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85–520 PDF 2003

S. HRG. 107–867

THE UNACCOMPANIED ALIEN 

CHILD PROTECTION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

FEBRUARY 28, 2002

Serial No. J–107–63

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON IMMIGRATION

EDWARD M. KENNEDY, Massachusetts, Chairman 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

MELODY BARNES, Majority Chief Counsel 

STUART ANDERSON, Minority Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 11

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 77

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 4

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 82

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

Leahy, Patrick J., a U.S. Senator from the State of Vermont ............................. 84

WITNESSES 

Anderson, Stuart, Executive Associate Commissioner, United States Immigration and Naturalization Service, Washington, D.C. .......................................... 12

Creppy, Michael J., Chief Immigration Judge, Executive Office for Immigration Review, Falls Church, Virginia ................................................................... 7

Duncan, Julianne, Director, Office of Children’s Services, Migration and Refugee Services/United States Conference of Catholic Bishops, Washington, 

D.C. ........................................................................................................................ 56

Morton, Andrew D., Esq., Latham and Watkins, Washington, D.C. ................... 49

Munoz, Edwin Larios, Grand Rapids, Michigan ................................................... 27

Young, Wendy A., Director of Government Relations and U.S. Programs, 

Women’s Commission for Refugee Women and Children, New York, New 

York ....................................................................................................................... 31

SUBMISSIONS FOR THE RECORD 

Bendit, Heather M., Philadelphia Bar Association; Judith Bernstein-Baker, 

HIAS and Council Migration Services; Rupal Parikh, Nationalities Services 

Center; Shelly D. Yanoff, Philadelphia Citizens for Children & Youth; Phyllis Grady, Amnesty International; Metty Vithayathil, Pennsylvania Immigration Resource Center; Michele Pistone, Villanova Law School; Joy 

VanBerg, Lutheran Children & Family Services; Marsha Levick, Juvenile 

Law Center; and Julie Slavkin, Southeast Regional Immigrant and Citizens 

Coalition, Philadelphia, Pennsylvania, March 12, 2002, joint letter ............... 74

Florence Immigrant & Refugee Rights Project, Holly S. Cooper, Florence, 

Arizona .................................................................................................................. 78

Glaves, Bob, Chair, Legislative Committee, Chicago Bar Association, Chicago, 

Illinois ................................................................................................................... 80

Sadruddin, Hussein, Soros Postgraduate Justice Fellow, Lawyers’ Committee 

for Civil Rights Under Law of Texas, San Antonio, Texas ............................... 84

(1)

THE UNACCOMPANIED ALIEN CHILD 

PROTECTION ACT 

THURSDAY, FEBRUARY 28, 2002

U.S. SENATE, SUBCOMMITTEE ON IMMIGRATION, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy, chairman of the Subcommittee, presiding. 

Present: Senators Kennedy, Feinstein, and Brownback 

OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. 

SENATOR FROM THE STATE OF MASSACHUSETTS 

Chairman KENNEDY. We will come to order. 

Before we get into the matter at hand, I will just take a moment 

while our colleagues arrive here to welcome some special guests 

who are with us today. They are students from Mt. Rainier Elementary School, in Prince George’s County, who have demonstrated a strong commitment for improving the treatment of unaccompanied minors in the country. They have brought with them 

a paper doll chain that they have created with children from over 

20 States, containing 500 links to represent the 500 children who 

are detained by the INS each day. 

So maybe they and their teacher would stand up. 

[Applause.] 

Chairman KENNEDY. We can do a little better than that. Why 

don’t we open up a little line here and maybe they would all come 

up to the front of the hearing room. Come right up in front, if they 

can come right up in front. Come right up in front here so everybody can see you. Line up right along here, line up facing out. The 

second row can get down on your knees just down in front. 

I am used to large families. 

[Laughter.] 

Chairman KENNEDY. And if we have a third row, they can come 

back here. Let’s have Ms. Suess, their teacher, up here too. 

We are joined by Senator Feinstein. We are intruding on our 

Subcommittee’s time for a very worthwhile purpose. These children 

have created a paper doll chain with children from over 20 States. 

Ms. Suess, we would like to have you just tell us quickly what 

this project is all about. Just sit down and speak through that mike 

right there. 

Ms. SUESS. We are from a very special school in Prince George’s 

County. We are one of ten schools nationwide that is a National 

2

School of Character. We have also been chosen by the alternative 

dispute resolution group in Baltimore as a Model Peace School. 

When we heard about this issue of unaccompanied children not 

being put into loving home care situations, we thought that this 

was a real concrete way to continue our dedication to the cause of 

peace for children worldwide. 

Chairman KENNEDY. Well, I think you are to be commended, and 

all of the children. 

Now, children, I want you to stretch that chain out so everybody 

can see it. And I would like to ask our audience to give them a 

round of applause. 

[Applause.] 

Chairman KENNEDY. We want to thank them for being here. If 

they want to sit down here, they can hear more, and I think it is 

OK with us. I think it is a better seat for them. 

I don’t know from their teacher what their timeframe is, but you 

give me the signal. They will be here for panel one. 

Thank you very much. This is inspiring, and we want to thank 

all of the students. We just thank you for taking an interest in this, 

and we hope that you will continue to keep an interest in this and 

that you will keep an interest in the challenges of children both 

here at home, in Prince George’s County, in Maryland, and also 

children in this country and children around the world. We want 

to thank you very much for doing this. It is a very, very important 

undertaking and we are very grateful to all of you for doing it. 

It shows a lot of work, doing all of those cards. Someone took a 

lot of time to do it, and that is what you have done. And I think 

because of that and because of our hearing today, those children 

will be helped. So you ought to take some satisfaction from that, 

too, for really helping some people. 

I want to first of all thank Senator Feinstein, who has been our 

driving force on this issue. She has had a longstanding commitment to this important issue. She has introduced the Unaccompanied Alien Child Protection Act. I am a proud and privileged cosponsor with her, but she has been the important leader in the 

U.S. Senate and nationally on this issue and on this question. 

I will just make a few comments here and put this issue in some 

framework. 

For the past few years, increasing numbers of foreign-born children have come to the United States unaccompanied by their parents or legal guardians. Last year, more than 4,600 arrived, and 

their number continues to rise this year. Some flee human rights 

abuses. Others have been abused or abandoned by their parents or 

flee armed conflict or dangerous conditions in their home countries. 

These children generally enter this country after traumatic experiences, often speak little or no English, and are rarely aware of 

their rights under U.S. law. Although they might be good candidates for asylum, they are not appointed counsel and are left to 

represent themselves in immigration court against experienced INS 

lawyers. 

Their situation is exacerbated by the fact that when they arrive 

they are frequently detained. Many of these children languish for 

long periods of time in shelters that are designed for short-term 

3

use without adequate access to translators, telephones, medical 

care, or other vital services. 

But these are the fortunate ones. While INS has made an effort 

to increase the number of beds in foster homes and juvenile centers, more than 30 percent of unaccompanied children detained last 

year were held in juvenile jails, often with dangerous criminals, 

subject to shackling and strip searches. 

The Unaccompanied Alien Child Protection Act will address 

many of the problems facing unaccompanied minors and will help 

bring U.S. treatment of unaccompanied alien children into line 

with international standards. Senator Feinstein will outline the details of the proposal. 

Most of these children who come here are not criminals and 

should not be treated as such. We must limit the use of detention 

in these cases, and children who aren’t a danger or a flight risk 

should be released to their families or appropriate caregivers. 

I am pleased that Commissioner Ziglar is committed to addressing many of the problems facing unaccompanied minors, and I look 

forward to working with him on these issues. I also look forward 

to the testimony of our witnesses today and to working closely with 

my colleagues on this very important and needed legislation. 

[The prepared statement of Senator Kennedy follows:]

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF

MASSACHUSETTS

I’m pleased to Chair this important hearing on the treatment of unaccompanied 

children arriving in the United States. I commend Senator Feinstein’s long-standing 

long-standing commitment to this important issue, and her introduction of the Unaccompanied Alien Child Protection Act, of which I am a cosponsor. 

I’m also pleased to welcome and recognize some special guests who are here with 

us today. They are students from Mt. Rainier Elementary School in Prince George’s 

County and their teacher Mrs. Suess, who have demonstrated a strong commitment 

to improving the treatment of unaccompanied minors in this country. They’ve 

brought with them a paper doll chain that they created with children from over 20 

states, containing 500 links to represent the 500 children who are detained by INS 

each day. Each paper doll carries a message of hope and justice, affirming values 

fundamental to who we are as Americans. I thank the students for their efforts and 

encourage them to continue to advocate for these important reforms. 

For the past few years, increasing numbers of foreign-born children have come to 

the United States unaccompanied by their parents or legal guardians. Last year, 

more than 4,600 arrived, and the number continue to rise this year. Some flee 

human rights abuses, including forced recruitment as soldiers, servitude, child 

labor, prostitution or forced marriage. Other children escape to the U.S. because 

they have been abused or abandoned by their parents or care givers. Others flee 

armed conflict or other dangerous conditions in their home countries. They may be 

brought into the U.S. by a family friend or relative, by paid smugglers, or by traffickers involved in organized crime. 

Regardless of how they arrive, these children generally enter this country after 

traumatic experiences, often speak little to no English, and are rarely aware of their 

rights under U.S. law. Although they might be good candidates for asylum, they 

aren’t appointed counsel, and are left to represent themselves in immigration court 

against experienced INS trial lawyers. 

Their situation is exacerbated by the fact that when they arrive, they’re frequently detained. Many of these children languish for long periods of time in shelters that are designed for short term use, without adequate access to translators, 

telephones, or medical care and other vital services. But these are the fortunate 

ones. While INS has made an effort to increase the number of beds in foster-homes 

and special juvenile centers, more than 30% of unaccompanied children detained 

last year were held in juvenile jails, often with dangerous criminals, subject to 

handcuffing and shackling, and forced to wear prison uniforms. 

4

The Unaccompanied Alien Child Protection Act will address many of the problems 

facing unaccompanied minors and will help bring U.S. treatment of unaccompanied 

alien children into line with international standards. 

Essential to these efforts is providing appointed counsel and guardian ad litem 

to every unaccompanied undocumented child. Statistics demonstrate the asylum 

seekers are four times more likely to be granted asylum when represented by counsel. However, less than half of the important non-immigration cases, and they 

should be afforded the same rights in immigration proceedings. In addition, trained 

guardian ad litem can be critical in identifying the needs of children when language 

and cultural barriers prevent attorneys from communicating effectively with their 

child clients. This bill will require that these vulnerable children receive the representation they need to ensure that their rights are protected ad the care they deserve to ensure their welfare is properly considered as they navigate through complicated immigration proceedings. 

Part of the problem facing unaccompanied minors arises from INS’ dual mission 

of enforcing immigration laws and providing services. many convincingly argue that 

the competing responsibilities of prosecuting and caring for these children make impartial consideration of the children’s best interests almost impossible. The Unaccompanied Children’s bill addresses this issue by establishing the Office of Children’s Services outside the INS. Working independently of the INS, this office will 

assume responsibility for custody and release decisions, and the oversight of juvenile 

foster care and shelter care facilities for undocumented children, thereby reducing 

the inherent conflict of interest that currently exists within INS. 

I’m pleased that Commissioner Ziglar is committed to addressing the problems 

facing unaccompanied minors. While I’m concerned that this decision to establish 

an Office of Juvenile Affairs under INS jurisdiction may not go far enough, I look 

forward to working with him to ensure that these vulnerable children receive the 

support and protection they need. 

Most of these children are not criminals and should not be treated as such. We 

must limit the use of detention in these cases and release children who aren’t a danger or a flight risk to their families or appropriate care givers. This bill requires 

the release of the children whenever possible and supports the expanded use of shelters and foster care for placement of children who lack such care givers. Other needed protections in the bill include the establishment of detention standards and training for immigration personnel. 

I look forward to the testimony of our witnesses today, and to working closely 

with my colleagues to pass this much needed legislation.

As I mentioned, our leader, Senator Feinstein, is here. Welcome, 

I thank her for all of her good work on this issue. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Well, thanks very much, Senator Kennedy, 

and it was a sheer delight to me that you were the first person to 

be a cosponsor. Senator Durbin is on the bill, and a number of others. I would also like to mention that Senators Cantwell and Kohl 

are now cosponsors of this bill. 

I can never remember numbers of bills, ladies and gentlemen, 

but if you want to help us with it, it is S. 121. And if you don’t 

want to help us with it, forget the number. 

[Laughter.] 

Senator FEINSTEIN. But I would you to help us with it because 

I think we are going to have a little bit of trouble with this bill 

with INS. We will see. I suspect they don’t want to do it, and I suspect they don’t want a bill that tells them to do it. So they are 

probably going to say a number of different things and we will 

have a chance to answer that, but my view is INS has not done 

what it should have done up to this point. Therefore, my view is 

that the only way to handle this is to put it in legislation. 

I had no idea of the depth of this problem until I happened to 

turn on my television set in California one night and I saw a young 

5

Chinese girl—I think it was in Seattle, Washington—before a 

judge, crying. Her hands were shackled to her waist. She couldn’t 

speak the language and she didn’t know why she was there. 

It really struck me, and then I began to look into this issue and 

what I learned was that our Government has a lot of power when 

it wants to have that power, and that there are at a given time 

maybe 500 children, but total throughout the year maybe 5,000 

children. The Department does try to find a situation where they 

can live that is appropriate for their circumstances, but very often 

they end up in jails, when they have done nothing wrong, and in 

detention facilities when they have done nothing wrong. 

I want to give you one other example which sort of stirred me 

on. I read in the newspaper that there was a young baby from 

Thailand who arrived at Los Angeles Airport, and that baby had 

been sold by his mother to human traffickers and the traffickers 

used the baby to go back and forth across the ocean pretending 

that that baby was theirs, when, in fact, the baby wasn’t theirs. 

Well, the INS got custody of the young boy. They discovered he 

was being used as a decoy. The youngster suffered from dehydration, from malnutrition. He was vomiting, he had an ear infection, 

he was running a temperature. 

In its notice of intent to deny this baby’s asylum claim, which 

was filed by others—that was March 14, 2001—the INS conceded 

that the events surrounding his situation, and I quote, ‘‘indicate 

neglect that reached a life-threatening level.’’ Nonetheless, the INS 

sought the child’s immediate deportation without further investigating the matter. 

It was only after a number of congressional offices and my office 

really got involved that the INS agreed to allow the child to remain 

in the United States so that he could obtain proper medical attention. Then INS sought to send him back to Thailand to his grandmother, who had a serious criminal drug-trafficking conviction that 

carried a sentence of 25 years. 

Now, according to INS, it is the standard policy for an unaccompanied child to be placed with the nearest possible relative, who 

will then make the necessary decisions regarding the child’s welfare. But in this situation, these relatives were the same ones who 

either trafficked him or engaged in criminal behavior that is clearly 

detrimental to the baby’s interests. 

Fortunately, the circumstances of this case were sufficient to 

warrant his protection under something called the Trafficking Victims Protection Act, which permits a minor to remain in the United 

States if there is risk to that child. 

Now, INS denied the youngster’s application for such protection, 

so I wrote a letter to the Attorney General and asked for his assistance. Through him and his intervention, he was actually granted 

humanitarian parole, and there was a family here that was a good 

family that really wanted to take care of this baby. 

The Attorney General also instructed the INS to accept and adjudicate this child’s application for something called a T visa, which 

would grant him the ability to remain in the United States for 3 

years, given his history as a trafficking victim. Then earlier this 

year, the Attorney General announced that this baby was the first 

recipient ever of a so-called T visa. 

6

So I am very pleased with the end result, but I was really concerned because it was such an unnecessary ordeal. On the face of 

it, it sounded so clear that things shouldn’t have worked out the 

way they worked out. 

We have put together a bill which essentially says that there 

should be an Office of Children’s Services within the INS, and that 

that office should be responsible to do a couple of things: one, to 

appoint somebody who is called a guardian ad litem. Now, that is 

not an attorney, but that is someone who comes in—and the INS 

would set this program up and would determine the credentials for 

the individual, and there are a number of pro bono efforts that are 

willing to fill in here—who can talk to the child in their language, 

can get the facts, and can be with the child during that child’s period of detention, which can be a long time. 

Second, that child, when they go before a judge, would have some 

legal representation. Again, there are non-profit organizations that 

are willing to provide legal representation for the child. 

Any placement of the child, when it is necessary to keep them 

in some form of—well, I don’t like to use the word ‘‘custody,’’ but 

in some holding facility—that where that child is placed is appropriate for the circumstances of the case. Obviously, if the child has 

committed a crime or the minor has committed a crime, that is one 

thing. If the child hasn’t, but is like an Elian Gonzalez, let’s say, 

because everybody knows of that case, that child shouldn’t be in a 

detention facility. 

I know INS is going to say they don’t want the bill, and I am 

going to say back to them, if you don’t want the bill, why haven’t 

you done something about it before this point? I know you have 

tried, but the point is that the trials haven’t really produced the 

results that they should have. 

Thank you, Senator, very much. 

Chairman KENNEDY. Thank you very much. 

Our first panel of witnesses has worked on these issues on a 

daily basis and we look forward to hearing their comments. 

Michael Creppy is currently the Chief Immigration Judge of the 

INS. He has served in this position since 1994. Prior to that, the 

judge worked for 13 years in numerous positions with the INS. As 

Chief Immigration Judge, Judge Creppy established operating policies for the immigration courts and overseas policy implementation 

in each of these courts. I know he is deeply committed to ensuring 

that children receive fair immigration hearings, and we look forward to his testimony. 

Stuart Anderson is no stranger to the Committee, having worked 

for more than 4 years as immigration policy director first for Senator Abraham and later for Senator Brownback. He has extensive 

experience in immigration law and policy, and a distinguished 

record as a fair and effective advocate. 

As a result, Commissioner Ziglar lured him away from the Subcommittee to become his Executive Associate Commissioner for Policy and Planning. During his tenure with our Committee, he 

worked well with members and staff on both sides of the aisle, and 

I am pleased that he brings these talents to his new position at 

INS. 

7

I would like to thank both of you for being here today and look 

forward to your counsel and testimony. 

Judge Creppy, we will hear from you first, please. 

STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION 

JUDGE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, 

FALLS CHURCH, VIRGINIA 

Judge CREPPY. Mr. Chairman and members of the Subcommittee, 

I thank you for inviting me to testify on the Unaccompanied Alien 

Child Protection Act. I am sensitive to the way our Nation responds to this vulnerable population and I am pleased to have the 

opportunity to share my thoughts on S. 121. 

The 223 immigration judges across the country play a critical but 

narrow role in handling unaccompanied juveniles. Because of this, 

my comments are focused on the part of the process where immigration judges are authorized to act. 

The Executive Office for Immigration Review has several initiatives on juvenile aliens and proceedings. When I refer to an unaccompanied juvenile, I will mean those juveniles under the age of 

18 who appear before an immigration judge without a parent or 

legal guardian. Let me first tell you about current initiatives to 

make the courts more sensitive to special issues unique to juveniles. 

In the summer of 2000, the immigration court established a pilot 

program in Phoenix consisting of special juvenile dockets. The purpose was to provide access to juveniles for pro bono attorneys and 

to consolidate all juvenile cases before one judge for consistency. 

I was so pleased with its success that I have expanded the program to Harlingen, Texas; York, Pennsylvania; Los Angeles, California; and San Diego and San Francisco, California. Moreover, we 

are working with the Executive Office for Immigration Review’s pro 

bono coordinator to explore other programs relating to juveniles. 

Let me assure the Committee that all aliens appearing before an 

immigration court, including juveniles, are given due process of 

law. Immigration judges are committed to providing fair hearings 

for all aliens, not just juveniles, and I encourage the immigration 

judges to do all that is required to ensure that this occurs. For juveniles, this means that an immigration judge may interview the 

juvenile in his or her chambers, or grant continuances to ensure 

that the juvenile is given adequate opportunity to obtain representation. 

Now, I would like to address five aspects of Senate 121 that involve the immigration judges. First, I will address the definition of 

‘‘child’’; second, the legal counsel; third, the guardian ad litem; 

fourth, interpreters; and, fifth, the best interests of the child. 

My first topic addresses a technical but critical issue. The term 

‘‘child,’’ as defined in the Immigration and Nationality Act, is at 

odds with Senate 121’s definition. The difference will cause confusion. Instead, I suggest using the term ‘‘unaccompanied juvenile 

alien,’’ since the regulatory definition of ‘‘juvenile’’ is consistent 

with Senate 121. 

My second topic is on the legal counsel. Immigration judges know 

how to be fair even when only one side is represented. However, 

when you combine the complexity of immigration laws with the 

8

varying maturity levels of the juveniles, it provides a greater challenge to judges to ensure that juveniles understand the nature of 

such proceedings. If counsel was assured, the efficiency of the hearing would be greatly improved. Yet, before such a program can be 

established, there are serious issues that must be addressed which 

Senate 121 does not answer. 

For example, first is the question of the program structure. Factors such as oversight, administration, eligibility, and selection of 

attorneys need to be fully explored. Senate 121 also leaves a question of who will be responsible for giving the counsel direction. For 

example, to whom will the counsel be answerable? Who will have 

authority to discharge the attorney? 

This leads me to my third topic, the guardian ad litem. In cases 

where a juvenile does not have the capacity to make informed decisions, the immigration court process would be aided by the presence of an independent adult who can make such informed recommendations. A guardian ad litem could be an active participant 

in deciding legal issues relating to the juvenile. 

However, a guardian may not be necessarily desirable in all 

cases. Yet, it is mandated by Senate 121. I support the concept of 

a guardian ad litem in limited circumstances and I have begun to 

explore the viability of this option for immigration courts, including 

whether we have the organizational expertise to fully integrate 

such a program into our court system. 

My fourth topic relates to interpreters. Senate 121 does not contain a provision for the appointment of interpreters. If counsel and 

guardians are provided, it is necessary to make provisions for ensuring that the juveniles are able to obtain access to these services 

in a meaningful fashion. 

Finally, Senate 121 requires that the best interests of the child 

shall be paramount, and that this interest should not trump any 

provision of the Immigration and Nationality Act or its regulations. 

As it currently is drafted, it may do so. 

In conclusion, the Unaccompanied Alien Child Protection Act represents an attempt to comprehensively address a number of critical 

issues. However, it raises many unanswered questions. I look forward to working with the members of the Committee as this legislation progresses and I am happy at this time to respond to any 

questions that you might have. 

[The prepared statement of Judge Creppy follows:]

STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE, EXECUTIVE OFFICE

OF IMMIGRATION REVIEW, FALLS CHURCH, VIRGINIA

Mr. Chairman and Members of the Subcommittee: 

Thank you for inviting me to testify on the Unaccompanied Alien Child Protection 

Act of 2001. Like other witnesses here today, I am sensitive to the way our nation 

responds to this vulnerable population. I applaud you and the members of your 

staffs for the interest you have shown in this issue, and for the encouragement you 

have given to those who confront it on a daily basis. 

I am very pleased to have the opportunity to share my thoughts on S. 121. The 

223 Immigration Judges across the country play a critical—but essentially narrow—

role in the handling of unaccompanied juvenile aliens. We do not apprehend the juveniles at the border or the airport, nor do we provide juveniles with shelter when 

they are taken into custody. Similarly, the Immigration Judges do not manage the 

details of their return to their native country, when their stay in the United States 

is concluded. Rather, these are responsibilities of the Immigration and Naturalization Service (INS). 

9

For those topics, I defer to the other witnesses appearing today. Instead, my comments before your Committee are focused on the part of the process where Congress 

and the Attorney General have authorized Immigration Judges to act—that of providing aliens with immigration hearings in Immigration Court. 

Let me first tell you about current initiatives which EOIR has established to 

make the Courts more sensitive to the special issues that are unique to juvenile 

aliens in proceedings. When I refer to ‘‘unaccompanied juvenile’’ for the purposes of 

my testimony, I mean those juvenile aliens under the age of 18 who appear before 

an Immigration Judge without a parent or legal guardian. 

IMMIGRATION COURT INITIATIVES

Three years ago, in 1999, I began meeting with representatives of INS and nongovernmental organizations (NGOs) in Phoenix, Arizona, in an effort to develop a 

program that would deal exclusively with unaccompanied, detained juveniles in immigration proceedings. After much work, we established a Pilot Program in Phoenix 

in the summer of 2000. Each of the participants in the Phoenix Pilot Program has 

a key role—from the INS identifying juveniles, to the NGOs assisting the juveniles 

and giving them ‘‘legal rights presentations.’’ I established special ‘‘juvenile’’ dockets 

and assigned one Immigration Judge to preside over all juvenile cases. The purpose 

of such dockets was to provide access to juveniles for pro-bono attorneys and to consolidate all juvenile cases before one Immigration Judge for consistency purposes. 

We also have developed, and I have now mandated, the use of the ‘‘J’’ code to better 

track any case involving juveniles. Currently our data system does not track aliens 

by date of birth. However, once we update our system, we will have the ability to 

do so. 

Although the Pilot Program is still in its infancy, I was so pleased with its success 

that I have expanded the ‘‘juvenile docket’’ program, with the cooperation of INS, 

to Harlingen, Texas; York, Pennsylvania; Los Angeles, San Diego and San Francisco, California. Moreover, we are working with the EOIR pro-bono coordinator to 

explore other programs relating to juveniles. 

All Immigration Judges have received training and materials to assist them in 

dealing with juveniles in their court rooms. I provide, on a weekly, and at times 

on a daily, basis, information on case law, regulations and other legal matters that 

affect immigration law, including issues dealing with juveniles. Further, Immigration Judges have been provided books, guidelines and cultural sensitivity training 

pertaining to juvenile issues. Finally, at the 1998 and 1999 Immigration Judges’ 

conferences, Judges received live lectures from experts in the juvenile area and they 

will again receive such instruction this June. 

Let me assure the Subcommittee that all aliens, including juveniles, that pass 

through our Immigration Court system are given all the due process that the law 

accords them. Immigration Judges are committed to provide fair hearings for all, 

not just juveniles, and I encourage the Immigration Judges to do all that is required 

to ensure that this occurs. For juveniles, this means that an Immigration Judge 

may interview the juvenile in his or her chambers, or grant continuances to ensure 

that the juvenile is given adequate opportunity to obtain representation. 

Now I would like to address those aspects of S. 121 that involve Immigration 

Judges. Specifically, permit me to briefly address five topics that are of immediate 

relevance to the immigration hearings we provide: 

(1) the definition of eligible aliens; (2) second, access to legal counsel; (3) guardians ad litem; (4) interpreters; and (5) the ‘‘best interest of the child’’ standard. 

S. 121

1. DEFINITION OF ELIGIBLE ALIENS

My first topic addresses a technical, but critical, issue: the definition of ‘‘unaccompanied alien child’’. The term ‘‘child’’ is currently defined in Section 101(b)(1) of the 

Immigration and Nationality Act, in part, as ‘‘an unmarried person under twentyone years of age. . . .’’ However, S. 121 defines ‘‘unaccompanied alien child’’, in 

part, as one who ‘‘has not yet attained the age of 18. . . .’’ This difference with respect to the age limitation is inconsistent with current law and will cause confusion. 

Instead, I suggest using the term ‘‘unaccompanied alien juvenile’’ in place of the 

phrase ‘‘unaccompanied alien child’’, since the regulatory definition of ‘‘juvenile’’ is 

an alien under 18 years of age. Again, I reiterate that for purposes of my testimony, 

when I refer to 

‘‘unaccompanied alien juvenile’’, I mean those juvenile aliens under the age of 18 

who appear before an Immigration Judge without a parent or legal guardian. 

10

2. APPOINTMENT OF LEGAL COUNSEL AT GOVERNMENT EXPENSE

Most Immigration Judges favor increased representation by legal counsel. Every 

day our Judges conduct cases involving respondents who appear pro se. The Judges 

know how to be fair, even when only one side to the proceeding is represented by 

counsel. However, when you combine the complexity of the immigration laws with 

the varying degrees of maturity of juveniles, it provides a greater challenge to 

Judges to ensure that the proceedings are fair, and that the juvenile understands 

the serious nature of such proceedings. If the Judge knew that competent counsel 

were assured for every juvenile respondent, the efficiency of the hearing would be 

greatly improved. No longer would there be a preoccupation with procedural issues 

such as whether pro bono counsel can be located, or whether someone can assist 

the juvenile in completing the relief application. 

Yet before a program providing legal counsel for juveniles can be established, 

there are some serious issues that must be addressed, questions which S. 121, in 

its current form, does not answer. 

First is the question of how such program would be structured. Factors such as 

oversight, administration, eligibility and selection of attorneys to serve as juvenile 

counsel, need to be fully evaluated and developed. These are the types of questions 

that S. 121 does not answer. 

S. 121 also leaves unanswered the question of who will be responsible for giving 

the counsel direction. For example, to whom will the appointed counsel be answerable—the juvenile’s parent, the Immigration Judge, or some other entity? Who will 

have authority to discharge the attorney if he or she is not competent? The counsel 

must truly represent the interests of the juvenile—and not those of some third 

party. I am sure the Subcommittee is familiar with accounts of lawyers who appear 

to be in league with the smugglers who traffic in human cargo. Several of 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. 

This leads me to my third topic, the guardian ad litem. 

3. GUARDIANS AD LITEM

In some cases, a juvenile may be more than just an alien in the United States—

the juvenile may also be unaccompanied, with no adult to stand in the place of the 

absent parent. While an attorney can provide advice to the juvenile about his or her 

legal case—such as whether or not the juvenile is eligible for relief from removal—

that advice is different from advice as to whether or not the juvenile should choose 

to try to stay in the U.S. or return to his or her family, a decision that a parent 

would be better suited to make. It is inappropriate for a counsel—even a talented 

and dedicated one—to make these decisions. 

In cases where a juvenile does not have the capacity to make informed decisions 

on his or her own behalf, I believe that the Immigration Court process would be 

aided by the presence of an independent adult who can make informed recommendations for the juvenile respondent. 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 may not be necessarily desirable in all cases—

yet it is mandated in S. 121. 

I support the concept of a guardian ad litem for a juvenile alien in limited circumstances. I have begun to explore the viability of this option, including whether 

Immigration Judges have the authorization or the organizational expertise to fully 

implement such a program. There are a series of issues that have not been fully 

explored, such as criteria that would render an individual eligible to be a guardian 

and the purview of such a guardian over an unaccompanied juvenile. 

4. INTERPRETERS

Current EOIR regulations allow for the hiring of interpreters to translate proceedings conducted before Immigration Judges. Appointed guardians ad litem and 

counsel will also need interpreters to speak to client juveniles outside of the proceeding before the Immigration Judge. Yet, S. 121 as drafted does not contain provisions for the appointment of interpreters. If such professional services are to be 

made available to unaccompanied juvenile aliens, it is necessary to make some provision for ensuring that such juveniles are able to obtain access to these services 

in a meaningful fashion. 

11

5. ‘‘BEST INTERESTS OF THE CHILD’’

Finally, Section 2 of S. 121 declares that the ‘‘best interest of the child’’ shall be 

held ‘‘paramount’’ when making decisions regarding an unaccompanied juvenile. 

While no one would argue with such a standard as an important factor in the context of family law, the legislation should not permit any inference that the ‘‘best interest of the child’’ standard trumps any specific provision of the Immigration and 

Nationality Act or its implementing regulations. This provision, as currently drafted, would undermine the Immigration Court process by prompting endless arguments about whether specific provisions of the INA do or do not promote the ‘‘best 

interest’’ of the juvenile respondent in proceedings. 

CONCLUSION

In conclusion, for the past several years the Immigration Judges have worked 

with children’s rights advocates and the INS to identify concrete ways to improve 

our efforts on behalf of unaccompanied juveniles. The Unaccompanied Alien Child 

Protection Act of 2001 represents an attempt to deal comprehensively with a number of critical issues. However, it raises as many questions as it provides answers. 

In particular, the appointment of guardians ad litem and legal counsel for unaccompanied juvenile aliens would constitute significant changes to the current immigration system. We would, however, be pleased to work with you to define in greater 

detail the roles of the guardian ad litem and legal counsel, should you elect to pursue these concepts. It would be important, for example, to think through all potential issues that might arise in connection with their appointment and service. Moreover, because of the potential magnitude of the changes under consideration, the Department suggests that any program that may ultimately be adopted be tested and 

evaluated on a limited, ‘‘pilot program’’ basis prior to implementation on a broader 

scale. 

Mr. Chairman, I look forward to working with the members of the Subcommittee 

as this legislation progresses. In the meantime, I am happy to respond to any question you might have for me.

Chairman KENNEDY. Thank you very much. 

Senator BROWNBACK IS HERE. I would welcome any opening comments that he would like to make before we hear from the next 

witness. 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you very much, Mr. Chairman. I appreciate that, and I also appreciate all you have contributed to this 

legislative body. 

There was a tribute to Senator Kennedy—you may or may not 

have seen that—that took place this week upon his reaching of a 

certain milestone of age, which I won’t repeat in the room. 

Chairman KENNEDY. That is right. 

Senator BROWNBACK. But the tribute was well deserved. 

Chairman KENNEDY. Thank you. 

Senator BROWNBACK. He has been quite a contributor to the legislative body in all the years of his service here. 

I have a statement I would like to put into the record, and I will 

just state briefly about Stuart Anderson before he speaks, Stuart 

served on the staff of this Committee for both Spence Abraham and 

myself before he went to the executive branch. So I am looking forward to his comments, as well as the other witnesses. He is very 

skilled and highly regarded in this field, and I look forward to that. 

I also thank the children for being here and recognizing the other 

children that are in some very difficult circumstances. Senator 

Feinstein, while I was still chairing the Subcommittee, had brought 

this issue up and we had agreed to schedule a hearing to recognize 

what is taking place with the children who are in these difficult 

12

circumstances in incarceration. I am glad the other children have 

recognized that as well. 

Mr. Chairman, I look forward to the hearing. 

Chairman KENNEDY. Thank you for your kind comments. 

We will hear from Mr. Anderson. 

STATEMENT OF STUART ANDERSON, EXECUTIVE ASSOCIATE 

COMMISSIONER, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C. 

