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Alien Children in INS Custody Are Focus of Sweeping Legislative Reform Proposal
by Carl R. Baldwin

The Senate bill, S. 121, was introduced by Senator Diane Feinstein (D-CA), and the identical House bill, H.R. 1904, by Representative Zoe Lofgren (D-CA). The bill's short title is the "Unaccompanied Alien Child Protection Act of 2001." It seeks to address the serious problems that have confronted alien children placed in INS custody. Note: the proposed statute amends the Immigration and Nationality Act to define "child" in the context of an unaccompanied child as one who is under age 18. Sec. 3 (a) (4).

According to the Children's Defense Fund, each year more than 5,000 foreign-born children are discovered in the United States without a parent or guardian. "Many of these children are asylum seekers who experienced persecution.and seek protection, while others have been smuggled into the country by traffickers of human beings and are at risk of being sought again by smugglers and forced into sweatshop labor or worse."

The legislation would establish the Office of Children's Services within the Department of Justice, and separate from the INS, responsible for coordinating and implementing law and policy for unaccompanied children. One of the stated Purposes of the legislation is to "ensure that United States Government authorities hold the best interests of the child paramount when making decisions regarding an unaccompanied alien child." An unaccompanied alien child found in the United States should be promptly paroled into the United States for urgent humanitarian reasons, and placed under the jurisdiction of the Office of Children's Services.

With the exception of violent detainees, the detention of alien children in an adult or juvenile delinquent facility will be prohibited. This is a much-needed reform, since in the year 2000 some 2,000 unaccompanied children were housed with violent youthful offenders. There will be no repatriation of an alien child unless an appropriate voluntary agency has conducted an assessment of the country conditions and the Office of Children's Services has conducted an assessment of the suitability of placement of the child. This is a notable innovation, and is designed to prevent removal of a child to a home country where he would be in danger. The statute directs that the Office provide that each unaccompanied child have counsel and a guardian ad litem. As a correction to some flagrant abuses in the recent past, the following practices are forbidden: shackling, handcuffing, or other restraints on children; solitary confinement; or pat or strip searches. Among the common sense and humanitarian provisions of the statute is the provision that the child need not be placed in INS custody at all if relatives or in an appropriate foster case setting can be found.

On February 28, 2002 a hearing was held on the bill in the U.S. Senate. Michael Creppy, Chief Administrative Judge of the Executive Office for Immigration Review (EOIR), had a number of questions that the Committee will need to address. He began by noting the inconsistency of the statute's definition of "unaccompanied child" with the INA definition of 'child," and remarked: "This difference with respect to the age limitation is inconsistent with current law and will cause confusion." Mr. Creppy suggests that "unaccompanied alien child" be replaced, for the sake of clarity, with "unaccompanied alien juvenile."

Mr. Creppy strongly favors the appointment of counsel for any unaccompanied juvenile, but criticizes S. 121 for leaving up in the air the question of how competent attorneys are to be found. Also left unanswered is the question of who the attorney is answerable to: the juvenile's parent, the immigration judge, or some other entity? He then makes the following rather disturbing observation: "The counsel must truly represent the interests of the juvenile, and not those of some third party. I am sure that the subcommittee is familiar with accounts of lawyers who appear to be in league with the smugglers who traffic in human cargo. Several or 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." To the extent that this kind of attorney misconduct exists, it should be prosecuted to the full extent of the law. But it should not slow passage of this important statute.

Mr. Creppy then addresses the matter of the guardian ad litem: "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 ad litem may not be necessarily desirable in all cases, and yet it is mandated by the statute." I disagree with Mr. Creppy on this point. The statute itself provides that the guardian ad litem be a child welfare professional who possesses special training on the nature of problems encountered by unaccompanied alien children, and will "develop recommendations on whether it is in the child's best interests to voluntarily depart from the United States or apply for relief from removal." How could it be not desirable to have such a competent adviser for every unaccompanied alien juvenile?

Mr. Creppy, finally, expresses the wish that the statute make it clear, so as to avoid "endless arguments," that the "best interests of the child standard" cannot "trump" any specific provision of the Immigration and Nationality Act or its implementing regulations. The extremely interesting and impressive thing about the proposed statute, in my opinion, is that it shows that the INA, while not "trumped," permits an unexpected and welcome generosity.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from

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