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I Came To The US And All I Got Was This Orange Jumpsuit: Age Determination Authority Of Unaccompanied Alien Children And The Demand For Legislative Reform

by Jennifer Smythe

Introduction

Imagine that you are a child under the age of 18 living in an undeveloped country wrought with persecution and violence.  At risk of homelessness, torture, or death, you are sent by a relative alone to the United States to seek refuge.  Upon your arrival, you are detained in the Department of Homeland Security’s (DHS’s) custody, during which time you produce a birth certificate showing your age to be 16.  After being subjected to dental exams and wrist-bone X-rays, which place your age between 16 and 19, the DHS insists you are an adult and sends you to a maximum-security adult prison.  As an inmate, you face months or years of physical and psychological abuse, while pro bono attorneys and members of Congress fight with the DHS over the truth about your age.  Difficult to imagine?  This scenario illustrates the plight of an untold number of unaccompanied alien children[1] who arrive in the U.S. each year.

 

The following stories provide vivid examples…

Ernesto Joseph was 16 years old when he fled to the U.S. from Haiti after the death of his parents.[2]  He was taken into federal custody upon his arrival, released briefly, and then re-arrested pending a governmental dispute about his age.[3]  Despite providing the DHS an authenticated birth certificate,[4] he spent 7 ˝ months in adult detention and 3 ˝ months alone in a guarded hotel room, while the DHS insisted he was 19.[5]  Joseph was eventually released, but his age remained in dispute and the DHS continued to pursue his deportation until U.S. Senator, Kendrick Meek, cornered Homeland Security Secretary, Tom Ridge, on the House floor, and negotiated his freedom.[6]

 

Mohamed Boukrage became homeless at the age of 10, after his parents and sister were killed in a car bomb in his native Algeria.[7]  Following their deaths, he wandered around Europe for six years as a homeless juvenile.[8]  At the age of 16, he boarded a cargo ship headed to the U.S.[9]  He was taken into federal custody upon his arrival.[10]  Despite his claims of being merely a juvenile, he spent two years in adult detention.[11]  Boukrage was never released into the U.S., but instead deported by the DHS without the knowledge of his pro bono attorney.[12]

 

Helen Wang was 15 years old when she escaped to the U.S. from China after falling victim to the abuse and neglect of her alcoholic father.[13]  She was taken into federal custody upon her arrival.[14]  Despite providing the DHS an authentic birth certificate, she spent six months in a maximum-security adult prison based on a DHS dental exam that placed her age at 18.[15]  Ms. Wang was never recognized as a juvenile, but instead paroled out of detention as an adult.[16]  As of this writing, her case is pending before the Bureau of Immigration Affairs (BIA).     

 

Kenier Tima was 16 years old when he fled to the U.S. from Haiti based on fear he would killed by forces loyal to former Haitian president, Jean-Bertrand Aristide.[17]  He was taken into federal custody upon his arrival.[18] Despite producing an authentic birth certificate and testimony of relatives as to his age, he spent nine months in an adult prison based on a DHS dental exam, which placed his age at 18.[19]  Tima was finally transferred to a juvenile facility after immigration officials reluctantly classified him as a minor strictly for the purpose of where he would be detained.[20]

 

Malik Jarno fled to Europe from Guinea, West Africa, after his family was killed and his home destroyed in the midst of ethnic and political violence.[21]  At the age of 15, he was sent from Europe alone to the U.S. to seek refuge.[22]  He was taken into federal custody upon his arrival.[23] Despite psychological exams proving mental retardation and an authenticated birth certificate proving his age, he spent three years in several maximum-security adult prisons.[24]  Jarno was only released after 24 members of Congress wrote to the DHS’s under secretary for border and transportation security, Asa Hutchinson, and demanded his freedom.[25]

 

Every year, the U.S. detains approximately 5000 unaccompanied alien children.[26]  These children arrive at land borders and ports of entry, unaccompanied by parents or legal guardians.[27] The circumstances, which compel their arrival, are complicated and diverse. [28]  Some have been sent by their families out of desperation,[29] to secure what the family perceives as a more rewarding life in a developed country.[30]  Children in these situations are sent as refugees, given up for adoption, or sold into child labor or prostitution.[31]  Others have been sent by their families out of ambition and aspiration,[32] to improve their opportunities by way of employment or education. [33]  Many are escorted by family friends, distant relatives, and smugglers,[34] while others arrive completely alone, escaping physical and sexual abuse at the hands of the very adults who are supposed to protect them.[35]  These children range in age from toddler to teenager, some as young as six months.[36]  The countries they represent span the globe, with predominant nationalities being Mexican, Honduran, Guatemalan, Salvadoran, and Chinese.[37]    

 

Currently, no governmental agency has statutory authority to conduct age determinations of unaccompanied alien children whose ages are in question.  Absent clear legal guidelines, the DHS has assumed age-determination authority as part of their general arresting and detention authority. [38]  Since it is the DHS’s responsibility to protect the U.S., it is no surprise they employ a law-enforcement paradigm when assessing and determining age.  The consequences, however, of treating unaccompanied alien children like enemies of the state, insult humanitarian ideals and waste valuable economic resources. 