Mr. ANDERSON. Thank you, Mr. Chairman. Thank you very much 

for your kind introduction. Senator Brownback, Senator Feinstein, 

thank you. It is a special privilege to get a chance to testify here 

today. 

Commissioner Ziglar very much wanted to be here. Unfortunately, he is in Canada working on border security issues at the 

moment. 

I would like to introduce some of the people at INS who work 

with juveniles—Tony Tangemin, Dave Enterella, Mark Matisse, 

and John Pogash. None of them brought any art work with them, 

which I reprimanded them for. These are good people, Mr. Chairman, many with children of their own, and they care deeply that 

the juveniles that come into INS custody are treated humanely and 

justly. 

Mr. Chairman, I am not here to defend every INS action or policy, past or present, in connection with juveniles. I went to INS 

with Commissioner Ziglar about 7 months ago, and I can assure 

you that the commissioner has no vested interest in the status quo. 

That is why he announced a reform agenda on juvenile affairs. The 

hope is that we can work together with the Committee to combine 

the best ideas to develop the best policies in this area. 

As part of that reform agenda, within days of his confirmation, 

the commissioner asked me to bring together key components of 

INS and to establish an initiative to improve the treatment of juveniles in INS custody. We reviewed policies, and as part of that we 

met extensively with advocates on the outside. We adopted many 

of their ideas, not all; others are still under discussion. In addition, 

just this week we met with majority and minority Subcommittee 

staff to further continue the dialog on this issue. 

In his speech at the National Immigration Forum on February 

1, the commissioner announced key parts of the juvenile policy initiative. First, he talked about the creation of an Office of Juvenile 

Affairs that will report directly to the commissioner. Having an office reporting directly to the commissioner will ensure that it will 

receive the visibility, attention, resources, and support that that office needs. The director of juvenile affairs will have the authority 

necessary to guide the placement decisions of juveniles within the 

agency. 

Second, whereas today we have a number of individuals at INS 

who work with juveniles as part of multiple responsibilities, INS 

will instead provide for dedicated case management officers who 

will work exclusively on juvenile issues and help ensure that the 

child has an advocate within the system. 

Third, while S. 121 would codify the Flores settlement, the INS 

is doing so through regulations. Fourth, the INS will review, in coVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
13

operation with the Public Health Service, current procedures for 

determining age and examining any improvements that may be 

able to be made in that area. My written testimony includes many 

other parts of the initiative. 

Mr. Chairman, I think it is important to keep in mind the complexity of this issue and the need to maintain a degree of flexibility. 

We have to have policies that take into account the 17-year-old who 

is caught coming across the border, the 16-year-old who may have 

committed a crime and the police turn that individual over to INS 

custody, or the 15-year-old young girl who is a victim of trafficking, 

or the 5- or 10-year-old boy or girl who is abandoned at an airport 

by someone who had claimed to be a relative. Those are all very 

real situations and they all require very different responses from 

the Federal Government. 

While media attention often focuses on very young children who 

come into INS custody, of the 5,000-plus juveniles in custody in a 

year, the majority are 16- or 17-year-olds and they are overwhelmingly male, and the median stay in INS custody is approximately 

15 days. The vast majority, over 80 percent, live in residential care 

facilities or foster homes, not in secure detention. 

But it is a daily dilemma. Releasing a juvenile out of custody 

may mean that they never show for their immigration hearing or, 

more worrisome, they may suffer harm at the hands of smugglers 

or others who may seek to do them harm. 

INS supports the principles underlying S. 121, and I would like 

to acknowledge Senator Feinstein’s leadership and the hard work 

of herself and her staff that they have committed to this important 

issue. A number of the issues raised in the bill can likely be addressed more swiftly and with more flexibility through administrative and regulatory action. However, we want to work very closely 

with the Subcommittee on legislative changes, and combine the two 

to see if we can get the best combination of policies. 

For example, the Immigration and Nationality Act prohibits the 

Government from paying for attorneys to counsel unaccompanied 

juveniles who are in removal proceedings. While the Department of 

Justice supports the principle of providing counsel for these juveniles, appropriations would be necessary and we will need to have 

sufficient safeguards on the fees that can be charged in this area. 

The adoption of a guardian ad litem program which the bill calls 

for may have value as well. There is great uncertainty about how 

a guardian ad litem would work in Federal immigration proceedings. Questions arise such as the ability to do home assessments for juveniles thousands of miles from home and the relationship between the guardian ad litem and an attorney representing 

the juvenile in legal proceedings. Therefore, it may be most prudent to look at well-crafted pilot projects in this area, with real 

deadlines, and well-structured pilot projects so we can all determine what the best policy is in this area. 

We support the principles of S. 121. While we have some areas 

of concern, its intentions are indeed noble, and we look forward to 

the opportunity to work closely with the Subcommittee to address 

the issues. 

Thank you. 

[The prepared statement of Mr. Anderson follows:]

14

STATEMENT OF ANDERSON, STUART, EXECUTIVE ASSOCIATE COMMISSIONER, UNITED

STATES IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C. 

Mr. Chairman and Members of the Subcommittee: 

On behalf of Commissioner Ziglar, thank you for the opportunity to appear before 

you to discuss an issue that is one of the top priorities within the INS today: the 

treatment of unaccompanied juveniles who have been entrusted into our care and 

custody. The INS would like to acknowledge Senator Feinstein’s leadership on this 

issue and the hard work that she and her staff have committed to this issue. We 

look forward to working with her and all the Members of the Subcommittee. 

Juvenile immigration policy is complex and requires assessing our treatment of 

juveniles within the context of broader national and international obligations. It requires recognizing the special obligations imposed on any government when it takes 

juveniles into its custody, regardless of their nationality or legal status. The INS 

is supportive of the principles underlying S. 121. We believe that a number of the 

issues relating to care and custody raised in the bill can likely be addressed more 

swiftly and with greater flexibility through administrative and regulatory changes, 

some of which we have begun to put into place. We want to work with the Subcommittee on legislative changes that would address other policy issues. 

INS INITIATIVES

Since the 1997 settlement of litigation in Flores v. Reno, 507 U.S. 292 (1993), the 

INS has made great strides in improving custody conditions for juveniles. But we 

can do more. We can make changes that acknowledge that juveniles are a particularly vulnerable population whose needs are not limited solely to questions of custody. To that end, the Commissioner recently announced a new initiative on juvenile 

policy. In his speech to the National Immigration Forum on February 1st, the Commissioner committed the INS to a program that will comprehensively address juvenile issues. He articulated principles that should guide our discussions as we work 

together to shape appropriate responses to children’s issues. 

First, the initiative adheres to the fundamental principle that it is generally in 

the best interests of a juvenile to be reunited with his or her parents, either in the 

United States or abroad, absent evidence that the juvenile will suffer harm. This 

will not be true in all cases, as some unaccompanied juveniles may be in need of 

U.S. protection from serious harm upon return. Absent evidence of such a threat, 

however, we should be working toward a system that quickly reunites children with 

their parents in the United States or abroad, or that quickly determines that reunification is not possible. 

Second, juveniles are a vulnerable population with different needs than adults. 

While this simple statement should be self-evident, many of our immigration laws, 

practices and procedures do not significantly distinguish between juveniles and 

adults. The Flores settlement agreement established a baseline to distinguish between adults and juveniles for custody determinations and we plan to standardize 

that distinction through regulation. 

Third, because the INS encounters juveniles under every circumstance imaginable—from the child who is a victim of trafficking to the teenager with a violent 

criminal history—the policies relating to juveniles must be flexible enough to permit 

the INS to take the appropriate steps in an individual case. While this is particularly true in custody matters, flexibility should also guide our thinking with respect 

to issues ranging from a child’s ability to consent or speak on his own behalf to determining whether a particular case requires the initiation of removal proceedings. 

Fourth, juvenile issues cannot be addressed in isolation. We must examine our 

treatment of children within the total immigration process—from the moment we 

first encounter that child through completion of immigration proceedings—to understand how best to address children’s issues within the immigration system. 

Building on these principles the INS is committed to:

• Minimizing the need for detention of any kind for unaccompanied minors. 

• Seeking alternatives to detention whenever possible. 

• Ensuring that juveniles have access to apply for all benefits and protections for which they may be eligible. 

• Exploring additional avenues for the expedient and humane return of juveniles to parents or guardians in all appropriate cases. 

The INS is taking the following steps to fulfill these commitments.

• We plan to establish an Office of Juvenile Affairs that reports directly to 

the Commissioner. The director of Juvenile Affairs will have the authority 

necessary to guide placement decisions and will continue to seek alternatives to custody. 

15

• S. 121 would codify the Flores settlement. The INS is already doing so 

through administrative action. The INS has been operating under procedures implementing the agreement and a proposed rule was published in 

1998. On January 14th, 2002, the INS issued a notice extending the public 

comment period in order to give the public an opportunity to discuss custody and care issues with the benefit of three more years of experience. 

After receiving these comments, we intend to make the publication of the 

final rule a priority. Should the final rule not be in place by the time of 

the expiration of the settlement, we have agreed that the Flores settlement 

shall remain in force until 45 days after the final rule is published. 

• The Commissioner directed his staff to implement as quickly as possible 

the recommendations of the Department of Justice Office of the Inspector 

General regarding improvements to general policy and procedures. While 

this review indicated that the INS has made significant progress since signing the Flores agreement, the report noted several areas where improvement is needed. These include the need to articulate juvenile standards 

similar to those issued for adult detention, a variety of operational and custody management policies, and increased support for the field staff working 

with unaccompanied juveniles. The Commissioner has directed his staff to 

use the review and recommendations in all of our future planning and policy updates. 

• The INS will review and develop field guidance that identifies ways in 

which parole and withdrawals, in appropriate cases, may be used as alternatives to placing unaccompanied juveniles in proceedings. 

• The INS will work with Congress, other agencies, and the public to develop comprehensive and creative strategies for addressing the wide range 

of juvenile issues in immigration policy. The Office of Juvenile Affairs will 

hold regular meetings with the public on the new initiatives the INS is undertaking.

I have already noted that the INS is committed both to minimizing the need for 

the secure detention of unaccompanied juveniles and continuing its successful practices of seeking out alternatives to detention. These commitments involve the longterm goal of strengthening the Office of Juvenile Affairs in its new location within 

the Commissioner-s office. The INS has dedicated staff working on issues and activities related to juveniles in service custody. These men and women have many years 

of experience in child welfare, juvenile justice, victim’s issues, residential services, 

alternatives to detention, and the management of grants designed to provide appropriate services to juveniles. The establishment of an office reporting directly to the 

Commissioner will guarantee consistency, accountability, and integrity in the agency-s treatment of juveniles. 

As part of our initiative on juvenile policy, the INS will also continue work towards:

• Development of alternatives to secure detention. While the INS has made 

substantial progress in developing shelter care, it is critical that the full 

array of alternatives, from intake assessment and placement tools to nonsecure alternatives to detention, is considered. If the INS is to be successful 

in this area, we must develop the infrastructure to support these services, 

create opportunities to adopt the best services available and allocate the 

necessary resources to carry out our mission. 

• Reviewing, in cooperation with the Public Health Service, current procedures for determining age. Currently INS uses dental exams and wrist xrays to determine the age of an individual in our custody or whose age is 

in question due to false reporting, language, or other circumstances. A review of the effectiveness of this approach, as well as a search for other 

methodologies, will be conducted in consultation with the Public Health 

Service. Refinement of age determination procedures can better ensure that 

those under the age of 18 are treated appropriately, and ensure that we are 

able to protect juveniles in our custody from adults falsely representing 

their age. 

• Studying the efficacy of expanding the home placement assessment model 

currently in place for certain groups of children at risk from smugglers or 

traffickers as a placement tool. 

• Making further revisions to existing Juvenile Detention Standards. As indicated earlier, we will review and update existing polices including the use 

of restraints, solitary confinement, and strip/pat searches and issue additional training and guidance as necessary. The INS will continue and enhance its efforts to solicit input from advocacy groups and experts to deVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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1 It should be noted that the State Department has advised that it has concerns with this legislation as drafted, notably, its effect on U.S. policies in the area of international child abductions and on the rights of parents outside the United States. 

velop standard operating procedures for juvenile facilities, similar to the approach adopted in the development of standards for adult facilities. 

• Continuing to improve accountability and quality of service within the 

INS including: the integration of the juvenile management information system that was developed for the Flores agreement into the agency data platform; updating’ Juvenile Aliens: A Special Population, Juvenile Protocol 

Manual, Juvenile Detention & Shelter Care Programs’ on all related practices, policies, and procedures to serve as standard operating procedures for 

all of INS; the development of a training plan for all INS staff that work 

with or are responsible for juveniles; and the development of a strategic 

planning process that includes input from the broad immigration community and the public.

These commitments represent an immediate response to many of the problems 

and concerns that have come to light regarding the detention of juveniles and their 

access to benefits and protections. But the INS vision for children’s issues does not 

end with short-term solutions. We are committed to providing the Office of Juvenile 

Affairs the resources and support it needs, within the INS, to ensure that all juveniles are treated with care, dignity, and compassion. Both the INS and the Executive Office for Immigration Review have worked together to discuss and develop alternative approaches to adjudicating children’s claims. We invite members of Congress and the advocacy community to participate with the Commissioner in discussions of how best to serve the interests of juveniles in our care. 

S. 121

Allow me to address more of the specific provisions of S. 121. The Immigration 

and Nationality Act prohibits the government from paying for attorneys to counsel 

unaccompanied juveniles in removal proceedings. The Department of Justice supports the principle of providing counsel for these juveniles.1

The bill also calls for the adoption of a guardian ad litem program, which may 

have value. However, great uncertainty remains about how a guardian ad litem 

would operate in practice. Questions arise, such as the ability to do home assessments for juveniles thousands of miles from home, and the relationship between a 

guardian ad litem and an attorney representing the juvenile in legal proceedings. 

Therefore, it may be the most prudent course to look at well-crafted pilot projects, 

with real deadlines, so we can all examine what policy makes the most sense in this 

area. 

INS asylum regulations acknowledge that unaccompanied minors may be exempt 

from the one-year filing deadline for asylum claims. In addition, the INS has already recognized the value of adult support in the context of asylum office interviews. Our ’Guidelines on Children’s Asylum Claims’ encourage the presence of a 

trusted adult—other than the child’s attorney—during an asylum interview to assist 

the child in understanding the process and to feel comfortable during the interview. 

While S.121 goes far beyond the role envisioned in the Children’s Guidelines, the 

Department believes that this is an issue where we can find common ground and 

can work with the committee to further refine the concept. In the interim, the INS 

will update and revise the Children’s Guidelines to reflect new developments in law 

and policy and to provide supplemental training following publication of the Guidelines. 

S. 121 also provides for placement of an Office of Children’s Services within the 

Department of Justice. Given the fact the duties of this office will be those for which 

the INS has long had primary responsibility, it is not apparent that creating a separate office that attempt to replicate INS functions with respect to unaccompanied 

minors offers any advantage that would outweigh the additional costs and complexities inherent in taking such action. 

INS PROGRAMS

The INS is responsible for the custody and placement of unaccompanied juveniles 

in its care—although we ‘‘detain’’ these juveniles, the vast majority of them are 

placed in residential care facilities or foster homes. Nonetheless, the INS retains ultimate responsibility for their custody and treatment. 

There are a wide range of placement programs which the INS utilizes. Of the 

5,385 juveniles in INS custody during FY 2001, almost 50%, or 2,417 juveniles were 

17

eventually placed with a parent or relative. For all juveniles, the average length of 

stay was 43.5 days, while the median length of stay was 15 days. The majority of 

these juveniles were male, and their average age was between 15 and 17 years. Although these juveniles came from around the world, their countries of origin were 

most frequently, in rank order, El Salvador, Honduras, Guatemala , Mexico, and Colombia. 

The task of managing a program to provide special care and treatment for juveniles ranging in age from infancy to near-adulthood is difficult, particularly when 

one takes into account the cultural and language barriers that must be overcome. 

The task is made even more complex by the need to protect many of these children 

from smugglers and traffickers, or others who would prey upon and take advantage 

of vulnerable children. 

INS staff have worked hard to meet the needs of these juveniles and to develop 

significant programs that limit the number of juveniles who are ever placed in a 

secure detention facility. In just four years from FY 1997 to FY 2001 the number 

of available beds in non-secure facilities has increased from 130 to almost 500. The 

INS has opened a family shelter care facility at the Berks County Youth Center, 

near Philadelphia, and has plans to establish similar family shelter care facilities 

in the Central and Western regions. 

The INS has made significant strides in its shelter care programs. We currently 

administer just over $18 million through 11 grant-funded programs that provide 

shelter care for unaccompanied juveniles. These programs are located in Florida, 

Texas, California, Illinois, and Georgia. They have a combined capacity of 369 beds 

and range in size from 4 to 70 placements. These facilities are run by profit and 

nonprofit agencies, including several faith-based organizations, all of which have 

special expertise in migrant and refugee issues. We will continue to review and expand these alternatives. 

The INS supports the principles of S. 121. While we have some specific areas of 

concern with S. 121, we look forward to the opportunity to work with the Subcommittee to address these issues. 

I look forward to answering any questions.

Chairman KENNEDY. Well, thank you both very much. 

I was interested, Judge Creppy, if you could just describe the situation. You have given us a good assessment about the concerns 

that you have with the legislation, but what is really happening 

out there? What do you find is really happening? How much of a 

problem is this? How much of a concern is this to you and to your 

colleagues? 

Judge CREPPY. Well, I think it is a serious concern in that our 

job primarily is to ensure that everyone gets a fair hearing. In 

doing so, if it means continuing the case two, three, four, five times 

until we get somebody that will represent a juvenile, that is what 

an immigration judge is going to do. 

As an example, in Phoenix we had the private bar there agree 

to take juvenile cases pro bono, but they did it for a number of 

months and the burn-out, taking one case after the other—you 

start to whittle down those who have the willingness to do it. 

So I think juveniles having representation is a very key component, and I think that this bill is right on point in terms of recognizing, under certain circumstances, that representation at Government expense may be needed to ensure that an individual gets a 

fair hearing. So we support the bill in that vein. 

I think the guardian ad litem is another key component because 

I believe that the attorney and the guardian ad litem play different 

roles. I think people often confuse the roles of the guardian ad 

litem with that of the attorney. The guardian ad litem is supposed 

to act as the parent for the child, not as the attorney for the child. 

So I think once again that Senate 121 is right on point. 

18

But, again, I would just say that there are questions that we 

need to explore, to debate, but I do think the end result will be 

adopting two components of that nature will improve the process. 

Chairman KENNEDY. We will have a 6-minute rule. 

Let me just outline what has been the central concern, and that 

is that there are too many children that are falling through the 

cracks. We have no system now that has recognized that we are 

going to treat these children as children first. Later in our hearing, 

we will hear from Wendy Young, who says ‘‘children first and newcomers second.’’

As I understand it, the thrust of this whole legislation is that we 

are going to systematically and comprehensively give responsibility 

for the care and the attention and the review for each child. That 

is not happening now, that is not happening now. I mean, neither 

of you have even suggested that it is happening now. 

We know enough about the Immigration Service that it has two 

functions. One is a law enforcement and one is a support function. 

The law enforcement is to keep people out that shouldn’t be here, 

and they have a very important responsibility of making sure that 

that is the case. On the other hand, it is to support those that have 

legitimate interests in coming here. 

The review of the history of responsibility that is given to this 

program would demonstrate, I think, quite clearly that this has 

been more of a law enforcement function rather than it has been 

in terms of a support function to the most vulnerable people in our 

society, which are the children in our society. 

That is what we are looking to you for your reaction and how we 

are going to deal with this. You can say, well, we are moving the 

chairs around on the deck of the ship, which all of us have seen 

at various times before. But we have to understand that we have 

got a major problem. It is a very real problem, and it is among the 

most vulnerable people in our society. 

Even if we are able to say that this kind of new organization 

makes some sense, it can be altered and changed tomorrow. That 

is why the importance of legislating and getting this kind of thing 

right is of such importance. I wish we had a bit more of the kind 

of urgency and the kinds of concerns reflected because, as has been 

pointed out, almost half, 40 percent, of the children are alone and 

lack relatives in the United States, rendering them particularly 

vulnerable. 

We know very well that when these children appear before INS 

judges, the outcomes of those cases are twice as favorable to the 

child as if they do not. I mean, those are statistics. There may be 

some other justifications or reasons, but those are statistics and 

those are inherently wrong on their face. 

What we are trying to find out is, one, about your suggestions, 

and I think there have been good suggestions made about various 

provisions of the legislation, about how it ought to be tailored. But 

we basically are interested in what kind of assurance you are able 

to give us that the current situation is going to be altered and 

changed, and that there is going to be accountability, responsibility, a systemic kind of responsibility for each and every child all 

of the time. 

19

That is what, I think, is the thrust of this legislation and is essential if we are going to really deal with these children in a humane and decent kind of way. I am just interested in why you 

think the recommendations you made in terms of the restructuring 

in the Justice Department and INS are going to provide the kinds 

of protections that have been included in the legislation. 

Judge CREPPY. Well, Senator, I just want to comment that I can 

assure you that in the immigration hearing process we go through 

to great lengths to ensure that juveniles get fair hearings, almost 

to the point where judges will call on attorneys that practice before 

the court and ask them, will you take the case. 

Now, I no longer work for the INS. As you know, the Executive 

Office for Immigration Review is a separate agency from the INS. 

Chairman KENNEDY. That is right. 

Judge CREPPY. So the judges are not Immigration and Naturalization Service judges. So I can’t really speak to the custody 

issues, the apprehension issues. But what I can tell you and what 

I can assure you is that any juvenile appearing in an immigration 

court, we go to great lengths to ensure that there is somebody that 

will represent the juvenile. The judges are trained extensively to 

handle these types of issues. 

Chairman KENNEDY. Mr. Anderson? 

Mr. ANDERSON. Well, one of the differences would be under the 

INS restructuring. The Office of Juvenile Affairs would not be in 

an enforcement office; it would actually be a separate office in neither the service or enforcement part of the INS and it would actually be reporting directly to the commissioner. 

We think by giving that attention and, essentially, when necessary, the line authority of the commissioner on any particular 

case, that will make a significant difference. You know the commissioner and when he wants something done, it is going to get done. 

That is why we want to make it institutionalized in the whole restructuring and it is not just an ad hoc task force. 

In addition, we do also want to have some of the other reforms 

that have been talked about in terms of dedicated case management officers whose only duties will be juveniles. That is something 

that is continuing to develop and I think that also will get at the 

concern you have expressed about children being able to fall 

through the cracks. 

So it is not any one thing; I think it is a whole series of measures. There have been improvements, but as I note in the testimony, we are not satisfied and we would like to see significant improvements continue. 

Chairman KENNEDY. My time is up, but as I understand it, 

Judge Creppy, at least half of the children now go unrepresented, 

despite the best efforts of the judges. Is that your understanding? 

Judge CREPPY. My understanding is that no child will proceed to 

a hearing that needs an attorney to assist them in that hearing. 

Now, I have heard the Senator talk about statistics and data, but 

the problem with the system—and we are working to improve the 

system—is that we have no accurate way to account for the number of juveniles coming through the present system. So when people throw out statistics, it is a guesstimate. 

20

So I can’t speak to if all or a few, but I can say that a great majority that go through our system will get representation through 

pro bono representation, through judges asking attorneys and 

friends to take the case, and that no juvenile gets a hearing alone 

when a judge feels that he or she does not have the capacity to 

handle those proceedings. 

Chairman KENNEDY. Senator Feinstein? 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Senator Brownback, it is really your call. 

Senator BROWNBACK. Please go ahead. 

Senator FEINSTEIN. Thank you. 

Senator BROWNBACK. And then I do have some questions I would 

like to ask. 

Chairman KENNEDY. Sure. 

Senator FEINSTEIN. Thank you. 

I am interested in the last question Senator Kennedy asked because according to the Executive Office for Immigration Review, in 

removal cases undocumented children are unrepresented 50 to 80 

percent of the time. 

Now, is that your review? Is the Executive Office for Immigration 

Review your office? 

Judge CREPPY. The immigration court falls under the Executive 

Office for Immigration Review, yes, Senator, that is correct. But I 

can’t speak to where those statistics came from because I can tell 

you that our system does not accurately track statistics like that. 

We don’t have a system that tracks the date of birth of those respondents. 

Senator FEINSTEIN. So you are saying those numbers are wrong, 

Judge? 

Judge CREPPY. I would say that those numbers are not accurate. 

I can’t speak to them without having seen them, but I can speak 

to that we do not have a system that can accurately give you those 

types of numbers. We do not have such a system. 

Senator FEINSTEIN. Then if you don’t have a system, would it be 

fair to say that you don’t really know whether it is true or not? I 

mean, you can’t sit on all cases. 

Judge CREPPY. No, I don’t sit on all cases. This is why I am saying that there is no accurate way to know the truth or falsity of 

it. But what I can base my statement on is that I have served in 

every court in the United States. We have 52 courts throughout the 

United States and I have inquired from the judges, how do you 

handle juvenile cases coming before your court? And my understanding is that the majority of unaccompanied juveniles that come 

before that court get some type of representation or they have a capacity to go forward. 

Senator FEINSTEIN. I would very much doubt that, based on what 

we have seen, but I think I would like to know formally from INS 

then—this is a major discrepancy—whether those numbers are 

right or wrong, if you don’t mind. 

Mr. ANDERSON. Sure. We will get you that, Senator. 

Senator FEINSTEIN. I also understand that the Executive Office 

for Immigration Review, in cooperation with NGO’s, non-governmental organizations, did try to put in place the pilot project in 

Phoenix to ensure that children had legal representation and the 

21

assistance of guardians ad litem. I also am told that the project ultimately did not test the use of guardians ad litem. 

Judge CREPPY. That is correct. 

Senator FEINSTEIN. So there really is no use of guardians ad 

litem at the present time. Is that correct? 

Judge CREPPY. Right. There is sort of an informal use in some 

courts where they ask somebody, will you act as a guardian. But 

we tried to do it in Phoenix and we termed it ‘‘the friend of the 

child,’’ and the problem with it was it never got off the ground because it became a resource question and we could never get people 

to do it. So we never tested that. That is correct, Senator. 

Senator FEINSTEIN. So you are saying you couldn’t find suitable 

guardians? 

Judge CREPPY. I think when Wendy Young testifies, she primarily led that charge trying to set up the ‘‘friend of the child’’ for 

our pilot project. I believe that the reason that it never got off the 

ground is it was a question of funding, that we couldn’t find individuals to do it. 

Senator FEINSTEIN. Now, let me ask you this question. I have 

also heard that INS blocked the use of guardians ad litem, saying 

that such use would require legislation. True or false? 

Judge CREPPY. Well, I don’t want to answer true or false. They 

raised a question as to whether or not having a ‘‘friend of the child’’ 

would interfere with their obligation as being the custodian of the 

child. So there was a question there that had to be resolved. So I 

don’t know if I would call it a block, Senator, but they did raise 

it as an issue. 

Senator FEINSTEIN. And after they raised it as an issue, you 

didn’t proceed with it. Is that correct? 

Judge CREPPY. Well, my understanding was that we didn’t proceed with it because there weren’t sufficient resources to get the 

program off the ground. So I can’t say that INS caused us not to 

proceed with it. 

Senator FEINSTEIN. Does INS want to respond? 

Mr. ANDERSON. Well, obviously this was before my time, but my 

understanding is that there were some questions about how the 

guardian ad litem would work. But what I can say is if there was 

legislation and it did specifically dictate to have a pilot project, it 

would definitely happen. 

Senator FEINSTEIN. This is the catch–22 because we are told—

and I know you don’t like legislation, but we are told you are not 

going to go ahead with the guardian ad litem because it needs legislation. Yet, you don’t want the legislation. 

Mr. ANDERSON. I am not sure that that was the reason why the 

guardian ad litem pilot project didn’t go forward. It is my understanding that wasn’t the reason. I will further investigate it, but 

again as stated in the testimony, we do support having a pilot 

project or a series of pilot projects, having them well-structured, 

having specific deadlines for reports so there can be assurance that 

we can actually test this and get experience and then know how 

to adapt this, because it would be an innovation and with any innovation it may work well or there may be ways we would want to 

fix it. 

22

Senator FEINSTEIN. Right. Now, I think all of don’t want children 

to fall in the hands of smugglers. It is true that we left a lot of this 

in terms of defining the regs under which the program would function up to the Department. 

In Section 202(a)(4), we would require the director of the Office 

of Children’s Services, who would be appointed by the Attorney 

General, to take steps to ensure that unaccompanied alien children 

are protected from smugglers or others seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative 

activity. 

If there is any way you feel we should be more precise in this, 

we would surely like to hear it. But the purpose of this was to give 

you the full ability to set regulations, to the best of your ability, 

to be able to protect children based on the actual experience that 

the immigration judges and others have had in these situations. I 

don’t know a better way to do it. If you have one, we would surely 

like to have it. 

Mr. ANDERSON. Well, clearly, protecting juveniles from smugglers 

is already INS policy. A restatement of that I don’t think would affect that. 

Senator FEINSTEIN. Well, the problem you had with the attorney 

provision, having NGO’s provide specific attorneys that would be 

certified by you as competent to do this work, was, well, they might 

fall in the hands of smugglers. You just said that earlier, or one 

of the two of you said it. 

Mr. ANDERSON. I am not sure having attorneys would necessarily 

make someone vulnerable to smugglers. I think the issue that 

needs to be decided on a particular case, especially if there is some 

concern that the person was smuggled in, if they were immediately 

released out to someone what would be the security of the particular juvenile. I mean, those are the types of dilemmas that people face. 

Senator FEINSTEIN. There is no question about that, but we are 

talking about, No. 1, wherever it is possible, return the child to the 

parent. 

Mr. ANDERSON. Yes. 

Senator FEINSTEIN. We all believe in family reunification. 

Second, to find a suitable placement for the child. Right now, the 

alternative would be, I guess, if you released a child, where do they 

go right now. 

Mr. ANDERSON. Well, I mean a child could be released into foster 

care if suitable foster care is found 

Senator FEINSTEIN. Right, so that wouldn’t change. There would 

still be foster care. 

Mr. ANDERSON. Or in a residential care facility. 

Senator FEINSTEIN. That wouldn’t change. 

Mr. ANDERSON. And those combined come out to about 80 percent. 

Senator FEINSTEIN. So that wouldn’t change, so I don’t understand what your concern is. We are trying to strengthen your hand 

to see that the circumstances a child is in are appropriate for that 

child and keep them out of circumstances which many of them fall 

in today, extended detention. 

23

Mr. ANDERSON. Well, again, we support many elements of the 

legislation and we want to keep working with the Committee on 

what the right balance is, on what can be administratively flexible, 

and then what would be helpful for a statute. 

Senator FEINSTEIN. Well, we would very much like to work with 

you because we would like to move this bill. 

Mr. ANDERSON. Terrific. 

Senator FEINSTEIN. Thank you very much. Thanks, Mr. Chairman. 

Chairman KENNEDY. Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Judge Creppy, I would like to ask you, in your personal experience on these proceedings, it seems to me important that we treat 

children and adults differently in these proceedings, particularly 

young juveniles that would not be able to comprehend things nearly as well. 

Could you describe based on your experiences to what extent unaccompanied children understand what is happening to them in 

these hearings? 

Judge CREPPY. Again, I think as Senator Feinstein pointed out, 

I don’t sit on every case, since we do 270,000 cases. 

Senator BROWNBACK. I am asking about your experience. 

Judge CREPPY. My experience is that the judges go to great 

lengths to ensure that the story gets out, that there is somebody 

that can assist them so that they can rule on the particular case. 

Senator BROWNBACK. Has that been your personal experience in 

these cases? 

Judge CREPPY. Yes, sir. 

Senator BROWNBACK. Have you had cases where you have adjudicated where there has been a child 10 years or younger of age? 

Judge CREPPY. Me, personally, as the chief judge? 

Senator BROWNBACK. Yes. 

Judge CREPPY. No, I have not, but I have been in courts where 

other judges have. And again, as I indicated earlier, I did do a survey of all of our courts which involved our judges and asked them 

the methods which they use to try to make the child comfortable 

within the court setting so that they could get the story out. 

Now, what I can speak to are the number of things that I have 

done for the judges in terms of training, communications, providing 

them with books and materials, having some of the top experts in 

the country involving children’s issues speak to them and train 

them to sensitive them to these types of issues so that when they 

do appear before the court, they are able to handle it because I 

think that each case is different and I think that they have to use 

their discretion and their training and background to decide what 

will constitute a fair hearing for this particular child. 

Senator BROWNBACK. Mr. Anderson, you are long familiar with 

this problem from sitting on this side up here, and this has been 

raised in the past. I understand from the Office of the Inspector 

General, there are approximately—and you said in your testimony 

about 5,000, and the OIG found about 4,700, plus or minus, unaccompanied alien children each year into U.S. custody. 

It seems to me that the problem that we have here is that in 

many of the cases here then when these children are detained, they 

24

are not detained in INS facilities. They are detained in contractedfor or local facilities that the INS has limited control over. Maybe 

that is not the correct term to use, but these aren’t probably the 

facilities that the INS would put these children in if they had that 

choice. 

Am I correct that this is the nature of the problem and that you 

are not really in control of the areas where these children are being 

detained? 

Mr. ANDERSON. Well, we do have contracts, and I don’t know if 

in every case, but I just went up to the Burks facility we have in 

Pennsylvania. I know we have been trying to get the Subcommittee 

staff up there, and any of the members. We actually have a facility 

in San Francisco that you might be interested in when you are 

back in the State, Senator. 

It is worth seeing these places up close because at the residential 

care facility, for example, in Pennsylvania there is a person on staff 

there from INS that is able to watch what is happening. And there 

is a mix of—while it is primarily at the Burks facility, what you 

call non-secure, there are actually even families there with children. 

My observation was that there were education services going on. 

I mean, kids were going basically 4, 5, 6 hours a day for school. 

There were computers there to work with. There is health care on 

staff. 

Senator BROWNBACK. Because my time is short, I want to get at 

a couple of other points here. In my observation, though, what I 

have seen in other places where there are not INS facilities, you 

are contracting with local law enforcement to do this, which sometimes is frustrated with the INS. I can tell you from what I get in 

Kansas that they don’t feel like they are getting sometimes the 

guidance or they are just told, look, just release the people that you 

have taken into custody. 

