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[Congressional Record: January 22, 2001 (Senate)]
[Page S356-S406]
From the Congressional Record Online via GPO Access []

[[Page S396]]

      By Mrs. FEINSTEIN (for herself and Mr. Graham):
  S. 121. A bill to establish an Office of Children's Services within 
the Department of Justice to coordinate and implement Government 
actions involving unaccompanied alien children, and for other purposes; 
to the Committee on the Judiciary.

                Unaccompanied Alien Child Protection Act

  Mrs. FEINSTEIN. Mr. President. I rise today to introduce legislation 
to change the way unaccompanied immigrant children are treated while in 
the custody of the Immigration and Naturalization Service (INS). If 
enacted, the Unaccompanied Alien Child Protection Act of 2001 would 
ensure that the federal government addresses the special needs of 
thousands of unaccompanied alien children who enter the U.S. It will 
ensure that these children have a fair opportunity to obtain 
humanitarian relief.
  Central throughout this legislation are two concepts: The United 
States government has a fundamental responsibility to protect 
unaccompanied children in its custody; and in all proceedings and 
actions, the government's ultimate priority should be to protect the 
best interests of children.
  The Unaccompanied Alien Child Protection Act of 2001 would ensure 
that children who are apprehended by the INS are treated humanely and 
appropriately by transferring jurisdiction over their welfare from the 
INS Detention and Deportation division to a newly created Office of 
Children's Services within the Department of Justice.
  This legislation would also centralize responsibility for the care 
and custody of unaccompanied children in this new Office of Children's 
Services. By doing so, it would resolve the conflict of interest 
inherent in the current system--that is, the INS retains custody of 
children and is charged with their care while, at the same time, it 
seeks their deportation.
  Under this bill, the Office of Children's Services would be required 
to establish standards for the custody, release, and detention of 
children, ensuring that children are housed in appropriate shelters or 
foster care rather than juvenile jails. In 1999, the INS held some 
2,000 children in juvenile jails even though they had never committed a 
crime. Equally as important, the bill would require the Office to 
establish clear guidelines and uniformity for detention alternatives 
such as shelter care, foster care, and other child custody 
  The bill would improve unaccompanied aliens' access to existing 
options for permanent protection when U.S. immigration and child 
welfare authorities believe such protection is warranted.
  Finally, the Unaccompanied Alien Child Protection Act would provide 
unaccompanied minors with access to legal counsel, who would ensure 
that the children appear at all immigration proceedings and assist them 
as the INS and immigration court consider their cases. The bill would 
also provide the children with access to a guardian ad litem to ensure 
that they are properly placed in a safe and caring environment. The 
guardian ad litem would also work to ensure that each child's best 
interests are protected throughout the process.
  Let me turn for a moment to the issue of access to counsel. Children, 
even more than adults, have incredible difficulty understanding the 
complexities of the asylum system without the assistance of counsel. 
Despite this reality, most children in INS detention are overlooked and 
unrepresented. Without legal representation, children are at risk of 
being returned to their home countries where they may face further 
human rights abuses.
  I am aware of two cases that demonstrate the compelling need for 
counsel on behalf of these children. The first case involves two 17-
year old boys from China. Li and Wang, who were apprehended on an 
island near Guam and had been in INS custody for almost two years. 
During their detention in Guam, the two boys testified in federal court 
against the smugglers who brought them to Guam. In their testimony, 
they described being beaten by the smugglers even before leaving China, 
and stated that others were beaten during the trip to Guam. In the 
spring of 2000, the two boys were brought to a corrections facility in 
Los Angeles and

[[Page S397]]