 

This article explores the critical need to legally mandate age-determination authority to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services, an office responsible for the care and custody of all unaccompanied alien children in the U.S.[39] Central to this article’s argument is that the DHS’s current age-determination practices produce results that demand the need for more humane treatment of this vulnerable population.  To expedite this humanitarian objective, this article proposes two solutions: first, passage of the Unaccompanied Alien Child Protection Act (UACPA), which was re-introduced by Senator Diane Feinstein on January 24, 2005.[40]  This bill specifically grants age-determination authority to the ORR.[41]  Second, the ORR, under the authority of the UACPA, should draft a totality of the circumstances regulation to replace the limited age-determination standard set forth under the Flores Settlement Agreement, discussed below, the prevailing law regarding the treatment of minors in federal custody.[42]  Finally, to provide the ORR guidance regarding this new regulation, this article recommends specific factors to be incorporated into the regulation’s text.  

 

HISTORICAL OVERVIEW

A.  United States Protection of Unaccompanied Refugee Children

The U.S. has a long history of providing protection to refugee adults and children fleeing from persecution in their homelands.[43]  “Central to this country’s identity is the image of a land that extends its arms to shelter those…‘yearning to breathe free.’”[44]  In 1980, this national commitment was legally solidified when Congress passed the Refugee Act.[45]  The Refugee Act established, for the first time, a comprehensive refugee resettlement and assistance policy.[46] Among the most notable developments, was the creation of the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.[47]  The ORR was designed to assist refugees and other special populations in obtaining economic and social self-sufficiency in the U.S.[48]  To accomplish this, the ORR developed programs which provided “cash and medical assistance, employment preparation and job placement, skills training, English-language training, social adjustment, and aid to victims of torture.”[49]  The ORR remains the primary leader in coordinating national public and private programs that provide refugee assistance and aid.[50]

 

One of the most vulnerable populations served by the ORR is unaccompanied refugee minors,[51] who are unique in that they are identified overseas as “unaccompanied,” invited to the U.S. with that status, and, depending on their needs, placed in foster care, group-care, residential facilities, or independent living.[52]  Through the ORR’s “Unaccompanied Refugee Minors” (URM) program,[53] these minors are eligible for all benefits and services afforded to U.S. children in the foster-care system.[54]  Children in the URM program receive English-language training, career planning, medical and mental health services, socialization and adjustment training, family reunification, residential care, education, and ethnic and religious preservation.[55] These programs assist unaccompanied refugee minors in adjusting to their new lives in the United States.

 

While the U.S. has long-provided assistance and aid to unaccompanied refugee minors, it has not afforded similar protection to unaccompanied alien minors.  An “unaccompanied alien child” is defined as one who has no lawful immigration status in the U.S., has not attained 18 years of age, and with respect to whom there is no parent or legal guardian in the U.S., or none that can provide care or physical custody. [56]  Unaccompanied alien minors differ from refugees in that they are not identified overseas as “unaccompanied” and, as a result, do not enter the U.S. with that status.[57]  Instead, these children are determined to be unaccompanied after they are inspected by federal immigration authorities upon their arrival in the U.S.[58] 

 

While there is a legal distinction between unaccompanied refugee minors and unaccompanied alien minors, there is often no practical difference.  Most unaccompanied alien minors, like unaccompanied refugee minors, pursue life in the U.S. to escape the violence and persecution of their homelands. [59]

 

B.  Care and Custody of Unaccompanied Alien Children

Historically, while the ORR was responsible for the care of unaccompanied refugee children, the Immigration and Naturalization Service (INS) was responsible for the care and custody of unaccompanied alien children.[60]  As an arresting agency, the INS was assigned two irreconcilable and competing functions: providing custodial care while simultaneously seeking the child’s removal from the U.S.[61]  Inevitably, this created an inherent conflict of interest, under which the INS acted as both law enforcement and child welfare provider.[62]  Advocates, including, The Women’s Commission on Refugee and Children, argued this inherent conflict of interest clogged the system full of inefficiencies and inequities and threatened the best interests of the children in question.[63]       

 

In 1985, advocates brought a class action lawsuit against the INS, challenging their detention and release policies regarding minors in federal custody.[64]  The case, Reno v. Flores,[65] was eventually heard by the United States Supreme Court who ruled in favor of INS on several issues,[66] but remanded regarding the procedures and process for detention, release, and treatment of minors in federal custody.[67]  In response to the remand, the parties negotiated a settlement, known as the Flores Settlement Agreement (Flores).[68]  Flores was based on the premise that immigration authorities must treat children in federal custody with “dignity, respect, and special concern for their vulnerability as minors.”[69]  Binding as a consent decree, [70] Flores established new nationwide policy regarding the overall treatment of juveniles in INS custody. [71]  Effective February 1997, Flores placed three specific obligations on the INS.[72]  First, the INS was to ensure the prompt release of children from immigration detention.[73]  Second, the INS was to place children for whom release was pending, or for whom no release option was available, in the least restrictive setting appropriate to the child’s age and needs.[74]  Third, the INS was to implement standards relating to the care and treatment of children in federal detention. [75]

 

In addition to these specific obligations, Flores also granted to the INS, age determination authority.[76]  The applicable provision states:

 

If a reasonable person would conclude that an alien detained by the INS is an adult despite his claims to be a minor, the INS shall treat the person as an adult for all purposes, including confinement and release on bond or recognizance. The INS may require the alien to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age. If the INS subsequently determines that such an individual is a minor, he or she will be treated as a minor in accordance with this Agreement for all purposes.[77]

 

Thus, the INS was responsible exclusively for determining the age of unaccompanied alien children whose ages were in question.  Until recently, this legal designation to the INS created no confusion.  In March 2003, however, the Homeland Security Act (HSA) abolished the INS and created three immigration bureaus in the new Department of Homeland Security (DHS).[78]  While most of the INS’s duties were divided among the DHS immigration bureaus, all functions relating to the care and custody of unaccompanied alien children transferred from the INS to the Office of Refugee Resettlement.[79]  With the INS abolished and the INS’s duties with regard unaccompanied alien children divided between the DHS and the ORR, both agencies must adhere now to Flores.[80]  This dual transfer has left many issues unresolved and unclear. One of the most urgent sources of confusion is whether the age-determination authority granted to the INS in Flores, is now the responsibility of the DHS or the ORR.