I think that is probably the area where we are having the issue, 

isn’t it, that you are not in strong control of those facilities? Maybe 

put it another way, could you set a level of standards in these cases 

that then have to be met by local contractors? 

Mr. ANDERSON. Well, we do have standards. We have the American Correctional Association standards, for example, in those 

cases. In other standards, we have our own field guidance on people going from INS to keep watch on these facilities. This is an 

area where the commissioner wants to have continued review and 

oversight, and that is part of the juvenile policy initiative to make 

sure in all of these cases that we are having the proper oversight 

of all the places that we contract with. 

Senator BROWNBACK. Well, I want to work with you on this, but 

I am hearing from too many reputable places that we have got 

problems in too many places. I am hopeful that you can stay 

around for the next panel that is up to be able to hear what people 

are saying to us that is taking place. You are new in and the administration is new in. This is a good chance. You mentioned that 

the commissioner has no vested interest in the status quo. I think 

there is a good shot at being able to do some serious work here. 

One final question I would ask you about because I am struck 

by the number here is according to your statement the average 

25

length of stay for a juvenile in detention was 43.5 days. The median length of stay is only 15 days. 

Now, if I am understanding this correctly, if a case then really 

isn’t resolved quickly in the first couple of weeks, then the juvenile 

is probably going to be detained for a couple of months. Is that the 

situation? 

Mr. ANDERSON. There are cases that go on for a long time. I can 

turn that over to my co-panelist. It is not his fault, obviously, but 

I mean this is a more elaborate problem. Essentially, it is because 

the proceedings are taking a very long time. I mean, that is the 

issue. 

Senator BROWNBACK. We want to particularly look at juvenile 

cases. If they are being detained for lengthy periods of time, we 

surely want to look at that. I think we need to look at it on any 

length of time, but some of these go for long periods of time. 

Mr. ANDERSON. Right. 

Senator BROWNBACK. Mr. Chairman, I think the next panel will 

be an illuminating one as well and one that can share and enlighten, I would hope, as well both the individuals and the 

branches that you represent here today. 

Chairman KENNEDY. Thank you. 

It seems to me we want a seamless web so that any of these children that are coming into the system are going to be followed and 

tracked. At all times, we are going to know where they are, what 

their circumstances are. You are going to have child support systems, child welfare systems that are out there, the trained people 

that are going to be following them. And at any given time on these 

computers, we are going to know the circumstances and someone 

is going to take an active review all the time in monitoring these 

and moving this process through. 

That is what we are going to try and do and we want to work 

with you to try and do it, but there is just too much out there that 

says that too much is falling through the cracks. I am just not convinced that just moving and rearranging the authority and responsibility on this—I know that you want you to do the job and I know 

that the INS commissioner wants to do the job, but I think that 

is what this legislation is attempting to do. 

I think we want to work with you in finding ways to try and 

make it efficient and effective and responsive, but it isn’t working 

now in the way that it should. We appreciate it very much. And 

I would join Senator Brownback; I hope you can stay and listen to 

our next panel. 

Yes, Senator? 

Senator FEINSTEIN. Just one quick question. 

Chairman KENNEDY. Sure. 

Senator FEINSTEIN. You mentioned a place in San Francisco. 

Well, my daughter is a juvenile court judge in San Francisco and 

I asked her about it. She said because San Francisco is a sanctuary 

city, INS contracts with another county, Sonoma I believe she said, 

and the children are there, not in San Francisco. So if that is different, I would surely like to go and see where it is. 

Mr. ANDERSON. It is in Castro Valley. 

Senator FEINSTEIN. Well, that is not San Francisco. 

Mr. ANDERSON. Right, outside of San Francisco. 

26

Senator FEINSTEIN. Thank you very much. 

Mr. ANDERSON. I meant outside of San Francisco. 

Chairman KENNEDY. Thank you very much. 

Mr. ANDERSON. Thank you. 

Chairman KENNEDY. If our young people want to just stretch, 

they can stretch. I know you probably have to go, but our next witness is a young person, Edwin Munoz. He is 14 years old, and 

maybe the young people would like to listen to him, if you have a 

minute. 

Well, they have to go. Thank you very much. 

We thank Edwin Munoz for being here. He is a member of our 

next panel. We want to thank him very much. Edwin applied for 

asylum because he feared that he would be killed if he were deported to his native Honduras. Like many other unaccompanied 

children, while awaiting a decision in his case, Edwin was housed 

not in a shelter but in a facility with violent juvenile offenders. Unlike other children, Edwin had access to a lawyer. 

We would like to thank you for coming here. I know it takes a 

lot of courage to share your story. We will hear from you in just 

a moment. 

For the past 7 years, Wendy Young has served as the Director 

of Government Relations and U.S. Programs for the Women’s Commission for Refugee Women and Children. Ms. Young also oversees 

the Women’s Commission’s Detention Asylum Project that addresses the critical protection needs of women and children asylum seekers in the U.S. She has made dozens of visits to detention centers 

and has written extensively. It is a pleasure to have her here. 

Andrew Morton is an associate in the government relations 

group at Latham and Watkins. Mr. Morton worked as a campaign 

consultant for numerous Republican candidates, as an aide in the 

National Republican Congressional Committee, and on the majority 

staff of the House Committee on the Judiciary. Mr. Morton has 

been instrumental in an effort entitled the Child Refugee Project, 

which has provided pro bono legal representation for dozens of unaccompanied alien juveniles in INS custody. Mr. Morton and his 

law firm have received numerous awards for their excellent work. 

Julianne Duncan currently serves as Director of Child Services 

for the United States Conference of Catholic Bishops. Dr. Duncan 

has an extensive background in refugee child welfare and mental 

health programs, having worked in Washington State for Lutheran 

Social Services. 

I would point out that is from the Lutheran Immigration and 

Refugee Services. They are one of the very best, I must say as 

someone who has watched them over many years. 

So, Edwin, we want to thank you. As you can see, we invited the 

other children here and they are very interested in what is going 

on. We are trying to make sure that children are treated the way 

that you would want them to be treated, and because you are here 

it is going to help us try and do that. So that is why your presence 

here is so important. We admire your courage in being here and 

speaking to us, and also for all the hardships you have gone 

through. So we thank you very, very much. 

You take your time. There is no hurry. 

27

STATEMENT OF EDWIN LARIOS MUNOZ, GRAND RAPIDS, 

MICHIGAN [TESTIFYING THROUGH AN INTERPRETER, ERIC 

UNTERNAHRER] 

Mr. MUNOZ. Thank you for being here. It is a privilege to be in 

front of Congress. I am here to tell you my story about what happened when I was in custody of the INS and all the bad things that 

happened, and I hope that me being here, things can resolve themselves and other children will not be treated like I was. 

My name is Edwin Larios Munoz. I am 15 years old and in the 

eighth grade at Thornapple Kellogg Middle School in Middleville, 

Michigan. I live with my foster parents. I enjoy math and soccer 

and want to be an FBI agent when I grow up. 

I am a refugee here in the United States. I was born in San 

Pedro Sula, Honduras. I could not stay in my country because of 

the abuse I went through for years. After my father died when I 

was 4, my mother abandoned me. I ultimately ended up living with 

my cousin. 

For 6 years, from when I was 7 to when I was 13, my cousin 

forced me to work on the streets and give him money. When I 

didn’t earn enough money, he punished me, beating me with a 

noose, car tools, and other objects, leaving scars on my body, on my 

knees, legs and arms. 

I did not report it to the authorities because my cousin threatened to throw me out into the street. I also did not know how to 

report him and did not think the police would protect a child like 

me. I did not want to live on the streets because I had heard that 

the authorities and gangs kill children living on the streets. I had 

no other choice but to look for safety and a real family in the 

United States. 

I had heard wonderful things about the United States and how 

children were treated better there. On or around March of 2000, I 

left Honduras with 100 lempira, around $15. I had to walk and beg 

for rides, and work for food and housing the whole way through 

Honduras, Guatemala, and Mexico. I finally arrived in Tijuana in 

August of 2000. 

After crossing the border by San Ysidro, California, however, my 

problems with Immigration began. On August 19, 2000, the U.S. 

Border Patrol officers in green uniforms arrested me and took me 

away in handcuffs. They held me 4 days locked up and alone in a 

cell. They gave me very little food, and bad food, and did not let 

me outdoors. They did not explain anything to me about what was 

happening that I could understand. I did not get to make any 

phone calls or speak with a lawyer. I felt very sick to my stomach 

and head because of the food and because I was locked up all day. 

I was then taken in shackles to South West Key, a place in San 

Diego for immigrant children paid for by the INS. I could not wear 

regular clothes, but had to wear their uniform, with flip-flops. They 

had some classes and recreation outside. I never saw a counselor 

or social worker in order to talk about my problems in Honduras. 

The other boys from other countries there picked on me because 

I was smaller and from Honduras. When I complained to the 

guards about the boys’ treatment, South West Key officials told me 

to ignore it. They did not tell the boys to stop. 

28

After 2 weeks at South West Key, an immigration officer arrived. 

He took me away in shackles, but did not explain why or where 

we were going. I was brought to San Diego Juvenile Hall, a jail for 

juvenile criminals. This is the worst place I have ever been in my 

life. 

When I arrived, they forced me to wear a prison uniform, with 

flip-flops. They then locked me in a cell by myself, without windows. They told me they had to isolate me because I looked very 

young and that they needed to verify my age. I spent 3 days in the 

cell sad and afraid. 

When they finally released me from the cell, I was placed in another cell with a United States citizen boy who had serious problems with the law. He was not as bad as the other boys in the jail 

who were there for murder, having weapons, violence, or theft. 

I spent around 8 months in this jail. I was locked in the cell 

around 18 hours a day, since we were only allowed out for a few 

hours a day for classes. We also had outdoor exercises twice a day 

for 20 minutes in a fenced-in area. Every time we walked, we had 

to walk silently with our hands crossed to avoid punishment. 

The officers did not know why I or other children picked by the 

INS were being held there. They treated us the same as others, as 

criminals. They were mean and aggressive and used lots of bad 

words. They hit me with their sticks and shoved me and other boys 

when they thought that we were not following their orders. 

Many of the other boys were violent, frequently looking for a 

fight. Whenever there was a fight, the officers would order all of 

us into a cover, crouching position and often used pepper spray. 

Sometimes, the pepper spray would hit children like me who had 

nothing to do with the incident. I was sprayed twice and it made 

my eyes sting and I was afraid I would go blind. 

I lost weight and was usually sick at this jail, since I could not 

eat the food, which was different from the food in Honduras, and 

the jail always smelled like urine. I cried a lot in the cell, wondering why everything was turning out so bad for me here in the 

United States and wondering if I would ever be free. 

After around 6 weeks in detention, I was taken in hand and leg 

shackles to the immigration court. At my first court, there were 

many adult criminals in the courtroom. I was scared and afraid 

that I would be deported. The judge asked me what I wanted to 

do in my case and I told him I needed to find a family to live within the United States. 

He said he would give me another date and help me find a lawyer to represent me. Several weeks later, I returned to court, again 

in shackles. There was a nice, free lawyer for me, a good man, 

Manuel Sanchez, who was willing to represent me. Together, we 

prepared my case for asylum and the judge granted me asylum in 

July of 2001. It was hard to prepare my case in jail, even with my 

attorney Manny. I could not call him for free, and every time he 

visited they made me take off all my clothes to search my body. 

This embarrassed me. 

I did not like going to the court, even though I would get to be 

outside. Every court trip meant wearing shackles, even at my final 

hearing when I was able to tell the judge my whole story. There 

was no way I could have won the case without an attorney or 

29

Manny. I did not even know that asylum existed before Manny, 

and I could not fill out all those papers in English and did not 

know what to do in court. 

There was no one to complain to about the jail, since I could not 

trust the jail officials and never saw an INS officer. INS only came 

to take me to court in shackles. I once complained to the judge 

about how horrible the jail was to see if I could be taken somewhere else. The judge said he could not do anything for me; only 

INS could. The INS attorney did not say or do anything to help me 

get out of this jail. After winning my asylum, I was brought back 

to the jail again in shackles. I stayed in the jail another monthand-a-half, wondering why, if I had won this asylum, I was still in 

jail. Would I ever be free? 

Finally, they arranged for me to go with Bethany Christian Services to a foster family in Michigan. I was transported out again in 

shackles. I asked the INS officer, why do I need shackles? He told 

me to prevent my escape. Why would I want to escape if I had won 

my asylum? Your asylum, he said, that is just a piece of paper we 

can throw away, put you in jail, and then send you back to your 

own country. It took a while for me to feel at home in Michigan. 

I still have horrible memories over what I went through with the 

INS and at the San Diego jail. 

I saw many children like me who gave up fighting their immigration cases and accepting deportation because they hated the jail 

and did not have lawyers like Manny to help them. I am happy 

that there are people like you who care to help people like me with 

their problems with the INS. I would like to see that they treat 

children better so that no child has to go through what I went 

through with the INS. 

I know that there is a proposed law right now that would help 

that happen, and I am very glad because I don’t think any child 

should have to go through what I did. I know it is bad because I 

went through it myself. 

I hope what I have said today has been of some importance. I 

had horrible experiences and it was the fault of Immigration that 

I went through these experiences. I also think that there could be 

another place besides jail where people like me could be put because it was horrible in the jail. I had very bad experiences in the 

prison. It was really bad there, and I almost wish that I would 

have stayed in Honduras rather than come here and pass time in 

the prisons. 

Chairman KENNEDY. Well, we want to thank you very much, 

Edwin. Thank you very, very much for being here. 

[Applause.] 

Chairman KENNEDY. How are you liking school now? Do you like 

Michigan? It is a little cold out there, isn’t it? You come to Massachusetts. 

[Laughter.] 

Chairman KENNEDY. Well, I will tell you your worst days are behind you, and I think you will find that that family that has welcomed you cares for you and loves you. And I think you will find 

people around the community are so happy that you are here. We 

are so happy that you are here and we admire you very, very 

much, and we think you would be a very good FBI agent. They will 

30

be very lucky to get you. I hope the United States will live up to 

your dreams because we are all trying to make it that way. 

We want to thank you very much. Maybe after the hearing here, 

we will get a chance to see you a little bit and talk to you personally. 

Mr. MUNOZ. I would like to meet you. 

Chairman KENNEDY. Very good, OK. 

[The prepared statement of Mr. Munoz follows:]

STATEMENT OF EDWIN LARIOS MUNOZ, GRAND RAPIDS, MICHIGAN

My name is Edwin Larios Munoz. I am 15 years old and in eight grade at 

Thornapple Kellogg Middle School in Middleville, Michigan. I live with my foster 

parents. I enjoy math and soccer and want to be an FBI agent when I grow up. 

I am a refugee here in the United States. I was born in San Pedro Sula, Honduras. 

I could not stay in my country because of the abuse I lived with for years. After 

my father died when I was four, my mother abandoned me. I ultimately ended up 

living with a cousin. For over seven years, from when I was 7 to when I was 13, 

my cousin forced me to work on the streets and give him the money. When I didn’t 

earn enough money, he punished me, beating me with a noose, car tools and other 

objects, leaving scars on my body, like the knees, legs and arms. I did not report 

it to the authorities because my cousin threatened to throw me out onto the street. 

I also did not know how to report him and did not think the police would protect 

a child like me. I did not want to live on the streets because I had heard that the 

authorities and gangs kill children living in the streets. I had no other choice but 

to look for safety, and a real family, in the United States. I had heard wonderful 

things about the United States and how children were better treated here. 

On or around March, 2000, I left Honduras with about 100 lempira, around $15. 

I had to walk and beg for rides and work for food and housing the whole way 

through Honduras, Guatemala and Mexico. I finally arrived in Tijuana in August, 

2000. 

After crossing the border by San Ysidro, California, however, my problems with 

immigration began. On August 19, 2000, the U.S. Border Patrol officers in green 

uniform arrested me and took me away in handcuffs. They held me four days locked 

up and alone in a cell. They gave me very little and bad food and did not let me 

outdoors. They did not explain anything to me about what was happening that I 

could understand. I did not get to make any phone call or speak with a lawyer. I 

felt very sick to my stomach and head because of the food and because I was locked 

up all day. 

I was then taken in shackles to South West Key, a place in San Diego for immigrant children paid for by INS. I could not wear regular clothes but had to wear 

their uniform with flip-flops. They had some classes and recreation outside. I never 

saw a counselor or social worker to talk about my problems in Honduras. The other 

boys from other countries there picked on me because I was smaller and from Honduras. When I complained to them about the boys’ treatment, South West Key officials told me to ignore it. They did not tell the boys to stop. 

After two weeks at South West Key, an immigration officer arrived. He took me 

away in shackles but did not explain where and why. 

I was brought to San Diego Juvenile Hall, a jail for juvenile criminals. This was 

the worst place I have ever been in life. When I arrived, they forced me to wear 

a prison uniform with flip-flops. They then locked me in a cell by myself without 

windows. They told me that they had to isolate me because I looked very young and 

that they needed to verify my age. I spent three entire days in the cell, sad and 

afraid. 

When they finally released me from the cell, I was placed in another cell with 

a United States citizen boy who had serious problems with the law. He was not as 

bad as the other boys in the jail who were in for murder, weapons, violence or theft. 

I spent around six months in this jail. I was locked in the cell around 18 hours 

a day Since we were only allowed out for a few hours a day for classes. We also 

had outdoor exercises twice a day for twenty minutes in a fenced-in area. Every 

time we walked we had to walk silently with our hands crossed to avoid punishment. 

The officers did not know why I or other children picked up by INS were being 

held there. They treated us the same as the others, as criminals. They were mean 

and aggressive and used a lot of bad words. They sometimes hit me with their sticks 

31

and shoved me and other boys when they thought that we were not following their 

orders. 

Many of the other boys were violent, frequently looking for a fight. Whenever 

there was a fight, the officers would order all of us into a cover, crouching position 

and often used pepper-spray. Sometimes the pepper-spray would hit children like 

me who had nothing to do with the incident. I was sprayed twice and it made my 

eyes sting and I was afraid that I’d go blind. 

I lost weight and was usually sick at this jail since I could not eat the horrible 

food and the jail constantly smelled like urine. I frequently had nightmares at the 

jail that the guards and other boys were going to kill me. I cried a lot in the cell 

wondering why everything was turning out so bad for me in the United States and 

if I would ever be free. 

After around six weeks in detention, I was taken in hand and leg shackles to the 

immigration court. At my first court, there were many adult criminals in the courtroom. I was scared and afraid that I would be deported. The Judge asked me what 

I wanted to do in my case and I told him I needed to find a family to live with 

in the United States. He said he’d give me another date and help me find a lawyer 

to represent me. 

Several weeks later, I returned to court, again in shackles. There was a nice, free 

lawyer for me, Manuel Sanchez, who was willing to represent me. Together, we prepared my case for asylum and the Judge granted me asylum in January, 2001. 

It was hard to prepare my case in the jail even with my attorney Manny. I could 

not call him for free, and every time he visited, they made me take off all my clothes 

to search my body. This embarrassed me. I also did not like going to court since, 

even though I’d get to see the full outdoors, every court trip meant wearing shackles, even at my final hearing when I was able to tell the Judge my whole story. 

There was no way I could win my case without an attorney or Manny. I did not 

even know that asylum existed before Manny and I could not fill out all those papers in English and did not know what to do in court. 

There was no one to complain to about the jail since I could not trust the jail officials and never saw an INS officer. INS only came to take me to court in shackles. 

I once complained to the Judge about how horrible the jail was to see if I could go 

back to South West Key. The Judge said that he could not do anything for me, only 

INS could. The INS attorney did not say or do anything to help me get out of this 

jail. 

After winning my asylum, I was brought back to the jail again in shackles. I 

stayed in the jail another month and a half, wondering why if I won this asylum, 

I was still in jail. Would I ever be free? 

Finally, they arranged for me to go with Bethany Homes to a foster family in 

Michigan. I was transported out again in shackles. I asked the INS officer why do 

I need shackles. He told me to prevent my escape. Why would I want to escape if 

I won my asylum? Your asylum, he said, that’s just a piece of paper we can rip up, 

put you in jail and send you back to your country. 

It took a while for me to feel at home in Michigan. I still have horrible memories 

over what I went through with INS and at the San Diego jail. I saw many children 

like me who gave up fighting their immigration cases and accepting deportation because they hated the jail and did not have lawyers like Manny to help them. 

I am happy that there are now people like you who care to help children like me 

with their problems with INS. I’d like to see that they treat children better so that 

no child has to go through what I went through with INS. Thank you for listening 

to me.

Chairman KENNEDY. Wendy? 

STATEMENT OF WENDY A. YOUNG, DIRECTOR OF GOVERNMENT RELATIONS AND U.S. PROGRAMS, WOMEN’S COMMISSION FOR REFUGEE WOMEN AND CHILDREN, FALLS 

CHURCH, VIRGINIA 

Ms. YOUNG. Good afternoon. On behalf of the women’s Commission for Refugee Women and Children, I would like to thank you 

for the opportunity to testify regarding the treatment of children 

held in the custody of the INS. I would like to request that my full 

written testimony be submitted for the record. 

The Women’s Commission has identified significant procedural 

gaps in U.S. policy and practice that jeopardize the protection of 

32

newcomer children. We strongly support S. 121 which, if enacted, 

would represent the first time that the needs of unaccompanied minors are addressed comprehensively and that they are treated as 

children first and newcomers second. 

We wish to express our appreciation to Senators Feinstein, Kennedy, Durbin, and the other cosponsors of S. 121 for their leadership on this legislation. 

The INS detains almost 5,000 unaccompanied children a year. In 

addition to Edwin, we are joined in the audience today by other 

young people who were held in INS custody. I would like to ask 

them to stand as a group for just a moment. 

Chairman KENNEDY. Do you want to stand? 

[The children stood.] 

Chairman KENNEDY. Well, you will give us their names and we 

will make sure that they are in the record. Thank you very much. 

Ms. YOUNG. Thank you. 

Children held in INS custody range in age from toddlers to teenagers and represent many nationalities. Many are fleeing armed 

conflict and human rights abuses. Others have been abused, abandoned or neglected by their families. Some children have been trafficked. All, without question, deserve comprehensive care that is 

sensitive to their age, past experience, and displacement. 

The Juvenile Affairs Division within the INS Detention and Removal Branch is currently responsible for the care and custody of 

children. Its work is generally carried out through INS regions and 

districts, each of which has a designated juvenile coordinator. 

These coordinators are detention and removal officers who lack 

child welfare expertise. Moreover, the national juvenile coordinator 

enjoys only dotted-line authority over these officers. This disconnect leads to decentralization, a lack of accountability, and inconsistent practices, often at the child’s expense. 

The INS is responsible for the care and custody of unaccompanied children at the same time that it oversees their apprehension, detention, and removal. This is an irreconcilable conflict of interest that repeatedly results in the INS favoring its law enforcement goals over the needs of the child. 

For example, the INS frequently denies release from detention to 

children who have been granted asylum by an immigration judge 

because the agency itself has decided to appeal that grant. The INS 

has blocked children from pursuing special immigrant juvenile status by refusing to allow the child to proceed to juvenile court to determine whether the child has been abused, abandoned or neglected. 

The INS has also encouraged children to agree to voluntary departure from the United States even when children have earlier expressed a fear of return. And in some cases, the INS has returned 

children under questionable circumstances. A juvenile coordinator 

admitted to us that she was aware of Chinese children who were 

arrested and jailed upon their return. A 13-year-old Honduran was 

deported even though his asylum claim was still pending. 

The INS restructuring proposal is largely cosmetic and will not 

resolve the conflict of interest. Children are inherently different 

from any other population that the INS encounters and no matter 

33

where the box is moved on the organizational chart, the agency will 

still lack the child welfare expertise to get the job done. 

Moreover, under the INS proposal, it is unclear who would make 

release and placement decisions on behalf of children. Such authority may well be retained by INS enforcement officers. Comprehensive reform by way of S. 121 is essential. 

The Flores agreement requires the INS to release children to 

parents, relatives or other responsible entities, or to otherwise 

place them in the least restrictive setting possible. However, the 

INS often fails to release children even when family is available. 

Service providers in Houston report that family reunification has 

dropped from 75 to 35 percent. 

Family reunification is especially problematic when the INS is 

aware that a child has an undocumented relative in the U.S. The 

INS has refused to release a 16-year-old Guatemalan who has been 

detained for 8 months in multiple facilities, including at one point 

an adult prison, because they are aware that his undocumented 

brother resides in the United States. A Federal judge recently expressed outrage at the arbitrariness of this decision. An 8-year-old 

Nigerian girl was detained for 15 months before finally being released to her aunt, despite the documented deterioration in her 

mental well-being. 

One-third of children spend anywhere from a few days to more 

than a year housed in secure detention facilities designed for 

youthful offenders, including delinquents who have committed violent felonies such as assault, murder, and school shootings. A 14-

year-old Honduran asylum seeker shared a cell for 4 months with 

a boy serving time for assault with a deadly weapon. Such commingling of non-offenders with delinquents is common. 

Children are subject to hand-cuffing and shackling even at times 

during their immigration hearings. Translation assistance is rare. 

In some facilities, access to the outdoors is extremely limited. Education programs are often conducted in English. Children are sometimes cutoff from religious services in their chosen faith. Children 

are frequently transferred from facility to facility even when represented, and then without prior notice to counsel. Children are 

sometimes misclassified as adults and are commingled in adult detention centers or prisons. 

Also missing is the critical assistance of professionals who can 

aid children with their immigration cases. Less than half the children are represented by counsel, and U.S. law fails entirely to appoint them guardians ad litem. This results in ludicrous situations. 

In one case, an 18-month-old toddler appeared before an immigration judge with no attorney or other adult to help her. 

In conclusion, the Women’s Commission is gravely concerned 

that consideration of the best interests of the children, the cornerstone of child welfare policy, is a concept that continues to elude 

the policies and practices of the INS. 

We strongly support the approach of S. 121, which shifts the care 

and custody of children to an appropriate office and leaves the INS 

to perform the function it does best, the enforcement of U.S. immigration laws. S. 121 puts in place the structure and resources to 

quickly identify an appropriate outcome in each child’s case, safely 

repatriating those children who are not eligible for relief and quickVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
34

ly moving those children who are into stable, home-like settings 

where they can begin their lives anew. 

One true measure of a society is its treatment of children. We 

urge Congress to expeditiously pass S. 121, legislation that ensures 

a holistic, humane, and effective approach to newcomer children. 

Thank you again, Mr. Chairman, for the opportunity to appear 

before you. 

[The prepared statement of Ms. Young follows:]

STATEMENT OF WENDY YOUNG, DIRECTOR OF GOVERNMENT RELATIONS AND U.S. 

PROGRAMS, WOMEN’S COMMISSION ON REFUGEE WOMEN & CHILDREN, NEW YORK, NEW YORK

I. INTRODUCTION

Isau is a 13-year-old boy from Honduras. He fled his homeland and came to the 

United States to escape severe abuse at the hands of his stepfather, who beat Diego 

with pieces of wood, rods, and a machete handle and burned him with various hot 

objects. His mother would disappear for months leaving Diego at the mercy of his 

stepfather. Diego finally fled his stepfather’s home and began living on the streets. 

There, however, he was targeted by government death squads and youth gangs. 

The Immigration and Naturalization Service apprehended Diego upon his arrival 

in the United States and initially placed him in a children’s shelter in Houston. It 

then denied Diego access to juvenile court in order to determine whether he was 

abused, abandoned, or neglected and eligible for long-term foster care, a finding that 

would have potentially rendered him eligible to remain in the United States under 

the Special Immigrant Juvenile program. Meanwhile, Diego appeared in immigration court, without the assistance of counsel, where he was denied asylum. After a 

pro bono attorney agreed to represent him, Diego filed an asylum appeal, a Convention Against Torture claim, and a withholding of deportation claim. The INS then 

transferred him to the Liberty County Juvenile Detention Center, one and a half 

hours drive from Houston where his attorney was based. A year later, the INS unlawfully deported Diego back to Honduras while his appeal was pending. Diego’s attorney has since been trying to locate the boy but has been unable to find him. 

Diego spent two years in detention before his deportation, including more than one 

year in secure detention. 

Good afternoon. My name is Wendy Young. I am the Director of Government Relations and U.S. Programs for the Women’s Commission for Refugee Women and 

Children, a nonprofit organization which seeks to improve the lives of refugee 

women and children around the world by acting as an expert resource and engaging 

in a vigorous program of public education and advocacy. On behalf of the Women’s 

Commission, I would like to thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to testify regarding the treatment of children held 

in the custody of the Immigration and Naturalization Service (INS). 

In 1996, the Women’s Commission launched an assessment of U.S. detention and 

asylum policy and its impact on women and children seeking refugee protection in 

the United States. As part of this project, we have visited 18 facilities used to hold 

children in INS custody and have monitored numerous immigration court proceedings involving children. This research included a four-state assessment in August 2001 of the treatment of children detained by the INS. This study focused primarily on the use of secure facilities, or juvenile detention centers, by the INS. We 

also worked with the INS to develop ‘‘Guidelines for the Adjudication of Children’s 

Asylum Claims,’’ released in December 1998. In addition, we have acted as an expert resource to attorneys and other service providers working with children around 

the country. 

This work has revealed significant procedural gaps in asylum and immigration 

law and policy that jeopardize the protection of newcomer children. Too often, the 

U.S. immigration system is a ‘‘one-size-fits-all’’ process designed for adults that fails 

to take into account the unique needs of children. As a result, children may be denied asylum or other forms of immigration relief for which they may be eligible and 

returned to unknown fates in their home countries. They may also endure prolonged 

detention, often in secure juvenile detention centers in harsh and punitive conditions that fail to address their unique protection needs. 

The Women’s Commission strongly supports the Unaccompanied Alien Child Protection Act (S. 121). We would like to express our appreciation to Senator Dianne 

Feinstein, Senator Edward Kennedy, Senator Richard Durbin, and the other coVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
35

1 ‘‘Unaccompanied Juveniles in INS Custody,’’ Office of the Inspector General, Report Number 

I–2001–009 (September 28, 2001). 

sponsors of S. 121 for their leadership on this critical legislation. If enacted, this 

legislation would represent the first time that the needs of unaccompanied minors 

who arrive in the United States are addressed systematically and comprehensively, 

thus ensuring that children are treated as children first and newcomers second. It 

would accomplish this by establishing a structure specifically to care for newcomer 

children, by mandating procedures for appropriate custody and placement decisions, 

and by providing the legal and social services to children that they require to assist 

them in their immigration proceedings. 

What S. 121 does not do is create new forms of immigration relief for children. 

Instead, it ensures that children are appropriately cared for while their eligibility 

for relief is determined. It also creates a more efficient system that will lead to 

quicker decisions in children’s cases. S. 121 will be more cost-effective by decreasing 

the use of secure settings, and will ensure that children who are denied relief are 

returned efficiently and safely. 

This testimony will provide an overview of the current treatment that children receive and will establish the need for legislative reform such as that envisioned 

under S. 121. 

II. WHY CHILDREN COME TO THE UNITED STATES

In each of the past three fiscal years (1998-2000), the INS has reported an annual 

total of almost 5,000 unaccompanied children in its custody. On any given day, the 

agency averages between 400 and 500 children in its care.1 These children range 

in age from as young as six months up to 17-years-old. They come from many countries, with the top nationalities being Honduran, Guatemalan, Salvadoran, Mexican, 

and Chinese. In its own research, the Women’s Commission has followed the cases 

of children from Kosovo, the Democratic Republic of Congo, Burundi, Sierra Leone, 

Somalia, Algeria, Afghanistan, Nigeria, Haiti, India, Colombia, and other troubled 

countries. 

Children come to the United States for a variety of reasons. Increasingly, children 

are searching for protection from armed conflict and human rights abuses in their 

homelands, which may render them eligible for asylum. 

Human rights violations inflicted on children may be age-specific, such as recruitment as child soldiers, child prostitution, sexual servitude, child labor, street children abuses, child marriages, female genital mutilation, and slavery. Other children 

have been abused, abandoned, or neglected by their families, and thus may be eligible for Special Immigrant Juvenile status. Some children are smuggled or trafficked 

into the United States, and may be eligible for relief under the recently enacted 

trafficking legislation. 

Unaccompanied children arrive in the United States in several ways. They may 

arrive alone either by crossing a U.S. border or through a U.S. port of entry. Some 

arrive in the company of a family friend or distant relative who is not the child’s 

traditional caregiver. Some arrive in the company of a smuggler who has been paid 

to facilitate the child’s arrival. Still others are trafficked into the United States by 

organized criminal enterprises. Approximately 40 percent of children are truly alone 

and lack relatives in the United States, rendering them particularly vulnerable. 

Regardless of their mode of arrival or country of origin, children who arrive alone 

in the United States are indisputably a population in need of comprehensive care 

that is sensitive to their age, culture, past experience, and displacement. 

III. THE JUSTICE DEPARTMENT STRUCTURE TO OVERSEE CHILDREN IN INS CUSTODY

HAS CHANGED OVER THE YEARS

Over the years, the Department of Justice has shifted jurisdiction over the care 

and custody of newcomer children from office to office. For many years, shelters 

which housed children in INS custody were overseen by the Community Relations 

Service (CRS), an agency that is within the Department of Justice but separate from 

the INS. CRS maintained a small staff of social workers to administer the children’ 

shelters, the running of which was contracted out to private nonprofit agencies. 

However, the INS absorbed the functions of CRS related to immigration in 1996. 

The CRS staff charged with the oversight of the shelters moved to the INS as well. 

Both the staff and their continuing operations were housed in the Humanitarian Affairs Branch (HAB). HAB is commonly recognized for its service orientation and centralized operations within the overall INS structure. 

36

2See letter from Ralston H. Deffenbaugh Jr., Lutheran Immigration and refugee Service, on 

behalf of more than 50 non governmental organizations and individuals, to Doreis Meissner, Immigration and Naturalization Service (October 17, 2000). 

