsha Levick
Juvenile Law Center
Julie Slavkin
Southeast Regional Immigrant and Citizens Coalition
Statement of Hon. Maria Cantwell, a U.S. Senator from the State of
Washington
I would like to thank Senator Kennedy for chairing this important
hearing on S. 121, the Unaccompanied Alien Child Protection Act
introduced by Senators Dianne Feinstein and Bob Graham. I am pleased to
cosponsor this bill.
Every year, the INS detains thousands of children who arrive at our
borders without documentation and without a parent or guardian. Due to
the lack of adequate detention facilities for these minors, the INS
often places these children among juvenile offenders or even adult
prisoners. This happens in every state including my own. The children
are often subjected to disciplinary measures such as handcuffing,
shackling, and solitary confinement.
These children, who generally speak little or no English, have no
right to a guardian ad litem or government-appointed counsel. They
consequently appear in immigration court alone against experienced INS
attorneys. Attorneys who represent these children have difficulty
communicating with their clients because the children can be moved from
one facility to another without their attorney's knowledge. Without
proper legal assistance, these children are at high risk of deportation
to countries where persecution, civil unrest, and human rights abuses
abound. The inherent conflict of the INS overseeing both the care and
deportation of these children is further compounded by the absence of
any special office within the INS to monitor these children and their
welfare.
Of the thousands of children subjected to this process each year,
one that I am personally familiar with is that of Ramon Zepeda. Ramon
was born in Nicaragua to a mother who abused him and sold him into
slavery. He later became homeless, and after spending years living on
the streets, Ramon walked out of Nicaragua, through Honduras and El
Salvador, and eventually into Mexico. He was apprehended at the border
when he tried to gain entry into the United States. At the age of 16,
Ramon was initially placed in a detention facility in Arizona with
adult men. Prior to being granted asylum before an immigration judge,
Ramon spent five months in juvenile jails in four states ending up in
Washington. Fortunately, a loving couple from my state in Bellingham is
working with the INS to become foster parents for Ramon. Many children
like Ramon do not find such a happy ending.
I want to commend INS Commissioner Ziglar for acknowledging the
problems with the current system, and I am pleased that he recently
announced the creation of the Office of Juvenile Affairs to oversee the
protection of juveniles. While I applaud this initiative, I remain
concerned that children still remain under INS jurisdiction, and will
not receive counsel and guidance from outside the INS.
The Unaccompanied Alien Child Protection Act responds to many of
these concerns by establishing the Office of Children's Services within
the Department of Justice to coordinate legal and social services for
unaccompanied minors. The Office of Children's
Services would establish standards for custody, detention, and
release to ensure that detention is in an appropriate facility, to
require release whenever possible to parents and legal guardians, and
to expand the use of foster care placement. Additionally, the Act
provides minors with access to counsel and a guardian ad litem to
safeguard their legal rights. Finally, this legislation protects the
immigration status of children who age-out of eligibility while INS
approval of an immigrant visa is pending.
The Unaccompanied Alien Child Protection Act does not change INS
jurisdiction over enforcement matters or adjudication of asylum claims,
nor does it interfere with custodial rights of parents or guardians to
seek family reunification.
The Unaccompanied Alien Child Protection Act is a pro-children bill
that addresses the special circumstances of unaccompanied alien
children with respect to their particular custodial and legal needs. I
look forward to working with my colleagues on this important piece of
legislation.
Thank you again, Mr. Chairman.
Florence Immigrant & Refugee Rights Project, Holly S. Cooper, Florence,
Arizona
Mentally Retarded Child Highlights Need For S121
Juan Carlos (real name withheld) crossed the border on October 6,
2000. He was placed in a county jail in Yuma, Arizona because there was
no room at the INS shelter. After space became available at the INS
shelter, Juan Carlos was moved the Southwest Key in Casa Grande,
Arizona.