 

CURRENT SITUATION

A.  Care and Custody of Unaccompanied Alien Children

Unaccompanied alien children come under the care of the ORR after the DHS has arrested them, determined they are unaccompanied, and placed them in immigration removal proceedings.[81] The DHS then contacts the ORR, which removes the child from the DHS custody and places him or her in the least-restrictive housing facility.[82]  A problem arises when the DHS erroneously determines a child’s age to be that of an adult and sends such child to adult prison.  Because the DHS makes age determinations before it contacts the ORR, the ORR never learns of such unaccompanied minor alien’s existence.  Currently, the ORR is only responsible for unaccompanied alien children determined to be juveniles. 

 

When the HSA transferred all functions regarding unaccompanied alien children to the ORR, the ORR created the Division of Unaccompanied Children’s Services (DUCS)[83] to incorporate this new responsibility.  Although the transition of care and custody from the DHS immigration bureaus (former INS) to ORR is currently slow moving, the DUCS has already begun to undertake several responsibilities,[84] such as developing programs for the coordination and implementation of care and placement; recommending placement determinations to the Director of the ORR; developing, investigating, and inspecting facilities in which unaccompanied alien children reside; utilizing the foster care system already in place for unaccompanied refugee minors; and ensuring consideration of the child’s best interest in care and custody decisions.[85] Unfortunately, missing from this long list is the authority to conduct age determinations of unaccompanied alien children whose ages are in question.  While the ORR has not been given legal authority to determine age and therefore, does not have that duty to grant to the DUCS, neither has the DHS.  The absence of legal designation is a significant source of confusion between the two agencies.  

 

Having first access to unaccompanied alien children upon their arrival to the U.S., the DHS has assumed authority as part of their arresting and detention authority.[86]  The consequence of the DHS assuming authority is that their unreliable age determination practices produce results that sometimes lead to erroneous classifications.  These classifications force unaccompanied alien children into adult detention, suspend these children in legal limbo, and waste valuable economic resources.

 

B.  Age Determinations by the Department of Homeland Security

Since the September 11, 2001, terrorist attacks on the United States, the federal government has had the daunting task of ensuring the country’s protection from further violence.  Consequently, immigration customs and enforcement officers have devoted themselves to detecting the country’s vulnerabilities and preventing violations that threaten national security.[87]  To perform these tasks effectively, the DHS has promised to provide unparalleled investigation and security services to the public and federal and local law enforcement.[88]  Because many aliens enter the U.S. with questionable identities and faulty documents, it is understandable that the DHS would want to investigate the age of unaccompanied alien children who it believes to be adults.  Although this inquiry is not unreasonable on its face, as noted above, the DHS’s age determination practices frequently strip children of any juvenile immigration protections and, in many instances, wrongly confine children to adult prison.

 

When the DHS questions the age of an unaccompanied alien child, that child is subjected to age determination methods that involve dental exams and/or wrist-bone X-rays (radiographs).[89] There may be other evidence available (authentic birth certificates and testimony), but the DHS often relies solely on these physical exams.[90]  Medical experts have criticized reliance on such exams and numerous scientific studies have highlighted their inaccuracies.[91]  Some studies have suggested a prudent margin of error of three years, while scientific literature has stated that dental and bone exams were never intended to be used for determining a child’s exact age.[92] Despite these criticisms, margins of error are seldom accounted for and the exams are still used.[93]  Consider, for example, Ernesto Joseph (highlighted in the Introduction) who spent 7 ˝ months in adult detention and 3 ˝ months alone in a guarded hotel room based on a wrist-bone X-ray that placed his age between 16.56 and 18.14.[94]  If the DHS had believed the truth about his claim of being 16, Joseph would have been placed in a less-restrictive juvenile foster-care facility.  Further, Kenier Tima and Helen Wang (also highlighted in the Introduction) both spent time in adult prison based on doctors' evaluations, which failed to include a margin of error when it estimated their ages at 18.[95]  As stated above, Ms. Wang was paroled out of detention as an adult.[96]  As of this writing, her pro bono attorney continues to aggressively battle the DHS who refuses to classify Ms. Wang as a minor and afford her juvenile immigration protections. 

 

Other medical studies have questioned whether current standards used to determine bone age should even apply to the assessment of ethnically diverse children.[97]  Current standards were derived from a study done of white children from an upper socioeconomic class from 1931-1942.[98]  It has been determined that results produced by exams utilizing these standards on African and Hispanic girls and Asian and Hispanic boys, must be viewed with caution.[99]  Another study, published in 2001, concluded that new standards were needed to accurately represent a multiethnic minor population.[100]  “Even the U.S. Department of State [DOS] has instructed its diplomatic and consular posts not to rely on radiological testing to determine age because ‘growth rates vary significantly in different populations’ and there may be significant differences between an individual’s chronological age and his or her bone age.”[101]  The DOS has recognized that “ethnic and individual variations in development may be exacerbated by cultural differences, malnutrition, and disease.”[102]

 