detained in the INS section of that facility. This is where the 
similarity in their cases end.
  Mr. President, while both of the boys would face danger from the 
smugglers if they returned to China because of their testimony, only 
one was granted asylum. Li applied for asylum and was denied. He was 
not represented by counsel at his hearing. Despite the fact that the 
INS trial attorney mentioned that Li had testified in federal court 
against the smugglers, the judge did not include this information in 
her decision on the claim. Luckily for Li, an attorney overheard the 
hearing, and after speaking with Li, agreed to appeal his asylum claim. 
Li is still being held in a Los Angeles corrections facility. The story 
is different for Wang. Wang had an attorney and won his asylum hearing. 
But INS is appealing the decision so Wang remains in a Los Angeles 
corrections facility, as well.
  Mr. President, these cases demonstrate the pressing need for legal 
representation of children. Had he been represented by counsel and if 
his testimony would have been incorporated into his case, Li may have 
won his asylum claim. Instead, a 17-year-old boy unfamiliar with our 
immigration system and our language was forced to navigate the complex 
court system alone.
  According to Human Rights Watch, children detained by the INS, 
whether in secure detention or less restrictive settings, often have 
great difficulty obtaining information about their legal rights. On a 
1998 visit to the Berks County Juvenile Detention Center in Reading, 
Pennsylvania, Human Rights Watch staff found that none of the children 
they interviewed had received information from the INS or the 
facility's staff about their rights or the legal services available to 
  Unaccompanied alien children are among the most vulnerable of the 
immigrant population; many have often entered the country under 
traumatic circumstances. They are young and alone, subject to abuse and 
exploitation. These unaccompanied children are unable to articulate 
their fears, their views, or testify to their needs as accurately as 
adults can.
  Despite these facts, U.S. immigration laws and policies have been 
developed and implemented without caring about their effect on 
children, particularly on unaccompanied alien children.
  Sadly, the INS detains more than 5,000 children nationwide each year. 
They are apprehended for not having proper documentation at ports-of-
entry into the United States. Their detention may last for months--or 
sometimes for years--as they undergo complex and arduous immigration 
  Under current immigration law, these children are forced to struggle 
through a system designed primarily for adults, even though they lack 
the capacity to understand nuanced legal principles and procedures. 
Children who may very well be eligible for relief are often vulnerable 
to being deported back to the very abusive situations from which they 
fled before they are able to make their case before the INS or an 
immigration judge.
  Under current law, the INS is responsible for the apprehension, 
detention, care, placement, legal protection, and deportation of 
unaccompanied children. I believe that these are conflicting 
responsibilities that undercut the best interests of the child. Too 
often, the INS has fallen short in fulfilling the protection side of 
these responsibilities.
  The INS uses a variety of facilities to house children. Some are held 
in children's shelters in which children are offered some of the 
services they need but still may experience prolonged detention, lack 
of access to counsel, and other troubling conditions.
  The INS relies on juvenile correctional facilities to house many 
children, even in the absence of any criminal wrongdoing. Today, one 
out of every three children in INS custody is detained in secure, jail-
like facilities. These facilities are highly inappropriate, 
particularly for children who have already experienced painful trauma 
in their homelands.
  There is currently no provision of federal law providing guidance for 
the placement of unaccompanied alien children. In 1987, the Flores v. 
Reno settlement agreement on behalf of minors in INS detention 
established the nationwide policy for the detention, release, and 
treatment of children in the custody of INS. The Flores agreement 
requires that the INS treat minors with dignity, respect, and special 
concern for their particular vulnerability. It also requires the INS to 
place each detained minor in the least restrictive setting appropriate 
to the child's age and special needs.

  In response to Flores, the INS issued regulations that permitted its 
officers to detain children in secure facilities only in limited 
circumstances. The INS officers were required to provide written notice 
to the child of the reasons for such placement. More importantly, the 
regulations required the INS to segregate immigration detainees from 
juvenile criminal offenders.
  Although INS officials have contended that these children are placed 
in these facilities largely because they are charged with other 
offenses, the INS statistics do not bear out this claim. In fiscal year 
1999, only 19 percent of the children placed in secure detention were 
chargeable or adjudicated as delinquents.
  According to non-governmental organizations (NGOs) such as Human 
Rights Watch and the Women's Commission on Refugee Women and Children, 
the INS regularly violates these regulations. The NGOs contend that all 
too often children are placed in jail-like facilities for seemingly 
arbitrary reasons, seldom notified of the reasons why, and forced to 
share rooms and have extensive contact with convicted juvenile 
  I was also astonished to learn that many of these children, some as 
young as four and five years old, are placed behind multiple layers of 
locked doors, surrounded by walls and barbed wire. They are strip 
searched, patted down, placed in solitary confinement for punishment, 
forced to wear prison uniforms and shackles, and are forbidden to keep 
personal objects. Often they have no one to speak with because of the 
language barrier.
  The Unaccompanied Alien Child Protection Act of 2001 would ensure 
that the particular needs of the thousands of unaccompanied alien 
children who enter INS custody each year are met and that these 
children have a fair opportunity to obtain immigration relief when 
  In 1999, the INS held approximately 4,600 children under the age of 
18 in its custody. Some of these children fled human rights abuses or 
armed conflict in their home countries, some were victims of child 
abuse or had otherwise lost the support and protection of their 
families, some came to the United States to join family members, and 
some came to escape economic deprivation.
  Many of these children came from troubled and war-torn countries 
around the world, including the Peoples Republic of China, Honduras, 
Afghanistan, Somalia, Sierra Leone, Colombia, Guatemala, Cuba, former 
Yugoslavia, and others. They range in age from toddlers to teenagers. 
Some traveled to the United States alone, while others were accompanied 
by unrelated adults.
  Sadly, a significant number are victims of smuggling or trafficking 
rings. In one recent instance, Phanupong Khaisri, a two-year old Thai 
child, was brought to the U.S. by two individuals falsely claiming to 
be his parents, but who were actually part of a major alien trafficking 
ring. The INS was prepared to deport the child back to Thailand. It was 
not until Members of Congress and the local Thai community had 
intervened, however, that the INS decided to allow the child to remain 
in the U.S. until the agency could provide proper medical attention and 
determine what course of action would be in his best interest. Now his 
case is before a federal district court judge who will determine 
whether he should be eligible to apply for asylum.
  The Unaccompanied Alien Child Protection Act aims to prevent 
situations like this from recurring by centralizing the care and 
custody of unaccompanied children into a new Office of Children's 
Services within the INS, but outside the jurisdiction of the District 
Directors. By doing so, the Act resolves the conflict of interest 
inherent in the current system--that is, the INS retains custody of 
children and is charged with their care while, at the same time, it 
seeks their deportation.
  Mr. President, I would like to take a moment to share with you a few 
other examples of how the federal government has fallen short in the 
manner in