Juan Carlos, however, was transferred out of the shelter only
twenty-four days after his arrival. On November 3, 2000, Southwest Key
requested Juan Carlos be removed from the program and recommended he be
placed in a juvenile jail. Staff believed he did not take the rules of
the shelter seriously because he would smile when reprimanded for what
appeared to be escape attempts. Staff at Southwest Key also noted that
client refused to participate in class due to withdrawn behavior.
Juan Carlos was then transferred to a juvenile jail in Globe,
Arizona. In the jail, Juan Carlos was ``hog-tied'' when he refused to
go back to his cell. He was reprimanded for trying to hold another
child's hand. Undoubtedly, the boy was confused and had no
understanding of what was happening.
The Immigration Court in Phoenix contacted the Florence Immigrant &
Refugee Rights Project to see if they could represent the child. The
Florence Immigrant & Refugee Rights Project had not yet begun to work
with children but agreed to visit Juan Carlos and engage in
representation. I, Holly Cooper, agreed to assist Juan Carlos and I
immediately noted that the child was so completely withdrawn that he
could not even speak. He answered ``yes'' to every question, even if
the question did not call for a yes or no answer.
After several visits, I discovered the child could not speak
Spanish. The boy was an indigenous Guatemalan who spoke and indigenous
language. When an indigenous translator attempted to communicate with
the child, it became apparent that the child was either so neglected or
so mentally disabled that he could speak no language fluently. The
child and I slowly began to develop our own special language, using key
words that we both understood. I learned that the child had lived alone
in Mexico since he was eight years old. He had no contact information
for any family. He had no one left in Guatemala. The child guessed that
he was about 15 years old but did not know his true age. Slowly, the
child and I came to form a trusting relationship.
On January 31, 2001 at 3:30 p.m., I was informed that the INS was
having procurement issues with the jail in Globe and Juan Carlos was
going to be moved to Los Padrinos Juvenile Hall in Los Angeles,
California.The child was moved about one hour after the phone call.
The next day, with the help of another child, Juan Carlos called me
collect from a staging area in San Diego. The children all stated that
they had not eaten in twenty-four hours. He asked the me, ``Will I be
going to a better place?"
The next day the child was admitted to Los Padrinos Juvenile Hall.
I then requested a psychological evaluation for the child, but was told
that he would be provided a psychological evaluation when he arrived at
Tulare County Juvenile Jail in Visalia, California. Twelve days later
Juan Carlos was transferred to Tulare County Jail. The same day of the
transfer, a social worker approached Juan Carlos to see if a
psychological evaluation was necessary. The social worker said the
child would not get a referral because he was merely a behavioral
problem because he refused to talk to her.
The INS said that they would not transfer the child back to Arizona
but they would allow his court case to stay in Arizona. Knowing I could
not adequately represent him due to the distance between Florence,
Arizona and Visalia, California. I tried to find a volunteer lawyer to
help Juan Carlos but Visalia, California was four hours from either Los
Angeles or San Francisco. No attorney could help. I then personally
paid for a plane flight and transportation to visit Juan Carlos because
as attorney of record I had to prepare for his legal case.
On March 6, 2001, Juan Carlos was transferred back to the Gila
County Juvenile Detention Center in Globe, Arizona. Then in May 2001,
INS agreed to transfer Juan Carlos back to the shelter at Southwest
Key.
I continually requested a psychological evaluation for the child.
The INS finally agreed to a psychological evaluation. The INS sent Juan
Carlos to a psychological examination where a doctor conducted a
thirty-minute exam translated by a deportation officer.
The attorney then begged INS to have a private psychologist do a
comprehensive examination of Juan Carlos. The INS agreed to the
evaluation only if the child would agree to waive the psycho-therapist
privilege.
The psychologist discovered that Juan Carlos is mildly retarded and
has the maturity level of a five to six-year old. Juan Carlos
eventually won his asylum case. Juan Carlos' request for state court
jurisdiction for purposes of Special Immigrant Juvenile Visa status was
never adjudicated. Juan Carlos currently lives in foster care in New
York. The child was detained for eighteen months and was released on
February 26, 2002.