Not only has the DOS warned against using the exams, but on June 2, 2004, more than 70 prominent American dentists and physicians, including 13 deans of dental, medical, and public health schools, sent a letter to DHS Secretary, Tom Ridge, calling on U.S. immigration authorities to stop conducting dental and wrist bone x-rays to determine the age of young people seeking safe haven in the U.S.  The letter stated, “Medical and dental experts have demonstrated the variability and inaccuracy of these exams, and we are concerned that these unreliable tests, often used as the sole age determinant, are irresponsible and are given unwarranted scientific legitimacy.”[103]

 

C.  The Inhumane Consequences and Economic Waste of the Department of Homeland Security’s Age-Determination Practices

 

Unlike children in the juvenile immigration system who are afforded the right to a bond re-determination hearing[104] and release[105] to a parent, legal guardian, or relative, children wrongly determined to be adults face expedited removal and mandatory detention.  Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),[106] the expedited removal process authorizes the DHS to order any adult alien who arrives without documents immediately removed from the U.S. without further hearing or review.[107]  The consequence of subjecting unaccompanied alien children to expedited removal is that they are often sent back to uncertain lives as homeless juveniles.[108]  The IIRIRA also requires that adult aliens subject to expedited removal face mandatory detention in facilities, jails, or prisons.[109]  The main alternative to these penalties is if an alien is successful in showing the DHS a “credible fear of persecution.”[110]  If the DHS believes a credible fear exists, the alien may be released on parole.[111]  These parole determinations however, are completely discretionary and rarely granted.[112]  If the DHS does not believe a credible fear exists and thus, denies parole, their decisions cannot be appealed.[113]

 

On the other hand, unaccompanied alien children in the juvenile system do not face such harsh, limited options.  These children are instead protected by Flores, which affords them the right to a bond re-determination hearing and release to a parent, legal guardian, or adult relative while their immigration proceedings are pending.[114]  If release to a parent, legal guardian, or adult relative is not available, or release is not yet completed, juveniles are placed in ORR-approved shelter and foster care programs.[115]  Unlike the adult immigration system which provides no services, these programs provide physical care and maintenance, routine medical and dental care, individualized needs assessment, educational services, recreation and leisure, weekly counseling sessions with a social worker, group counseling sessions, adaptation services, access to religious services of the minor’s choice, visitation and contact with family members, a reasonable right to privacy,[116] family reunification services, and legal services information regarding the availability of free legal assistance.[117]

 

Unaccompanied alien children determined to be adults, not only suffer the deprivation of juvenile protections, they also face the harsh reality of being a child in adult prison.[118]  Children sent to adult prison are those facing “mandatory detention” and also those subject to prolonged detention while their age is in dispute.[119]  Treated as adults, these children are “stripped of their clothing, required to wear prison uniforms, transported in handcuffs or shackles, not allowed to have contact visits with family, and…treated like prisoners.”[120]  In some detention facilities, these minors may live in warehouse buildings with “outdoor” activity consisting of time in a room with a chain mesh ceiling that allows for fresh air.[121]  Additionally, children may face physical and verbal abuse by prisoners and guards, as well as, the arbitrary use of solitary confinement as both punishment and threat.[122]  Because such treatment is a common form of abuse for those facing persecution in many parts of the world,[123] it often re-traumatizes the minor to be in isolated confinement.[124]

 

Many times, juveniles are forced to share cells with convicted criminals, including violent offenders.[125]  Malik Jarno (highlighted in the Introduction) commingled with adult convicts, many of whom he stated physically abused him,[126] during his three years in maximum-security adult prison.[127]  Mr. Jarno’s treatment, and the DHS’s acquiescence thereof, drew the criticism of the United Nations, Amnesty International, Mental and Physical Disability Rights International, and other disability advocacy groups.[128]  In fact, it united 24 members of Congress, calling themselves the “Refugee Caucus”, to write the Undersecretary for Border and Transportation Security, and demand Mr. Jarno’s release.[129]

 

The DHS’s age determination practices not only perpetuate inhumane treatment, but also create preposterous economic consequences.  Millions of tax dollars and thousands of hours of legal pro bono work are spent fighting the DHS’s age determination decisions.  Malik Jarno’s case is the most current and astonishing example of this.  He is represented by a team of lawyers, from three of the country’s largest law firms,[130] who have been representing him pro bono for several years at the cost of an estimated $3 million.[131]  In addition, the DHS has spent thousands of taxpayer dollars to house Mr. Jarno in several maximum-security adult prisons over three years,[132] and has paid for a team of federal agents to travel to Guinea, West Africa, to conduct an investigation regarding Mr. Jarno’s age and identity.[133]  This exorbitant economic waste, coupled with the intolerable treatment highlighted above, demands legislative reform. 

SOLUTIONS

A.  Unaccompanied Alien Child Protection Act

Passage of the Unaccompanied Alien Child Protection Act (UACPA) is critical to vest age-determination authority of unaccompanied minor aliens in the ORR.[134]  The UACPA was re-introduced into the Senate on January 24, 2005, by U.S. Senator Diane Feinstein (D-Cal),[135] whose strenuous efforts brought about the Homeland Security Act’s (HSA’s) transfer of care and custody from the INS to the ORR.[136]  The UACPA is “premised on the belief that we have a special obligation to ensure that every child who comes into contact with federal immigration authorities is afforded fair and humane treatment.”[137]  In addition, the UACPA would build on the transfer of care of custody to the ORR, by making substantive reforms in the law designed to ensure that unaccompanied alien children are treated with compassion.[138]  Among the most notable reforms, is the vesting of age-determination authority in the ORR.[139]  The UACPA states:

In any case in which the age of an alien is in question and the resolution of questions about the age of such alien would affect the alien's eligibility for treatment under section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this Act, a determination of whether or not such alien meets the age requirements for treatment under this Act shall be made by the Director [of ORR] in accordance with section 105.[140] (emphasis added)

As an agency trained to provide child welfare, the ORR would ensure proper care and treatment be afforded to unaccompanied alien children whose ages are in question.  Not only would these children avoid the law enforcement paradigm of the DHS, they would be afforded extensive juvenile protections, appropriate housing, and medical and educational services while their age is being determined.