Despite the concerns of outside experts, the INS decided in 2000 to consolidate 

all of its children’s programs into its Detention and Removal branch, a department 

intrinsically tied to the agency’s law enforcement functions. Nongovernmental organizations, concerned about the handling of children in INS custody, feared that the 

transfer of authority would further aggravate the inherent conflict of interest between INS enforcement responsibilities and the agency’s ability to provide child welfare services.2

The concerns of immigrant and refugee advocates proved well-founded. Increasingly, since the Detention and Removal Branch assumed control over children’s programming within INS, enforcement concerns have dominated decisions which are 

made on behalf of child newcomers. The agency has demonstrated a consistent pattern and practice of neglecting the needs of children in favor of its deportation functions, budgetary concerns, and administrative and logistical priorities. 

Moreover, the staffing structure of the INS has exacerbated the law enforcement 

approach the agency has favored toward the handling of children in its care. INS 

staffing for children’s programs is highly decentralized. While decentralization characterizes most INS programs, it carries particularly troubling consequences for children. 

The INS Juvenile Affairs Division is the central office which directs and oversees 

juvenile and family detention and shelter care. In practice, however, this supervision is largely implemented through the INS regional and district offices across 

the country. There are three INS regions and 33 INS districts, all of which function 

with tremendous autonomy and little accountability to INS headquarters in Washington, DC. 

Each region and district has a designated juvenile coordinator. These coordinators, however, are generally not individuals with child welfare expertise but are detention and deportation officers who are charged with overseeing the handling of 

children in that particular district. In some districts, the appointment as juvenile 

coordinator is a permanent appointment, but in most cases, it is a temporary assignment and may even be performed on a part-time basis. 

Each of the three INS regions are staffed by a regional juvenile coordinator. These 

posts are full-time, permanent positions. 

The line authority over and supervision of the regional and district juvenile coordinators are through the district and regional structures. While counter intuitive, 

the national juvenile coordinator enjoys only dotted line authority over these officers. This disconnect leads to decentralization, a lack of accountability, and inconsistent practices with regard to children from district to district and region to region. 

IV. INS EXPERIENCES A CONFLICT OF INTEREST WITH CHILDREN IN ITS CUSTODY

It is often noted that the INS has been given a complex mandate that is simultaneously both law enforcement and service oriented. Perhaps nowhere is this more 

true than with children in the custody of the INS. The INS is responsible for the 

care, custody, placement and legal protection of unaccompanied children who arrive 

in the United States at the same time that it is also responsible for their apprehension, detention, and removal. As a result, the INS is presented with an inherent 

conflict of interest, under which it is simultaneously acting as a service provider and 

a law enforcement agency. This conflict ultimately clogs the system with inefficiencies and inequities and threatens the best interests of the children in question. 

Moreover, the situation is made worse by the fact that the INS simply lacks the 

requisite child welfare expertise to appropriately care for children in its custody. 

This conflict of interest was exacerbated in 2000, when the INS consolidated its 

children’s programs under its Office of Field Operations, Detention and Removal 

branch. By doing so, it removed oversight of the children’s shelters from the HAB, 

which included staff experienced in child welfare. 

Since the consolidation of children’s programs under the Detention and Removal 

branch, we have witnessed a trend toward further favoring law enforcement goals 

over the needs of the child. Following are just a few examples of how the INS 

leverages its custody of children to advance its law enforcement goals:

• The INS has frequently denied release to children who have been granted 

asylum by an immigration judge, because the agency itself has decided to 

appeal the grant and has deemed the child a flight risk. 

37

3 ‘‘Restructuring Proposal,’’ Immigration and Naturalization Service (November 2001). 

4 Ibid., p. 26. 

• The INS has blocked abused children from pursuing Special Immigrant 

Juvenile visas. For children in its custody, the INS retains the authority 

to consent to the jurisdiction of a juvenile court for a determination as to 

whether the child is eligible for long-term foster care due to abuse, abandonment, or neglect. Such a determination is required before a child can 

pursue a Special Immigrant Juvenile visa. Consistently, the INS refuses to 

allow the child to proceed to juvenile court, thus cutting the child off from 

a critical form of protection that would otherwise offer the child protection 

from domestic violence or life on the streets. 

• The INS has increasingly required undocumented relatives to appear at 

its offices to accept custody of children, at which time it issues a Notice to 

Appear to the relative. It adheres to this policy even when other relatives, 

responsible adults, or licensed placements are available and willing to accept the child. This acts as a tremendous deterrent against parents and others stepping forward to care for their children. Perhaps even more significant is the guilt caused to the children, who are effectively being used as 

bait to lure the parent to appear. It also often results in the prolonged detention of the child. 

• Service providers have reported cases in which the INS has encouraged 

children to abandon their pursuit of immigration relief. In Houston, for example, service providers reported that the INS juvenile coordinator told a 

child that ‘‘The judge won’t buy your story, and you’ll end up being in detention for a long time.’’ Service providers in Spokane reported that the juvenile coordinator encourages children to agree to voluntary departure from 

the United States. 

• The INS in some cases has returned children under questionable circumstances. The San Francisco juvenile coordinator admitted that she was 

aware of Chinese children who were arrested and jailed upon their return 

to China, especially those returned to Beijing. A Honduran 13-year-old was 

deported by the INS Houston District, even though his claim to asylum, relief under the Convention Against Torture, and SIJ petition were still pending adjudication. 

V. THE INS RESTRUCTURING PROPOSAL WILL NOT RESOLVE THE CONFLICT OF

INTEREST THE INS EXPERIENCES WITH CHILDREN IN ITS CUSTODY

The INS has recently announced steps to reform its policies and practices with 

regard to children as part of its overall ‘‘Restructuring Proposal.’’ 3 The heart of the 

proposal is to separate the agency’s service and law enforcement functions into two 

bureaus, which would continue to report to the INS Commissioner. Certain departments would not be lodged in either the service or the law enforcement branch, including a new ‘‘Office of Juvenile Affairs,’’ reporting to the INS Commissioner. 

The INS has stated that the mandate of the Office of Juvenile Affairs will be to 

act as the central policy office on children’s matters and to direct national programs 

to address the needs of unaccompanied minors in INS custody. It has indicated that 

this will include responsibility for developing research-based best practices and service approaches, ensuring consistent application of policies and procedures, facilitating family reunification, and developing effective case management systems.4

However, we believe that the INS’s proposal will not got far enough to truly reform the agency’s practices toward children. While this change reflects the INS’s 

growing awareness that it must revamp its treatment of children, it does not promise the kind of meaningful reform that would ensure that children receive appropriate care while their eligibility for immigration relief is being determined. 

First and most critically, children are inherently different from any other population that the INS encounters. In contrast to adults, who are typically able to understand at least the fundamentals of the immigration system as they seek to regularize their immigration status, children lack the capacity to appreciate the complexities of U.S. immigration law and to make decisions that will fundamentally affect their futures. 

Second, the INS’s proposal fails to address the fundamental conflict of interest 

that the INS experiences when charged with both the care and custody of children 

at the same time that it is seeking their removal from the United States. These dual 

functions are diametrically opposed and fundamentally irreconcilable. 

38

5Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85–4544–RJK (C.D. Cal. 

1996), available at http://www.centerforhumanrights.org/FloresSettle.html. 6 Reno v. Flores, 507 U.S. 292 (1993). 7Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85–4544–RJK (C.D. Cal. 

1996), available at http://www.centerforhumanrights.org/FloresSettle.html. 8 Ibid., paragraph 14. 

9 Ibid. 

Because the INS is dominated by enforcement concerns at the same time that it 

is completely lacking in child welfare expertise, its law enforcement functions frequently override consideration of the best interests of the children in its custody. 

Third, it is unclear who would have the authority to make placement and other 

critical service decisions on behalf of children under the INS Restructuring Proposal. 

Such authority may well be retained by INS enforcement officials, who lack the 

child welfare expertise to determine the most appropriate care arrangements for 

children. 

Currently, the INS National Juvenile Coordinator in Washington, DC only has 

‘‘dotted line’’ authority over regional and district juvenile coordinators, who remain 

under the supervision of their respective districts and regions. This results in decentralization, inconsistency, and a lack of accountability. The INS Restructuring Proposal does not appear to address this structural flaw. 

Fourth, the INS proposal is only an administrative measure that does not carry 

the force of law. Nothing would prevent future Administrations from revisiting these 

changes and reverting to old structures. History has already shown the tendency of 

the Department of Justice to shift jurisdiction over children’s programming from office to office. 

Most importantly, the INS proposal will not resolve the endemic management 

issues within the agency that favor law enforcement over service. The proposal itself 

acknowledges this dilemma when it notes that ‘‘reorganization should not be seen 

as a panacea for all the challenges the INS faces.’’ The chronic failure of the INS 

to address critical protection issues confronted by children in its care and the lack 

of transparency in INS operations are issues that are likely to continue to plague 

the agency. 

Concerns about the INS’ handling of children have been raised by immigration, 

refugee, and child welfare experts for almost two decades. Improvements have been 

made incrementally in some areas while in other aspects INS practices have deteriorated. Without fundamental changes in infrastructure, staffing, attitude and philosophy, the changes proposed under the INS Restructuring Proposal are likely to remain cosmetic at best. We cannot allow children to continue to pay the price while 

we give the INS yet another opportunity to experiment with their care. 

VI. INS COMPLIANCE WITH CLASS ACTION SETTLEMENT AGREEMENT THAT GUIDES

PLACEMENT DECISIONS IS INCONSISTENT

THE flores agreement 

The legal framework for the custodial care and treatment of unaccompanied newcomer children derives from a consent decree known as the Flores v. Reno settlement agreement.5 Filed as a class action lawsuit in U.S. federal court in 1985, the 

Flores case challenged the constitutionality of policies and practices regarding the 

detention and release of unaccompanied children taken into custody by the INS. The 

case went to the U.S. Supreme Court before being remanded to the court in which 

it originated, the District Court of the Southern District of California, at which point 

the plaintiffs and the government reached a settlement in 1996.6

The Flores agreement addresses a range of custody issues pertaining to children, 

including release to family members or other responsible entities, placement, transportation, monitoring, and attorney-client visitation. In addition, the agreement delineates minimum standards of care for licensed programs with which the INS contracts for the placement of children in its custody, such as access to health care, 

recreation, education, religious services, and legal representation. 

The Flores agreement is premised on the notion that the INS must treat children 

in its custody with ‘‘dignity, respect, and special concern for their vulnerability as 

minors.’’ 7 It requires the INS to release children without unnecessary delay unless 

detention is required to secure the child’s appearance in court or to ensure the safety of the child or others.8 The agreement lays out in order of preference categories 

of relatives, unrelated adults, and licensed child care settings to which children are 

to be released.9

The agreement also requires the INS to place children for whom release is pending, or for whom no release option is available, in the least restrictive setting posVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
39

10 Ibid., paragraph 11. 11 Ibid., paragraph 12, 21. 12 Ibid., paragraph 12. 13 Ibid., paragraph 24. 14 Ibid. 15 A number of agencies are beginning to monitor INS compliance with the Flores agreement. 

These included the American Bar Association, the Center for Human Rights and Constitutional 

Law, the Florida Immigrant Advocacy Center, the Southern Poverty Law Center, and the law 

firm of Latham & Watkins. 

sible that is appropriate to the child’s age and special needs.10 However, the agreement defines exceptions to this general rule for children whom the INS has deemed 

escape risks, children who are believed or found to be criminal or delinquent, children whom the INS actually believes to be over the age of 18, children who present 

a risk to their own safety or that of others, or in cases of an emergency or influx 

of children.11 In such cases, the INS can place the minor in an INS-contracted facility or a state or county juvenile detention facility that has separate accommodations 

for minors. Under Flores, however, the child is supposed to be housed separately 

from the delinquent population in the facility.12 Any child placed in a medium secure or secure facility must also be provided a written notice of the reasons why.13

The Flores agreement has become a critical yardstick against which to evaluate 

INS practices with regard to children in its custody. It also provides the opportunity 

to challenge in federal court the placement of a child in a secure setting.14

However, at least until recently, INS compliance with Flores has remained almost 

entirely self-initiated and self-monitored.15 Attorneys for children and others concerned about the treatment of newcomer children have lacked the resources to challenge violations of the Flores requirements. Moreover, the INS itself—as it has for 

its detention policies and practices overall—has delegated the vast majority of its 

detention authority over children to its district and regional offices. As a result, release and placement decisions for children have frequently remained ad hoc, arbitrary, and inconsistent, with insufficient attention given to what is in the best interests of each child. 

Release to Family and Other Responsible Parties 

The Flores agreement spells out a list of parties to whom children may be released in order of preference. These include:

• A parent; 

• A legal guardian; 

• An adult relative; 

• An adult individual or entity designated by the parent or legal guardian 

as capable and willing to care for the child; 

• A licensed program willing to accept custody; or 

• An adult individual or entity seeking custody, at the discretion of the 

INS, when there appears to be no likely alternative to long term detention 

and family reunification does not appear to reasonably possible.

Increasingly, the INS has failed to exercise release of children even when one of 

these options appears available. Service providers in Houston, for example, report 

that family reunification for children held in the custody of the INS Houston District has dropped from 75 percent to 35 percent. Providers indicated that this shift 

in policy began when the INS consolidated children’s programs under its Detention 

and Removal branch in 2000. 

Family reunification is particularly problematic in cases involving release to undocumented parents or relatives. In such cases, the INS has increasingly moved toward requiring the undocumented individual to come forward to accept his or her 

child relative, even when a U.S. citizen or permanent resident relative is available 

to facilitate the reunification. In effect, the INS has interpreted the list of possible 

sponsors under Flores not as a preferential delineation of parties but as a hierarchical list. 

In such cases, the INS then often places the undocumented relative into removal 

proceedings by issuing him or her a ‘‘Notice to Appear.’’ The child in effect is used 

as bait to force the relative to appear before the INS. The Women’s Commission has 

documented that this is now the practice in the Seattle, Los Angeles, Houston, 

Philadelphia, Phoenix, and Miami Districts. It may be the policy in other districts 

as well. 

One Houston service provider observed, ‘‘The INS often cites the best interests of 

the child when it refuses to release a child to a family member. But, in fact, they 

are using the best interests principle as a barrier to family reunification.’’ Another 

service provider in Los Angeles noted, ‘‘This puts the kids in a terrible position. 

40

16Transcript of Hearing, A.L.S. v. Ashcroft, case number 02–20421–CIV–MORENO (U.S. District Court, Southern District of Florida), p. 40. 17 Ibid., p. 42.

They feel guilty that their family member has to risk their own situation in order 

to pick them up.’’

A case is currently pending before the U.S. District Court for the Southern District of Florida regarding treatment of a Guatemalan boy who has been held in INS 

custody for several months, transferred from facility to facility (including at one 

point to an adult prison), even though there are licensed shelters which have indicated their willingness to care for the boy. The boy is currently housed in a hotel, 

where he has been held in isolation for three weeks. In the course of a preliminary 

hearing on the boy’s request for a temporary restraining order, the INS Miami District juvenile coordinator indicated that he would not release the boy to a licensed 

shelter program as required under the Flores agreement, even if petitioned to do 

so, because the INS was aware that the boy had an 18-year-old undocumented 

brother in the United States. The juvenile coordinator stated:

‘‘I would recommend denial [of release] in this case because. . .we already 

know that he has blood relatives in this country who are circumventing the 

law and refusing to come forward because they would be subjected to an 

immigration arrest. . . .So I’m not going to allow release to a non-relative 

when we know that there are relatives in the United States.’’ 16

The district court judge then responded:

‘‘I am outraged that someone would have made up his mind before hearing 

any evidence whatsoever. . . .Because right now what I have heard is that 

the INS is telling the petitioner, ’Don’t file any petition, because before we 

even consider whether to release him in accordance with the regulations, 

I made up my mind and I am not going to do it.’ ’’ 17

Placement in Shelter Care 

Since the Flores agreement has been in place, the INS has increased its shelter 

care space to approximately 400 beds. The majority of these shelters are institutional in nature and offer an environment of ‘‘soft detention.’’ The children are allowed to wear street clothing, are offered educational classes, and are housed in dormitory-style accommodations rather than being locked in cells or cell pods. Occasionally, they engage in recreational or educational trips off-site in the company of shelter staff. However, the children’s activities are closely monitored, the doors are frequently locked or alarmed, the premises may be fenced, and children are not allowed to leave the facility unless accompanied by facility staff. 

Moreover, children may languish in the shelters for prolonged periods, despite the 

fact that the shelters are set up for short-term care only. The Women’s Commission 

followed closely the case of an eight-year-old Nigerian girl who was held in a Miami 

shelter for 15 months. Fega had begun to lose her ability to speak her native language and was instead speaking a combination of Creole, Spanish, and English by 

the time the INS finally released her to her aunt. A social worker documented a 

deterioration in her mental well-being as a result of her prolonged institutionalization. 

The INS also has a limited foster care program, offering approximately 36 placements nationwide. These foster homes are generally used for young children, girls, 

long-term detainees for whom there is no sponsor, or children with special needs. 

The limited foster care available to place children in INS custody is of grave concern. Foster care offers a home-like environment to children and an alternative to 

institutional care. It also is a much cheaper alternative to detention than either a 

secure facility or a shelter. 

VII. CHILDREN ARE OFTEN HELD IN SECURE FACILITIES

As a result of a lack of readily available bed space, poor case management, and 

often questionable placement decisions by the INS, a significant percentage—an estimated one-third—of children in INS custody spend at least some time housed in 

secure juvenile detention centers, designed for the incarceration of youthful offenders. Children in INS custody may be detained in such settings for anywhere from 

a few days to more than a year. 

The Flores agreement theoretically limits the use of such facilities to just five narrow categories of children:

41

18Tom Brune, ‘‘INS Housing Children in Jails,’’ Newsday, p. A5 (February 4, 2000). 19 ‘‘Unaccompanied Juveniles in INS Custody,’’ Office of the Inspector General, Report Number 

I–2001–009 (September 28, 2001), P. 2. 

• Children who have been charged with or are chargeable with a crime or 

a delinquent act, unless that is an isolated offense that does not involve violence; 

• Children who have committed or threatened to commit a violent or malicious act while in INS custody; 

• Children who have been disruptive while placed in a non-secure setting; • Children who have been deemed a flight risk; and • Children who must be held in secure facilities for their own safety.

Under Flores, children who do not fall into one of these categories must be placed 

in the least restrictive setting possible within the first three to five days after apprehension by the INS. However, in 1999 only 675 cases out of 1,958 incidences of children placed in secure confinement were suspected or adjudicated delinquent.18 In 

2000, non-delinquent children accounted for 1,569 of the 1,933 instances of secure 

detention.19 We believe that the INS is consistently overusing secure confinement, 

placing children there who should have been in shelter or foster care. When the 

Women’s Commission visited the Yuma County Juvenile Justice Center in Arizona, 

the facility administrator told us that he assumed that the children the INS had 

placed in the facility had been adjudicated delinquent. He asked, ‘‘Why else would 

they be here?’’

Often the children themselves and their attorneys are unaware of the reasons for 

their placement in secure facilities. Placement decisions are generally made at the 

local level by INS district offices, and are rarely reviewed. While under the Flores

agreement placement decisions can be challenged in federal court, this remains an 

unrealistic option for most children, particularly those who are unrepresented by 

counsel. Furthermore, in many cases it appears that once placement decisions are 

made, they are never subsequently reviewed, leaving some children languishing in 

secure settings for prolonged periods. 

The INS frequently justifies its placement of children in secure settings under a 

significant exception included in the Flores agreement that suspends application of 

the least restrictive setting requirement. In cases of emergencies or an influx of children, the INS may place a child in any facility having space, including a secure facility. The agreement defines an ‘‘emergency’’ to include natural disasters, facility 

fires, civil disturbances, and medical emergencies. The term ‘‘influx’’ is defined as 

those circumstances in which the INS has more than 130 children eligible for placement in non-secure settings in its custody. 

The influx exception is particularly problematic. The threshold number of 130 was 

agreed upon by the parties to the Flores settlement at the time of negotiation, as 

that was the number of shelter and foster bed placements that was then available 

to the INS. Since the agreement took effect, however, the INS has expanded its 

shelter and foster care program to approximately 400 beds. Because the threshold 

number embraced by the agreement has not kept pace with this reality, in effect 

the exception has overtaken the rule. In fact, the Women’s Commission found in its 

August 2001 assessment of juvenile detention centers used by the INS that in many 

cases the INS justified placement of children in secure facilities by citing the influx 

exception. In the San Diego Juvenile Hall, for example, some of the children had 

notices of secure placement in their possession that cited the influx exception. Some 

had been in the facility for several months. The delegation had also learned that 

at least one INS shelter had been running under capacity for most of the year. 

This has been a consistent practice by the INS over the years. When the Women’s 

Commission visited the Liberty County Jail in 1998, 83 children in INS custody 

were detained in the facility. The Houston Juvenile coordinator justified these placements by stating that there had been an ‘‘influx’’ of children. The Women’s Commission, however, learned that in fact there were several beds open in the Houston 

shelter at the same time, a facility that is less than two hours away, undermining 

the INS District’s assertion that it had experienced an influx of children. 

Children are also sometimes arbitrarily labeled as ‘‘flight risks.’’ This has become 

increasingly common for children who are denied relief by an immigration judge and 

whose cases are on appeal to the Board of Immigration Appeals. The INS will frequently transfer such children to secure detention facilities. The San Francisco juvenile coordinator told the Women’s Commission in August 2001 that it is the policy 

of the district to deem any child who has been issued a final order of removal a 

flight risk and move him or her to a secure facility, unless the child is very young. 

The juvenile detention centers from which the INS rents space are typically harsh 

and punitive in their environment. They are designed for the detention of youthful 

42

20 Julie Sullivan, ‘‘Political Asylum and a Child Behind Bars,’’ The Oregonian, p. A1 (December 10, 1999). 21See Beth Lyon, ‘‘Detainees Isolated in Remote County Jail for Hearings by Video,’’ Detention Watch Network News (February 1998) 22 It should be noted that the INS limits its reading of the Flores prohibition on commingling 

to apply only until a child is formally placed in secure. 23 ‘‘Unaccompanied Juveniles in INS Custody,’’ Office of the Inspector General, Report Number 

I–2001–009 (September 28, 2001), p. 2. 

offenders and very often hold youth who have committed serious crimes. The facilities which the Women’s Commission visited included in their populations young people who had committed violent felonies such as assault and battery, murder, and 

school shootings. In the secure facilities, the children often become indistinguishable 

from the general population. They are typically forced to wear prison uniforms or 

institutional wear. 

One 14-year-old Honduran asylum seeker remarked to the Women’s Commission, 

‘‘ I crossed a border, no more. But they treat me as if I am a criminal. 

Other boys here have used weapons and drugs. All I did was cross a border. I 

look at these four walls and go crazy.’’ The boy had been held at the San Diego Juvenile Hall for four months. 

Children are allowed little privacy in the secure facilities. For example, during a 

Women’s Commission’s visit to the San Diego Juvenile Detention Center, a male 

guard was overseeing the girls’ wing. From his control station, the girls’ toilets and 

showers were in plain view. The doors to the toilets and showers, moreover, were 

only two to three feet in height, offering little privacy. Ironically, the boys’ wing was 

monitored by female guards. Again, the toilets and showers were almost completely 

exposed to view and offered little privacy. 

Children in INS custody, moreover, may remain in secure detention for prolonged 

periods, in some cases much longer than the children who are held in county custody. For example, the administrators at the D.E. Long facility in Oregon indicated 

that Chinese children in the custody of the INS had remained in the facility for a 

prolonged period, noting ‘‘Our [county] kids are here for 30-90 days. We’re just not 

equipped to handle a longer stay.’’ One Chinese girl was detained in the facility for 

approximately six months before being granted asylum. Even then, it took the INS 

several more weeks to release her to her uncle.20

Many of the secure facilities used by the INS, of which there are approximately 

90 nationwide, are located in rural areas far from the legal and other services that 

can assist children through their immigration proceedings. 

The remote location of many of these facilities has led to the use of video conferencing to conduct the children’s immigration hearings in some INS districts, such 

as Philadelphia and Seattle. The use of video conferencing raises serious due process 

concerns, particularly for children.21 Attorneys who represent children held at Martin Hall in Spokane, Washington reported that their child clients are very confused 

by the video conference process, and in at least one case, reacted by answering ‘‘no’’ 

to every question the immigration judge posed. An attorney observed, ‘‘Video hearings are a nightmare.’’

Some facility staff have questioned the placement of INS-detained children in secure settings and the treatment they receive there. A caseworker who had worked 

at Martin Hall left his position at the facility partly out of concern over the treatment of children in INS custody. He indicated that the INS-detained children were 

viewed as a source of funding for the three counties which operate Martin Hall, and 

that the facility administration discouraged him from working with the children. He 

reported that his supervisors told him, ‘‘Don’t spend your time with the INS kids, 

they’ll all be deported anyway.’’

VIII. CHILDREN IN INS CUSTODY ARE FREQUENTLY COMMINGLED WITH YOUTHFUL

OFFENDERS

The Flores agreement forbids the commingling of children in INS custody with the 

general population of youthful offenders in secure facilities.22 However, the Women’s 

Commission has documented numerous violations of this requirement, including in 

the Liberty County Juvenile Detention Center, TX; the Yuma County Juvenile Hall, 

AZ; the San Diego Juvenile Hall, CA; Martin Hall, WA; and D.E. Long Juvenile Detention Center, OR. In some cases, INS-detained children share cells with youthful 

offenders. The Women’s Commission interviewed a 14-year-old asylum seeker from 

Honduras in the San Diego facility who had shared a cell for four months with a 

boy serving time for assault and battery. 

The Office of the Inspector General also found that the majority of secure facilities 

used by the INS did not segregate INS-detained children from delinquent youth.23

43

24 Ibid. 25 Ibid., p. 3. 

It reported that 34 out of 57 facilities did not have procedures or facilities to properly segregate delinquent from non-delinquent youth. It further extrapolated that of 

the 1,933 instances of secure placement in 2000, 484 were likely to have been placement of non-delinquent children with delinquent children in facilities where the two 

populations are commingled.24

The INS generally provides little information to the juvenile detention centers 

about the children it places with them. This makes it extremely difficult for the facility to distinguish any special needs that the child may have. 

The administrator at the San Diego Juvenile Hall indicated that the INS provides 

scanty information about the children who are held at the facility. No files are 

transferred to the facility outlining why the child is in INS custody or the status 

of the child’s immigration proceedings. The INS only provides the child’s name, his 

‘‘A’’ number, and the dates on which the child is to appear in immigration court. 

Facility administrators at the D.E. Long Juvenile Detention Center also expressed 

concern about the lack of information provided to the facility about children in INS 

custody. The facility received extensive media coverage when it was revealed that 

eight Chinese youth seeking asylum were housed there in 1999. One administrator 

observed, ‘‘We found out more about the children from the interpreter than we did 

from the INS. The INS only gave us rudimentary information. No records came with 

the kids. We don’t know if the kids are just undocumented or if they have been adjudicated delinquent. The INS doesn’t differentiate between them.’’

The Office of the Inspector General reported that the juvenile coordinators in half 

of the INS Districts it visited failed to visit detained children on a weekly basis, 

as required under internal INS policy. This failure is in part due to heavy work 

loads and in part due to the remote location of many facilities.25

IX. CHILDREN ARE OFTEN SUBJECT TO HANDCUFFING AND SHACKLING

INS policy regarding the handcuffing and shackling of children during transport 

varies among districts. The San Francisco District, for example, does not handcuff 

or shackle children. The Los Angeles District does, however. Moreover, at the Tulare 

County Juvenile Detention Facility, a center that until recently was used by both 

districts, the facility administrator indicated that INS-detained children are shackled whenever they are taken outside their cell pod, including to go to the medical 

clinic on-site at the facility. During the Women’s Commission’s visit, it witnessed 

children in shackles squatting against a wall outside the medical clinic. 

The San Diego Juvenile Jail has a blanket policy requiring the use of restraints 

when children are transported or when they misbehave while in the facility. This 

includes handcuffs, shackles, and waist chains. Children in INS custody are not exempt from this policy. 

Children in INS custody at the San Diego facility are also subject to strip 

searches. Ironically, children who are status offenders are exempt from this policy. 

However, INS-detained children who have not committed a crime are still subject 

to strip searches. Strip searches are conducted after any visit the child receives with 

the exception of attorney visits. 

Children held at Martin Hall are subject to handcuffing and shackling when 

transported to the federal building in which their video hearings are conducted. 

They remain shackled during the hearing. The INS, however, indicated that this 

policy is in place due to the U.S. Marshals Service and disavowed responsibility 

itself, despite the fact that the children are in INS custody. The Seattle juvenile coordinator also noted that any use of handcuffs and shackles inside of Martin Hall 

is subject to the policies of Martin Hall, again disavowing any responsibility on the 

part of the INS. 

Facility administrators at the D.E. Long facility indicated that they witnessed 

children in INS custody subjected to handcuffing and shackling when transported. 

The San Diego Juvenile Hall administrator also indicated that the staff at the facility frequently use pepper spray to control the youth. 

X. CONDITIONS OF DETENTION GENERALLY FAIL TO MEET THE NEEDS OF CHILDREN

Many of the secure facilities used by the INS are simply not equipped to meet 

the needs of newcomer children in immigration proceedings. This includes even 

basic communication, as translation assistance is rarely available in the juvenile detention centers with which the INS contracts and is often not even available in the 

INS shelters. In the Liberty County Juvenile Detention Center, for example, a ChiVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
44

26 E-mail from Ron G. Pitney to Rich K. Scott regarding ‘‘INS Interpreter Services for Young 

Ladies’’ (May 21, 1998). 

nese boy appeared upset when he reported to the Women’s Commission that there 

was no one in the facility who could speak Chinese. He also reported that he attends 

classes in the facility, but that he does not speak in class because his English was 

not good enough. A Guatemalan boy was transferred from a Miami shelter to an 

adult prison, because he failed to comply with instructions given to him by the shelter staff. However, he did not understand the instructions because he speaks only 

Mam and the staff spoke only Spanish. 

The administrator at the San Diego Juvenile Hall conceded that the diversity of 

languages spoken by INS-detained children and the lack of translation services are 

difficult for the facility to handle. He stated, ‘‘It’s hard for us. It creates a lot of 

problems.’’

The Portland INS District resisted providing adequate translation services to assist children who were detained at the D.E. Long facility. In response to a request 

from the facility for additional Chinese interpretation services, the INS responded 

that it would provide 12 hours of such services. When the facility advised the INS 

that it would need more than 12 hours of such services, the INS informed the facility that it would authorize further services on an emergency basis but that pre-approval for those expenses would be required. The INS officer also indicated that ‘‘he 

was spending taxpayers’ money and had to be very judicious in this regard.’’ 26

In some facilities, access to the outdoors is extremely limited. Children held at 

Martin Hall in Washington are not allowed outside every day. When they are allowed outside, it is typically for 20 minutes at a time before classes. During the 

weekends, time outside is extended to 1–2 hours. The outdoor area is an extremely 

small cement area. A Guatemalan teenager held at Martin Hall told the Women’s 

Commission that the children do not go outside at all on some days. When they do 

go outside, there is no sports equipment available. He said, ‘‘We just stand around 

and talk.’’

Education programs at many of the facilities used by the INS are conducted in 

English. Moreover, they are often based on the assumption that children will be in 

the facility for a short period of time, and thus the classes are repetitive for children 

held for prolonged periods. 

Access to telephones is inconsistent among facilities. In secure facilities, children 

are typically forced to rely on collect calls or phone cards to make long distance 

calls, even to their attorneys. This undermines the ability of children without financial resources to reach out to their lawyers and families. Privacy is also an issue 

in some facilities, as the telephones are sometimes located in common areas. 

Children are also often cut off from religious services in their chosen faiths. This 

is sometimes due to the remote rural locations of the facilities. For example, the 

chaplain at the Tulare County Juvenile Detention Facility was only able to arrange 

visits from representatives of the Catholic and Evangelical faiths, even though many 

of the children held there were Buddhist. The San Diego Juvenile Hall provides 

Catholic and Protestant religious services, but is unable to provide Muslim or Buddhist services, as there are no representatives of those faiths available in the community. 

XI. ACCESS TO SECURE FACILITIES IS DIFFICULT FOR HUMAN RIGHTS GROUPS

In August 2001, the Women’s Commission sought access to twelve secure facilities 

used by the INS in California, Washington, Oregon, and Texas. 

To obtain access to the facilities, the Women’s Commission wrote letters to the 

INS National Juvenile Coordinator and the local facilities themselves several weeks 

before the scheduled start of the tour. The INS Juvenile Coordinator expressed his 

support for the assessment. All but one center expressed its willingness to allow access to the Women’s Commission, although in some cases the facility administrators 

indicated that they would also have to obtain approval from the INS district and/

or regional offices. The administrator of the Marin County facility outright denied 

access for a visit, with the justification that a visit had recently been conducted by 

the law firm of Latham & Watkins and that he was disinclined to allow another 

visit. 

Given the cooperation from INS headquarters in Washington, DC, the delegation 

fully expected to receive a similar level of openness at the district and regional levels. However, this did not hold true. In the majority of cases, the delegation met 

with opposition when it approached the regional and district INS staff. 

Unfortunately, this resulted in the outright denial of access to some facilities and 

limitations to access in others. The Houston INS District forbid the delegation enVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
45

27 Immigration and Naturalization Service, Detention Operation Manual, ‘‘Visitation’’ (September 20, 2000). 

trance entirely. Therefore, the delegation was only able to visit the Liberty County 

facility, and then only because it accompanied an attorney of a child detained there. 

As the visit was conducted under the rubric of an attorney/client visit, however, the 

delegation was unable to tour the facility. The delegation was denied any form of 

access to the Medina County Juvenile Detention Facility and the Catholic Charities 

Children’s shelter. It should be noted that the Women’s Commission was granted 

access to the Catholic Charities shelter in 1998, at which time it was impressed 

with the openness of the facility and the professionalism of the staff. That same 

year, it was also given full access to the Liberty County facility, about which it 

raised serious concerns regarding the punitive conditions of detention in the facility. 