This case highlights the following:
(1) Why a guardian ad litem is necessary: If Juan Carlos had been
appointed a guardian ad litem, the child could have had someone
determining his ``best interest'' from the initiation of proceedings.
The guardian could have understood that Juan Carlos was mentally
incompetent from the outset and there never would have been the initial
misunderstanding which sent Juan Carlos to juvenile jail for seven
months. Presumably, the guardian could make an independent request for
a psychological evaluation that would have been respected.
(2) Why INS should not adjudicate consent requests: In this
particular case, INS never adjudicated the consent request. Even though
INS stipulated that the child's family was in Mexico and that the child
was mentally disabled, the INS still thought it was in the child's best
interest to be deported to Guatemala where he had no family. INS' job
is to deport people to their countries of origin if there is no legal
relief under US immigration laws. The INS cannot create a special
firewall in their judgment for children. The INS cannot realistically
articulate a child's best interest while seeking deportation. Also, INS
has NO specialized training in determining what is in a child's best
interest.
social workers/clinicians working in the ins shelters cannot provide
for children's psycho-social needs because communications are not
confidential and social workers/clinicians are violating their
licensing requirements
At Southwest Key, an INS shelter, there are two categories of
individuals who pose liability concerns for INS: (1) the clinician and
(2) the caseworker. Communications to both these persons should be
confidential and when the worker violates that right, it subjects INS
to potential liability for violation of the child's privacy.
The clinician provides for each child's pyscho-social needs while
detained. For example, if a child is struggling to deal with the
psychological affects of child abuse, the child would confide in the
clinician at Southwest Key. However, because the clinician is under the
umbrella of the INS enforcement office, the communications between the
clinician and the child are NOT confidential. The clinician has weekly
meetings where s/he discusses each child's case with the caseworkers
and the program director. The information a child discloses can
prejudice the child because the information can be given to the INS
trial attorneys and the INS deportations officers. Many times the
reports are used to transfer a child from a shelter environment to a
jail.
In one instance the Program Director at Southwest Key recommended
the removal from the shelter a child diagnosed with Post-Traumatic
Stress Disorder. This ``referral'' letter always results in the child
being placed in a juvenile jail and removed from the shelter. Thus, the
psychological evaluation of the child was in part used to have him
removed from the shelter. Moreover, the shelter staff have used
declarations from other children to serve as witnesses against their
peers.
The caseworker also poses unique ethical questions for the INS.
First, the caseworker's title is often translated into Spanish as
``trabajador social'' which means ``social worker'' in English.
Representation of oneself as a social worker invokes the ethical
responsibility of confidentiality on each caseworker.
Notwithstanding the title confusion, the role of the caseworker/
social worker also sends mixed signals to the children. The caseworkers
call the children their ``clients.'' From the child's point of view
this person is there to help them and serve their needs - just as a
social worker would be in a normal setting. The caseworker is
responsible for helping each child seek reunification with his or her
family. The caseworker initiates contact with the family and verifies
if the family members are documented or undocumented. If the family
members are undocumented, the caseworker/social worker would report the
family member's legal status to the INS deportation's branch. Moreover,
if parents or brothers and sisters are in the country illegally, the
INS will use the child as bait until the parents or siblings ``come
forward'' to be processed for deportation. Thus, a caseworker telling
the INS that a child's parents are in the U.S. illegally can mean long-
term detention for the child. On the one hand, the caseworker sends the
signal to the child that they are ``helping'' the child reunify with
family, one the other hand, the caseworker in most cases reports
illegal family members to the INS and inhibits the child's ability to
be released from detention.
Thus, the S 121 Bill would help create a firewall between social
workers/clinicians and the INS' enforcement responsibilities.