A second, and equally essential reform, is the establishment of comprehensive procedures to “ensure that the true age of an alien who claims to be under the age of 18 is determined.”[141]  The UACPA outlines this reform in three critical ways. First the UACPA identifies that multiple forms of evidence shall be used. It states:

The Director [of ORR] shall develop procedures to determine the age of an alien in the custody of the Department of Homeland Security or the Office, when the age of the alien is at issue. Such procedures shall permit the presentation of multiple forms of evidence, including testimony of the child, to determine the age of the unaccompanied alien for purposes of placement, custody, parole, and detention.[142] (emphasis added)

Thus, passage of the UACPA would legally mandate that the ORR consider evidence outside the scope of medical exams and permit the minor to testify as to his or her age.  This provision would abandon the narrow considerations currently employed by the DHS and require the ORR to expand their analysis to include non-quantifiable evidence.

In addition, the UACPA mandates that procedures shall allow the appeal of a determination to an immigration judge.[143]  This would permit minors who the ORR determines to be adults to appeal the ORR’s decision.  Finally, the UACPA directly addresses the need to ban the sole use of dental and bone X-ray exams.  It states, “neither radiographs nor the attestation [signed statement] of an alien shall be used as the sole means of determining age for the purposes of determining an alien's eligibility for treatment [care] under section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this Act.”[144] (emphasis added).  Thus, this provision would abolish the current overemphasis on medical exams employed by the DHS and legally mandate that the sole use of medical and dental exams be prohibited.

Age determinations directly affect care and custody decisions.  Vesting age determination authority in the ORR would be a natural progression of their current functions as a child welfare provider.  If the DHS continues to assume authority, and the law remains silent, the DHS will forever face the inherent conflict of interest that was sought to be avoided when the HSA transferred the care and custody of unaccompanied alien children from the INS to the ORR.  

 

B.  “Totality of the Circumstances” as the new standard

To further expand the UACPA, which states that the Director of the ORR “shall develop procedures” to be used for determining age, a totality of the circumstances regulation is needed. This new ORR regulation should replace the limited and vague age determination standard set forth under Flores and be drafted in such a way as to ensure Senator Feinstein’s goal that “true age” be determined.[145]  As discussed above, Flores states that an alien may be required to “submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age.”[146]  This language overemphasizes medical and dental exams, and fails to specify the “other appropriate procedures.”  To allow for informed decisions and ameliorate the possibility of erroneous determinations, a new regulation is required.

 

At a minimum, the new “totality of the circumstances” regulation should state four essential factors: (1) the assessment must take into account not only the child’s physical appearance, but also his or her psychological maturity. A maturity assessment should be made by interviewing the child, conducting psychological and intelligence exams in the child’s native language, or conducting language neutral exams that provide psychological information; (2) bone and dental exams may only be used as one factor and such results will only be considered if margins of error are stated;  (3) the assessment must permit the presentation of documents, including, birth certificates, letters, and written statements by the child and child’s family members as to the child’s age; (4) if family members supporting the child’s age claim are available for direct interview, interviews must be attempted via phone or in person by the ORR to gather further evidence regarding the child’s age.

 

In addition to the essential factors, the new regulation should state that the totality of information shall be gathered by the ORR in a timely fashion and the age determination shall be made promptly.  Furthermore, the regulation should also make clear that, while the detainee is waiting for the age determination decision, he or she shall be placed in the same ORR-approved shelter and foster care programs afforded to unaccompanied alien children determined to be juveniles. Finally, the proposed regulation should state that the ORR has the discretion to give the child the benefit of the doubt if their exact age is uncertain.  Adherence to the totality approach set forth under this regulation would lead to more accurate decisions and abolish the narrow age-determination practices currently employed by the DHS.

The proposed regulation would put the U.S. in line with prevailing international standards, such as those outlined by The Convention on the Rights of the Child and adopted by the United Nations High Commissioner for Refugees, which embrace the universal principle of child care and protection: “the best interests of the child shall be the primary consideration.”[147]  Among the 194 countries to formally sign the Convention, only the U.S. and Somalia have not ratified the principles.[148]  This isolates the U.S. from the international consensus regarding age determinations, that “the child should be given the benefit of the doubt if their exact age is uncertain.”[149]  Furthermore, ratification would hold the U.S. accountable for adherence to the international principle that, “Every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so.”[150]  As a country who professes to welcome those “yearning to breathe free,” it is time the U.S. join the international community in protecting this vulnerable population.

CONCLUSION

Now imagine that you are a child under the age of 18 arriving alone in a developed country rich with economic wealth and resource.  Escaping homelessness, torture, or death in your native land, you are welcomed by the U.S. to seek refuge.  Upon your arrival, the DHS detains you and questions the truth about your age.  After being told by the DHS that your age will be determined by the Office of Refugee Resettlement (ORR), you are transported to an ORR juvenile foster-care facility.  As a juvenile whose age is in question, you are afforded the opportunity to present a totality of information evidencing your age, and the ORR is afforded the opportunity to give you the benefit of the doubt.  Difficult to imagine?  This scenario illustrates the future of a juvenile immigration process reformed by the UACPA and the proposed “totality of the circumstances” regulation.