[[Page S398]]

which we handle vulnerable unaccompanied minors. One would think that 
our country would treat unaccompanied minors with the sensitivity and 
care their situations demand. Unfortunately, in too many instances, 
that has not been the case. Too often, these children are often treated 
like adults and, under the worst circumstances, like criminals.

  Xaio Ling, a young girl from China who spoke no English, was detained 
by the INS at the Berks County Juvenile Detention Center. The INS 
placed her among children guilty of violent crimes, including rape and 
murder. Xaio was never guilty of any crime, and yet she slept in a 
small concrete cell, was subjected to humiliating strip searches, and 
forced to wear handcuffs. She was forbidden to keep any of her clothes 
or possessions and, under the policies of the Berks Center, Xaio was 
not allowed to laugh--not that she had anything to laugh about.
  Imagine the fear this child had to endure: thrust into a system she 
did not understand, given no legal aid, placed in jail that housed 
juveniles with serious criminal convictions, including murder, car 
jacking, rape, and drug trafficking. She did not speak English and was 
unable to speak to any staff who knew her language, and she had to 
submit to strip searches. It is hard to believe that our country would 
have allowed this innocent child to be treated in such a horrible 
  Situations like that of this young Chinese girl make a compelling 
case for changes in the way our nation treats unaccompanied alien 
children. Under the legislation I have introduced today, this youngster 
never would have been placed in a detention center with criminal 
offenders. Rather, she would have immediately been placed in shelter 
care, foster care, or a home more appropriate for her situation. She 
would have been provided an attorney for her immigration proceedings 
and a social worker would have been appointed as guardian ad litem to 
ensure that her needs were being met. Sadly, this young girl was given 
none of these options.
  Neither was a 16 year-old boy from Colombia, who fled Colombia to 
escape a life of violence on the streets of Bogota, where FARC 
guerillas attempted to recruit him and the F-2 branch of the Colombian 
government harassed him in its attempt to get rid of street children. 
Fearing for his life, he fled Colombia for Venezuela where he lived 
without shelter or sufficient food. In search of a safer life, he 
sneaked into the machine room of a cargo ship bound for the United 
States. He was lucky to survive; many other stowaways were thrown 
overboard when discovered by the ship's crew.
  The boy remained on the ship from November 1998 until March 1999, 
when he arrived in Philadelphia. He was soon turned over to the INS and 
placed into the same detention center in which the young Chinese girl 
was held. He, too, was kept with criminal offenders. He did not 
understand English, which created a myriad of problems because he was 
unable to understand what was expected of him in the detention center. 
He was held in an inappropriately punitive environment for six months.
  I have one last story to share with you today. Placed on a boat bound 
for the United States by her very own parents, a 15-year-old girl fled 
China's rigid family planning laws. Under these laws she was denied 
citizenship, education, and medical care. She came to this country 
alone and desperate. And what did our immigration authorities do when 
they found her? They held her in a juvenile jail in Portland, Oregon. 
She was held for eight months and was detained for an additional four 
months after being granted political asylum. At her asylum hearing, the 
young girl could not wipe away the tears from her face because her 
hands were chained to her waist. According to her lawyer, ``her only 
crime was that her parents had put her on a boat so she could get a 
better life over here.''
  Mr. President, for years children's rights and human rights activists 
have implored Congress to improve the way our immigration system 
handles unaccompanied minors--just like the ones whose stories I have 
just told. I believe my bill would do just that.
  We cannot continue to allow children, who come to our country, often 
traumatized and guilty of no crime, to be held in jails and treated 
like criminals. We cannot continue to allow children, scared and 
helpless, to be thrown into a system they do not understand without 
sufficient legal aid and a guardian to look after their best interests. 
We must adhere to the principles of our justice system. What kind of 
message do we send when we deprive children who come to our country 
seeking refuge of their basic rights and protections?
  As a nation that holds our democratic ideals and constitutional 
rights paramount, how then can we continue to avert our attention from 
repeated violations of some of the most basic human rights against 
children who have no voice in the immigration system? We should be 
outraged that children who come to the U.S. alone, many against their 
will, are subjected to such inhumane, excessive conditions.
  I am proud to have the support of the United States Catholic 
Conference and the Women's Commission on Refugee Women and Children, 
with whom I have worked closely to develop this legislation.
  I urge my colleagues to join with me by cosponsoring this important 


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