Currently, the system in unworkable. Children cannot trust the
clinicians. The children are coping with trauma of child abuse,
persecution, and mistreatment by smugglers. The children must have an
opportunity to voice their concerns to a person who they can trust and
who can respect the child's privacy. Moreover, the currently system
violates each child's privacy rights and could subject the INS to
enormous liabilities if the system is not promptly remediated.
providing free legal assistance to ``trafficked'' children decreases
the smuggler's access to the child
Zheng Wei Zun (real name withheld) had been represented by an
attorney for over one year. The attorney never appeared in court yet
promised her they would help her win her case. The case was continually
reset by the court because the attorney failed to appear.
When the Florence Immigrant & Refugee Rights Project finally began
its representation of detained minors, the Court requested that the
attorneys help the child. Within three months, the child was granted
political asylum and released from detention. The child later confessed
that she feared her attorney because she believed she was hired by a
smuggler.
This fact pattern has repeated itself countless times. It is
relevant because it shows:
(1) economic waste because children are detained for longer periods
of time at government expense while incompetent attorneys drag cases on
for unconscionable periods of time;
(2) psychological harm to children because they are living in a
detention setting while the ``private'' attorney fails to adequately
represent the child;
(3) when children are provided with a ``free'' alternative to an
incompetent attorney, the child will inevitably choose an attorney who
they trust and who can handle their cases as expeditiously as possible.
(4) attorneys often are the smuggler's link to the child. Children
often do not even know the attorney that is representing them.
``Smuggler'' attorneys help the smugglers track the child after release
because the attorney is notified where the child is detained and when
the child will be released.
the district director should not determine whether the state courts
have jurisdiction over detained abused, abandoned. neglected children
Currently, the INS District Director determines whether abused,
abandoned and neglected children in its custody can become wards of the
state. The District Director of Phoenix INS has never granted consent
on any case where the child is detained in Arizona. As a result, the
child must file a mandamus action in federal court if they want access
to the state foster care system. This places an enormous burden on the
child.
The District Director defines her role in this process as being a
threshold adjudicator of whether the child qualifies for Special
Immigrant Juvenile Visas. If she believes the child is not credible or
state court proceedings would not be in the child's best interest, she
``sits'' on the consent request. The District Director is any every
sense making a preadjudication of the child's case. The District
Director has no training in child welfare, in child abuse or child
psychology. The consent adjudication process should be in the hands of
an independent decision-maker who has specialized training in child
welfare. The inquiry of whether the child should become a ward of the
state, should be left in the hands of the state court judge.
Statement of Bob Glaves, Chair, Legislative Committee, Chicago Bar
Association, Chicago, Illinois
Mr. Chairman Kennedy and Members of the Immigration Subcommittee:
My name is Bob Glaves and I am the Chair of the Chicago Bar
Association's Legislative Committee. The Chicago Bar Association (CBA)
is the over 22,000 member voice of the Chicago area legal community,
and I submit this testimony today to underscore the CBA's strong
support for the Unaccompanied Alien Child Protection Act of 2001 (S.
121). This critical legislation would begin to correct a major
injustice in our country by insuring that unaccompanied immigrant
children fleeing persecution and terror in their home countries are
treated humanely as children and afforded basic due process rights.
Each year, about 5,000 children arrive in the U.S. (many in the
Chicago area) without appropriate documentation and without a parent or
guardian to care for them, and at that point the Immigration and
Naturalization Service (INS) takes the children into custody. These
``unaccompanied children'' may be fleeing any number of dangerous
circumstances, including smugglers; parental abuse or neglect; war;
child prostitution; female genital mutilation; forced labor; and forced
recruitment as child soldiers.
More than anyone, these children need the due process protections
that are the backbone of our country. Yet in too many cases, they are
forced to proceed with no legal representation and no guarantee that
will be treated fairly and humanely or afforded even the most basic due
process rights.