 

If Ernesto Joseph, Mohammed Boukrage, Helen Wang, Kenier Tima, and Malik Jarno were children protected by the UACPA and whose reviews where performed under the new totality regulation, they would never have spent months and years in adult prisons and guarded hotel rooms.

 

It is a great shame that the U.S. continues to offer little protection to unaccompanied alien children whose ages are in question. As Senator Diane Feinstein stated to the U.S. Senate after describing the inhumane treatment perpetuated by U.S. immigration authorities, “We have a responsibility to do better than this.”[151] Vesting age determination authority in the ORR and the creation of a new totality regulation are two of the most critical steps toward ensuring that proper care and treatment will be afforded to this under-protected population.

An abbreviated version of this article was published in Interpreter Releases in June 2004 (81 No. 23 INTERREL 753) and a complete version was published in the ABA Center on Children & the Law and Loyola University of Chicago School of Law’s Children’s Legal Rights Journal in Fall 2004 (Volume 24, Number 3). Copyrighted by Jennifer Smythe.



[1] 6 U.S.C.A. § 279(g)(2) (2003): The term “unaccompanied alien child” means a child who—(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent of legal guardian in the United States is available to provide care and physical custody 

[2] Jim Defede, U.S. government making example of Haitian child, The Miami Herald, January 22, 2004. (2004 WL 56367598)

[3]  Jacqueline Charles, Age dispute holding young detainee back; Medical tests performed on a Haitian youth held in immigration detention provide mixed answers about his age, The Miami Herald, January 14, 2004. (2004 WL 56365903)

[4] Supra note 2.

[5] Tanya Weinberg, Haitian teen wins reprieve acceptance as juvenile is a step to residency, South Florida Sun-Sentinel, January 30, 2004. (2004 WL 67630254)

[6] Jim Defede, Intervention wins fairness for Haitian teen, The Miami Herald, February 1, 2004. (2004 WL 67037003)

[7] Margaret Graham Tebo, Children Without a Country, ABA Journal, March 2004, at 43.   

[8] Id.                                                             

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Interview with Sarah McVicker, attorney for Helen Wang, Equal Justice Works Fellow, Pennsylvania Immigration Resource Center (March 4, 2004).

[14] Id.  

[15] Id.

[16] Id.

[17] Joan Treadway, Haitian refugee sent to juvenile center; Youth had stayed with adult detainees, Times-Picayune, January 6, 2004. (2004 WL 58750304).

[18] Joan Treadway, Haitians seeking asylum sit in jail; But attorneys say their just juveniles, Times-Picayune, August 7, 2003. (2003 WL 60057902).

[19] Tanya Weinberg, Immigration rules criticized; Officials place children in adult jails, advocates say, The Bradenton Herald, July 22, 2003. (2003 WL 58619719).

                see also: Supra note 18.

                see also: Supra note 17.

[20] Supra note 17.

[21] Chris Nugent, Robert Bradner, and Benoit Jacqmotte, Mentally Retarded Refugee Orphan’s Quest for Freedom and Justice and the Need for Systematic Reform in the Treatment of Unaccompanied Alien Children, ABA Immigration and Nationality Committee’s Winter 2004 Newsletter (found http://www.abanet.org/intlaw/immgnewsletterwinter04.pdf) (viewed April 16, 2004).

[22] John Touhy, Lawyer searching city for African tribal leader, The Indianapolis News/Indianapolis Star, February 9, 2004. (2004 WL 57330145)

[23] Id.

[24] Supra note 21

[25] Supra note 7 at 41. 

[26] Wendy Young, Director of Government Relations and U.S. Programs Women’s Commission on Refugee Women and Children, Congressional Testimony, February 28, 2002. (2002 WL 25099544)

[27] Id.  

[28] Amnesty International, United States of America-Unaccompanied Children in Immigration Detention, Chapter 1. (found http://www.amnestyusa.org/refugee/children_detention.html) (viewed April 16, 2004)

[29] Jacqueline Bhabha, Lone Travelers: Rights, Criminalization, and the Transnational Migration of Unaccompanied Children, 7 UCHILSRT 269, 278 (2000).

[30] Supra note 28.

[31] Supra note 29.

[32] Id.

[33] Id.  at 278-279.

[34] Supra note 26.

[35] Supra note 28. 

[36] Id.

                see also: Supra note 26.

[37] Supra note 26.

[38] Interview with Chris Nugent, attorney for Malik Jarno, Holland & Knight LLP, (February 13, 2004).

[39] 6 U.S.C.A. § 279(a) (2003).

[40] The original Unaccompanied Alien Child Protection Act (S.1129, found at http://thomas.loc.gov/cgi-bin/query), was introduced in both the Senate and House of Representatives during the recently concluded, 108th Congress.  During the 108th Congress, on June 3, 2004, the bill was reported favorably by the Senate Judiciary Committee.  Despite the bill’s action in the Senate, the bill stalled in the House of Representatives and then the 108th Congress came to a close.  With the new 109th Congress now in session, Senator Feinstein reintroduced the Unaccompanied Alien Child Protection Act (S.119) on Monday, January 24, 2005.  See http://feinstein.senate.gov/05releases/r-unaccompanied-child-into.htm.