The Women’s Commission delegation’s ability to access the facilities used by the 

San Francisco and Los Angeles INS Districts was somewhat more successful than 

in Texas, but still hampered by restrictions placed on the visits. It was allowed to 

tour Central Juvenile Hall, Los Podrinos Juvenile Hall, and Tulare County Juvenile 

Detention Facility, but was denied the ability to speak with INS-detained children. 

This denial was particularly disturbing in the case of the Tulare Juvenile Detention Center. The delegation drove three and a half hours from Los Angeles to rural 

central California to reach the facility, accompanied by a Chinese interpreter, who 

was to facilitate interviews with several Chinese children detained in the center. 

The delegation had obtained the written permission of the attorney representing the 

children to interview her clients. Once the delegation arrived at the facility, however, the San Francisco INS District juvenile coordinator informed its members that 

they would not be allowed to speak with the children. The INS regional juvenile coordinator indicated that the prior approval of the children’s attorney was insufficient to facilitate access, stating that he had no means to authenticate the letter, 

despite the fact that the letter was on letterhead and indicated the attorney’s willingness to confirm her consent by telephone. Even after an on-site telephonic conversation with INS headquarters, the INS stood behind the position of the regional 

and district juvenile coordinators. 

The delegation’s subsequent visit to the San Diego Juvenile Hall further confirmed the arbitrariness of INS policy regarding access to juvenile detention centers. 

The delegation met with no resistance from the San Diego facility administrators, 

was provided a thorough tour of the facility, and was allowed to speak with INSdetained children in private. The delegation had notified both the facility and the 

INS National Juvenile Coordinator of its intent to visit the facility, but in this case, 

the facility administrator apparently felt no need to confer with the INS San Diego 

District office. 

The delegation encountered further inconsistencies in INS policy during its visits 

to facilities in Washington and Oregon. Its visits to the Spokane County Juvenile 

Detention Center and the Grant County Juvenile Detention Center were open and 

unrestricted. However, it should be noted that the INS rarely uses either facility, 

and in fact, did not have children detained in either location at the time of the 

Women’s Commission’s visit. 

The delegation did encounter resistance to its visit to Martin Hall, which is used 

regularly by the INS. The INS Seattle District juvenile coordinator attempted to 

prevent the delegation from speaking with the children in INS custody. However, 

the delegation overcame her refusal because the children’s attorney had accompanied the delegation and he insisted that the delegation be allowed to speak with 

his clients. The administrators of the D.E. Long Juvenile Detention Center in Oregon cooperated in the delegation’s visit and provided a full tour of the facility. However, the INS has greatly curtailed its use of the Long center. 

The repeated denial of access to the Women’s Commission delegation was troubling on a number of fronts. First, there currently exists no written policy on access 

to children’s facilities, even though the INS has issued written guidelines for such 

visits to adult detention centers.27 The delegation operated in good faith and relied 

on the expression of cooperation from the national juvenile coordinator. The ability 

of local INS officers to override the authority of the INS headquarters is confusing 

and reflective of a flawed management structure that permeates the policies and 

procedures for handling children in the custody of the INS. Subsequent to the delegation’s tour, INS headquarters indicated that it would develop a written access policy but to date no such policy has been issued. 

Second, the ability of human rights organizations such as the Women’s Commission to evaluate U.S. treatment of children newcomers hinges on access to such facilities. Such organizations can play a valuable role in assessing current practices 

and offering recommendations for reform. 

46

28 ‘‘Unaccompanied Minors Subject to Expedited Removal,’’ Memorandum from the INS Office 

of Programs (August 21, 1997). 29Testimony of Mekabou Fofana, before the Senate Committee on the Judiciary Immigration 

Subcommittee (May 3, 2001).

Third, the INS’s denial of access to the Women’s Commission delegation was also 

questionable in its legality in one important aspect. An attorney designated under 

the Flores agreement as an attorney of record for all children in INS custody with 

regard to their conditions of confinement was a part of the Women’s Commission 

delegation. Under the Flores agreement, such attorneys are to be given unfettered 

access to children in INS detention. The INS failed to adhere to this Flores requirement, however, even for this attorney. Its stated rationale for this was that the attorney was ‘‘switching hats’’ and that for purposes of the Women’s Commission delegation was unable to act as a Flores attorney. It persisted in this justification even 

when the Women’s Commission agreed to back off its own request for access in 

order to facilitate a Flores visit by the Flores attorney, even though under the agreement such attorneys may designate additional parties for purposes of a Flores visit. 

The INS would be better served if it welcomed a public/private partnership with 

organizations with expertise in immigration, refugee protection, and children’s 

rights and was transparent about its policies and practices, including access to children’s facilities. While clearly the INS must regulate visits to the facilities in order 

to ensure the safety of the children and the smooth operation of the facilities, an 

arbitrary denial of such visits, or an effort to create an artificial impression of conditions in such facilities, does not serve either goal. 

XII. INS-DETAINED CHILDREN ARE SOMETIMES WRONGFULLY HELD IN ADULT

DETENTION CENTERS

The Women’s Commission has followed many cases in which youth under 18 years 

of age have been incorrectly identified by the INS as adults. This misclassification 

as adults carries serious consequences for the handling of the youth’s cases and 

their placement in detention. Adults may be immediately returned to their home 

countries under the system of expedited removal unless they express a fear of return, whereas children under age 18 may not.28 Moreover, young people 

misidentified as adults may be commingled with adults in adult INS detention centers or prisons. 

Mekabou Fofana, a Liberian teenager, described his experience in detention after 

the INS misclassified him as an adult,

‘‘I arrived at JFK International Airport on July 11, 1999, nine days before 

my 16th birthday. . . .I was taken to the Wackenhut Detention Center in 

Queens, New York. I was held at an adult facility even though I was a 

minor, because the INS claimed that they could tell that I was over 18 from 

a dental examination. I was detained at Wackenhut for about six months. 

I was very sad at Wackenhut because I was put with adults and I wasn’t 

supposed to be with them. . . .I was transferred to Lehigh County Prison, 

a criminal prison in Pennsylvania—moving me far from my family and my 

pro bono lawyers. I was detained there with criminals for one week. I felt 

like I was treated like a criminal. I was the youngest one among them and 

was very scared that the criminal detainees would hurt me. My cellmate 

had killed someone and would tell me about the crimes he had done. I was 

so afraid that I couldn’t sleep at night. . . .I was transferred to York County Prison, another remote detention facility in Pennsylvania. I was detained 

there about five months....I felt like my life was finished. I was too young 

to be there.’’ 29

Mekabou was detained as an adult for one and a half years before being granted 

asylum by the Board of Immigration Appeals. 

To determine the age of young people whose age is not readily apparent, the INS 

relies primarily on dental radiography exams. Such exams base age assessments on 

the eruption patterns of teeth. Dental experts have questioned the use of such 

exams for definitive age determinations. For example, in a letter to the Women’s 

Commission, Dr. Herbert H. Frommer, DDS, Professor and Chair of Radiology at 

New York University, concluded, ‘‘It is my opinion that it is impossible to make an 

47

30Letter from Herbert H. Frommer, DDS, Professor and Chair of Radiology New York University, to Rachel K. Jones, Fellow, Women’s Commission for Refugee Women and Children (August 

7, 1997). 31See letter from Neil Serman, BDS, DDS, MS(Rad), Professor and Head, Division of Oral Radiology, Columbia University School of Dental and Orayl Surgery, to Rachel Jones, Fellos, Women’s Commission for Refugee Women and Children (August 21, 1997) (noting that there is great 

variation in age in eruption patterns of teeth); Alan Elsner, ‘‘New York Dentists Can Settle Fate 

of Migrants,’’ Reuters (January 11, 2002) (citing concerns from dental experts that dental x-rays 

cannot accurately identify a person’s age). 32 Alan Elsner, ‘‘New York Dentists Can Settle Fate of Migrants,’’ Reuters (January 11, 2002). 

exact judgement based on radiographs of whether an individual is above or below 

the age of 18.’’ 30 Other experts have echoed Dr. Frommer’s concerns.31

These concerns are also shared by the Department of State. It discontinued the 

use of bone testing to establish age in 1998 out of recognition that ethnic and individual variations in development may also be exacerbated by cultural differences, 

malnutrition, and disease.32

XIII. INS TRANSFER POLICIES FOR CHILDREN

The INS has designated all bed spaces as ‘‘national.’’ This means that any INS 

district can request transfer and placement of a child to wherever a shelter, foster 

care, or secure placement is available. This policy is critical to ensuring that the 

Flores mandate of placement in the least secure setting possible is fulfilled, as many 

INS districts lack shelter care facilities in their jurisdictions. However, it also means 

that children are frequently transferred hundreds or thousands of miles from their 

original port of arrival into the United States, even if their family members or attorneys are located at that site. 

Transfers of children, in fact, occur frequently and often seem to be conducted for 

arbitrary reasons that have more to do with the logistical concerns of the INS than 

to do with the best interests of the child. Moreover, the attorney representing the 

child is often not notified of the transfer ahead of time, even though this is required 

under the Flores agreement. 

The experience of three Guatemalan youth demonstrates the disruption caused by 

transfers. In March 2001, three Guatemalan youth ranging in age from fifteen to 

seventeen were given 30 minutes notice in which to pack their bags and prepare 

for transfer from Miami to Chicago. Two of the three youngsters had been held in 

a Miami shelter facility for more than a year. The third had recently arrived and 

was scheduled for her first immigration court appearance the next day. Despite this, 

their attorney, who works for a local charitable organization, was not notified of the 

transfer and only found out when she arrived at the shelter the next day. The INS 

meanwhile had convinced the immigration judge to change venue over the case to 

Chicago, thus precluding her continued representation of the three youth. The attorney was given several justifications for the transfer from the INS Miami District, 

including a lack of bed space and an influx of Colombian children. However, she discovered that the shelter in Miami was in fact not full and that only three Colombian 

children were housed there. 

XIV. CHILDREN LACK THE SERVICES NEEDED TO NAVIGATE THE U.S. IMMIGRATION

SYSTEM

Also absent in the current system for children in INS custody are professionals 

who can assist children through their immigration proceedings. Less than half of 

the children in INS custody are represented by counsel. U.S. law also fails to appoint guardians ad litem to unaccompanied children. 

The Women’s Commission was pleased and encouraged by the INS’s issuance of 

‘‘Guidelines for Children’s Asylum Claims’’ in 1998. The United States is only the 

second country in the world to establish a framework for the consideration of children’s asylum claims. The Guidelines are groundbreaking in their comprehensive establishment of legal, evidentiary, and procedural standards to guide adjudicators. 

However, the continuing success of the Guidelines in identifying and ensuring 

protection of refugee children will hinge in large part on the adequacy of the assistance they are provided to navigate U.S. asylum law. Children must be provided the 

assistance of counsel and guardians ad litem to identify any relief for which they 

may be eligible and to advocate for such relief in immigration court. Asylum proceedings are extraordinarily complex, and a recent study revealed that represented 

48

33Memorandum from Andrew Schoenholtz, Georgetown University Institute for the Study of 

International Migration (Washington, D.C.: September 12, 2000). 

asylum seekers are 4–6 times more likely to win their asylum cases.33 The ability 

of children who remain unrepresented to win their cases is even more questionable 

given their inherent lack of capacity to understand the proceedings in which they 

have been placed. 

The American Bar Association, working in cooperation with charitable organizations, local bar associations, and law firms such as Latham & Watkins, has done 

an extraordinary job of raising awareness about the needs of children in immigration proceedings and increasing the pro bono services available to them. However, 

the practical reality for most detained children is that they cannot afford or cannot 

access legal counsel. Moreover, they may not be aware of the importance of counsel 

to their cases. In addition, the sheer number of detention facilities in which children 

in INS custody are detained, combined with the remote location of many of these 

facilities, create innumerable obstacles which charitable legal services organizations 

lack the resources to overcome. The lack of legal representation results in sometimes ludicrous situations; in one case, an 18-month-old toddler appeared at a master calendar hearing before an immigration judge with no attorney or other adult 

representative to help her. 

Also out of step with the practice of other countries, as well as the practice in 

other areas of U.S. law such as abuse and neglect proceedings, is the fact that unaccompanied children in immigration proceedings are not appointed guardians ad 

litem. A guardian could facilitate the child’s participation in his or her immigration 

proceeding by helping the child to understand the proceedings and encouraging the 

child to participate to the fullest extent possible in the proceedings. The guardian 

could also gather information regarding the reasons why the child is in the United 

States, advising the child’s attorney and the immigration judge about the circumstances of the child. 

The experience of two young Indian children who appeared before an immigration 

judge in Chicago demonstrates the efficacy of appointing guardians ad litem to unaccompanied children. The attorney representing the children had struggled to understand the children’s situation and reasons for being in the United States. After 

the immigration judge had agreed to the appointment of a guardian, who was a 

trained social worker, the guardian quickly determined that the 8-year-old boy 

wished to return to his parents in India, who then readily agreed to accept his return. The 11-year-old girl, on the other hand, revealed for the first time to the 

guardian that she had been subjected to severe child abuse and had been sold by 

her parents to traffickers. The guardian testified at their immigration hearing and 

the child was granted asylum. 

The lack of adult assistance available to children asylum seekers means that 

many of them give up hope and agree to deportation; in some cases, children had 

actually earlier espressed a fear of return. In other cases, children are forced to 

struggle through their immigration proceedings alone with an inadequate understanding of the laws and procedures that dictate the handling of their cases. 

XV. CONCLUSION

The Women’s Commission remains gravely concerned about the disturbing lack of 

attention to the needs and rights of children asylum seekers and other young newcomers who are in the custody of the INS. The frequent failure to make individualized determinations with regard to each child’s placement and psycho-social needs 

leads to an inconsistent and ad hoc system based more on the logistical needs of 

the agency charged with their care and its institutional bias toward law enforcement than on the needs of the child. Consideration of the best interest of the child, 

the cornerstone of child welfare policy and practice, is a concept that continues to 

allude the policies and practices of the INS. While we appreciate INS Commissioner 

James Ziglar’s stated commitment to improving the agency’s handling of children, 

we do not believe that the agency has the expertise to adequately take into account 

the unique needs of this vulnerable population. 

We strongly support the approach of S. 121, which shifts the care of custody of 

children to an appropriate office with no interest in the outcome of the child’s immigration proceedings and leaves the INS to perform the functions it does best: the 

enforcement of U.S. immigration laws. The development of an Office of Children’s 

Services and the provision of legal counsel and guardians ad litem to unaccompanied children is not only a humane solution to the problems outlined above, it is 

also a cost-effective solution. S. 121 puts in place the structure and resources necessary to quickly identify an appropriate outcome to each child’s case, safely returnVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
49

ing those children who are not eligible for relief from removal to their homelands 

and quickly moving those children who are provided relief into stable, home-like foster care settings where they can begin their lives anew. 

In conclusion, one true measure of a society is its treatment of children. The 

United States must acknowledge and uphold and rights and needs of newcomer children in order to live up to its reputation as a leader in human rights and a nation 

that cherishes and protects children. We urge Congress to expeditiously pass S. 121, 

legislation that ensures a holistic, human, and effective approach to newcomer children. 

Thanky you for considering out input on this. I would be happy to address any 

questions you may have.

Chairman KENNEDY. Very, very helpful and knowledgeable, but 

troubling comments. Thank you. 

Mr. Morton? 

STATEMENT OF ANDREW D. MORTON, LATHAM AND WATKINS, 

WASHINGTON, D.C. 

Mr. MORTON. Good afternoon, Chairman Kennedy, Senators 

Brownback and Feinstein. We thank you for convening this hearing. 

I appreciate the opportunity to share my experiences working on 

behalf of the vulnerable population of unaccompanied alien juveniles in INS custody. We appreciate your support of the Unaccompanied Alien Child Protection Act, bipartisan legislation that will 

bring objectivity, efficiency, and accountability to the custodial care 

of these children. 

My testimony today focuses on a key deficiency in the current 

system of custodial care for these unaccompanied alien juveniles, 

the need for safeguards of legal counsel while children are detained 

through the pendency of an immigration proceeding. This bill 

would foster a network of pro bono private attorneys, as well as 

create a safety net of court-appointed counsel for those rare instances where pro bono representation is not available. 

In the seminal case establishing a child’s right to counsel under 

domestic law, Judge Fortas wrote, ‘‘The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, 

and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step 

in the proceedings against him.’’

Those words ring as true today as 35 years ago, and as true for 

undocumented minors as for juveniles in domestic proceedings. Mr. 

Chairman, they should ring as true for members of this Congress 

as they did for the Justices of the U.S. Supreme Court. 

During the adjudication of every removal proceeding, the Government is represented by INS staff attorneys who are trained and experienced in prosecuting violations of immigration law. In contrast, 

more than half of unaccompanied juveniles now appear in court 

with a lawyer, a guardian or adult assistance of any kind. Without 

such objective and informed support, it is impossible to ensure a 

detained child’s due process rights and it is not feasible to expect 

a determination truly based on a full consideration of each child’s 

individual circumstances. 

This lack of legal assistance is especially troubling, given the lifealtering decisions that are reached in asylum cases and other immigration-related adjudication. Alarmingly, these same children 

50

that we do not permit to be unaccompanied in some department 

stores and movie theaters are expected to fend for themselves alone 

in a court of immigration law. 

Notably, in other legal proceedings, children regularly are appointed attorneys to assist them through the process. For juvenile 

appearances in many State courts, ranging from delinquency hearings, to civil suits, to allegations of parental abuse and neglect, 

States, including Massachusetts, Kansas and California, mandate 

the appointment of counsel to ensure a fair and objective adjudication for minors who are ill-equipped to represent themselves. 

Surprisingly, under the present system INS functions as legal 

guardian for each and every one of these children. Thus, the responsibility to care for the well-being of these juveniles lies with 

the very agency whose primary mission is to secure the deportation 

of undocumented aliens. The obligation to ensure decisions in the 

child’s legal interest falls upon a Government bureaucracy with no 

child welfare expertise and with an incurable predisposition toward 

law enforcement motives. 

Every daily assessment affecting custodial care, and more critically the final determinations of appropriate substantive relief, constantly is vulnerable to this unsettling conflict of interest. INS now 

has the incompatible yet simultaneous roles as caregiver, prosecutor, and jailer. 

And most troubling, in the absence of counsel to advocate and 

safeguard a child’s legal interests, each and every INS decision respecting the well-being of a detained and unrepresented child remains completely unchecked. My written testimony outlines the litany of examples that document this conflict and its appalling effects. 

As Americans, we never would stand for a system where the district attorney serves as public defender in the same case. For these 

same reasons, the INS, with its primary mission of immigration 

law enforcement, simply cannot ensure the legal interests of an unrepresented child. They should not want that responsibility, they 

should not have that responsibility. The system is to blame and the 

system must be fixed. 

Without appropriate legal assistance, many abused, abandoned 

and neglected children with valid claims to asylum or the special 

immigrant juvenile visa face tremendous obstacles to accessing 

these legal remedies. By the same token, without counsel to review 

each child’s circumstances, the system is clogged with the inefficiencies of cases for which there is no substantive relief. 

Often, it will be the conclusion of an attorney that no legitimate 

immigration claim is available and the client properly is advised to 

accept voluntary departure. This was exactly the case in Latham 

and Watkins’ first child refugee case. Without this legal analysis, 

countless children risk being removed and returned to violent situations and subjected to further human rights abuses. The role of 

counsel simply cannot be underestimated in these high-stakes proceedings which necessarily result either in securing appropriate immigration relief or, on the contrary, to the potentially uncertain 

fate of deportation. 

As Judge Creppy has testified, immigration judges are reluctant 

to issue a final order of removal against an unrepresented child, 

51

1 387 U.S. 1 (1967). 

and instead continue the case, in his words, two, three, four, five 

times, resulting in protracted detention in juvenile jails and institutional shelters. Not only does this prolong confinement and inflict 

an unnecessary and substantial emotional cost on these young children, but at contracted daily rates of up to $250 a day, the lack 

of representation inflicts a substantial cost on the budget as well, 

needlessly wasting taxpayer dollars on extended detention and repeated court proceedings. Having the assistance of counsel for 

these juveniles invariably would speed the adjudication process and 

minimize both the emotional harm of detaining a child and the 

senseless taxpayer cost of an inefficient system. 

Mr. Chairman, the advocacy of an attorney for alien juveniles is 

essential to secure bedrock American principles of due process and 

equal justice under law. Moreover, access to counsel is of paramount importance to safeguard against the conflict of interest and 

unchecked authority inherent in INS legal custody. 

By implementing a system to grant representation to unaccompanied alien juveniles, the entire immigration process will be resolved in a manner that is more effective, more efficient, and more 

just. Mr. Chairman, I urge your support of the Unaccompanied 

Alien Child Protection Act and I welcome your questions. 

Thank you. 

[The prepared statement of Mr. Morton follows:]

STATEMENT OF ANDREW MORTON, ATTORNEY, LATHAM & WATKINS, WASHINGTON, 

D.C. 

‘‘The juvenile needs the assistance of counsel to cope with problems of law, to 

make skilled inquiry into the facts, to insist upon regularity of the proceedings, and 

to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him’’—

Justice Abe Fortas, In re Gault 1

Chairman Kennedy, Senator Brownback, Senator Feinstein, members of the Committee-good afternoon, and thank you for convening this hearing on the conditions 

of confinement and governing legal standards faced by unaccompanied alien juveniles detained by the Immigration and Naturalization Service (INS). My name is 

Andrew Morton, and I am an Associate practicing with the Government Relations 

Group of the law firm of Latham & Watkins (‘‘Latham’’), which currently includes 

over 1,400 attorneys in twenty offices throughout the world. I appreciate the opportunity to testify and share my experiences working on behalf of this vulnerable population of children. 

I also strongly encourage your support of S. 121, the ‘‘Unaccompanied Alien Child 

Protection Act’’-critical bipartisan legislation that would bring objectivity, efficiency, 

and accountability to the system of custodial care affecting these children. 

I. THE NEED FOR COUNSEL IN JUVENILE REMOVAL PROCEEDINGS 

My testimony today focuses on a key deficiency in the current system of custodial 

care for the nearly five thousand unaccompanied alien juveniles apprehended annually by the INS-the critical need for these children to receive the guidance and safeguards of legal counsel while detained through the pendency of an immigration proceeding. Enacting S. 121, the ‘‘Unaccompanied Alien Child Protection Act,’’ would 

remedy this need by fostering a network of pro bono private attorneys, as well as 

by creating a safety net of court-appointed counsel for the rare instances where pro 

bono representation is not available. 

These unaccompanied alien children detained and taken into legal custody by the 

INS range in age from toddlers to teens. Most lack even the most basic English 

skills, to say nothing of understanding the complex legal provisions that govern the 

standards of detention and various forms of substantive immigration relief. Many 

are the victims of smuggling and trafficking operations, meaning that they had no 

52

2 In re Gault, 387 U.S. 1 (1967). 

3See, e.g. Cal. Welfare and Institutions Code § 317 (2002) (‘‘Where a child is not represented 

by counsel, the court shall appoint counsel for the child. . . .’’); Iowa Code Ann. § 232.126 (2000) 

(‘‘The court shall appoint counsel or a guardian ad litem to represent the interests of the child 

. . . unless the child already has such counsel or guardian.’’); Kan. Stat. Ann. § 60–217 (2000) 

(‘‘[T]he court shall appoint a person who is an attorney to serve as guardian ad litem for a 

child. . . .’’); Mass. Gen. Laws ch. 119, § 29 (2001) (‘‘[A] child shall have and shall be informed 

of the right to counsl at all hearings, and if said child is not able to retain counsel, the court 

shall appoint counsel for said child.’’); Ohio Rev. Code Ann. Juv. R.4 (2001) (‘‘Every party [in 

a juvenile proceeding] shall have the right to be represented by counsel. . . . When the compliant alleges that a child is an abused child, the court must appoint an attorney to represent the 

interests of the child.’’); PA, Cons. Stat. Ann. TiT. 42, § 6311 (2002) (‘‘[T]he court shall appoint 

a guardian ad litem to represent the legal interest and the best interests of the [dependent] 

child. The guardian ad litem must be an attorney at law.’’) 

involvement and should not be punished for the circumstances that led to their undocumented arrival in the United States. Perhaps for the first time, each unaccompanied juvenile is experiencing separation from family, so quite understandably they 

become frightened, confused, and depressed. Frequently they are detained in facilities with no one to whom they can speak in their native language-or even are restricted to an ‘‘English only’’ rule in some facilities when fortunate enough to be detained with another native speaker. In any event, the vast majority are without the 

guidance and support of a responsible adult to speak on their behalf, let alone competent legal counsel to evaluate their situation and advise them of their rights. 

In the seminal case establishing a child’s right to counsel in domestic law, Justice 

Abe Fortas wrote that ‘‘[t]he juvenile needs the assistance of counsel to cope with 

problems of law, to make skilled inquiry into the facts, to insist upon regularity of 

the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him.’’ 2 His words ring as true today as thirty-five years ago, and 

as true for undocumented minors as for juveniles in domestic proceedings. Mr. 

Chairman, they also should ring as true for the members of this Congress as they 

did for the Justices of the United States Supreme Court. 

During the adjudication of every undocumented child’s removal proceeding, the 

government is represented before immigration judges by INS staff attorneys who 

are trained and experienced in prosecuting violations of immigration law. Of these 

nearly five thousand unaccompanied juveniles apprehended annually by INS, however, as many as 80% appear in an immigration court without the benefit of a lawyer, a guardian ad litem, or adult assistance of any kind. Often these children are 

placed in remote contract facilities-great distances from urban centers where willing 

pro bono attorneys may be located and trained. Without such objective and informed 

assistance, it is impossible to ensure that a detained child’s due process rights are 

respected. Moreover, it is not feasible to expect a proper determination in their case 

that truly is based on a full consideration of the individual child’s circumstances. 

This lack of legal assistance is especially troubling given the life altering decisions 

that are reached in asylum cases and other immigration related adjudication. 

Alarmingly, these same children who we do not permit to be unaccompanied in some 

movie theaters and department stores are left to fend for themselves in a court of 

immigration law. 

In United States legal proceedings apart from the context of immigration, children 

regularly are appointed attorneys to assist them through the process. In fact, for 

a wide variety of juvenile state court proceedings-ranging from delinquency charges, 

to civil suits, to allegations of abuse and neglect-states such as California, Kansas, 

Massachusetts, Ohio, and Pennsylvania mandate the appointment of counsel to ensure a fair and objective adjudication to the benefit of minors, who invariably are 

ill-equipped to represent themselves.3

Surprisingly under the present system, however, the responsibility to care for the 

well-being of these juveniles lies with the INS itself-the very agency whose primary 

mission is to secure the deportation of undocumented aliens-which accepts and 

maintains the legal custody of each and every one of these children. In essence, the 

sensitive obligation to ensure decisions in the child’s legal interests falls upon a government bureaucracy with absolutely no child welfare expertise, and with an incurable predisposition towards law enforcement motives. Thus, daily assessments affecting custodial care-and more critically the final determinations of appropriate 

substantive relief-constantly are vulnerable to the agency’s inherent conflict of interest, given INS’s incompatible yet simultaneous roles as caregiver, prosecutor, and 

jailer. And most troubling, in the absence of legal counsel to advocate on behalf of 

a child and safeguard legal interests, each and every INS decision respecting the 

well-being of a detained and unrepresented child remains completely unchecked. 

53

4See Stipulated Settlement Agreement, Flores v. Reno, Case No. CV–85–4544–RJK (C.D. Cal. 

1996), available at http://www.centerforhumanrights.org/floresSettle.html. 5 U.S. Department of Justice, Office of the Inspector General, Unaccompanied Juveniles in 

INS Custody, Rep. No. I–2001–009 (Sept. 28, 2001), available at http://www.usdoj.gov/oig/

i0109/index.htm [hereinafter Report]. 6Flores ¶ 11 (‘‘The INS shall place each detained minor in the least restrictive setting appropriate. . .’’). 

As Americans we would not stand for a system where the district attorney serves 

as a public defender, or where an arresting officer is appointed the guardian ad 

litem for a juvenile. For the same reasons, Mr. Chairman, the INS with its primary 

mission of immigration law enforcement simply cannot be expected to ensure the 

legal interests of an unrepresented child. The system is to blame for this ineffectual 

situation, and that system must be fixed. 

II. RESPONSIBILITIES OF COUNSEL FOR UNACCOMPANIED JUVENILES 

Effective representation for these vulnerable children includes all aspects of ensuring the legal interests of the child that arise during often complicated and protracted immigration proceedings. Such issues include conferring with the INS to secure that a child is detained in the least restrictive setting appropriate; evaluating 

the child’s ability to access any available forms of immigration relief; filing applications, pleadings, and motions before immigration judges; representing the child during hearings and asylum interviews; safeguarding proper INS compliance with 

transfer and age determination requirements; and attempting to reunite children 

with parents or suitable adult relatives living in the United States or abroad. 

Because the current system lacks a procedure for ensuring that every child is afforded the opportunity to receive appropriate legal assistance, however, many 

abused, abandoned, and neglected children with valid claims to asylum or the special immigrant juvenile visa face tremendous obstacles in accessing these legal remedies. By the same token, without counsel to review each child’s circumstances, the 

system is clogged with the inefficiencies of cases for which there is no substantive 

relief available-often it would be the conclusion of an attorney that no immigration 

relief is available, and the client properly is advised to accept voluntary departure. 

But without this objective legal analysis, countless undocumented children in the 

United States risk being removed and returned to violent situations in a home country where they will be subjected to further human rights abuses. The role of counsel 

simply cannot be underestimated in these high-stakes proceedings, which necessarily result either in securing appropriate immigration relief, or on the contrary 

to the potentially uncertain fate of deportation. 

Knowing this, immigration judges may be reluctant to issue a final order of removal against an unrepresented child and instead choose to continue the case, necessarily resulting in protracted detention in juvenile jails and institutional INS shelters. Not only does this prolonged confinement inflict an unnecessary and substantial cost on the emotional development of these young children, but at contracted 

daily rates of up to $250/day, the consequence of having children appear without 

representation inflicts a substantial cost on the budget as well-needlessly wasting 

taxpayer dollars spent on extended detention and repeated court proceedings. Having the assistance of counsel for these juveniles, however, invariably would lead to 

structural improvements that will speed adjudication, and minimize both the emotional harm of detaining a child and the taxpayer cost of an inefficient system. 

Furthermore, apart from the unassailable need for counsel when navigating the 

various forms of potential substantive immigration relief, the presence of an attorney is critical to secure rigid adherence with the laws and regulations that govern 

a detained juvenile’s conditions of confinement. Over the past year, Latham attorneys have inspected numerous facilities that contract with the INS to house unaccompanied minors, and have conducted interviews with countless detained children. 

During the course of this review and oversight, our efforts have uncovered widespread and egregious violations of the conditions of confinement mandated by the 

Flores v. Reno consent decree, a 1997 settlement agreement that forms the basis of 

legal standards to which the INS must adhere when taking legal and physical custody of an unaccompanied minor.4 Many of these findings were confirmed by the Department of Justice Office of the Inspector General’s ‘‘Report on Unaccompanied 

Children in INS Custody’’ 5 (‘‘OIG Report’’). Representative examples of violations include the following: 

‘‘ Children must be placed in the ‘‘least restrictive setting appropriate’’ 6

under the circumstances, however, last year INS detained nearly two thouVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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7See Report, ch. 2 (documenting that non-delinquents accounted for 1,569 of the 1,933 secure 

detentions). 8Flores ¶ 12(A)(3). 9See Flores ¶ 12 (‘‘[M]inors shall be separated from delinquent offenders.’’) 10See Report, ch. 2 (noting that thirty-four of fifty-seven secure facilities housing INS juveniles in FY 2000 cannot guarantee segregation of non-delinquent INS juveniles from the population of INS, county, and state delinquent juveniles). 11Flores ¶ 14; see also Report ch. 4 (‘‘The Flores agreement, while preferring a parent or legal 

guardian, did not seem to prohibit passing over them to one of the family members specified.’’). 12See Report, at Exsec. Summary (‘‘An undocumented parent must report to an INS officer 

and enter immigration court proceedings before the INS will release the juvenile. If the parent 

is unwilling to come forward, the juvenile will remain in INS custody, even when another acceptable sponsor is available’’). 13See Immigration and Naturalization Service, Detention and Deportation Officers’ Field Manual, at VII.C.2.a (‘‘Agencies handling non-criminal juveniles under contract or inter-agency agreement with the Service do not have the authority to restrain such juveniles.’’). 14See Report, ch. 2 (‘‘Contract guards and secure facilities under contract with the INS or that 

have signed interagency agreements with the INS, as a regular course of action, restrain in 

INS’s unaccompanied non-delinquent juveniles during transport.’’). 

sand children in secure facilities (i.e., juvenile jails), and more than eighty 

percent of these minors were non-delinquent juveniles.7 This is the case notwithstanding the INS’s continuing obligation to transfer a non-delinquent 

juvenile from secure confinement into a licensed shelter care program ‘‘as 

expeditiously as possible.’’ 8

‘‘ Non-offender alien juveniles in secure confinement must at all times be 

provided with sight-and-sound separation from adjudicated delinquents,9

yet the majority of the secure facilities housing undocumented minors have 

no such segregation procedures in place.10 In fact, many of these facilities 

commingle non-offenders with delinquents as a matter of necessity, lacking 

the physical structure to separate the two populations. In one instance during a Latham inspection, a non-offender INS detainee was assigned to 

share a tiny jail cell with a violent juvenile delinquent convicted of felony 

drug possession and assault with a deadly weapon. 

‘‘ Flores provides for the prompt release of unaccompanied minors to responsible adults based on an established ‘‘order of preference,’’ which includes parents, designated legal guardians, and close relatives.11 Current 

INS procedure, however, does not permit an unaccompanied minor’s released to appropriate related adults when the agency believes that an undocumented parent is in the United States. Instead, INS may use the minor 

as bait, requiring the undocumented parent to come forward under a threat 

of the child’s protracted detention, and then placing the parent into removal 

proceedings on arrival to claim their children.12

‘‘ INS policy specifically prohibits a contract facility from the use of restraints for non delinquent juveniles.13 Latham interviews and the OIG Report confirm, however, that standards are not in place to document compliance, more than one half of facilities ignore this procedure, and non-delinquent children routinely are shackled during transport, movement within facilities, and appearances in immigration court proceedings.4

III. THE LATHAM & WATKINS CHILD REFUGEE PROJECT 

In March, 2001, after learning of this vast need for representation of unaccompanied alien juveniles, Latham created a firm-wide pro bono effort titled the ‘‘Child 

Refugee Project.’’ The project involves three aspects of legal representation, each 

benefiting this largely unaided and at risk population of undocumented minors. 

