Protecting Unaccompanied Immigrant and Refugee Children in the United States

Vol. 32 No. 1

By

Christopher Nugent works as the Community Services Team administrator and as a senior counsel for Holland & Knight LLP in Washington, D.C. He has worked on unaccompanied immigrant and refugee children’s cases and policy issues for numerous years.

Imagine that you lose your family to political violence, becoming an orphan. You are twelve years old and have mild retardation. A friend ultimately secures a ticket and immigration documents to fly you to the United States for refuge. Upon arrival, you are arrested for bearing a fake passport. You are interrogated alone in a language you do not speak or understand. You find yourself locked up in an adult jail with criminal convicts pending an administrative immigration hearing on your claim to asylum. The authorities apparently forget to take you to see an immigration judge for eight months. Even while represented by pro bono counsel, the immigration court denies you asylum, and you remain locked up among adults while you appeal your case. You spend your first three years in the United States shuffled from jail to jail.

You are finally released to a refugee shelter, and a new asylum hearing is ordered. This extraordinary step is the result of international media coverage and over seventy members of Congress, numerous public interest organizations, and thousands of citizens appealing to immigration authorities on your behalf. You then undergo the longest asylum trial in U.S. history, with dozens of witnesses from four continents supporting you.

That was the tragic reality of Malik Jarno. He is an orphan from Guinea represented pro bono by three law firms, including my own. While he is now free, thousands of other unaccompanied children struggle in the neglected world of the U.S. immigration system. Due to heightened border enforcement during the last four years, the number of children arrested by the Department of Homeland Security (DHS) has increased from 4,615 to 6,200. These children come from all over the world, fleeing poverty, hardship, or persecution. Some are apprehended immediately at ports of entry for lack of proper documentation; others are detained after crossing the border without inspection.

Once detained, children face removal proceedings before the Executive Office for Immigration Review (EOIR), an agency of the U.S. Department of Justice (DOJ). These proceedings are administrative and adversarial, pitting children with limited English language skills against trained trial attorneys. The children have no right to government-appointed counsel or guardians ad litem and are held to the same standard of proof as adults. The stakes are sometimes a matter of life or death. Without government-appointed counsel, most children go unrepresented in removal proceedings. According to an analysis of DOJ data in 2000, those children fortunate enough to find representation, usually through a pro bono attorney, are more than four times as likely to be granted asylum.

The situation has garnered significant attention from Congress, the legal community, the media, and the public over the last several years. The former Immigration and Naturalization Service (INS) was criticized for its dismal track record in caring for these children, given the conflicts of interest inherent in acting as jailer, prosecutor, and guardian. It treated these children as detainees first and children as an afterthought. Congress acted to redress the children’s needs in the Homeland Security Act of 2002, transferring basic care and placement functions from the INS to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.

The ORR is charged with ensuring the best interests of the daily population of over 750 unaccompanied children concerning their care, custody, and placement. It has created a special program for them, called the Department of Unaccompanied Children’s Services. For FY 2005, Congress appropriated $54 million for the program. That department is now making dramatic improvements in policies and procedures to benefit these children, including:

• reviewing and phasing out contracts with twenty-eight secure detention facilities (juvenile jails), resulting in the placement of less than 2 percent of the children due to behavioral issues in the remaining secure facilities, as opposed to 34 percent under the INS;

• enhancing service components for children held in shelters, including education, healthcare, socialization/recreation, mental health services, family reunification, access to legal services, and case management;

• increasing the use of refugee foster care for unaccompanied children pending their removal proceedings;

• increasing the safe and secure release of children to family members, including conducting home assessments to ensure the suitability of the child’s placement;

• undertaking and funding pilot programs around the country with reputable nonprofit legal services and other agencies and institutions to test and enhance pro bono representation and guardian ad litem services; and

• increasing the transparency and accountability of the federal government’s treatment of unaccompanied children to all stakeholders through open dialogue, meetings, and data-sharing.

The Homeland Security Act was crafted quickly, leaving the DHS and the ORR without clearly distinguished mandates and responsibilities in some key areas, including legal custody, age determination procedures, and state court dependency proceedings. While the ORR has custodial and placement responsibilities, the DHS reportedly considers itself to have legal custody over them. As a mark of progress, however, the DHS recently delegated its authority to release children in toto to the ORR.

As arresting agency, the DHS considers itself responsible for determining a person’s age in cases of age dispute, even though this determination affects whether the youth is routed to the ORR or detained by the DHS for removal proceedings in a facility with adults and criminal convicts. For that determination, the DHS uses dental and wrist bone forensics, which have been widely criticized as scientifically fallible, with margins of error of several years.

Finally, even though the ORR has responsibility for the best interests of the children, the DHS claims that it retains the authority to consent to detained children’s placement in state juvenile dependency proceedings and foster care as abused, neglected, or abandoned children. This placement allows children access to special immigrant juvenile status (SIJS) and lawful permanent residence. While SIJS has been codified for over a decade, authorities have yet to promulgate regulations for it and have no written or known operating policies on consent to access state dependency proceedings. Thus, according to advocates, most abused, abandoned, and neglected children in ORR care still do not receive DHS consent. At a minimum, advocates recommend that the consent function be transferred from DHS Immigration and Customs Enforcement to DHS Citizenship and Immigration Services, given the latter’s expertise in immigration benefits adjudication.

Additionally, through its expansion of expedited removal at the borders, the DHS has begun making some children into unaccompanied minors. Now, when the DHS arrests certain parents and children together, it severs the parent from the child, holds the parent in adult detention, and assigns the child to the ORR as an unaccompanied alien child. According to the DHS, this policy is a result of a lack of family detention facilities. However, it arguably violates the Homeland Security Act regarding the narrow class of children under ORR care. The practice also implicates the Anti-Deficiency Act since the ORR was never funded by Congress to care for children who are not truly unaccompanied but rather made so by the DHS’s lack of planning.