[41] Id.  at § 101(c).

[42] Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-4544-RJK (C.D. Cal. 1996). (found http://www.centerforhumanrights.org/Detained_minors/FloresSettle.html) (viewed April 16, 2004). 

[43] Human Rights First, In Liberty’s Shadow: U.S. Detention of Asylum Seekers in the Era of Homeland Security, 2004, at 1. (found http://www.humanrightsfirst.org/asylum/libertys_shadow/Libertys_Shadow.pdf) (viewed April 16, 2004).

[44] Id. at 4.

[45] The Refugee Act, PL 96-212, 8 U.S.C. § 1101 (1980).

[46] S. Rep. 96-256, at 141 (1979).

[47] 8 U.S.C. § 1521(a) (1980).

[48] Office of Refugee Resettlement website at http://www.acf.dhhs.gov/programs/orr/geninfo/index.htm (viewed April 16, 2004)

[49] Id.

[50] Office of Refugee Resettlement website at http://www.acf.dhhs.gov/programs/orr/mission/functional.htm (viewed April 16, 2004)

[51] Office of Refugee Resettlement website at http://www.acf.dhhs.gov/programs/orr/mission/factsheet.htm (viewed April 16, 2004).

[52] Supra note 51.

[53] Office of Refugee Resettlement website at http://www.acf.dhhs.gov/programs/orr/programs/urm.htm (viewed April 16, 2004).

[54] Supra note 51.

[55] Supra note 54.

[56] Supra note 1.

[57] Interview with Chris Nugent, attorney for Malik Jarno, Holland & Knight LLP (April 7, 2004).

[58] Id.

[59] Id.

[60] Supra note 26.

[61] Id. 

[62] Id. 

[63] Id.  

[64] Reno v. Flores, 507 US 292 (1993).

[65] Id.

[66] Id. The Supreme Court held that (1) the regulation permitting detained juvenile aliens to be released only to their parents, close relatives, or legal guardians, except in unusual and compelling circumstances, does not facially violate substantive due process. (Id. at 302); (2) The INS procedures do not deny juvenile aliens procedural due process (Id. at 308-309); and (3) the regulation is within scope of Attorney General’s statutory discretion to continue custody over arrested aliens. (Id. at 313-314).

[67] Supra note 42.   

[68] Id.    

[69] Id.  at Chapter 11.

[70] Steven H. Gifis, Barron’s Law Dictionary (1996). Definition of “consent decree/consent judgment”: the contract of the parties entered upon the record with the approval and sanction of a court of competent jurisdiction, which [contract] cannot be nullified or set aside without the consent of the parties, except for fraud or mistake. Consent judgments have the same force and effect as any other judgment.

[71] Supra note 42 at Chapter 9.  

[72] Supra note 28 at Chapter 2.4.

[73] Supra note 42 at Chapter 14.

see also: Supra note 28 at Chapter 2.4.           

[74] Supra note 42 at Exhibit 2(b).

see also: Supra note 28 at Chapter 2.4.           

[75] Supra note 28 at Chapter 2.4.

[76] Supra note 42 at Chapter 13.

[77] Id.  

[78] Homeland Security Act, PL 107-296 (2002): The three immigration bureaus are (1) Bureau of Customs and Border Protection (BCBP): responsible for immigration and customs enforcement activities at the border (2) Bureau of Immigration and Customs Enforcement (BICE): responsible for immigration and customs enforcement within the United States (3) Bureau of Citizenship and Immigration Services (BCIS): responsible for the administration of benefits and immigration services (8 CFR §1.1(c)).

[79] Supra note 39. The transfer became effective March 1, 2003.

[80] 6 U.S.C.A § 279(f)(2). Subsections (a), (b), and (c) of section 552 of this title shall apply to a transfer of functions under this section in the same manner as such provisions apply to a transfer of functions under this chapter to the Department of Homeland Security. Id.   

see also: 6 U.S.C.A. § 552 (a)(1). Completed administrative actions of an agency shall not be affected by the enactment of this chapter or the transfer of such agency to the Department, but shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law. Id.

[81] Supra note 58.

[82] Id.

[83] 68 FR 11566-01, March 11, 2003.

[84] Id.

[85] Id.

[86] Supra note 38.

[87] Bureau of Immigration and Customs Enforcement website: http://www.ice.gov/graphics/about/index.htm (viewed April 16, 2004).

[88] Id.

[89] Supra note 28 at Chapter 3.4. Dental exams look at the eruption of molars and development of wisdom teeth, while wrist bone X-ray exams measure the fusion of bones in their wrist. Dentists offer conclusions as to whether a young person is younger or older than 18 based on these tests. (Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers, June 2003).  (found http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr9-age.html) (viewed April 16, 2004).

[90] Supra note 43 at 38, citing, Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-4544-RJK (C.D. Cal. 1996) (found http://www.centerforhumanrights.org/Detained_minors/FloresSettle.html) (viewed April 16, 2004).    

[91] Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers, June 2003. (found http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr9-age.html) (viewed April 16, 2004).

[92] Supra note 28, citing, William W. Greulich and S.I. Pyle, Radiographic Atlas of Skeletal Development of the Hand and Wrist, Stanford University Press, CA 1951 (pg. 41) (found http://www.amnestyusa.org/refugee/children_detention.html) (viewed April 16, 2004).

[93] Supra note 28.

[94] Supra note 3.

[95] Supra note 19.

                see also: Supra note 13.

[96] Supra note 13. 