Under the current system, there is an inherent conflict in the role
of the INS. The INS is responsible for the care and custody of these
children and also is charged with prosecuting their removal
proceedings, which includes trying to disprove their claim for asylum
or other immigration status. Individuals are eligible for asylum if
they can prove that they have a wellfounded fear of persecution based
on their race, religion, nationality, political opinion or membership
in a particular social group. The standard for children seeking asylum
is the same as for adults, which means the burden of proof lies on the
children who, lacking familiarity with the U.S. legal system and often
with the English language itself, must prove their claims in
adversarial court proceedings. Their opponent, in contrast, is a highly
trained, educated legal staff with virtually unlimited resources.
The existing system governing unaccompanied immigrant children runs
completely contrary to the well-established principles that govern
other cases involving the status of vulnerable children in the United
States. In all other cases, our legal system is designed so that every
effort is made to protect the best interests of the children. For
instance, in proceedings involving allegations of child abuse or
neglect in Illinois, during the pendency of the proceedings children
are:
(1) Placed with a responsible caretaker,
(2) Evaluated by experts in child welfare and provided with
necessary services, and
(3)Monitored by a private social services agency to insure proper
care.
In other legal proceedings, children always are represented by an
independent attorney and a guardian ad litem is appointed to advocate
for the children's best interests. In addition, in more complex cases,
a court appointed special advocate is assigned to thoroughly monitor
the child's wellbeing throughout the proceedings. This system insures
that the children receive safe and proper care while the case is
pending and that there is a full and fair hearing of the merits before
the judge renders a decision.
Unaccompanied immigrant children, in contrast, are guaranteed none
of these statutory protections we take for granted in all other cases
involving children. Specifically,
As noted above, the party responsible for their care
(the INS) is also the party charged with prosecuting their
removal proceedings, an inherent conflict of interest.
While the locked facility where these children are
housed in Chicago is considered a model, in other parts of the
country children often are housed in juvenile correctional
facilities without access to appropriate services.
The children do not have a guardian or other party to
look out for their best interests.
There is no guarantee that these children will have
legal representation in the adversarial removal proceedings and
they too often do not. The CBA continues to work with the
American Bar Association (ABA) and the nationally acclaimed
Midwest Immigrant and Human Rights Center (MIRHC) to recruit
and train top attorneys from throughout the legal community to
represent these children on a pro bono basis, and the ABA is
coordinating similar efforts throughout the country. In fact,
pro bono attorneys throughout the country already handle
hundreds of cases for these children. Despite these efforts,
however, 50% of the children go unrepresented in these cases
due to the inherent flaws in the structure of the current
system.
Children are often asked by the INS to sign documents
they cannot read or understand without legal representation or
are summarily transferred without notice to their legal
counsel.
The lack of these basic due process protections would be bad enough
for adults familiar with our country, but it is absolutely devastating
for traumatized children unfamiliar with the language and culture who
find themselves forced to navigate the complex immigration system
alone. The system must be changed.
The proposed legislation would go a long way towards remedying
these problems by, among other things, separating the custodial and
prosecutorial responsibilities of the INS, appointing independent
parties with expertise in child welfare as guardians, and guaranteeing
that children in these proceedings are represented by independent legal
counsel. The bill would not expand the remedies available under current
immigration law. While S. 121 will require some amendments to clarify
the guardian ad litem and attorney representation provisions, we
believe this bill is a critical and necessary first step towards
creating a fair and appropriate procedural framework for cases
involving unaccompanied immigrant minor children.
Contrary to the claims of the INS, internal restructuring of the
INS is not a valid substitute for this legislation. While the INS
commitment to undertake internal reforms regarding their treatment of
children is laudable, it cannot solve the inherent INS conflict in
these cases (i.e., the INS serving as both caretaker and prosecutor),
nor can it possibly insure basic due process protections for these
children. Only a system of checks and balances, with independent legal
counsel and guardians, can insure these protections.
The inherent conflict of the INS in these cases is illustrated well
by recent events in Chicago. Until recently, children held in detention
here were regularly and proficiently given basic ``Know Your Rights''
presentations by MIRHC and its pro bono legal counsel in the Chicago
area. However, the INS recently has barred these presentations, and
local advocates have informed us that the local INS Juvenile
Coordinator is now giving these presentations.
