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Unaccompanied Immigrant And Refugee Children: Reforms For The Most Vulnerable Detainees

by Christopher Nugent, Esq.

Over the last several years, the plight of more than 5,000 unaccompanied immigrant and refugee children in federal custody pending deportation proceedings has garnered significant attention from Congress, the legal community, the media, and the public. The Immigration and Naturalization Service (INS) was criticized for its poor track record in caring for these children, given the perceived conflicts of interest inherent in it acting as their jailer, prosecutor, and guardian all in one. In November 2002, Congress acted to redress the children's plight in the Homeland Security Act (HSA) of 2002, transferring basic care, custody, and placement functions from the INS to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.

Acting in loco parentis, ORR is charged with ensuring the best interests of the daily population of approximately 500 unaccompanied children concerning their care, custody, and placement. ORR has created a special program for the children, suitably called the Department of Unaccompanied Children's Services (DUCS), and for FY 2004, Congress appropriated $54 million to ensure the effectiveness of the program (a significant increase over the amount INS had originally transferred to ORR). DUCS is now making dramatic improvements in policies and procedures to benefit unaccompanied immigrant and refugee children, including:

  • Reviewing and phasing out contracts with secure detention facilities (juvenile jails) routinely used by the INS due to lack of bed space or for disciplinary purposes which commingled innocent children with delinquent offenders.
  • Increasing the use of refugee foster care for unaccompanied children pending their removal proceedings, coordinated by the Lutheran Immigration and Refugee Service (LIRS) and the United States Catholic Conference of Bishops (USCCB), two not-for-profits with specialized expertise in working with such children.
  • Increasing the safe and secure release of children to family members by 100% over INS's recent record, including conducting home assessments to ensure the suitability of the child's placement, again through USCCB and LIRS.
  • Undertaking and funding pilot programs around the country with reputable non-profit legal services and other agencies and institutions to test and enhance pro bono representation and guardian ad litem services for the children, both while they are in detention and after they have been released to family members.
The provisions of the Homeland Security Act were crafted quickly, however, leaving the Department of Homeland Security (DHS) and ORR (a division of the Department of Health and Human Services) without clearly distinguished mandates and responsibilities in some key areas, including legal custody and release decisions, age determination procedures, and state court dependency proceedings. While ORR has custodial and placement responsibilities for the children, DHS reportedly considers itself to have legal custody over the children and therefore the authority to impose bonds and/or bar the release of a child from a facility.

The DHS also considers itself responsible for determining an individual's age in cases of age disputes, even though this crucial determination impacts whether the youth is routed to ORR care, custody, and placement services or is detained for removal proceedings in a detention center or jail with adults and criminal convicts. As its age-determination methodology of choice, DHS uses dental and wrist bone forensics, which have been widely criticized by experts as scientifically fallible with margins of error of several years. Finally, even though ORR has responsiblity for the best interests of the children, DHS claims that it - not ORR - retains the exclusive authority to consent to detained children's placement in state juvenile dependency proceedings and foster care as abused, neglected, or abandoned children, which gives them access to green cards under the Special Immigrant Juvenile Status program. According to advocates, most abused, abandoned, and neglected children in ORR care still do not receive DHS consent to access the state dependency process.

To address these problems and further improve the fair and humane treatment of unaccompanied immigrant and refugee children, it is imperative that Congress pass the Unaccompanied Alien Child Protection Act of 2003. The legislation was introduced in the US Senate as S.1129 by Senators Diane Feinstein (D-CA) and Sam Brownback (R-KS) and in the House of Representatives as H.R. 3361 by Zoe Lofren (D-CA) and Chris Cannon (R-UT).

Under the Unaccompanied Alien Child Protection Act of 2003, age determinations would be conducted by ORR and could not be based solely on forensics. The legislation would also give ORR explicit authority to consent to the children's placement in state dependency proceedings.

Additionally, children would be appointed pro bono counsel within seven days of their placement in ORR custody, and they would be eligible for guardian ad litem services. The Act would also address remaining deficiencies in the immigration system's treatment of the children by, among other things, requiring special training for immigration judges, prosecutors, and pro bono attorneys handling children's cases.

As of March 1, 2004, the bipartisan bills have 22 cosponsors in the Senate (none from Arizona) and 44 cosponsors in the House, including Ed Pastor and Raul Grijalva of Arizona. And on June 3, 2004, the bill was placed on the Senate Legislative Calendar.

Thousands of detained immigrant and refugee children deserve the best from our country; they need the Unaccompanied Alien Child Protection Act of 2003 and its protections to be the law of the land.

About The Author

Christopher Nugent, Esq. is senior counsel with the Community Services Team of the international law firm of Holland & Knight LLP. Holland & Knight is pro bono counsel to the Women's Commission for Refugee Women and Children on several projects, including legislative advocacy in support of the Unaccompanied Alien Child Protection Act of 2003. Prior to joining Holland & Knight, Chris was director of the ABA Commission on Immigration Policy, Practice and Pro Bono and executive director of the Florence Project.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.