[97] Supra note 92 citing, Ontell, Ivanovic M, Ablin DS, Barlow TW. Bone Age in Children of Diverse Ethnicity, AJR AM J Roentgenol (August 1997) (169(2): 597-8) (found http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr9-age.html) (viewed April 16, 2004).

[98] Supra note 92.

[99] Supra note 92 citing, Ontell, Ivanovic M, Ablin DS, Barlow TW. Bone Age in Children of Diverse Ethnicity, AJR AM J Roentgenol (August 1997) (169(2): 597-8) (found

http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr9-age.html (viewed April 16, 2004))     

[100] Supra note 92 citing, Mora S, Boechat MI, Peitka E, Huang HK, Gilanz V. Skeletal Age Determinations in Children of European and African Descent: applicability of the Gruelich and Pyle standards, Pediatr Res (November 2001) (50(5): 624-8) (found http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr9-age.html (viewed April 16, 2004)

[101] Supra note 43 citing, State Dept. Cable No. 98-State-096341 (May 29, 1998) reprinted in Interpreter Releases June 29, 1998 at 883.

[102] Supra note 26.

[103] News Release, Physicians for Human Rights, “Prominent Dentists and Physicians Call on U.S. Authorities to Stop Conducting X-Rays to Determine the Age of Young Asylum Seekers,” (June 3, 2004) (found at http://www.phrusa.org/campaigns/asylum_network/agetesting06032004.html.)  See also, Doctors X-Ray Immigration Policy (found at http://www.cnn.com/2004/health/06/03/security.xrays.reut/.)

[104] 63 FR 27441-01: A “bond re-determination hearing” is an individualized hearing on whether an alien in custody actually falls within a category of aliens subject to mandatory detention.

[105] Supra note 42 at Chapters 14 and 15. Where the INS determines that the detention of a minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others, the INS shall release a minor from its custody without unnecessary delay, in the following order of preference, to: a parent; a legal guardian; or an adult relative. Before the minor is released however, the person they are being released to must execute an Affidavit of Support and an agree to several things, including, providing for the minor’s physical, mental, and financial well-being and ensuring the minor’s presence at all future INS and immigration court proceedings. Id.

[106] Illegal Immigration Reform and Immigrant Responsibility Act, PL 104-208 (1996).

[107] Id. at section 302 (1996).

see also: Supra note 43 at 7.

[108] Supra note 2.

[109] Supra note 106 at section 302. see also: Supra note 43 at 7.

[110]8 U.S.C.A. § 1225(b)(1)(B)(v): A “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum. Eligibility for asylum requires a showing that the alien fulfills the legal definition of “refugee.” (8 U.S.C.A. § 1158). An alien is considered a “refugee” if he or she is any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (8 U.S.C.A. § 1108(a)(42)(A)).

[111] Supra note 43 at 7.

[112] Supra note 58.

[113] Supra note 43 at 8.

[114] Supra note 42 at Chapters 12 and 14. 

[115] Id.  at Chapter 19 and Exh. 1.

[116] Id.  at Exh. 1(A)(12). A reasonable right to privacy includes: the right to wear his or her own clothes when available; retain a private space in the residential facility, group home or foster home for the storage of personal belongings; talk privately on the phone, as permitted by the house rules and regulations; visit privately with guests, as permitted by the house rules and regulations; and receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband. Id.  

[117] Id.  at Exh. 1.

[118] Supra note 28.

[119] Supra note 58.

[120] Supra note 43 at 35.

[121] Id.

[122] Supra note 92.

[123] Id.

[124] Id.

[125] Id.

[126] Supra note 7 at 45.

[127] Supra note 21.

[128] Id.  

[129] Supra note 7 at 41.

[130] Supra note 7 at 41. The three law firms are Holland and Knight LLP, Latham and Watkins, and Jones Day.

[131] Id.

[132] Supra note 21.

[133] Supra note 7 at 41.

[134] Supra note 40 at section 101(c).

[135] Senator Feinstein Introduces Legislation to Protect Unaccompanied Children in Immigration Custody, January 24, 2005. (found http://feinstein.senate.gov/05releases/r-unaccompanied-child-into.htm).

[136] Senators Feinstein and Brownback, Angelina Jolie Call on the Senate to Approve Bill to Improve the Treatment of Unaccompanied Alien Minors, June 19, 2003. (found http://feinstein.senate.gov/03Releases/r-childrenhcr2.htm) (viewed February 8, 2004).  

[137] Id.   

[138] Supra note 135.

[139] Supra note 40 at section 101(c).

[140] Id.

[141] Supra note 135. 

[142] Supra note 40 at section 105(a).

[143] Id.   

[144] Supra note 40 at section 105(b).

[145] Supra note 135. 

[146] Supra note 42 at Chapter 13.

 

 

[147] Office of the United Nations High Commissioner for Refugees, Geneva, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, February 1997, citing, The Convention on the Rights of the Child, Article 3, paragraph 1.

[148] UNICEF website: http://www.unicef.org/crc/crc.htm (viewed April 2, 2004).

[149] Supra 147 at 5.11(c).

[150] The Convention on the Rights of the Child, Article 37(c). (found  http://www.unicef.org/crc/crc.htm) (viewed April 2, 2004)

[151] Supra note 135. 


About The Author

Jennifer Smythe, is a J.D. Candidate, 2006, Golden Gate University School of Law; Honors B.A. 2000, University of California at Santa Cruz. She currently works as a legal assistant for the Law Office of Gali Schaham Gordon, an Immigration and Nationality law firm in San Francisco, CA.


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


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