It doesn't require a lawyer to recognize that in taking this
action, the INS has turned our entire justice system on its head.
Imagine a detained adult prisoner (let alone a child) asking to consult
with an attorney and then getting a visit from the State's attorney who
will prosecute him to explain his rights. That of course is
unfathomable in our country, yet that is exactly what is happening to
detained unaccompanied immigrant children right now. And the existing
system allows the INS to do it, with absolutely no recourse for the
minors, which underscores why this proposed legislation is so
necessary.
In short, legislation to provide fundamental protections for these
children is more necessary than ever. We strongly support the core
principles of S. 121, which goes to the heart of what our nation of
immigrants is built upon, and we hope you will do so too. Thank you for
your consideration.
Statement of Hon. Orrin Hatch, a U.S. Senator from the State of Utah
I am pleased that our attention is focused today on the plight of
children who lack lawful immigration status in the United States. In
the aftermath of September 11, 2001, we have, in a very bipartisan
manner, tightened some of the immigration laws and procedures that have
left us vulnerable to those who would seek to do us harm and we will
continue to do so. Accordingly, it is my sincere hope that the Senate
will quickly pass the Enhanced Border Security and Visa Entry Reform
Act of 2001, which the House passed last year. That bill, which is a
measure of true bipartisan support, is a product of many hours of hard
work and is desperately needed. However, we must also remember our
humanitarian legacy when it comes to special consideration of the
immigration status of particularly vulnerable classes of people.
Sadly, more than a few foreign-born children arrive in the United
States each year without parents or legal guardians. In 1999, for
instance, more than 4,600 such children entered the country. Some
children are rented--yes, you heard me correctly, rented--to
unscrupulous smugglers, who then use the children to perpetuate the
fraudulent entry of others who either lack a valid visa or have no
intention of abiding by the terms of the same. Other children come in
hopes of escaping desperate circumstances and persecution in their home
countries. Whatever the case, unaccompanied minor children are often
victims in the truest sense of the word.
Once here, these children, who usually speak little or no English,
face a very complex legal process. In addition, the INS must determine
where to place the children pending the oftentimes lengthy ordeal. All
too often, these children have been unnecessarily placed in highly-
secured facilities, co-mingled with violent juvenile offenders.
Today, I am very interested in the discussion of S. 121.
Particularly, I would appreciate the comments of the witnesses
regarding (1) the need for legal counsel and guardians ad litem to
assist unaccompanied children and (2) the proposed change to transfer
custody of unaccompanied minor children from the INS to a separate
office within the Justice Department, and why it is suggested that both
are necessary.
However, before I end, I would also like to briefly discuss an
equally important and related issue: that of a slightly different class
of children--those being long-term illegally resident children. That
is, minor children who were illegally brought to and remain in the
United States through no fault of their own. Long-term illegally
resident children often are not even aware of their illegal status in
the United States. They are, by law, accorded the right to education
through high school. However, they are provided no independent ability,
no matter what their individual accomplishments, to become lawful
permanent residents. That is why I have introduced student adjustment
measures. I should also recognize and commend a similar, but different
approach to this issue sponsored by my good friend, Senator Durbin. We
recognize that although the parents of long-term illegally resident
children knowingly remain in the United States in violation of the law,
their children are assimilated into American culture; they attend
school, participate in extracurricular activities, and earn
scholarships to college. They are largely intent on being contributors
to society, and want to better themselves. Current law provides a
disincentive for that to happen. They lack the right to work. It is
very difficult for them to obtain the college degrees so many of them
desire. For instance, under current law, individual states are not
permitted to allow long-term illegally resident children to pay in-
state tuition despite having what would normally be resident status for
tuition purposes.
To illustrate, allow me to briefly mention the moving story of one
of my constituents, Danny. When he was 6 years old, Danny's mother
illegally brought him into the United States. After a very difficult 8
years, Danny was finally abandoned and left to roam the streets of Salt
Lake City. While Danny had been attending school, he dropped out so he
could earn enough money to survive on his own. Finally, Danny met Kevin
King, the owner of a Utah landscape company, who agreed to hire him.