First, the firm serves as pro bono counsel to the Women’s Commission for Refugee 

Women and Children, a non-profit research and advocacy organization dedicated to 

protecting refugee women and children around the world. Together, Latham and the 

Women’s Commission-in conjunction with dozens of non-profit advocacy groupsformed a wide-ranging coalition to support S. 121 and H.R. 1904, the ‘‘Unaccompanied Alien Child Protection Act.’’ Owing to extensive efforts by the dedicated 

members of this coalition, the bill enjoys broad bipartisan support in both chambers 

of Congress. 

In addition, Latham became co-counsel with the Center for Human Rights and 

Constitution Law (CHRCL), the non-profit legal service provider that served as attorneys to the plaintiff class of unaccompanied alien juveniles in the landmark Flores case. Despite the INS’s failure over the past five years to promulgate regulations 

that would codify these requirements, the settlement agreement contained a sunset 

provision that this month would have resulted in the expiration of these legal standVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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15Processing, Detention, and Release of Juveniles, 64 Fed. Reg. 39,759 (proposed July 24, 

1998) to be codified at 8 C.D.R. pt. 236). 

ards, leaving unaccompanied children with no basis for a legal challenge to individual conditions of confinement. Through persistent discussions with the INS, however, Latham and CHRCL were able to negotiate the republication of a proposed 

rule that will codify the agreement into regulations.15 Further, the negotiations led 

to a stipulation that modifies the sunset date of the Flores consent decree-extending 

the required adherence of its provisions until 45-days after the INS publishes those 

regulations as a final rule. 

Finally, through this project, Latham’s lawyers around the country provide individual pro bono counsel and services to ensure the appropriate conditions of confinement for otherwise unrepresented alien juveniles in INS custody, as well as to assist 

these children with navigating the complexity of immigration and asylum proceedings. Latham’s individual child refugee clients come from a wide variety of troubling backgrounds, circumstances, and ages, including: Honduran and Guatemalan 

youth who have fled the documented genocide of street children in those countries; 

young Chinese and Indian children who have been the victims of trafficking and 

smuggling operations; and many other victims of unspeakable persecution-including 

intended victims of forced labor, sexual servitude, parental abuse and neglect, forced 

marriages as child brides, or female genital mutilation. 

Since the project’s inception not quite one year ago, Latham lawyers and staff 

have donated more than six thousand hours in pro bono services on behalf of refugee children. To date, the project has resulted in an equivalent of more than $1.4 

million donated to representation and advocacy on behalf of unaccompanied alien 

children, helping to ensure that every child’s legal interests are protected. Additionally, Latham’s lawyers are working in partnership with various child advocacy 

groups and legal service providers across the country including: the Midwest Immigrant & Human Rights Center, the Florida Immigrant Advocacy Center, the Florence Project, Catholic Legal Immigration Network Incorporated, Hebrew Immigrant 

Aid Society, the Pennsylvania Immigration Resource Center, Casa Cornelia, and the 

San Francisco Bar Legal Services Program. 

For its commitment to pro bono legal efforts-including these much-needed services 

to unaccompanied alien juveniles-in 2001, Latham’s pro bono program and the Child 

Refugee Project won numerous awards from many organizations, including: the National Law Journal pro bono recognition; the District of Columbia Bar Association’s 

‘‘pro bono Firm of the Year’’; the Bar Association of San Francisco’s ‘‘Outstanding 

Law Firm in Public Service’’; and the Los Angeles Public Counsel’s ‘‘Law Firm of 

the Year.’’

To expand further the universe of dedicated law firms addressing this pressing 

need for pro bono assistance, the American Bar Association (‘‘ABA’’) leadership mobilized to address the plight of detained immigrant and refugee children, launching 

the Detained Immigrant and Refugee Children’s Emergency pro bono Representation Initiative (‘‘Initiative’’). Through the Initiative, the ABA has provided ten 

grants to major detention sites for comprehensive pro bono legal care programs for 

immigrant and refugee children detained in Arizona, California, Florida, Georgia, Illinois, Pennsylvania and Texas, and is developing two additional programs in New 

York and Washington State. In August, 2000, the ABA sponsored a national summit 

for pro bono attorneys and grantees in Chicago resulting in the training of more 

than 115 pro bono attorneys from over twenty-five states. Through the coordination 

and training of the ABA, participating state and local bar associations, and pro bono 

legal service agencies, Latham and other private firms thus far have donated over 

$3.5 million in billable hours representing detained alien children across the country. 

Regrettably, even the admirable and extensive efforts of these concerned private 

organizations have only scratched the surface of providing representation for unaccompanied alien children. For both institutional and jurisdictional reasons, the INS 

itself would not and cannot provide counsel to the detained children in its legal custody-rectifying this situation is a problem that requires the congressional action of 

a legislative solution, and promptly enacting S. 121, the ‘‘Unaccompanied Alien 

Child Protection Act’’ would do just that. 

IV. CONCLUSION 

Mr. Chairman, the advocacy of an attorney for alien juveniles is essential to secure the bedrock principles of due process and equal justice under law. Moreover, 

for these vulnerable children, access to counsel is of paramount importance to safeguard against the conflicts of interest and unchecked authority inherent in the curVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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rent system of INS legal custody. By implementing a system to grant legal representation to unaccompanied alien juveniles, however, the entire immigration process 

will be resolved in a manner that is more effective, more efficient, and more just. 

Therefore, Mr. Chairman, I urge your support of S. 121, the ‘‘Unaccompanied 

Alien Child Protection Act,’’ and I welcome any of your questions. Thank you.

Chairman KENNEDY. Julianne Duncan? 

STATEMENT OF JULIANNE DUNCAN, DIRECTOR, OFFICE OF 

CHILDREN’S SERVICES, MIGRATION AND REFUGEE SERVICES/U.S. CONFERENCE OF CATHOLIC BISHOPS, WASHINGTON, D.C. 

Ms. DUNCAN. I am Julianne Duncan. I am responsible for children’s services at Migration and Refugee Services of the United 

States Conference of Catholic Bishops. I come before you today as 

a child welfare professional with 25 years of experience in the field, 

predominantly with refugees and immigrant children. 

I also testify today on behalf of Lutheran Immigration and Refugee Service. Our two agencies both offer child welfare services to 

unaccompanied alien children, including foster care placement and 

family reunification services. On behalf of our agencies, I would 

like to thank you for convening these hearings, and I would like 

especially to thank Senator Feinstein for her great advocacy in this 

very important cause. 

Mr. Chairman, the main theme of our testimony today is that 

child welfare principles should govern our Nation’s treatment of 

unaccompanied children. In every child welfare system in the 

United States, the best interests of a child is placed ahead of other 

concerns. Unfortunately, and tragically, this is not the case in the 

system which handles unaccompanied alien children. 

We think that we must conform our handling of these vulnerable 

children with the principles endorsed and legislated by this very 

body for United States children: first, that a child’s best interests 

are primary; that children are placed in the least restrictive setting 

possible; and that permanency planning is a central component of 

any child welfare system. Children, no matter what their country 

of origin, should not be mistreated simply because they lack documentation. 

Before I proceed, I would like to reaffirm our agency’s support of 

the entirety of Senate bill 121, the enactment of which would enshrine child welfare principles into our handling of unaccompanied 

alien children. In particular, we strongly support the creation of a 

new Office of Children’s Services within the Department of Justice. 

We support the requirement that attorneys be made available for 

unaccompanied children. We support the streamlining of procedures for making special immigrant juvenile visas available for 

children who qualify and the establishment of appropriate standards of care. 

The more specific focus of my testimony today is the requirement 

that INS more liberally use alternatives to detention, such as foster 

care and family reunification services, as well as that guardians ad 

litem be appointed to assist unaccompanied alien children. 

Our two agencies work with INS to identify and screen prospective foster care settings, including families and small-group homes, 

for unaccompanied alien children who await adjudication of their 

57

asylum claims. We believe that foster care can provide an appropriate, secure setting for a vulnerable child. 

In fact, however, INS rarely uses foster care as an alternative to 

detention. During fiscal year 2001, our two agencies combined provided foster care homes to only 16 child asylees, including Edwin. 

These are children who waited in various INS detention facilities 

until their cases could be finally adjudicated. In addition, we provided care for seven children whose asylum claims were still in 

process. 

The average length of stay in detention for those children whose 

asylum claims were granted and who were eventually placed in 

care—their average length of stay in detention was 8 months. 

Since the beginning of fiscal year 2002, we have placed only one 

child in foster care. This is in spite of the fact that our agencies 

have the capability to place several hundred children in foster care. 

Between us, we have recently placed more than 600 refugee and 

asylee children, placed predominantly from overseas. 

Chairman KENNEDY. Your point isn’t that they have to stay in 

detention while they are looking for someone. You are suggesting 

now that you would be able to place them very, very quickly. Do 

I understand this part of your testimony? 

Ms. DUNCAN. Yes, that is right. 

Chairman KENNEDY. There is a lot of availability out there, is 

what I am hearing from you. 

Ms. DUNCAN. That is right. We can increase capacity if capacity 

is needed, but right now we have unused capacity. 

In regard to family reunification, another task of our two agencies is that we provide family reunification services for Chinese and 

Indian unaccompanied alien children, including locating and identifying whether or not these are true family members and assessing 

the suitability of the home. We do believe that this is an alternative to detention that is underutilized as well, especially for children who are awaiting their asylum hearings. 

Guardians ad litem, we think, are of just invaluable assistance 

to children who are in the custody of the Federal Government. The 

bill proposes that a guardian ad litem, normally a child welfare 

professional, would be appointed to look after the well-being and 

best interests of the child. The legislation spells out the qualifications and duties of the guardian, who is charged with interviewing 

the child and investigating the child’s situation so that the courts 

can understand the full range of circumstances of the child and can 

assist in developing a long-term plan for the child’s care. 

The guardian ad litem could also accompany the child throughout the immigration proceedings, advising the child of his or her 

situation and ensuring that a child’s best interests are served. 

Guardians are routinely appointed for children in State and local 

child welfare systems and in any situation in which a parent is not 

available to look out for the child’s welfare. It is not an unusual 

concept in the United States child welfare system. 

Guardians are especially necessary for unaccompanied children 

who are alone. They have no adult guidance, they are in a new culture, and they are in a land with a different language and an extremely complex system. Guardians ensure that the due process 

58

rights of children are respected and that a determination of the 

case is based on a full consideration of the child’s circumstances. 

The role of the attorney is to represent the child in the immigration proceedings. The guardian looks out after the best interests of 

the child both in terms of treatment in the United States, making 

sure that basic needs are met, and that an appropriate long-term 

plan of care is instituted. 

We think that the guardians would not only benefit the child; we 

think it would also benefit the system. With full knowledge of the 

circumstances and a trusted adult, a child is much more likely to 

provide information which is helpful in resolving their plight. The 

decisionmakers would have complete information upon which to 

make a judgment about a case. 

In earlier testimony, two of the gentlemen testifying for the Government have made much of the difficulties of designating and implementing a guardian ad litem program and the difficulty of conducting home assessments overseas. I would like to speak to those 

points very briefly. 

Chairman KENNEDY. Very quickly. 

Ms. DUNCAN. Guardian ad litem programs exist in most States. 

Almost all State and local courts have them. It is not impossible 

to do this. Our agencies would be prepared to assist. 

Overseas home assessments are also not insurmountable problems. Each of our agencies has considerable experience in conducting both domestic and foreign home assessments. Other international agencies do this work as well. The International Committee for the Red Cross and the International Organization for 

Migration both do this work in certain circumstances. We are prepared to assist in the design of an appropriate program. 

My final thought: While I understand that the INS is creating 

a new Office of Juvenile Affairs, from a child welfare perspective 

I agree with my colleagues that charging one agency with responsibility both for law enforcement and for child welfare planning cuts 

against all the principles that we operate on within the United 

States. Child welfare planning and detention and enforcement are 

separate functions in State and local child welfare systems. We believe that they should be separate in the case of alien minors as 

well. 

Thank you. 

[The prepared statement of Ms. Duncan follows:]

STATEMENT OF JULIANNE DUNCAN, OFFICE OF CHILDREN’S SERVICES, MIGRATION AND

REFUGEE SERVICES/UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, WASHINGTON, D.C. 

I am Julianne Duncan, Director of Children’s Services for Migration and Refugee 

Services of the United States Conference of Catholic Bishops (MRS/USCCB) I testify 

today on behalf of MRS and the Lutheran Immigration and Refugee Service (LIRS). 

Mr. Chairman, I would like to thank you for your leadership in holding this hearing and for the leadership you have shown in advocating on behalf of immigrants 

and refugees over the years. I would also like to thank Senator Brownback, who has 

shown special sensitivity and attention to the plight of immigrants and refugees. 

Most particularly, I would like to extend the bishops’ gratitude to Senator Dianne 

Feinstein, Representative Zoe Lofgren and Representative Chris Cannon, who are 

the primary sponsors of the Unaccompanied Alien Child Protection Act of 2001. Senator Feinstein’s leadership and foresight, in particular, in introducing this important legislation has been instrumental in bringing attention to the plight of UnacVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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1Statement of Bishop Nicholas DiMarzio, Chairman, NCCB Committee on Migration, On The 

Unaccompanied Alien Child Protection Act of 2000, Office of Migration and Refugee Services, 

September 27, 2000. 

companied Alien Children and will be critical to ensuring its passage in the days 

ahead. 

The Lutheran Immigration and Refugee Service (LIRS) was founded in 1939 and 

has helped resettle more than 280,000 refugees from all over the world. A hallmark 

of LIRS’ work has been its work on behalf of Unaccompanied Alien Children, including family reunion services and foster-care placement to children who enter the 

United States alone. LIRS has long been concerned about our government’s practice 

of detaining immigrant children. 

LIRS advocates for just, compassionate policies for all newcomers to the United 

States and administers a fund from Lutheran and Presbyterian churches that provides grants to independent grassroots programs to serve particularly vulnerable 

newcomers, including children in detention. 

MRS/USCCB is the resettlement agency of the U.S. Catholic bishops and provides 

foster-care, family reunification, and other child welfare services to unaccompanied 

minors who enter the United States. During calendar year 2000, we assisted a number of unaccompanied alien minors obtain foster-care families and reunify with immediate or extended family members. We also have resettled 250 unaccompanied 

refugee minors in the United States during the past year. 

The U.S. Catholic Bishops have spoken out on behalf of children, especially immigrant and refugee children. Upon the introduction of the Unaccompanied Alien 

Child Protection Act, Bishop Nicholas DiMarzio, chairman of the USCCB Committee 

on Migration, stated that the legislation was necessary to reverse our nation’s 

shameful treatment of children: ‘‘Our country must employ a national policy which 

protects children and is governed by the best interest of the child. Because of their 

special vulnerabilities as children and the special circumstances in which they enter 

our country—alone and without support—we must provide special care to these children, no matter their country-of-origin.’’ 1 Thus, from the perspective of the Catholic 

Church, all children around the world deserve special care and consideration and 

that care is preferably provided within a family setting. 

Together, MRS/USCCB and LIRS have resettled unaccompanied refugee minors 

for 25 years, providing child welfare services to more than 12,000 unaccompanied 

children. We also work with the Immigration and Naturalization Service (INS) to 

provide family reunion services to Chinese and Indian youth and to place asylee 

children into foster-care services. We speak with one voice today united in our support for the Unaccompanied Alien Child Protection Act of 2001. 

SUMMARY OF RECOMMENDATIONS IN TESTIMONY

The bulk of our testimony will focus upon our support for provisions in S. 121 that 

promote alternatives to detention for Unaccompanied Alien Children, the need for 

and availability of expanded use of foster care for these children, the need for guardians ad litem to make recommendations about what is in their best interests, and 

the urgent need for Congress to legislate changes in the care and custody of Unaccompanied Alien Children rather than depending on yet another administrative restructuring of the entities charged with these responsibilities. 

We also wish to take this opportunity to express our strong support for other important aspects of the bill. In particular, we urge that, as the Committee moves to 

markup this legislation and report it to the full Senate, at a minimum, it maintains 

the following important aspects of the legislation:

• the creation of an office within the Department of Justice to handle children’s care and custody issues that is separate from the Immigration and 

Naturalization Service (INS); 

• the provision of access to counsel for Unaccompanied Alien Children so 

as to help them navigate the legal processes in which they are involved; 

• the provision of impartial guardians as litem to investigate Unaccompanied Alien Children’s circumstances and make recommendations on what 

would be in their best interests; 

• the enactment of standards of detention that ensure that Unaccompanied 

Alien Children are not mistreated by being placed in facilities with adults, 

in facilities with juvenile offenders, and are not unnecessarily restrained; 

• the enactment of unambiguous standards ensuring that Unaccompanied 

Alien Children are placed in the least restrictive settings possible pending 

the resolution of their immigration situation, and that those settings take 

into account their educational, health, recreational, and spiritual needs; 

60

• the enactment of standards favoring the release of children to responsible 

caregivers if the children are not a danger to themselves or the community; 

• the establishment of family reunification as a desired principle in placement decisions; and 

• reforms in the Special Immigrant ‘‘J’’ visa to make it a more useful option 

for permanent protection to abused, neglected, and abandoned children.

THE GOVERNMENT’S SPECIAL RESPONSIBILITY TO UNACCOMPANIED ALIEN CHILDREN

The main theme of our testimony today is that Unaccompanied Alien Children 

should be treated under the same standards and be afforded the same child welfare 

protections that are available to other children in the United States. Such standards 

were developed to protect children as vulnerable human beings; they should not discriminate based upon legal status or national origin, but they currently do. These 

fundamental principles of making decisions based on the best interest of the child, 

of placing children in the least restrictive setting, and of moving children towards 

permanency as soon as possible are absent from current laws and regulations governing our treatment of Unaccompanied Alien Children. 

Indeed, Congress itself already has ensured that these protections are incorporated for U.S.-citizen children in child welfare systems in the United States. 

Under the Federal Adoption Assistance and Child Welfare Act of 1980, Congress requires that a child’s case plan be designed to achieve placement in the least restrictive, most family-like setting available, consistent with the best interest and special 

needs of the child. The same law, which governs the treatment of children in the 

foster care system of the United States, defined child welfare services as social services that seek to: 1) promote and protect the welfare of all children; 2) prevent or 

resolve problems which may result in the maltreatment or delinquency of children; 

3) prevent the unnecessary separation of children from their families; 4) reunite 

families and children; and 5) assure adequate care of children away from their 

home. 

S. 121 would enshrine these fundamental protections into law for Unaccompanied 

Alien Children as well, bringing the treatment of these children into alignment with 

other domestic approaches to helping children in need. It also would bring the 

United States up to date with Canadian and European guidelines which have developed over time to deal appropriately with alien children in their societies. 

PRINCIPLES THAT SHOULD GOVERN TREATMENT OF UNACCOMPANIED ALIEN CHILDREN

BECAUSE OF OUR LONG EXPERIENCE IN CARING FOR AND ADVOCATING ON BEHALF

OF UNACCOMPANIED MINORS, MR. CHAIRMAN, OUR TESTIMONY TODAY WILL POINT

OUT CHANGES IN LAW WE BELIEVE ARE REQUIRED, AS LAID OUT IN SENATOR FEINSTEIN’S BILL, TO REFORM THE CURRENT SYSTEM. IN THE VIEW OF MRS/USCCB AND

LIRS, OUR GOVERNMENT’S TREATMENT OF UNACCOMPANIED ALIEN CHILDREN

SHOULD BE GOVERNED BY THE FOLLOWING PRINCIPLES:

• The Federal government has a special responsibility to ensure that Unaccompanied Alien Children are treated with dignity and care. Children are 

our most precious gifts. Their youthfulness, lack of maturity, and inexperience make them inherently vulnerable and in the need of the protection of 

adults. Unaccompanied Alien Children are among the most vulnerable of 

this vulnerable population. They are separated from both their families and 

their communities of origin, they are often escaping persecution and exploitation, they often find themselves in a land in which the language and culture are alien to them, and they are thrust into complex legal proceedings 

that even adults have great difficulty navigating and understanding. 

• Unaccompanied minors should be held in the least restrictive setting as 

possible, preferably with family members or with a foster family. Secure facilities should be used on a very limited basis and only when absolutely 

necessary to protect a child’s immediate safety or the safety of the community. 

• Minors should be reunited with parents, guardians, or other family members within the United States as soon as possible. While a family is in temporary detention, they should not be separated unless it is in the best interest of the child. 

• Because of their special vulnerability and inability to represent themselves, unaccompanied children should be provided with legal representation and guardians as litem to assist them in immigration proceedings and 

to see that care and placement decisions are made with a child’s best interest in mind.

61

2Quotations are from interviews with unaccompanied alien children conducted in August 2001 

by Satish Moorthy, Human Rights Coordinator, Center for International Studies, University of 

Chicago. Interviews were conducted voluntarily and anonymously of children already awarded 

asylum. Children are identified by interview. Interview L is source of above quotation. 3E.M. Ressler, N. Booth by, and D.J. Steinbock, Unaccompanied Children: Care and Protection 

in Wars, Natural Disasters, and Refugee Movement (New York: Oxford, 1988). 4Moorthy, Interview D. 

Mr. Chairman, these principles are not currently governing U.S. policy toward 

Unaccompanied Alien Children in the United States. Instead, thousands of children 

each year are held in detention, some with juvenile criminal offenders, with little 

or no access to legal assistance and with decreasing ability to reunite with family 

members. Some children are detained for months awaiting their asylum hearing, 

while others are deported immediately back to their country-of-origin without substantial attempts to locate their parents or immediate family members. 

Moreover, as a child welfare expert with knowledge of the foster care and juvenile 

justice systems, I find it shocking to see how children in INS custody are treated. 

Equally disturbing is that children in immigration proceedings are not ensured legal 

representation, a practice which is not accepted in other types of court proceedings. 

The Unaccompanied Alien Child Protection Act of 2001, introduced by Senator 

Feinstein, would reform U.S. policy governing Unaccompanied Alien Children. It 

would ensure that children are provided appropriate child welfare services and are 

placed in an appropriate settings. The legislation would create a new office within 

the Department of Justice, staffed by child welfare professionals, to handle the care 

of unaccompanied children who enter the United States. It also would require the 

appointment of guardians as litem to look after the best interests of the child and 

it would provide for attorney representation of these children in any immigration 

proceeding. The bill also would encourage family reunification or other appropriate 

placement for Unaccompanied Alien Children whenever possible. 

U.S. TREATMENT OF UNACCOMPANIED ALIEN CHILDREN

‘‘After I was transferred, I was always put in handcuffs for court. It always made 

me feel like a criminal and not a refugee.’’ 2

Unaccompanied alien minors are children under 18 years of age who are found 

in the United States without legal status and who have no parent or guardian to 

care for them. Many enter the United States to escape persecution while others are 

smuggled into our nation or, in some cases, are victims of trafficking subject to 

forced prostitution or labor. An increasing number are victims of human rights 

abuses such as child prostitution, street children abuses, child marriages, slavery, 

and recruitment as child soldiers. Unaccompanied children come to the United 

States from all parts of the world, most especially from Central America, India, 

China, and some parts of Africa. 

The Immigration and Naturalization Service (INS) is charged with responsibility 

for apprehending, detaining, caring for, placement of, legal protection of, and removal of Unaccompanied Alien Children. Many unaccompanied children are apprehended by the INS and returned to their country of origin, while others are placed 

in detention settings to await their asylum hearing or removal hearing. A number 

are released to relatives after a short amount of time. A handful are placed in appropriate foster care settings. 

Unaccompanied minors are particularly vulnerable because of emotional and 

physical traumas they have experienced. Some of these children may be victims of 

abuse, neglect, or abandonment, while others, separated from their families, become 

depressed, moody, withdrawn, or experience psychosomatic symptoms.3 Separated 

from their communities of origin, unaccompanied children experience an unfamiliar 

culture and loss of a social network. They should be treated with special attention 

and care instead of shackled and placed in detention. 

RESPONSIBILITY FOR THE CARE AND CUSTODY OF CHILDREN SHOULD BE PLACED

OUTSIDE INS 

‘‘I don’t know why they [INS] are so mean. They treat you like they don’t care 

about you. I wish they wouldn’t make you feel so scared. Sometimes you don’t know 

what’s going on. They don’t tell you. And it’s worse when you don’t speak the language.’’ 4

We strongly support the provision in S. 121 that creates an Office of Children’s 

Services within the Department of Justice and outside the INS. Under S. 121, this 

new office would be charged with the custody, placement, and release of Unaccompanied Alien Children and staffed by child welfare professionals. We believe that 

62

5 In the Houston district, providers indicate that family reunfication for children’s programs 

under the Detention and Removal branch in 2000. 

such an office would eliminate the current conflict of interest within INS and ensure 

that a child’s best interests drive decision-making in these cases. 

Currently, the Detention and Removal branch handles the placement of unaccompanied minors, a direct conflict of interest which sometime pits a child’s best interest against the INS’ role as jailer and deporter.5

Because of its role as enforcer of U.S. immigration law, the INS has great difficulty in providing care for children it is charged with removing from the country. 

All too often, it seems as though the INS’ enforcement concerns suspersede the best 

interests of the child. 

There are many examples of this conflict in current practice in which a child’s 

needs are sacrificed. For example, unaccompanied minors are regularly transferred 

from one facility to another without notice to their attorney or family members. 

Children also are placed with juvenile offenders ‘‘as a safety precaution,’’ regardless 

of their need for a more nurturing and less threatening environment. And the INS 

often appeals grants of asylum to unaccompanied minors, leaving them languishing 

in detention for additional months while the appeal is heard. Finally, the INS often 

denies consent to the jurisdiction of a juvenile court for purposes of special immigrant juvenile visa (SIJ) relief for children who are abused, abandoned, or neglected. 

The Department of Justice has shifted responsibility for dealing with Unaccompanied Alien Children from office-to-office over the last twenty years:

• Prior to 1996, responsibility for the care of these children resided in the 

Department’s Community Relations Service (CRS), which contracted out to 

private nonprofit agencies the responsibility of operating shelter facilities 

for them. At the time, CRS maintained a small staff of social workers to 

administer the program. 

• In 1996, the Immigration and Naturalization Service took over the functions of handling these children. Initially, the functions were handled by 

the International Affairs Office, which also managed the INS’s asylum and 

refugee operations. 

• In 2000, the INS moved responsibility for handling these children to 

INS’s Detention and Removal branch, much to the dismay of child welfare 

advocates who feared that placing control for care and custody of these children in the hands of the agency responsible for removing them would exacerbate what they viewed to be an already unacceptable situation, whereby 

the INS was using care and custody issues as a tool in their efforts to remove children, regardless of the merits of the child’s efforts to remain in 

the United States.

INS Commissioner James Ziglar recently announced plans to create yet another 

structure for dealing with these children. He indicated that soon he will create an 

Office of Juvenile Affairs which would be directly under the supervision of the INS 

commissioner. 

It is critical that the Committee retain the provision in S. 121 that would remove 

control of care and custody of Unaccompanied Alien Children from the INS and, instead, place it into the new Office of Children’s Services that the bill would create. 

First, the INS does not possess the child welfare expertise critical to the care of 

vulnerable children. Unlike most adults, children are less able to understand the 

complex immigration system or articulate their needs. They also are in need of special attention and care because of their youth. 

Second, Commissioner Ziglar’s proposal would not eliminate the ever present and 

potential conflict-of-interest between enforcement goals and the care of children. For 

example, it would not change the decision-making authority of regional juvenile coordinators who regularly place children in juvenile detention centers. 

Third, an administrative change does not carry the effect of the force of law, leaving future INS officials to alter any new structure, however carefully planned. 

Fourth, in a more general way, because of its role as enforcer of our nation’s immigration laws, it would be inappropriate and unworkable for the INS to implement 

many of the much needed reforms included in S. 121, such as the appointment of 

attorneys and guardians as litem for children. 

Finally, in no other child welfare system in the United States is the entity 

charged with enforcing the law also charged with the well-being of the child. For 

example, in the foster-care system enforcement officials become involved in investigating cases of child abuse and grounds for removal, while child welfare professionals determine appropriate placement and care. The same is true of the U.S. juvenile justice system, in which law enforcement does not impinge upon the role of 

63

6Moorthy, Interview K. 

7 Human Rights Watch, Detained and Deprived of Rights: Children in the Custody of the U.S. 

Immigration and Naturalization Service, December 1998. 8 U.S. Department of Justice, Office of the Inspector General, Unaccompanied Juveniles in 

INS Custody, Report No. 1–2001–009, September 2001, p. ii, 13. 9OIG Report, p. 10. 

the child welfare system, which is to rehabilitate a juvenile offender, where appropriate. 

DETENTION OF UNACCOMPANIED ALIEN MINORS

‘‘I was transferred to Reading, PA. I stayed in the shelter for 5 months. But they 

said I behaved bad. I remember that if you did anything wrong they would make 

you do push ups and make you sit with your head down for an hour. It made me 

feel so bad. They [the staff] used to hassle me. The Chinese kids and I got into a 

fight, after that I was transferred to a detention center in Berks County. It was a 

place where there were criminals. I was there for 4 months. It was not right how 

they treated me. I was not a criminal.’’ 6

As stated, MRS/USCCB and LIRS believe that children should be held in the least 

restrictive setting, preferably with family members or a foster-care family. An estimated 475 unaccompanied minors are in INS custody at any given time, ranging 

between the ages of six months to 17 years old. Children may be detained in separate facilities from their parents or family members and remain in secure facilities 

for months until their status is resolved or they are removed to their country of origin. Some of these detention facilities are INS shelter care, or ‘‘soft’’ detention, and 

others are juvenile facilities for convicted offenders. During Fiscal Year 2000, the 

INS detained 4,136 unaccompanied children for more than 72 hours, placing onethird in juvenile detention centers and a large majority of the remainder in shelter 

care. 

Of particular concern to us is the placement of children in secure detention facilities with juvenile offenders, some of whom have committed violent crimes. In these 

detention centers, children remain confined and have few opportunities for education in their native language or any field trips outside of the facility.7 They are 

commingled with violent persons, sometimes in the same cell. The psychological and 

emotional effects on a child in secure detention, alone and often unable to speak the 

language, can be devastating. Upon apprehension, INS sometimes transports these 

children by shackling their legs and arms, despite the fact that they have committed 

no criminal acts. 

A recent report by the Office of the Inspector General of the Department of Justice concluded that the INS often commingles non-delinquent juveniles with juvenile 

offenders in secure facilities, a violation of a court settlement known as Flores v. 

Reno. The settlement stipulates that, absent evidence of delinquent behavior, unaccompanied alien minors should be placed in the least restrictive setting possible. According to the report, in FY 2000, 34 of 57 secure facilities did not have proper procedures or facilities to segregate non-delinquent from delinquent juveniles. During 

the same fiscal year, the INS held 1,933 unaccompanied alien minors in juvenile 

jails, of which 1,569 were non-delinquent juveniles. It further concluded that at 

least 484 instances occured in which non-delinquent children were commingled with 

delinquent children.8

The OIG also found that the INS commonly does not use readily available bed 

space in shelter-care facilities to house non-delinquent juveniles. Citing an exception 

in the Flores settlement which allows for the placement of children in secure 

facilties as a result of an ‘‘influx’’—defined as 131 children at the time—the INS 

often places non-delinquent juveniles in juvenile jails. This occurs despite the fact 

that available shelter bed space has nearly tripled since the settlement, from 130 

to over 400.9

In addition, the INS regularly transfers children from one facility to another, 

often at different places throughout the country and without notice to guardians or 

attorneys, a violation of the Flores agreement. This leads to a lack of permanency 

and sense of isolation for the child. It also limits the ability of guardians or attorneys to maintain access to the child. In a recent case, a 16-year old Mayan boy fleeing persecution in Guatemala was transferred seven times within two months. Currently, he is being held at Berks County Youth Center in Pennsylvania, 1200 miles 

from his attorneys in Miami. 

Over the past year, MRS/USCCB and LIRS placed 16 children into foster-care 

who went through their entire asylum proceedings while in INS detention. Their average length of detention was eight months. Children seeking asylum arguably are 

64

10Moorthy, Interview L. 11See Don Kerwin, ‘‘Throwing Away the Key: Lifers in INS Custody,’’ Interpreter Releases 

649 (May 11, 1998), and ‘‘Protecting the Rights of Children: The Need for U.S. Children’s Asylum Guidelines,’’ Women’s Commission for Refugee Women and Children, December, 1998. 12 Immigration and Naturalization Service, Guidelines for Children’s Asylum Claims, September, 1998. 

the most vulnerable of all children but spend the most time in INS detention. In 

one case, twin brothers fled physical abuse and separation in their native Honduras, 

arriving here at the age of 14. They were held in an INS facility in Texas. Due to 

a state regulation that children could not remain in the shelter for longer than 3 

months, they were transferred after 3 months to foster care for one day and then 

returned to the shelter. This was repeated again at 6 months. The brothers were 

held for 8 months before they were granted asylum and permanently released to foster-care, funded by the Office of Refugee Resettlement. 

In another case, a 14-year old Honduran boy made his way to the United States 

after his caretaker grandmother died, leaving him to live on the street. Upon arriving in the United States, he gave himself up to the INS because he was tired, cold, 

and hungry with no money and no one to care for him. He then spent his next 11 

months in INS detention. Because of his young age, he was placed in foster care 

for 3 weeks. Unfortunately, though, he later was transferred to a detention facility 

for the next ten months. He says he missed being part of a family when returned 

to the detention facility, where he often felt scared and alone and felt he had no 

one to turn to for help. 

The Unaccompanied Alien Child Protection Act of 2001 would help ensure that 

children are placed in appropriate and less restrictive settings. It would expand 

shelter care facilities and foster care services as alternatives to detention; require 

family reunification or other appropriate placement for children, wherever possible; 

and house release decisions with child welfare professionals, not enforcement personnel. 

