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U.S. Faces Challenges in the Protection of Unaccompanied Children

First in-depth investigation into conditions of care since transfer of custody to ORR in 2003

(Washington, D.C.)—Conditions of care for unaccompanied immigrant children in the custody of the U.S. government have markedly improved over the last six years, but more must be done to protect the safety and basic rights of these vulnerable children, cautions the Women's Refugee Commission in its new report, Halfway Home: Unaccompanied Children in Immigration Custody.

In 2007, the Women's Refugee Commission and Orrick, Herrington & Sutcliffe LLP embarked on a landmark study to assess the conditions of care and confinement for children in immigration proceedings without a parent or guardian and to determine the effectiveness of a 2003 transfer of custody from the former Immigration and Naturalization Service (INS) to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).

The resulting report is based on the findings of visits between April 2007 and February 2008 to more than 30 programs operating under ORR's Division of Unaccompanied Children's Services (DUCS), three facilities where Immigration and Customs Enforcement (ICE) detains children and three Border Patrol stations. The Women's Refugee Commission and Orrick, Herrington & Sutcliffe interviewed staff, attorneys, advocates, social workers and more than 200 children.

"Unaccompanied children are some of the most invisible and vulnerable migrants," said Michelle Brané, Director of the Women's Refugee Commission's Detention and Asylum Program. "They have little understanding of what is happening to them, and the majority are repatriated to their home country without so much as an evaluation to determine whether they have a fear of return. The U.S. government has a special responsibility to provide for and protect unaccompanied children crossing into our country."

In 2007, more than 90,000 unaccompanied children were apprehended along the southern border of the United States. Most were returned to Mexico (the country of nationality of the majority of these children), some were reunited with family and approximately 8,000 children were placed in immigration proceedings and in U.S. custody.

Many of the children who are apprehended are fleeing persecution, gang violence, sexual abuse or abandonment. Others come to reunite with family members who are already in the U.S., or to seek a better life for themselves. An increasing number are victims of traffickers and smugglers. All are highly susceptible to rape and assault during their arduous journey to the U.S.

In an effort to separate prosecution from care, the Homeland Security Act of 2002 placed authority for immigration enforcement in the hands of the newly-created Department of Homeland Security (DHS) and responsibility for children's care and housing decisions with ORR. In March 2003, ORR created DUCS to implement a more child welfare centered model of care.

The Women's Refugee Commission was pleased to see that improvements have been made in the treatment of vulnerable unaccompanied children in the last six years and commends ORR for their cooperation with our evaluation.

"Some children are now placed into foster care, and most of the children in DUCS custody reside in more child-friendly shelters and group homes," said Brané. "These children enjoy better medical and mental health care and educational services than before, and many more are reunified with parents or relatives while they await a decision in their immigration case. However, we've found that the transfer of custody is not yet complete and challenges remain for ORR."

"ORR has more than twice as many children in its care than at the time of the transfer," said Rene Kathawala, pro bono coordinator of Orrick, Herrington & Sutcliffe. "As the number of children in the system has increased, some DUCS sites have become more institutional in nature. And while many facilities do provide excellent care to the children, there are also a number of sites where policies and procedures are not being met, where children may be subject to overly harsh disciplinary techniques and where services are lacking."

A lack of effective oversight contributes to inconsistencies in service delivery and delays in addressing grievances and safety concerns. Furthermore, said Kathawala, "DUCS shares confidential information from children's case files with DHS in conjunction with court proceedings and when children are released. DHS can then use this information against children in court and to re-detain released children with their parents."

In addition, although DUCS is the legal custodian for unaccompanied children, the report also found that DHS exercises significant and inappropriate influence over their custody and care, including retaining custody of some children whom the Women's Refugee Commission considers unaccompanied-and who therefore should be transferred to DUCS within 72 hours of being apprehended.

"Moreover, children in DHS custody for any length of time are housed in inappropriate and unsafe conditions in Border Patrol stations, juvenile detention centers and, at times (as a result of flawed age determination procedures) in adult detention facilities," said Brané. "DHS serves as gatekeeper in deciding which children will be transferred to DUCS, and when. And because DHS has not adequately responded to our inquiries about children in their custody, we don't know the total number detained or their whereabouts. This is clearly an area of significant concern."

Congresswoman Lucille Roybal-Allard (D-34/CA) shares these concerns. In a few weeks, she will re-introduce the Immigration Oversight and Fairness Act. The legislation will require DHS to provide independent licensed social workers at the majority of Border Patrol stations so that children are informed of their legal rights and provided with emergency medical and mental health care, bedding, blankets, recreation and adequate nutrition. It will also ensure that children are kept safe from abuse during transfer to DUCS or upon repatriation and would prevent DHS from co-mingling unaccompanied children with (non-relative) adults or juvenile offenders.

If passed, the legislation will provide the first codified standards of treatment for children during the critical hours and days after they are apprehended by Border Patrol but before they are transferred to DUCS.

The Women's Refugee Commission has a record of strong advocacy on these important issues, and it looks forward to working with Congress and the new administration to build upon advances made in the quality of care given to this vulnerable population.

According to Brané, "In order for the United States to uphold its responsibilities to children, DUCS, ICE and Border Patrol must take the final steps to complete the transfer of custody and implement monitoring and oversight to ensure that children in custody are safe. We have an obligation to ensure that all unaccompanied children are placed in safe, appropriate settings, have access to legal counsel, and enjoy protection from harm."

Halfway Home details a few critical areas that warrant significant improvement. Key recommendations follow:

  • ICE, Border Patrol and ORR must clarify the definition of unaccompanied alien child so that no child remains in ICE or Border Patrol custody for more than 72 hours, regardless of criminal history.
  • DHS and HHS must implement the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)-a major step forward in protecting unaccompanied children which will resolve some of the deficiencies we observed.
  • To protect their best interest, children in immigration proceedings must be provided with guardians and attorneys. Most children must now represent themselves in court and navigate the complex immigration system on their own-an exceedingly difficult task for anyone, much less a child.
  • DUCS should take steps to enhance internal monitoring and oversight to ensure that sites are in compliance with DUCS policies and procedures and that complaints and concerns are addressed quickly and effectively.
  • An independent agency or organization with expertise in child welfare service delivery should conduct an analysis of the DUCS program and structure, and issue recommendations for a service delivery model that brings the program fully into line with recognized child welfare practices.