Discovering that Danny had no home, Kevin invited Danny to live with
him in what he believed would be a temporary arrangement. In a recent
letter to me, Kevin mentions that, ``The first couple of months
together I learned a great deal about Danny. I learned that one of the
things he missed most was being able to go to school.'' Kevin then made
the necessary legal arrangements for Danny to resume his education.
Although Danny had a full year of classes to make up, he did so under
Kevin's care by attending night and summer school, and even taking some
correspondence home study courses.
On September 25, 2001, Kevin adopted Danny as his son. However,
because of the date of the adoption, Danny is ineligible to become a
lawful resident of the United States. Instead, he lives in legal limbo,
ever-fearful that the INS may take steps to remove him from the only
true family he has ever known. He cannot legally work, and securing a
college degree is proving difficult and costly. However, that has not
stopped Danny. He is now in his third semester of college at the
University of Utah and I am proud of him.
Again, I quote from Danny's father's letter. ``Danny is exactly
what our country needs more of. He is a natural born leader with
charisma and intelligence and a drive that will take him wherever he
wants to go. But this will not be possible if Danny is unable to obtain
permanent residency.'' Danny also writes and states, ``My father gave
me the gift of feeling . . . and the opportunity to dream.''
Danny's story is one of thousands. The student adjustment bill I
introduced last year, called the Dream Act (S. 1291), can remedy this
grave situation. It provides for earned or incentivized adjustment. It
does not grant amnesty. Qualified children must be long-term illegal
residents of the United States, meaning those who entered the United
States only recently are ineligible for adjustment of status under the
bill. Further, the child must have good moral character ensuring that
we do not extend any benefit to those who do not deserve it.
In short, I am very pleased that we are discussing these issues
today and commend the chair and Senator Kennedy for their leadership
and for holding this hearing.
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
First, let me thank Senator Kennedy for holding this hearing about
a most vulnerable population--unaccompanied minors entering the United
States. I would also like to praise Senator Feinstein for her
consistent attention to this important issue. I remember that while
this Committee and others in Congress were debating the fate of Elian
Gonzalez, Senator Feinstein sought to have us focus on all the children
who arrived here as Elian Gonzalez did. Early last year, she introduced
the Unaccompanied Alien Child Protection Act.
Senator Feinstein's bipartisan bill would establish an Office of
Children's Services to coordinate the government's treatment of
unaccompanied minor aliens. That office would be responsible for taking
care of unaccompanied alien children while their immigration claims
were heard. The bill would forbid detaining these children in
facilities for adults or delinquent children and ensure that all such
children would have counsel and a guardian ad litem. It would also
create a special immigrant juvenile visa.
We will hear today from strong proponents of S. 121, and we will
also hear from the INS and the Justice Department about its concerns. I
know that Commissioner Ziglar is committed to improving conditions for
children in the immigration system, and I appreciate his involvement in
this process. I would hope we can work with the INS and with the
Justice Department to do something this year to protect children.
Senator Feinstein's bill does many important things, and deserves the
full consideration of this committee.
Statement of Hussein Sadruddin, Soros Postgraduate Justice Fellow,
Lawyers' Committee for Civil Rights Under Law of Texas, San Antonio,
Texas
Mr. Chairman Kennedy and Members of the Immigration Subcommittee:
My name is Hussein Sadruddin and I am a Soros Postgraduate Justice
Fellow with the Lawyers' Committee for Civil Rights Under Law of Texas,
Immigrant & Refugee Rights Project (``Texas Lawyers' Committee ''). The
Texas Lawyers' Committee is the only statewide organization dedicated
to defending the rights of immigrants and refugees in the state of
Texas. I submit this testimony today to highlight serious concerns
about the treatment of minors is INS custody. I have had the
opportunity visit various juvenile detention facilities and have
provided assistance to many minors who are in INS custody. The Texas
Lawyers' Committee also assists in providing ``Legal Rights''
presentations to minors in Liberty County Juvenile Detention Facility
in Liberty, Texas as well with legal assistance to minors in El Paso,
Dallas and San Antonio, Texas.