ACCESS TO LEGAL REMEDIES FOR UNACCOMPANIED MINORS

‘‘A paralegal from the attorney’s office would visit me and prepare me for court. 

She was very great. After 10 months in the shelter, I got asylum.’’ 10

Many children found in the United States without parent or guardian have experienced persecution directed at them or their families and are in need of protection. 

Under the current U.S. system, however, children in INS custody often receive little 

information about legal resources and often have no legal representation. Attorneys 

who do represent unaccompanied minors have trouble doing so because children 

often are transferred from one facility to another, sometimes in different parts of 

the country. As a result, even those children with valid asylum claims often have 

difficulty obtaining fair representation. According to the Catholic Legal Immigration 

Network, Inc. (CLINIC) and the Women’s Commission on Refugee Women and Children, less than 11 percent of INS detainees receive representation. Children detainees receive even less assistance.11 Without appropriate legal assistance and representation, children with valid asylum claims are less likely to obtain asylum and 

more likely to be sent back to their countries of origin and possible persecution. 

Assuring representation by counsel is necessary for this particular class of children, who face overwhelming obstacles in a complex immigration system. S. 121 

would permit the new Office of Children’s Services to develop relationships with 

non-profit organizations to enhance their ability to represent children. The minimal 

cost of the appointments of legal counsel, when such appointments are necessary, 

would be offset by greater efficiencies and effectiveness for INS and reduced court 

and detention time. In addition, S. 121 targets an extremely limited class of beneficiaries. Similarly-situated children in other child welfare systems are provided 

legal representation. 

In addition, a child’s asylum claim and well-being would be aided by the appointment of a guardian as litem, an adult, preferably a child welfare professional, who 

would look after the best interest of the child in immigration proceedings and in 

decisions regarding appropriate placement. The guardian as litem would investigate 

the circumstances of a child’s presence in the United States, and, using that information, develop recommendations for the child’s placement and avenues for legal relief. Guardians are used for children in other areas of U.S. law, such as in abuse 

or custody cases. Moreover, the INS Guidelines for Children’s Asylum Claims calls 

for the appointment of an individual to play a guardians as litem role, explaining 

that a ‘‘trusted adult’’ can help the child explain his/her asylum claim, assist the 

child psychologically, and provide comfort and assistance for the child.12

65

13See Slipping through the Cracks: Unaccompanied Children Detained by the Immigration 

and naturalization Service, Human Rights Watch, April, 1997. 14During FY 2000, USCCB and LIRS provided foster care services to only 40 children out of 

a total of 4,614 detained by INS. 15Moorthy, Interview G. 

S. 121 would address the lack of legal representation and other assistance to children by requiring that all children have access to legal counsel and that a guardian 

as litem be appointed for each child. Legal counsel would be appointed to help children through the complexities of immigration proceedings, representing their legal 

interests in asylum court, and in filing the appropriate paperwork with INS and 

other relevant agencies. A guardian as litem would make recommendations to ensure that the child’s best interests are served. 

Additionally, S. 121 streamlines the procedure for vulnerable children to obtain 

a special immigrant juvenile visa (SIJ), legal relief which often is inaccessible to 

many children. Under legislation enacted in 1990, unaccompanied alien minors who 

a children’s court determines should not be returned to their home country and are 

eligible for long-term foster care (family reunification is not possible) may obtain a 

special immigrant juvenile visa (SIJ) and legal permanent residency. 

Unfortunately, because of lack of knowledge of their rights and access to representation, children often do not obtain this form of relief. Moreover, the INS commonly 

does not pursue this avenue for children and must ‘‘expressly consent’’ to a judge’s 

order that the visa was sought for relief for abuse and neglect and not primarily 

for immigration purposes. Again, a conflict of interest arises in this situation, in 

that INS maintains undue authority over a child’s ability to even seek legal relief 

at the same time it seeks to deport the child. Despite the thousands of children detained by INS each year, INS rarely allows children in its custody to apply for SIJS. 

S. 121 revamps the system for the grant of a SIJ visa by granting the new Office 

of Children’s Services (OCS)—staffed by child welfare professionals—the authority 

to certify to the Attorney General that a child has been abused, abandoned, or neglected. This requirement removes the conflict of interest that the INS has while 

also ensuring the SIJ system is not abused. It also gives children fairer access to 

juvenile courts and to possible relief and permanency. 

Another area of concern which S. 121 addresses is children’s access to asylum protection. First, because of lack of access to legal representation, most children are unable to navigate the complex legal system to pursue asylum claims or other forms 

of relief. For those who do obtain representation, their chances of relief are markedly improved.13 The INS does not maintain statistics concerning the percentage of 

children who win asylum, although reports from attorneys and private organizations 

indicate it is very low.14 Second, once a child wins asylum, the INS often appeals 

the decision, extending a child’s stay in detention. 

In 1998, the INS took a step in the right direction by adopting guidelines for asylum officers to use in adjudicating children’s claims. Known as the Guidelines for 

Children’s Asylum Claims, the new policy has aided asylum officers in their handling of juvenile cases. Unfortunately, many children present their cases before immigration judges who are not required to follow the guidelines in their decisionmaking. Further, other immigration officers, such as enforcement officials, have not 

been trained in the rights of children and their special circumstances as outlined 

in the guidelines. S. 121 calls upon the Executive Office for Immigration Review 

(EOIR) to adopt the guidelines and requires all immigration officers and personnel 

who come into contact with children to receive special training on the special needs 

and circumstances of children asylum seekers. 

ALTERNATIVES TO DETENTION

‘‘My foster care family cares for me and I care for them. It’s better than the shelter because I can be free and I have a home where people care for me. It’s the opportunity to have a family that I never had before even in my home country. It makes 

me feel included. They never exclude me from anything.’’ 15

In order to ensure that children are protected and cared for, alternatives to detention are available and necessary which address a child’s special needs, especially the 

need for emotional security, love, and attention. Studies have demonstrated that 

children are better adjusted emotionally, psychologically, and mentally, when placed 

in a family setting. LIRS and MRS/USCCB assist the INS by identifying family 

members of children and, in the alternative, recruiting foster-care families to provide a home for a child until an asylum claim is adjudicated. 

Despite the wide availability of foster-care settings, the INS rarely uses this appropriate alternative to detention, regardless of the fact that foster care ($55 per 

66

16 Children or refugees? A survey of West European policies on unacompanied refugee children, Children’s Legal Center, United Kingdom, 1992. 17For more information, see ‘‘Unaccompanied Juveniles in INS Custody,’’ U.S. Department of 

Justice, Office of the Inspector General, Evaluations and Inspections Division. Report no. 1–

2001–009. 

day) is much cheaper than detention ($200 per day). The INS has placed very few 

children in foster-care settings, citing security concerns and the likelihood that children may take flight. During FY 2001, LIRS placed 5 and MRS/USCCB 2 children 

in foster-care settings pending the completion of immigration proceedings. 

As child welfare providers, it has been the experience of LIRS and MRS/USCCB 

that children do not take flight if appropriate services are in place to ensure that 

they are safe and loved. For example, the presence of a guardian as litem to explain 

the asylum process to a child would help calm the child. In addition, requiring suitability studies of families in countries of origin would help assure a child that he/

she would be safe upon return to their homeland. 

Perhaps more troubling is that the INS does not follow any criteria or guidelines 

for determining whether a foster-care setting is appropriate for a certain child: those 

children who are placed in foster care families often are done so on an ad hoc basis 

and only following lengthy detention. For example, no guidelines or procedures are 

in place for INS to identify a child victim of trafficking or a child with other special 

needs. 

MRS/USCCB and LIRS also help locate family members in the United States for 

children and conduct suitability assessments of U.S.-based families of Chinese and 

Indian youth and children granted asylum. Absent mitigating circumstances, such 

as evidence of abuse, children should be reunited with their families, especially their 

parents. Suitability assessments are necessary in determining the validity of family 

relationships, whether family members or relatives are willing or able to care for 

a child, and whether there is a safe and appropriate home. 

Suitability assessments are an important tool in ensuring a child’s safety prior to 

placement. Therefore, S. 121 requires the INS to conduct suitability assessments 

overseas for children repatriated to their country of origin. Such a process is necessary to ensure that children are not being sent back into an abusive family situation from which they originally fled. Non-governmental organizations, such as International Social Service, are able to conduct such assessments in the child’s country 

of origin. 

Further, other countries ensure that children are returned to safety in their home 

country. The United Kingdom, Norway, Switzerland, and Holland will not return a 

child to their home country unless country conditions are satisfactory and there is 

a suitable caregiver available. Holland requests the International Organization on 

Migration (IOM) to ensure that an appropriate caregiver exists in the home country. 

Denmark notifies the Red Cross when a child is returned and the Red Cross attempts to ensure that a caregiver is available. Finally, Canada follows guidelines 

that require a child not be returned unless a suitable caregiver has agreed and is 

able to assume responsibility for the child and to provide appropriate care and protection.16

Again, for flight reasons the INS is reluctant to place some children with family 

members in the United States prior to adjudication of their asylum claims. The Flores agreement spells out a list of parties to which a child can be released. The list 

includes, in descending order, parent(s), legal guardians, an adult relative, a licensed program willing to accept custody, or another adult or individual who INS 

approves and is willing to accept. Nevertheless, INS consistently has failed to release children to relatives or even legal guardians. 

If a parent is undocumented, the INS requires a parent to report to them for processing; otherwise the child remains in detention. The INS also declines to place a 

child with a relative if an undocumented parent is available but will not report. 

While we do not condone undocumented migration, we oppose the practice of using 

children ‘‘as bait’’ to apprehend undocumented migrants.17 Children should not be 

punished or used in this manner. At a minimum, INS should place a child with a 

legal relative even if an undocumented parent is present. 

The INS must use alternatives to detention for children on a more regular basis. 

S. 121 requires family reunification or other appropriate placements, such as fostercare, for children as well as clear guidelines for the standards of care for children, 

including the provision of education, recreation, health care, and access to an interpreter and an attorney. 

67

THE NEED FOR CONGRESS TO LEGISLATE ON THIS ISSUE

We are aware that there are some who have contended that the principles embodied in S. 121 can be accomplished by an administrative reorganization of the entities responsible for the care and custody of unaccompanied children. Indeed, INS 

Commissioner Ziglar recently announced a number of steps which he said would improve the treatment of these children, at least hinting that this would obviate the 

need for legislation. 

We have no reason to doubt Commissioner Ziglar’s sincerity. However, we strongly believe that the reforms embodied in S. 121 must be legislated by Congress and 

should not be left to either his ability to harness a INS bureaucracy and field structure that is well known for ignoring directives of the Commissioner, or left to the 

discretion and whim of whomever is occupying the Commissioner’s position at any 

given time. 

The United States government has a special responsibility to ensure the wellbeing of children in its custody, regardless of their legal status or national origin. 

This is especially the case for Unaccompanied Alien Children. Since 1996 alone 

there have been three separate administratively-mandated structures for the care 

and custody of these children. Each time their conditions have grown worse, not better. Commissioner Ziglar has just announced his intention to impose yet another administratively-mandated structure. We strongly believe that it is time for Congress 

to step in and set the direction and policy for handling these children. S. 121 would 

accomplish this; these children should not have to wait any longer. 

CONCLUSION

Mr. Chairman, we believe that removing responsibility for the care and custody 

of children from the culture of enforcement which pervades the INS is essential. Approximately five-thousand Unaccompanied Alien Children are found in our nation 

each year and are placed in the custody of the federal government. They are not 

a threat to our society and only seek our protection. As a leader in human rights 

around the world, our treatment of unaccompanied alien minors is shameful and undercuts our ability to defend the rights of others, especially children, around the 

world. 

It is time to conform how we treat Unaccompanied Alien Children with the standards which govern our treatment of U.S. children. Children, our world’s most precious resource, should not be discriminated against because of their lack of documentation or their country of birth. Being undocumented should not equate with 

criminality and we should not treat children as such. Instead, our system should 

ensure that an Unaccompanied Alien Child’s best interests are a primary consideration, that their care and custody should take place in the least restrictive setting 

possible, and that permanency planning becomes a central component of an Unaccompanied Alien Child’s care. 

With long experience in caring for unaccompanied alien minors and as advocates 

on their behalf, LIRS and MRS/USCCB ask the subcommittee to consider more seriously the impact of U.S. policy on unaccompanied alien minors. Mr. Chairman, it 

is incumbent upon our government to fashion a system which places the welfare of 

a child, no matter their country-of-origin, as primary, regardless of legal status. The 

Unaccompanied Alien Child Protection Act would help reform our system for handling unaccompanied minors appropriately and should be enacted. 

Thank you for your consideration of our views.

Chairman KENNEDY. Thank you very much. 

I want to just thank Eric—is it Unternahrer? 

Mr. UNTERNAHRER. Unternahrer. 

Chairman KENNEDY. Unternahrer. We want to thank you very 

much for being here. The idea that you are translating and speaking and listening, doing all of those things at the same time, is perplexing. We have trouble doing one of them up here and doing it 

right, so we want to thank you very much for your good work and 

your appearance. 

Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

I am going to have to leave in a few minutes and the chairman 

has graciously allowed me to make a comment or two, if I could. 

68

No. 1, I would like to announce I am going to join the Feinstein 

bill. It is a great piece of legislation. 

[Applause.] 

Senator BROWNBACK. Thanks to Senator Feinstein for bringing 

this forward. This is, to me, reminiscent of a hearing we held about 

a year ago on asylum seekers where we were keeping these people 

locked up for long periods of time for what appeared to be not any 

good reason. 

I think actually, Wendy, you testified at that hearing. And, Mr. 

Morton, I don’t know if you did or not. 

Mr. MORTON. I was sitting behind her. 

Senator BROWNBACK. But it was the same situation where we 

have got these wonderful people that are fleeing a horrible situation and they come here and they are locked up. It is even worse 

when it is a child in the situation, like what Edwin so bravely 

brought forward here today. It just doesn’t make any sense, where 

we have excess capacity, as Ms. Duncan was noting. I know there 

are other ways to be able to handle this than children sitting in 

jail. That is not necessary to do. 

I am really hopeful that we can correct this because this just 

doesn’t need to take place the way it is. So I am very appreciative 

of the hearing and I am very appreciative of the legislation and the 

work of Senator Feinstein, who has worked on this for some period 

of time and has brought it on forward. I am hopeful we can get this 

passed. 

I would note for Senator Hatch, who is ranking member of the 

Committee, that he wanted to be here. He couldn’t; he had a conflict. He apologizes for that. He has got a statement that he wants 

to put into the record and he wanted to discuss a bill that he put 

forward that deals with an adjoining issue, but not this one, the 

DREAM Act, a student adjustment bill. He wanted to particularly 

thank Edwin Munoz for being here to testify. 

Edwin, he had a present that he wants to give you today. 

Chairman KENNEDY. Is it one of his disks? 

Oh, there we go. 

Senator FEINSTEIN. There is your FBI hat. 

Senator BROWNBACK. Would you care to come up? I want to give 

this cap to you. 

Senator FEINSTEIN. Boy, you are on the spot. 

Chairman KENNEDY. You are on the ball here. 

Senator BROWNBACK. No, Edwin is. 

Chairman KENNEDY. Look back and see which staffer deserves a 

gold medal on that one. 

[Laughter.] 

Chairman KENNEDY. I know it was Senator Brownback’s idea. 

[An FBI cap was presented to Mr. Munoz by Senator 

Brownback.] 

Chairman KENNEDY. Good for you, all right. 

Senator FEINSTEIN. There you go. 

Chairman KENNEDY. Well done, good for you. Congratulations. 

[Applause.] 

Senator BROWNBACK. A fine young man. 

69

Mr. Chairman, we should move forward aggressively. There is no 

reason to delay on this. Thank you for holding the hearing, and 

thank you really for pressing this issue, Senator Feinstein. 

Chairman KENNEDY. Thank you, Senator Brownback. 

I just would pick up on this point. Let me ask Mr. Morton, 

Wendy, and Ms. Duncan, why not do it the way that has been recommended in the earlier panel? Why not just do this under the 

proposed restructuring plan that will place an Office of Juvenile Affairs directly under the commissioner, with the assurance that 

there would be responsibility under that program for following 

through to give the kinds of protections intended to be given under 

the Feinstein legislation? Why won’t the restructuring they talk 

about do the job? 

Then, second, the judge mentioned some of the technical matters. 

We always welcome ideas, particularly from those who have experience dealing with these kinds of problems, and their suggestions. 

Do you think any of these points that the judge mentioned are insurmountable? 

Ms. YOUNG. First, let me thank Senator Brownback, even though 

he has left, for joining in this effort. I think that is very, very important. 

In response to your first question, Senator Kennedy, first of all 

something that I didn’t have time to bring out in my oral testimony 

but which is in my written testimony is if you look back over the 

years, the Department of Justice has actually moved these functions from office to office, with the Community Relations Service, 

which is outside the INS, then moving it within the Humanitarian 

Affairs Branch of the INS, which is where the Asylum Corps is 

lodged, and then in 2000 moving it into the Detention and Removal 

Branch. 

My point here is that unless this is statutorily codified, what is 

to stop a future administration from moving this office once again? 

I do appreciate Commissioner Ziglar’s commitment to looking at 

these issues and trying to find a new approach, but I believe this 

is too critical an issue for Congress not to step in and make sure 

that these kids are treated appropriately this year as well as in 

coming years. 

Second, I would like to flag again that I am very concerned that 

the restructuring proposal does not outline clearly that the officers 

who have the day-to-day responsibilities with these children will, 

in fact, be reporting directly to that new Office of Juvenile Affairs. 

Mr. MORTON. Wendy is a great client to have. She speaks so well, 

I don’t need to respond to your first question, but I will address 

your second question. 

With respect to attorneys, there are some implementation issues, 

unquestionably. I believe that if we go with the outlined structure 

in the bill, if we have an Office of Children’s Services, it will be 

very simple to move forward with implementing programs such as 

right now we have with the American Bar Association, grant programs which get pro bono training, get pro bono counsel off the 

ground. For as little as a $100,000 grant, you can establish a program 

that can provide 100 to 150 pro bono lawyers in one location. What 

that is going to do is if we codify this bill, if we put the responsiVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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bility of INS to provide counsel for these children, then that will 

give them an incentive to move children to the areas where the 

counsel are located. 

One of the problems now is that their incentive is not to provide 

counsel. In fact, for their law enforcement motives, it is not to provide counsel, and we see children in facilities like Tulare Juvenile 

Hall three-and-a-half hours away from San Francisco and Los Angeles. There is no way to expect pro bono counsel to drive those 

lengths to take on a case and represent those children. 

If we put the incentive to have counsel, then they will move 

these children where they should be located, near the urban centers, near these programs, and we can move forward with the implementation issues without a problem. 

Chairman KENNEDY. I might ask you if you would, then, Mr. 

Morton, and the other members of the panel, if you have technical 

recommendations I would invite you to work with our staff in 

terms of dealing with them. 

Ms. Duncan, is there anything that you wanted to add? 

Ms. DUNCAN. No. I think I covered in my testimony that we believe that the detention function is a separate function and that the 

child welfare planning should not be housed in the detention section. 

Chairman KENNEDY. I just want to underline your testimony 

about the guardians ad litem. As I understand it, there are 900 

programs. Every State in the U.S. has volunteer guardians. 

While family court objectives in the system are somewhat different from the immigration system, my question would be do you 

believe that it is time that unaccompanied alien children have 

someone to look out for their best interests and do you think that 

the kind of training that they would need would be generally pretty 

accessible to have them do the job? 

Ms. DUNCAN. Yes, I do. I think that States and localities have 

great experience providing this kind of service to children and the 

service can be provided to alien children as well. 

Chairman KENNEDY. Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Senator. 

Ms. Young, let me begin with you. My understanding is that you 

visited 18 facilities used by the INS to hold unaccompanied children. 

Ms. YOUNG. That is correct. 

Senator FEINSTEIN. I want to ask you a question. What did you 

see in those facilities, and do you think these changes that INS 

wants to do are sufficient to solve an improve the way INS handles 

these children? 

Ms. YOUNG. What we saw in visiting those 18 facilities was a 

real spectrum and variety in facilities. The INS shelter care facilities offer an environment of what we call soft detention. 

Senator FEINSTEIN. I missed that. 

Ms. YOUNG. They offer an environment of what we call soft detention. In other words, it is a better environment than the juvenile 

detention halls that the INS utilizes. Kids are provided some educational services. They are wearing their own street clothing. They 

do have some activities. However, the facilities still remain highly 

71

monitored, sometimes fenced, sometimes using security cameras, 

and the child is not free to come and go as he or she pleases. 

In addition, what we are concerned about in this facilities is children may remain in those facilities for very, very long periods of 

time. And whether better than the juvenile detention centers or 

not, they are still institutional in nature and that is not a good environment to leave a child in for a prolonged period. 

The juvenile jails stand in a category of their own. These are facilities, it is very important to remember, that were designed primarily to punish and to incarcerate youthful offenders. And the 

children that we are talking about, the large percentage of them, 

have in no way committed a crime of any sort and, in fact, are 

seeking relief to which they are rightly eligible under our immigration laws. 

Senator FEINSTEIN. Let me stop you right here. As Edwin made 

his remarks, it is very clear that Edwin isn’t a gang-banger. It is 

very clear that he is a sensitive young man, and anybody ought to 

be able to see that within the first 3 minutes that they deal with 

him. On the other hand, there are those problems out there. 

If you automatically put a child in a situation—let’s say a teenager, let’s say a 16-, 17-year-old—where they can go and come before you have had the opportunity to do the necessary classification, as they would say in the other sector, to know what you are 

dealing with, that minor can just disappear, as has been said up 

here by the Ariana Felix organization in Tijuana, for example. 

Ms. YOUNG. I think what really is the heart of S. 121 and is so 

critical that we put in place is that we make individualized determinations in each and every child’s case. 

Senator FEINSTEIN. That is right. 

Ms. YOUNG. Yes, there will be children whom the INS encounters 

who may have some problem with the law, but we should treat 

those children accordingly. I believe S. 121 really puts in place the 

structure so that we can make those kinds of nuanced, sophisticated decisions on behalf of each child. 

Senator FEINSTEIN. Mr. Morton, under the Constitution and your 

interpretation of the law, is a child in this situation entitled to representation? 

Mr. MORTON. I would not sit here and try to make a constitutional claim for the right to counsel of alien juveniles. In fact, there 

is a body of law that dictates how many constitutional rights an 

alien has and a separate body of law that dictates the constitutional rights that are extended to children. And where these two 

intersect, I think that we need to depend upon legislation to move 

forward with counsel for juveniles. 

Senator FEINSTEIN. What I would like those people who have 

helped us with the legislation to know is I went over the legislation 

word by word the other day and we took some things out and we 

tightened it up, and I would love for you to take a look at it. 

One of the aspects that concerned me was really whether there 

should be in Justice. I think the Attorney General ought to make 

the appointment and the head of the office ought to be responsible 

to the Attorney General, not to the Commissioner of INS. But my 

question to you who work in this area is does it make sense to 

leave it within the INS as long as the reporting chain is outside? 

72

Ms. YOUNG. If I could suggest perhaps that there is a little bit 

of a model here that we could look at, which is the fact that—I 

can’t remember what year it was, but at one point we did move the 

Executive Office for Immigration Review out from underneath the 

INS and made it into a separate office within the Department of 

Justice responding to the Attorney General. 

I think that is a model that we should really follow here. I think 

it is a clean break. It separates those functions well. I agree with 

you that probably there is some tightening that needs to be done 

in this legislation, but I do believe that this is a structure that we 

should leave intact within the legislation. 

Mr. MORTON. I would agree with that and I would just also say 

again I outlined in my testimony what we perceive to be some very 

inherent conflicts of interest within a law enforcement agency to 

provide for the interests of the child. 

Keeping it with the INS, no matter where it is within INS, it is 

still within INS. According to the restructuring plan, as Wendy 

mentioned earlier, there is a great deal of ambiguity. What kind of 

direct line authority would work its way down from this Office of 

Juvenile Affairs? 

We have had experiences with the current structure where it is 

very clear that anybody who works with INS will tell you these are 

fiefdoms; these are district directors who do not feel like they report to headquarters. And we were told directly from the districts 

that they do not report to the juvenile director. 

Unless there is a great deal of assurance that this new office that 

they are proposing has direct line authority, can make decisions, 

will take care of placements, will take care of transfers, and will 

not be some policy office with nebulous oversight of the system, 

then I just do not feel that that would ever be the right solution. 

Senator FEINSTEIN. There is an infrastructure there, the connection between the Border Patrol, not to have to set up a whole other 

infrastructure, but to be able to utilize the good part of what is 

there and then remove the bad part by law. 

Mr. MORTON. I would have to be assured that there was a great 

deal of separation between the Enforcement Branch and the children’s services office. According to what has been proposed thus 

far, it does not appear that this is anything more than a policy 

with shared responsibility, where district directors, district juvenile 

coordinators, Border Patrol-type people, removal officers, detention 

officers, will be making the decisions about care and custody of 

children. 

Senator FEINSTEIN. Well, all right, go back to Edwin’s case. He 

comes across the border. He is picked up by the Border Patrol, who 

then takes him to an INS facility. Now, under our plan, how do you 

see this functioning from the time the individual is picked up by 

the Border Patrol? 

Mr. MORTON. Within S. 121, with the Office of Children’s Services? 

Senator FEINSTEIN. Yes. 

Mr. MORTON. Well, what the bill would do is transfer the legal 

and physical custody of the child from INS Border Patrol, local law 

enforcement, whoever picks up the child, and transfers that custody to the Office of Children’s Services, the key being that the ofVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00076 Fmt 6633 Sfmt 6602 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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fice is staffed with child welfare professionals and has no vested interest in the outcome of the case. 

Senator FEINSTEIN. You are talking about an imminent place to 

keep him out of detention? 

Mr. MORTON. I think that within the first several days, we are 

always going to be in a situation where the detention needs are 

going to have to be met. Even under the governing law right now, 

Flores v. Reno, that settlement agreement, within the first 72 

hours INS can detain children wherever they need to. That includes secure facilities. 

But once that window has past, once they have gone beyond the 

72 hours, they need to put the child into the least restrictive setting appropriate, and that is what I envision the Office of Children’s Services would do. I don’t think that there is any way that 

we can ensure from the moment that they get picked up that they 

would never be detained in an unpleasant situation because the 

fact is that some of the border-crossing areas, that is just the closest place to detain the child. 

But very soon thereafter, once the custody is transferred to an 

agency without an interest in the outcome of the immigration proceeding, I think that you would see a very different set of circumstances for where these placements would be made in areas 

like foster care, like shelter care, like residential facilities, and that 

is just not the case right now. 

Senator FEINSTEIN. My understanding is that at any given time 

there are approximately 500 children that are going through this 

process, and I just wonder if you can get done what you have to 

get done within 72 hours. 

Ms. YOUNG. Can I jump in here for just a second? 

Senator FEINSTEIN. Yes, please. 

Ms. YOUNG. I think picking up on a phrase Senator Kennedy 

used, I think the point here is to create, as best we can, a seamless 

web for these children. There is the practical reality and there is 

also the ideal. I think the practical reality is, of course, the INS 

will probably be the agency that first encounters these children and 

that they will need to have a place to house these children. 

The 72 hours is incorporated into S. 121 that custody be transferred at that point from the INS to the Office of Children’s Services. However, I think if this bill were to become law, we may be 

able to actually move toward the ideal, my thought being that we 

would probably reach a point where the Office of Children’s Services might have services available readily at those points where 

kids are encountered along the border. 

Senator FEINSTEIN. Ms. Duncan? 

Ms. DUNCAN. It is typical in county or State child welfare systems to have a system of receiving care where children are held in 

safe haven while their initial case parameters are being determined. It is likely that INS will need to have some sort of secure 

facilities while things are being sorted out. 

But it is also probable that there could be safe haven foster care 

settings or safe haven receiving care settings where children could 

be held for a short period of time. Ten-year-olds may not need to 

be in a security facility; 5-year-olds probably don’t. So it wouldn’t 

happen right away, but the Office of Children’s Services could deVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00077 Fmt 6633 Sfmt 6602 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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vise a series of placements so that there are places for children to 

go. 

Senator FEINSTEIN. Thank you. 

Edwin, let me just give you my thanks. You are a very brave 

young man and I have no doubt that you are going to be successful. 

If you study hard, who knows, you may even be head of the FBI 

1 day. I have a little thing to go you afterwards, if I might. 

Chairman KENNEDY. Very good. We want to thank all of you for 

excellent testimony, very helpful, a lot of very important information and a great deal of thoughtful commentaries from people who 

have really lived through this system in a very important way. 

Their experience and insights, and most of all their sense of compassion and decency has come through so well today. I want to 

thank all of you very much for a very, very helpful hearing. 

The Committee stands adjourned. 

[Whereupon, at 4:46 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

SUBMISSIONS FOR THE RECORD

March 12, 2002

The Hon. Edward M. Kennedy 

Chair, Subcommittee on Immigration 

Committee on the Judiciary 

United States Senate 

Washington, DC 20515

Mr. Chairman and members of the Subcommittee: 

We the undersigned are writing on behalf of the Philadelphia legal community to 

express our support for the Unaccompanied Alien Child Protection Act (S. 121). This 

legislation is essential to ensure that the best interests of the child will govern the 

care and custody of unaccompanied minors who travel to this country seeking protection from further persecution, abuse, mistreatment and neglect.

I. S. 121 cures the INS’s conflict of interest with respect to children in its custody 

in which the INS has favored prosecution over care.

Currently, the U.S. Immigration and Naturalization Office (‘‘INS ’’) is charged 

with both the care and prosecution of children it takes into custody. The INS role 

as custodian of unaccompanied minors is severely compromised by its primary function as an enforcement agency. 

This conflict perhaps is best exemplified by INS’ refusal to release children to parents without legal status unless the parents are in removal proceedings. Even 

though other family members with legal status may be available to take custody, 

the INS holds children as ‘bait’ until their parents place themselves in removal proceedings. This practice places unnecessary stress on a child by pitting her against 

her parents. 

The INS is required to release children to relatives. However, it frequently detains 

children despite the presence of close relatives who are willing to care for them.

‘‘Sara’’ is a 14-year old girl from Eritrea. Her parents and siblings were arrested 4 years ago for political reasons, but Sara escaped arrest because she 

was spending the night at a friend’s house the night that the police came 

for her family. She hid with friends of her family in a neighboring country 

and then came to the U.S. in September 2001. Her aunt, who is a legal permanent resident, lives in Ohio and was desperate to have Sara released to 

her, but INS challenged whether their relationship was valid. INS was provided with extensive documentation, including the birth certificates of Sara 

and her aunt, school records listing family members, and notarized affidavits from family friends, tax documents from the aunt, and the aunt’s resident alien and social security cards but INS continued to demand further 

documentation from Sara’s representatives. Sara was released to her aunt 

in March 2002, nearly six months after she was placed in detention.

Even when family members seek custody, the INS often conditions release on arbitrary and unreasonable demands, so that detention is unnecessarily protracted. 

75

This prolonged, unnecessary detention is psychologically damaging to the children 

and a needless expense to taxpayers.

‘‘Sonia’’ a nine year old child was detained for over four months although 

her father, present in the US and already in court proceedings, produced 

all the necessary documentation for her release within a few days of her 

arrival. This non-English speaking child endured not only separation from 

her family, but extensive weight loss due to dietary changes. She also contracted the chicken pox and was held isolated in quarantine.

In Pennsylvania, children with active immigration cases have remained in detention for over a year, even when less restrictive alternatives are available and even 

mandated by the INS’ existing Flores agreement. Often this is due to INS’ failure 

to use foster care options while a child’s case is pending. 

The INS frequently shuffles children in detention from facilities in one state to 

another. This unnecessarily prolongs the child’s stay in detention by delaying the 

proceedings while the hearings are rescheduled in the local tribunal. Furthermore, 

it impacts the child’s access to legal representation. Many of these children were 

able to secure pro bono counsel where they were first detained, but the transfer 

forces them to search anew for local counsel who must then be brought up to speed 

on their case. 

The INS also arbitrarily and unfairly hinders the ability of children victimized by 

abuse, abandonment and neglect to secure special protections for which they are eligible. Last year, the Philadelphia District INS refused to release from its custody 

six children who were entitled to seek a dependency order from juvenile court in 

order to obtain a Special Immigrant Juvenile Visa from the INS. In each of these 

cases, the Philadelphia District INS ignored the fundamental principle of acting in 

the best interest of the child and either ignored the request and allowed the child 

to ‘‘age out’’, or denied the request outright.

‘‘Vladamir’’ is a 17-year old boy from Azerbaijan. His parents, who were 

Christians of Russian and Armenian ethnicity, were killed by Muslims from 

the Azerbaijani ethnic group during the civil war in Azerbaijan in the 

1980’s. Vladamir went to live with a family friend in Russia, but had no 

legal immigration status there. When he was 15, the family friend died and 

he ended up living on the streets. As an orphaned child, Vladamir is eligible for a Special Immigrant Juvenile visa, and asked for INS to grant permission for him to pursue this visa in December 2001. In March 2002, his 

request was denied.

One of the most crucial aspects of the proposed legislation is that it offers a constructive solution to this untenable conflict of interest. It is impractical and irresponsible to expect the INS to balance the competing interests of prosecution and 

custodial care, and we do not hold any other enforcement agency to this expectation. 

By placing these children in the care of a special Office of Children’s Services, this 

would ensure that the physical and mental health of the child are not disregarded 

in the face of the INS interest in deportation.

II. S. 121 assures that children in INS custody will have access to legal representation and counsel, as well as other essential health care services

Each year, nearly 5,000 children arrive in this country without lawful immigration status and no parent or legal guardian to provide them with care and legal custody. A significant number of these children are routinely placed in secure detention 

facilities by the INS, further victimizing them. Placing the children under the care 

of a newly created Office of Children’s Services, charged with assuring comprehensive care with a team-based approach to providing an array of social, medical and 

educational services, supported by legal representation, is a substantial improvement to the current system of detention. 