Notwithstanding these continued obstacles, the legal community, the EOIR, and the federal courts have taken decisive actions to ensure that unaccompanied children receive zealous legal advocacy and that their rights to due process are protected. In August 2004, the American Bar Association House of Delegates adopted Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Children in the United States. In September 2004, the EOIR issued its own Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children. Finally, the Ninth Circuit Court of Appeals announced two important principles: (1) no alien child should go unrepresented by competent counsel in removal proceedings and (2) the DHS must serve hearing notices on both the child and to the person to whom the child is released from custody. Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004); Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004).

Even with such procedural safeguards, unaccompanied children encounter significant challenges in their claims to protection against persecution and torture. The 1998 INS Guidelines for Children’s Asylum Claims, outlining evidentiary and legal considerations for children’s asylum claims, do not bind the EOIR. Additionally, little published jurisprudence addresses child-related issues, including children’s unique particular social groups for asylum eligibility and child-specific forms of persecution. Given this dearth, the University Committee on Human Rights Studies at Harvard University has undertaken a comparative study of several years of asylum decisions involving unaccompanied children in the United States, Australia, and the United Kingdom.

The Unaccompanied Alien Child Protection Act of 2003 (S. 1129/H.R. 3361) offers the promise of systemic reform in the treatment of these children. Under this bipartisan legislation, age determinations would be conducted by the ORR and could not be based solely on forensics. The legislation would also give the ORR explicit authority to consent to the child’s placement in state dependency proceedings. Children would be appointed pro bono counsel within seven days of their placement in ORR custody, and they would be eligible for guardians ad litem. The law would also address remaining deficiencies in the immigration system’s treatment of children by requiring special training for immigration judges, prosecutors, and pro bono attorneys. In October 2004, the bill was voted unanimously out of the Senate. Despite sixty-seven cosponsors, no vote was taken in the House, and the bill died. It will be resurrected in the next session.

Thousands of detained immigrant and refugee children like Malik Jarno deserve the best from our country. They need the Unaccompanied Alien Child Protection Act and its protections.

Give Your Time and Talent!

From direct service to systemic advocacy efforts, many creative opportunities exist for you to help improve the individual and collective plight of vulnerable unaccompanied alien children. First and foremost, detained and released children deserve top-quality legal representation in their claims for immigration benefits and relief from removal, including asylum and protection under the UN Convention against Torture and Special Immigrant Juvenile Status. They also need representation in their repatriation to and successful integration into their home countries. Last year, 29 percent of unaccompanied children were forcibly returned to their country of origin by the Department of Homeland Security (DHS).

The Office of Refugee Resettlement (ORR) houses the children in facilities nationwide, including Arizona, California, Colorado, Delaware, Georgia, Illinois, Indiana, New York, Oregon, Texas, Virginia, and Washington. Typically, a reputable public interest legal service provider in each location is charged with providing know-your-rights presentations to the children, screening the children for relief from removal, and referring them to pro bono representation. To identify a legal service provider for training and referral, please contact Irena Lieberman of the American Bar Association Commission for Immigration Policy, Practice and Pro Bono (tel. 202/662-1008; libermai@staff.abanet.org).
These agencies also welcome and can help host pro bono volunteers for short or extended periods of time. For example, the South Texas Pro Bono Asylum Representation Project is a national effort to provide pro bono legal services to asylum seekers, including children, detained in South Texas by the U.S. government. It is operated jointly by the American Bar Association, the State Bar of Texas, and the American Immigration Lawyers Association. For more information, please visit www.abanet.org/immigration/probono/probar/home.html.

For children released from custody pending removal proceedings, the Office of the UN High Commissioner for Refugees (UNHCR) is launching a new national initiative to pair volunteer attorneys with children being released from custody at their destination sites. This initiative has been made possible through the generous financial support of the UNHCR goodwill ambassador, actress Angelina Jolie, who has become a tenacious advocate for unaccompanied children. After a competitive grant process, this initiative will be housed in a public interest agency that will provide comprehensive training and matching. The initiative hopes to be operational by spring 2005. For more information and to register your interest, please contact Elizabeth Dallam (tel. 202/296-5191; dallam@unhcr.ch).

There are efforts afoot to coordinate pro bono representation of released children in New York and Washington, D.C. For information, contact Olivia Cassin at the Legal Aid Society in New York (tel. 212/577-3405; ocassin@legal-aid.org) or Christina Wilkes at Just Neighbors Ministry in Arlington, Virginia (tel. 703/979-1240 ext. 15; christina@justneighbors.org).

Finally, there are a variety of organizations engaged in systemic advocacy efforts on both discrete issues and comprehensive legislative efforts pertaining to unaccompanied children. These organizations enjoy working with pro bono volunteers interested in tangible research and writing projects—including legal analyses, white papers, and reports—as well as community organizing and advocacy activities. For information, please contact Joanne Kelsey at the Women’s Commission for Refugee Women and Children, a project of the International Rescue Committee, which is one of the leading agencies on reform efforts for unaccompanied children (tel. 202/822-0043 ext. 19; jkelsey@womenscommission.org).

Through your spirited involvement, you can make a difference in bringing fair treatment and justice to unaccompanied children’s cases and lives. —CN


ABA Standards on Unaccompanied Alien Children

The ABA Commission on Immigration recently released Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States. The standards provide guidance for attorneys, judges, and advocates with responsibilities toward alien children in federal custody. Copies of the standards are available at www.abanet.org/immigration/home.html.

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