I would like to bring to your attention three cases which highlight
the treatment of unaccompanied minors in Texas.
(A) Case of I.A.F-P: This thirteen (13) year old minor was
placed in a secured juvenile detention facility in Liberty
Texas for nearly a year and a half. After conducting a rights
presentation, we found the child to have a credible fear of
returning back to his home country. His pro bono counsel filed
an appeal in his case but prior to his appeal, the Service
unlawfully removed the child back to Honduras. Furthermore, the
child was never turned over to the mother by the Honduran
authorities and is now missing.
(B) Case of C.D.: The Immigration & Naturalization Service
placed this sixteen-year-old Chinese national in a secured
juvenile facility for nearly two-years. Nearly 3 months ago,
his pro-bono counsel noticed a change in his behavior. The
child refused to eat or talk to anyone. He refused to take his
medication. Despite several requests from the pro bono counsel
as well as other non-profit organizations, INS did not provide
mental health assistance to the minor for months. Once such
assistance was eventually provided, it was revealed that the
child was suffering from sever psychosis and needed immediate
hospitalization. His mental condition was severely worsened by
his lengthy stay in the secured facility. Furthermore, INS
initially refused to transfer the child to a non-secure
hospital recommended by INS's own physicians. Eventually, upon
requests from various non-profit advocacy organizations as well
as faith-based groups, INS finally transferred the child to a
hospital nearly 3 months after the request for mental health
evaluation was made.
(C) Case of N.E.K.: This is a sixteen year old child from
Burundi who came to the United States as a stowaway after both
his parents were brutally murdered in Burundi. Despite the lack
of any criminal record or behavioral problems, he was placed
immediately in a secured juvenile facility. Although the child
was detained in the San Antonio INS District, the Houston INS
District was processing his case. No nonprofit agency was ever
notified of this child until a sympathetic jailer contacted an
organization requesting assistance for a child who has been
``crying continuously for a week''. Two weeks later, he was
transferred to an adult facility after a faulty dental
examination revealed that he was over the age of eighteen. A
thorough evaluation of the dental exam revealed that the exam
was incorrect and the child war re-transferred to secured
juvenile facility after spending nearly a week in an adult
facility.
The cases listed above merely shed a light on a larger problem that
the advocates face daily. The unaccompanied children are constantly
placed in facilities that are designed to hold criminal juveniles. The
non-profit organizations dedicated to providing assistance to minors in
INS custody are routinely not notified of where the minors are being
held. The unaccompanied minors in Texas are routinely placed in
locations that are far away from cities and away from agencies that
maybe able to provide assistance to them. In many facilities, minors
are only allowed to contact organizations by calling them collect.
The treatment of many of these unaccompanied minors is abhorrent.
In one secured facility, minors who were considered ``flight risk'' or
``behavioral problems'' were routinely stripped naked and placed in
solitary confinement as punishment. In another facility, unaccompanied
minors were continuously placed in chains and shackles.
Our office has represented numerous unaccompanied minors and has
assisted many non-profit organizations and pro bono attorneys in their
representation of unaccompanied minors. Unfortunately the tales of
physical and verbal abuse and lack of compassion for the treatment of
these minors are neither unique nor scattered.
While S 121 is a step in the right direction, we request that the
committee take a hard look at the treatment of unaccompanied minors in
this country. The Immigration & Naturalization Service has continuously
shown that their interest lies in detaining and removing the minors
rather than looking out for the child's ``best interest.'' A change in
the process by which unaccompanied minors are treated in this country
is overdue.
Lastly, I would like to than the committee for giving me an
opportunity to share my thoughts and concerns about the unaccompanied
minors with you. I am at your disposal if you need any further
information.
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