Immigration Custody of Unaccompanied Children

The thousands of children who migrate to the U.S. unaccompanied each year are some of the most vulnerable migrants who cross our borders, and are in need of special protections. The transfer of custody of unaccompanied alien children to the Division of Unaccompanied Children’s Services (DUCS), from the former Immigration and Naturalization Service (INS) has greatly improved the treatment of most unaccompanied children, and the recent passage of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) should further enhance protection for children.

However, significant child protection challenges remain under the current system. The roles of prosecutor and caretaker continue to be interwoven in a manner that interferes with the best interest of children. As a result, DHS exerts significant influence over care and custody of unaccompanied children despite the fact that DUCS is the legal custodian for this population. Children continue to be held in border patrol stations for weeks, sometimes without blankets, showers, or proper nutrition and recreation. Some children remain in DHS custody without their parents and are held in secure facilities intended for a criminal population and without access to appropriate services or legal counsel. No clear procedures exist for the safe repatriation of children who are removed.

Recommendations:

• Complete the transfer of custody:
  • DHS, HHS, the DOJ and the DOS must implement all provisions of the TVPRA, and Congress must provide them with the necessary resources.
  • ICE, Border Patrol and ORR must clarify the definition of an unaccompanied alien child and transfer all unaccompanied children to DUCS.
    
    
• Reform DHS policies with respect to children:
  • Border Patrol must improve conditions for children at all stations and holding facilities, and DHS should ensure that all agents are properly trained to interview children for credible fear and trafficking.
  • ICE should utilize child-friendly, shelter-type facilities for holding children pending transfer to DUCS.
    
    
• Reform DUCS:
  • An independent organization with expertise in child welfare service delivery should analyze the DUCS program and issue recommendations.
  • DUCS should standardize the provision of services to comply with the best interest principle and general child welfare practices, including using the least restrictive setting for detaining children.
  • DUCS should protect the confidentiality of information in children’s files and should not share case file information with ICE.
  • DUCS programs should be located in urban areas where there is greater access to pro bono services, and Congress should enact legislation that provides guardians/advocates to all children in immigration proceedings.

Read our report on unaccompanied children, Halfway Home: Unaccompanied Children in Immigration Custody, to learn more.