A host of legal, social and psychological issues surround children in detention:

• The legal needs of unaccompanied minors are complex, ranging from developing a defense for their removal proceedings, working towards their release to family members, or securing their voluntary departure back to 

their country of origin. Detained children frequently face linguistic barriers 

and cultural isolation, in addition to experiencing trauma from their extended separation from family. 

• Children detained by the INS often have experienced emotional or physical persecution by individuals in their home country; some have seen family and friends killed and/or tortured; and others, are victims of abuse, 

abandonment or neglect. Many of these children have suffered unspeakable 

torture, the loss of family members and loved ones, hunger and deprivation 

prior to their arrival in this country. INS detention often compounds the 

76

anxiety and stress of these children. Moreover, the detention causes many 

children to abandon viable claims for relief because they cannot bear the 

conditions of confinement. 

• Most troubling is the placement of children who suffer from serious mental health problems in secure detention, a practice the INS alleges is for 

their own protection.

Most of the detention facilities are located more than one hour outside the nearest 

urban center. This significantly restricts access to experienced immigration attorneys, social service providers and interpreters to assist children with their legal case 

or address other medical and/or mental health needs. 

The Philadelphia District INS detains unaccompanied minors between the ages of 

7 and 17 at the Berks County Youth Center (BCYC). In 2001, INS detained approximately 200 unaccompanied or separated children at BCYC. BCYC is located nearly 

11⁄2 hours from Philadelphia, making it difficult to recruit pro bono attorneys, secure 

interpreters and other social services providers, and to meet the legal, medical and 

mental health needs of the children. 

BCYC consists of two medium secure units with 24 hour intensive staff supervision and a high security or ‘‘secure’’ facility that holds immigration detainees and 

U.S. citizen juvenile offenders. 

The secure facility used by Philadelphia District INS is highly punitive, depriving 

children of the most basic services. The children are strip-searched after attorney 

visits, prevented from speaking any language except English, handcuffed while 

transported and physical restraints by staff are frequently reported for small transgressions.

‘‘Jin’’ was placed in Secure detention by INS after INS claimed he acted out 

in shelter care. He was told that he would be sent to secure detention until 

he learned to behave himself and after a few days he would be brought 

back to ‘‘regular detention’’. Weeks went by and this boy with no criminal 

convictions sat languishing in a secure cell. He was not allowed to speak 

his language and was stripsearched after visits from his representative. Jin 

was so upset by his stay in secure that whenever his representative visited 

him to discuss his asylum case he only wanted to talk about how difficult 

it was for him to stay in secure.

Sara, Sonia, Vladamir and Jin’s experiences illustrate the need for 5.121. They 

are just a few examples of the thousands of unaccompanied children whose best interests have been compromised as a result of the system that combines care and 

custody with prosecution. Presently, 5.121 provides the only viable alternative to ensuring that the unique needs of unaccompanied immigrant children are served. 

We strongly encourage the members of this committee to take advantage of the 

opportunity presented by S. 121 to adopt well-established national and international 

conventions and laws safeguarding the best interest of children. These reforms embody a free, democratic and civilized society.

Heather M. Bendit 

Philadelphia Bar Foundation

Judith Bernstein-Baker 

HIAS and Council Migration Services

Rupal Parikh 

Nationalities Services Center

Shelly D. Yanoff 

Philadelphia Citizens for Children & Youth

Metty Vithayathil 

Pennsylvania Immigration Resource Center

Phyllis Grady 

Amnesty International

Michele Pistone 

Villanova Law School

Joy VanBerg 

Lutheran Children & Family Services

Marsha Levick 

Juvenile Law Center

Julie Slavkin 

Southeast Regional Immigrant and Citizens Coalition

f77

Statement of Hon. Maria Cantwell, a U.S. Senator from the State of 

Washington 

I would like to thank Senator Kennedy for chairing this important hearing on S. 

121, the Unaccompanied Alien Child Protection Act introduced by Senators Dianne 

Feinstein and Bob Graham. I am pleased to cosponsor this bill. 

Every year, the INS detains thousands of children who arrive at our borders without documentation and without a parent or guardian. Due to the lack of adequate 

detention facilities for these minors, the INS often places these children among juvenile offenders or even adult prisoners. This happens in every state including my 

own. The children are often subjected to disciplinary measures such as handcuffing, 

shackling, and solitary confinement. 

These children, who generally speak little or no English, have no right to a guardian ad litem or government-appointed counsel. They consequently appear in immigration court alone against experienced INS attorneys. Attorneys who represent 

these children have difficulty communicating with their clients because the children 

can be moved from one facility to another without their attorney’s knowledge. Without proper legal assistance, these children are at high risk of deportation to countries where persecution, civil unrest, and human rights abuses abound. The inherent conflict of the INS overseeing both the care and deportation of these children 

is further compounded by the absence of any special office within the INS to monitor these children and their welfare. 

Of the thousands of children subjected to this process each year, one that I am 

personally familiar with is that of Ramon Zepeda. Ramon was born in Nicaragua 

to a mother who abused him and sold him into slavery. He later became homeless, 

and after spending years living on the streets, Ramon walked out of Nicaragua, 

through Honduras and El Salvador, and eventually into Mexico. He was apprehended at the border when he tried to gain entry into the United States. At the 

age of 16, Ramon was initially placed in a detention facility in Arizona with adult 

men. Prior to being granted asylum before an immigration judge, Ramon spent five 

months in juvenile jails in four states ending up in Washington. Fortunately, a loving couple from my state in Bellingham is working with the INS to become foster 

parents for Ramon. Many children like Ramon do not find such a happy ending. 

I want to commend INS Commissioner Ziglar for acknowledging the problems 

with the current system, and I am pleased that he recently announced the creation 

of the Office of Juvenile Affairs to oversee the protection of juveniles. While I applaud this initiative, I remain concerned that children still remain under INS jurisdiction, and will not receive counsel and guidance from outside the INS. 

The Unaccompanied Alien Child Protection Act responds to many of these concerns by establishing the Office of Children’s Services within the Department of Justice to coordinate legal and social services for unaccompanied minors. The Office of 

Children’s 

Services would establish standards for custody, detention, and release to ensure 

that detention is in an appropriate facility, to require release whenever possible to 

parents and legal guardians, and to expand the use of foster care placement. Additionally, the Act provides minors with access to counsel and a guardian ad litem 

to safeguard their legal rights. Finally, this legislation protects the immigration status of children who age-out of eligibility while INS approval of an immigrant visa 

is pending. 

The Unaccompanied Alien Child Protection Act does not change INS jurisdiction 

over enforcement matters or adjudication of asylum claims, nor does it interfere 

with custodial rights of parents or guardians to seek family reunification. 

The Unaccompanied Alien Child Protection Act is a pro-children bill that addresses the special circumstances of unaccompanied alien children with respect to their 

particular custodial and legal needs. I look forward to working with my colleagues 

on this important piece of legislation. 

Thank you again, Mr. Chairman.

f78

Florence Immigrant & Refugee Rights Project, Holly S. Cooper, Florence, 

Arizona 

MENTALLY RETARDED CHILD HIGHLIGHTS NEED FOR S121

Juan Carlos (real name withheld) crossed the border on October 6, 2000. He was 

placed in a county jail in Yuma, Arizona because there was no room at the INS shelter. After space became available at the INS shelter, Juan Carlos was moved the 

Southwest Key in Casa Grande, Arizona. 

Juan Carlos, however, was transferred out of the shelter only twenty-four days 

after his arrival. On November 3, 2000, Southwest Key requested Juan Carlos be 

removed from the program and recommended he be placed in a juvenile jail. Staff 

believed he did not take the rules of the shelter seriously because he would smile 

when reprimanded for what appeared to be escape attempts. Staff at Southwest Key 

also noted that client refused to participate in class due to withdrawn behavior. 

Juan Carlos was then transferred to a juvenile jail in Globe, Arizona. In the jail, 

Juan Carlos was ‘‘hog-tied’’ when he refused to go back to his cell. He was reprimanded for trying to hold another child’s hand. Undoubtedly, the boy was confused and had no understanding of what was happening. 

The Immigration Court in Phoenix contacted the Florence Immigrant & Refugee 

Rights Project to see if they could represent the child. The Florence Immigrant & 

Refugee Rights Project had not yet begun to work with children but agreed to visit 

Juan Carlos and engage in representation. I, Holly Cooper, agreed to assist Juan 

Carlos and I immediately noted that the child was so completely withdrawn that 

he could not even speak. He answered ‘‘yes’’ to every question, even if the question 

did not call for a yes or no answer. 

After several visits, I discovered the child could not speak Spanish. The boy was 

an indigenous Guatemalan who spoke and indigenous language. When an indigenous translator attempted to communicate with the child, it became apparent that 

the child was either so neglected or so mentally disabled that he could speak no language fluently. The child and I slowly began to develop our own special language, 

using key words that we both understood. I learned that the child had lived alone 

in Mexico since he was eight years old. He had no contact information for any family. He had no one left in Guatemala. The child guessed that he was about 15 years 

old but did not know his true age. Slowly, the child and I came to form a trusting 

relationship. 

On January 31, 2001 at 3:30 p.m., I was informed that the INS was having procurement issues with the jail in Globe and Juan Carlos was going to be moved to 

Los Padrinos Juvenile Hall in Los Angeles, California.The child was moved about 

one hour after the phone call. 

The next day, with the help of another child, Juan Carlos called me collect from 

a staging area in San Diego. The children all stated that they had not eaten in 

twenty-four hours. He asked the me, ‘‘Will I be going to a better place?′′

The next day the child was admitted to Los Padrinos Juvenile Hall. I then requested a psychological evaluation for the child, but was told that he would be provided a psychological evaluation when he arrived at Tulare County Juvenile Jail in 

Visalia, California. Twelve days later Juan Carlos was transferred to Tulare County 

Jail. The same day of the transfer, a social worker approached Juan Carlos to see 

if a psychological evaluation was necessary. The social worker said the child would 

not get a referral because he was merely a behavioral problem because he refused 

to talk to her. 

The INS said that they would not transfer the child back to Arizona but they 

would allow his court case to stay in Arizona. Knowing I could not adequately represent him due to the distance between Florence, Arizona and Visalia, California. 

I tried to find a volunteer lawyer to help Juan Carlos but Visalia, California was 

four hours from either Los Angeles or San Francisco. No attorney could help. I then 

personally paid for a plane flight and transportation to visit Juan Carlos because 

as attorney of record I had to prepare for his legal case. 

On March 6, 2001, Juan Carlos was transferred back to the Gila County Juvenile 

Detention Center in Globe, Arizona. Then in May 2001, INS agreed to transfer Juan 

Carlos back to the shelter at Southwest Key. 

I continually requested a psychological evaluation for the child. The INS finally 

agreed to a psychological evaluation. The INS sent Juan Carlos to a psychological 

examination where a doctor conducted a thirty-minute exam translated by a deportation officer. 

79

The attorney then begged INS to have a private psychologist do a comprehensive 

examination of Juan Carlos. The INS agreed to the evaluation only if the child 

would agree to waive the psycho-therapist privilege. 

The psychologist discovered that Juan Carlos is mildly retarded and has the maturity level of a five to six-year old. Juan Carlos eventually won his asylum case. 

Juan Carlos’ request for state court jurisdiction for purposes of Special Immigrant 

Juvenile Visa status was never adjudicated. Juan Carlos currently lives in foster 

care in New York. The child was detained for eighteen months and was released 

on February 26, 2002.

This case highlights the following: 

(1) Why a guardian ad litem is necessary: If Juan Carlos had been appointed a 

guardian ad litem, the child could have had someone determining his ‘‘best interest’’ 

from the initiation of proceedings. The guardian could have understood that Juan 

Carlos was mentally incompetent from the outset and there never would have been 

the initial misunderstanding which sent Juan Carlos to juvenile jail for seven 

months. Presumably, the guardian could make an independent request for a psychological evaluation that would have been respected. 

(2) Why INS should not adjudicate consent requests: In this particular case, INS 

never adjudicated the consent request. Even though INS stipulated that the child’s 

family was in Mexico and that the child was mentally disabled, the INS still 

thought it was in the child’s best interest to be deported to Guatemala where he 

had no family. INS’ job is to deport people to their countries of origin if there is 

no legal relief under US immigration laws. The INS cannot create a special firewall 

in their judgment for children. The INS cannot realistically articulate a child’s best 

interest while seeking deportation. Also, INS has NO specialized training in determining what is in a child’s best interest. 

SOCIAL WORKERS/CLINICIANS WORKING IN THE INS SHELTERS CANNOT PROVIDE FOR

CHILDREN’S PSYCHO-SOCIAL NEEDS BECAUSE COMMUNICATIONS ARE NOT CONFIDENTIAL AND SOCIAL WORKERS/CLINICIANS ARE VIOLATING THEIR LICENSING REQUIREMENTS

At Southwest Key, an INS shelter, there are two categories of individuals who 

pose liability concerns for INS: (1) the clinician and (2) the caseworker. Communications to both these persons should be confidential and when the worker violates that 

right, it subjects INS to potential liability for violation of the child’s privacy. 

The clinician provides for each child’s pyscho-social needs while detained. For example, if a child is struggling to deal with the psychological affects of child abuse, 

the child would confide in the clinician at Southwest Key. However, because the clinician is under the umbrella of the INS enforcement office, the communications between the clinician and the child are NOT confidential. The clinician has weekly 

meetings where s/he discusses each child’s case with the caseworkers and the program director. The information a child discloses can prejudice the child because the 

information can be given to the INS trial attorneys and the INS deportations officers. Many times the reports are used to transfer a child from a shelter environment 

to a jail. 

In one instance the Program Director at Southwest Key recommended the removal from the shelter a child diagnosed with Post-Traumatic Stress Disorder. This 

‘‘referral’’ letter always results in the child being placed in a juvenile jail and removed from the shelter. Thus, the psychological evaluation of the child was in part 

used to have him removed from the shelter. Moreover, the shelter staff have used 

declarations from other children to serve as witnesses against their peers. 

The caseworker also poses unique ethical questions for the INS. First, the caseworker’s title is often translated into Spanish as ‘‘trabajador social’’ which means 

‘‘social worker’’ in English. Representation of oneself as a social worker invokes the 

ethical responsibility of confidentiality on each caseworker. 

Notwithstanding the title confusion, the role of the caseworker/social worker also 

sends mixed signals to the children. The caseworkers call the children their ‘‘clients.’’ From the child’s point of view this person is there to help them and serve 

their needs - just as a social worker would be in a normal setting. The caseworker 

is responsible for helping each child seek reunification with his or her family. The 

caseworker initiates contact with the family and verifies if the family members are 

documented or undocumented. If the family members are undocumented, the caseworker/social worker would report the family member’s legal status to the INS deportation’s branch. Moreover, if parents or brothers and sisters are in the country 

illegally, the INS will use the child as bait until the parents or siblings ‘‘come forward’’ to be processed for deportation. Thus, a caseworker telling the INS that a 

child’s parents are in the U.S. illegally can mean long-term detention for the child. 

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On the one hand, the caseworker sends the signal to the child that they are ‘‘helping’’ the child reunify with family, one the other hand, the caseworker in most cases 

reports illegal family members to the INS and inhibits the child’s ability to be released from detention. 

Thus, the S 121 Bill would help create a firewall between social workers/clinicians 

and the INS’ enforcement responsibilities. Currently, the system in unworkable. 

Children cannot trust the clinicians. The children are coping with trauma of child 

abuse, persecution, and mistreatment by smugglers. The children must have an opportunity to voice their concerns to a person who they can trust and who can respect 

the child’s privacy. Moreover, the currently system violates each child’s privacy 

rights and could subject the INS to enormous liabilities if the system is not promptly remediated. 

PROVIDING FREE LEGAL ASSISTANCE TO ‘‘TRAFFICKED’’ CHILDREN DECREASES THE

SMUGGLER’S ACCESS TO THE CHILD

Zheng Wei Zun (real name withheld) had been represented by an attorney for 

over one year. The attorney never appeared in court yet promised her they would 

help her win her case. The case was continually reset by the court because the attorney failed to appear. 

When the Florence Immigrant & Refugee Rights Project finally began its representation of detained minors, the Court requested that the attorneys help the 

child. Within three months, the child was granted political asylum and released 

from detention. The child later confessed that she feared her attorney because she 

believed she was hired by a smuggler. 

This fact pattern has repeated itself countless times. It is relevant because it 

shows:

(1) economic waste because children are detained for longer periods of time at government expense while incompetent attorneys drag cases on for unconscionable periods of time; 

(2) psychological harm to children because they are living in a detention setting 

while the ‘‘private’’ attorney fails to adequately represent the child; 

(3) when children are provided with a ‘‘free’’ alternative to an incompetent attorney, the child will inevitably choose an attorney who they trust and who can handle 

their cases as expeditiously as possible. 

(4) attorneys often are the smuggler’s link to the child. Children often do not even 

know the attorney that is representing them. ‘‘Smuggler’’ attorneys help the smugglers track the child after release because the attorney is notified where the child 

is detained and when the child will be released. 

THE DISTRICT DIRECTOR SHOULD NOT DETERMINE WHETHER THE STATE COURTS HAVE

JURISDICTION OVER DETAINED ABUSED, ABANDONED. NEGLECTED CHILDREN

Currently, the INS District Director determines whether abused, abandoned and 

neglected children in its custody can become wards of the state. The District Director of Phoenix INS has never granted consent on any case where the child is detained in Arizona. As a result, the child must file a mandamus action in federal 

court if they want access to the state foster care system. This places an enormous 

burden on the child. 

The District Director defines her role in this process as being a threshold adjudicator of whether the child qualifies for Special Immigrant Juvenile Visas. If she believes the child is not credible or state court proceedings would not be in the child’s 

best interest, she ‘‘sits’’ on the consent request. The District Director is any every 

sense making a preadjudication of the child’s case. The District Director has no 

training in child welfare, in child abuse or child psychology. The consent adjudication process should be in the hands of an independent decision-maker who has specialized training in child welfare. The inquiry of whether the child should become 

a ward of the state, should be left in the hands of the state court judge.

Statement of Bob Glaves, Chair, Legislative Committee, Chicago Bar 

Association, Chicago, Illinois 

f Mr. Chairman Kennedy and Members of the Immigration Subcommittee: 

My name is Bob Glaves and I am the Chair of the Chicago Bar Association’s Legislative Committee. The Chicago Bar Association (CBA) is the over 22,000 member 

voice of the Chicago area legal community, and I submit this testimony today to unVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00084 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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derscore the CBA’s strong support for the Unaccompanied Alien Child Protection 

Act of 2001 (S. 121). This critical legislation would begin to correct a major injustice 

in our country by insuring that unaccompanied immigrant children fleeing persecution and terror in their home countries are treated humanely as children and afforded basic due process rights. 

Each year, about 5,000 children arrive in the U.S. (many in the Chicago area) 

without appropriate documentation and without a parent or guardian to care for 

them, and at that point the Immigration and Naturalization Service (INS) takes the 

children into custody. These ‘‘unaccompanied children’’ may be fleeing any number 

of dangerous circumstances, including smugglers; parental abuse or neglect; war; 

child prostitution; female genital mutilation; forced labor; and forced recruitment as 

child soldiers. 

More than anyone, these children need the due process protections that are the 

backbone of our country. Yet in too many cases, they are forced to proceed with no 

legal representation and no guarantee that will be treated fairly and humanely or 

afforded even the most basic due process rights. 

Under the current system, there is an inherent conflict in the role of the INS. The 

INS is responsible for the care and custody of these children and also is charged 

with prosecuting their removal proceedings, which includes trying to disprove their 

claim for asylum or other immigration status. Individuals are eligible for asylum if 

they can prove that they have a wellfounded fear of persecution based on their race, 

religion, nationality, political opinion or membership in a particular social group. 

The standard for children seeking asylum is the same as for adults, which means 

the burden of proof lies on the children who, lacking familiarity with the U.S. legal 

system and often with the English language itself, must prove their claims in adversarial court proceedings. Their opponent, in contrast, is a highly trained, educated 

legal staff with virtually unlimited resources. 

The existing system governing unaccompanied immigrant children runs completely contrary to the well-established principles that govern other cases involving 

the status of vulnerable children in the United States. In all other cases, our legal 

system is designed so that every effort is made to protect the best interests of the 

children. For instance, in proceedings involving allegations of child abuse or neglect 

in Illinois, during the pendency of the proceedings children are:

(1) Placed with a responsible caretaker, 

(2) Evaluated by experts in child welfare and provided with necessary services, 

and 

(3)Monitored by a private social services agency to insure proper care. 

In other legal proceedings, children always are represented by an independent attorney and a guardian ad litem is appointed to advocate for the children’s best interests. In addition, in more complex cases, a court appointed special advocate is assigned to thoroughly monitor the child’s wellbeing throughout the proceedings. This 

system insures that the children receive safe and proper care while the case is pending and that there is a full and fair hearing of the merits before the judge renders 

a decision. 

Unaccompanied immigrant children, in contrast, are guaranteed none of these 

statutory protections we take for granted in all other cases involving children. Specifically,

• As noted above, the party responsible for their care (the INS) is also the 

party charged with prosecuting their removal proceedings, an inherent conflict of interest. 

• While the locked facility where these children are housed in Chicago is 

considered a model, in other parts of the country children often are housed 

in juvenile correctional facilities without access to appropriate services. 

• The children do not have a guardian or other party to look out for their 

best interests. 

• There is no guarantee that these children will have legal representation 

in the adversarial removal proceedings and they too often do not. The CBA 

continues to work with the American Bar Association (ABA) and the nationally acclaimed Midwest Immigrant and Human Rights Center (MIRHC) to 

recruit and train top attorneys from throughout the legal community to represent these children on a pro bono basis, and the ABA is coordinating similar efforts throughout the country. In fact, pro bono attorneys throughout 

the country already handle hundreds of cases for these children. Despite 

these efforts, however, 50% of the children go unrepresented in these cases 

due to the inherent flaws in the structure of the current system. 

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• Children are often asked by the INS to sign documents they cannot read 

or understand without legal representation or are summarily transferred 

without notice to their legal counsel. 

The lack of these basic due process protections would be bad enough for adults 

familiar with our country, but it is absolutely devastating for traumatized children 

unfamiliar with the language and culture who find themselves forced to navigate 

the complex immigration system alone. The system must be changed. 

The proposed legislation would go a long way towards remedying these problems 

by, among other things, separating the custodial and prosecutorial responsibilities 

of the INS, appointing independent parties with expertise in child welfare as guardians, and guaranteeing that children in these proceedings are represented by independent legal counsel. The bill would not expand the remedies available under current immigration law. While S. 121 will require some amendments to clarify the 

guardian ad litem and attorney representation provisions, we believe this bill is a 

critical and necessary first step towards creating a fair and appropriate procedural 

framework for cases involving unaccompanied immigrant minor children. 

Contrary to the claims of the INS, internal restructuring of the INS is not a valid 

substitute for this legislation. While the INS commitment to undertake internal reforms regarding their treatment of children is laudable, it cannot solve the inherent 

INS conflict in these cases (i.e., the INS serving as both caretaker and prosecutor), 

nor can it possibly insure basic due process protections for these children. Only a 

system of checks and balances, with independent legal counsel and guardians, can 

insure these protections. 

The inherent conflict of the INS in these cases is illustrated well by recent events 

in Chicago. Until recently, children held in detention here were regularly and proficiently given basic ‘‘Know Your Rights’’ presentations by MIRHC and its pro bono 

legal counsel in the Chicago area. However, the INS recently has barred these presentations, and local advocates have informed us that the local INS Juvenile Coordinator is now giving these presentations. 

It doesn’t require a lawyer to recognize that in taking this action, the INS has 

turned our entire justice system on its head. Imagine a detained adult prisoner (let 

alone a child) asking to consult with an attorney and then getting a visit from the 

State’s attorney who will prosecute him to explain his rights. That of course is 

unfathomable in our country, yet that is exactly what is happening to detained unaccompanied immigrant children right now. And the existing system allows the INS 

to do it, with absolutely no recourse for the minors, which underscores why this proposed legislation is so necessary. 

In short, legislation to provide fundamental protections for these children is more 

necessary than ever. We strongly support the core principles of S. 121, which goes 

to the heart of what our nation of immigrants is built upon, and we hope you will 

do so too. Thank you for your consideration.

Statement of Hon. Orrin Hatch, a U.S. Senator from the State of Utah 

f I am pleased that our attention is focused today on the plight of children who lack 

lawful immigration status in the United States. In the aftermath of September 11, 

2001, we have, in a very bipartisan manner, tightened some of the immigration laws 

and procedures that have left us vulnerable to those who would seek to do us harm 

and we will continue to do so. Accordingly, it is my sincere hope that the Senate 

will quickly pass the Enhanced Border Security and Visa Entry Reform Act of 2001, 

which the House passed last year. That bill, which is a measure of true bipartisan 

support, is a product of many hours of hard work and is desperately needed. However, we must also remember our humanitarian legacy when it comes to special consideration of the immigration status of particularly vulnerable classes of people. 

Sadly, more than a few foreign-born children arrive in the United States each 

year without parents or legal guardians. In 1999, for instance, more than 4,600 such 

children entered the country. Some children are rented—yes, you heard me correctly, rented—to unscrupulous smugglers, who then use the children to perpetuate 

the fraudulent entry of others who either lack a valid visa or have no intention of 

abiding by the terms of the same. Other children come in hopes of escaping desperate circumstances and persecution in their home countries. Whatever the case, 

unaccompanied minor children are often victims in the truest sense of the word. 

Once here, these children, who usually speak little or no English, face a very complex legal process. In addition, the INS must determine where to place the children 

pending the oftentimes lengthy ordeal. All too often, these children have been unVerDate Mar 21 2002 14:38 Mar 13, 2003 Jkt 085520 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 C:\HEARINGS\85520.TXT SJUD4 PsN: CMORC
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necessarily placed in highly-secured facilities, co-mingled with violent juvenile offenders. 

Today, I am very interested in the discussion of S. 121. Particularly, I would appreciate the comments of the witnesses regarding (1) the need for legal counsel and 

guardians ad litem to assist unaccompanied children and (2) the proposed change 

to transfer custody of unaccompanied minor children from the INS to a separate office within the Justice Department, and why it is suggested that both are necessary. 

However, before I end, I would also like to briefly discuss an equally important 

and related issue: that of a slightly different class of children—those being longterm illegally resident children. That is, minor children who were illegally brought 

to and remain in the United States through no fault of their own. Long-term illegally resident children often are not even aware of their illegal status in the United 

States. They are, by law, accorded the right to education through high school. However, they are provided no independent ability, no matter what their individual accomplishments, to become lawful permanent residents. That is why I have introduced student adjustment measures. I should also recognize and commend a similar, but different approach to this issue sponsored by my good friend, Senator Durbin. We recognize that although the parents of long-term illegally resident children 

knowingly remain in the United States in violation of the law, their children are 

assimilated into American culture; they attend school, participate in extracurricular 

activities, and earn scholarships to college. They are largely intent on being contributors to society, and want to better themselves. Current law provides a disincentive 

for that to happen. They lack the right to work. It is very difficult for them to obtain 

the college degrees so many of them desire. For instance, under current law, individual states are not permitted to allow long-term illegally resident children to pay 

in-state tuition despite having what would normally be resident status for tuition 

purposes. 

To illustrate, allow me to briefly mention the moving story of one of my constituents, Danny. When he was 6 years old, Danny’s mother illegally brought him into 

the United States. After a very difficult 8 years, Danny was finally abandoned and 

left to roam the streets of Salt Lake City. While Danny had been attending school, 

he dropped out so he could earn enough money to survive on his own. Finally, 

Danny met Kevin King, the owner of a Utah landscape company, who agreed to hire 

him. Discovering that Danny had no home, Kevin invited Danny to live with him 

in what he believed would be a temporary arrangement. In a recent letter to me, 

Kevin mentions that, ‘‘The first couple of months together I learned a great deal 

about Danny. I learned that one of the things he missed most was being able to 

go to school.’’ Kevin then made the necessary legal arrangements for Danny to resume his education. Although Danny had a full year of classes to make up, he did 

so under Kevin’s care by attending night and summer school, and even taking some 

correspondence home study courses. 

On September 25, 2001, Kevin adopted Danny as his son. However, because of 

the date of the adoption, Danny is ineligible to become a lawful resident of the 

United States. Instead, he lives in legal limbo, ever-fearful that the INS may take 

steps to remove him from the only true family he has ever known. He cannot legally 

work, and securing a college degree is proving difficult and costly. However, that 

has not stopped Danny. He is now in his third semester of college at the University 

of Utah and I am proud of him. 

Again, I quote from Danny’s father’s letter. ‘‘Danny is exactly what our country 

needs more of. He is a natural born leader with charisma and intelligence and a 

drive that will take him wherever he wants to go. But this will not be possible if 

Danny is unable to obtain permanent residency.’’ Danny also writes and states, ‘‘My 

father gave me the gift of feeling . . . and the opportunity to dream.’’

Danny’s story is one of thousands. The student adjustment bill I introduced last 

year, called the Dream Act (S. 1291), can remedy this grave situation. It provides 

for earned or incentivized adjustment. It does not grant amnesty. Qualified children 

must be long-term illegal residents of the United States, meaning those who entered 

the United States only recently are ineligible for adjustment of status under the bill. 

Further, the child must have good moral character ensuring that we do not extend 

any benefit to those who do not deserve it. 

In short, I am very pleased that we are discussing these issues today and commend the chair and Senator Kennedy for their leadership and for holding this hearing.

f84

Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 

Vermont 

First, let me thank Senator Kennedy for holding this hearing about a most vulnerable population—unaccompanied minors entering the United States. I would also 

like to praise Senator Feinstein for her consistent attention to this important issue. 

I remember that while this Committee and others in Congress were debating the 

fate of Elian Gonzalez, Senator Feinstein sought to have us focus on all the children 

who arrived here as Elian Gonzalez did. Early last year, she introduced the Unaccompanied Alien Child Protection Act. 

Senator Feinstein’s bipartisan bill would establish an Office of Children’s Services 

to coordinate the government’s treatment of unaccompanied minor aliens. That office would be responsible for taking care of unaccompanied alien children while their 

immigration claims were heard. The bill would forbid detaining these children in 

facilities for adults or delinquent children and ensure that all such children would 

have counsel and a guardian ad litem. It would also create a special immigrant juvenile visa. 

We will hear today from strong proponents of S. 121, and we will also hear from 

the INS and the Justice Department about its concerns. I know that Commissioner 

Ziglar is committed to improving conditions for children in the immigration system, 

and I appreciate his involvement in this process. I would hope we can work with 

the INS and with the Justice Department to do something this year to protect children. Senator Feinstein’s bill does many important things, and deserves the full consideration of this committee.

Statement of Hussein Sadruddin, Soros Postgraduate Justice Fellow, Lawyers’ Committee for Civil Rights Under Law of Texas, San Antonio, Texas 

f Mr. Chairman Kennedy and Members of the Immigration Subcommittee: 

My name is Hussein Sadruddin and I am a Soros Postgraduate Justice Fellow 

with the Lawyers’ Committee for Civil Rights Under Law of Texas, Immigrant & 

Refugee Rights Project (‘‘Texas Lawyers’ Committee ’’). The Texas Lawyers’ Committee is the only statewide organization dedicated to defending the rights of immigrants and refugees in the state of Texas. I submit this testimony today to highlight 

serious concerns about the treatment of minors is INS custody. I have had the opportunity visit various juvenile detention facilities and have provided assistance to 

many minors who are in INS custody. The Texas Lawyers’ Committee also assists 

in providing ‘‘Legal Rights’’ presentations to minors in Liberty County Juvenile Detention Facility in Liberty, Texas as well with legal assistance to minors in El Paso, 

Dallas and San Antonio, Texas. 

I would like to bring to your attention three cases which highlight the treatment 

of unaccompanied minors in Texas.

(A) Case of I.A.F–P: This thirteen (13) year old minor was placed in a secured juvenile detention facility in Liberty Texas for nearly a year and a 

half. After conducting a rights presentation, we found the child to have a 

credible fear of returning back to his home country. His pro bono counsel 

filed an appeal in his case but prior to his appeal, the Service unlawfully 

removed the child back to Honduras. Furthermore, the child was never 

turned over to the mother by the Honduran authorities and is now missing. 

(B) Case of C.D.: The Immigration & Naturalization Service placed this sixteen-year-old Chinese national in a secured juvenile facility for nearly twoyears. Nearly 3 months ago, his pro-bono counsel noticed a change in his 

behavior. The child refused to eat or talk to anyone. He refused to take his 

medication. Despite several requests from the pro bono counsel as well as 

other non-profit organizations, INS did not provide mental health assistance to the minor for months. Once such assistance was eventually provided, it was revealed that the child was suffering from sever psychosis and 

needed immediate hospitalization. His mental condition was severely worsened by his lengthy stay in the secured facility. Furthermore, INS initially 

refused to transfer the child to a non-secure hospital recommended by INS’s 

own physicians. Eventually, upon requests from various non-profit advocacy 

organizations as well as faith-based groups, INS finally transferred the 

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child to a hospital nearly 3 months after the request for mental health evaluation was made. 

(C) Case of N.E.K.: This is a sixteen year old child from Burundi who came 

to the United States as a stowaway after both his parents were brutally 

murdered in Burundi. Despite the lack of any criminal record or behavioral 

problems, he was placed immediately in a secured juvenile facility. Although the child was detained in the San Antonio INS District, the Houston 

INS District was processing his case. No nonprofit agency was ever notified 

of this child until a sympathetic jailer contacted an organization requesting 

assistance for a child who has been ‘‘crying continuously for a week’’. Two 

weeks later, he was transferred to an adult facility after a faulty dental examination revealed that he was over the age of eighteen. A thorough evaluation of the dental exam revealed that the exam was incorrect and the 

child war re-transferred to secured juvenile facility after spending nearly a 

week in an adult facility.

The cases listed above merely shed a light on a larger problem that the advocates 

face daily. The unaccompanied children are constantly placed in facilities that are 

designed to hold criminal juveniles. The non-profit organizations dedicated to providing assistance to minors in INS custody are routinely not notified of where the 

minors are being held. The unaccompanied minors in Texas are routinely placed in 

locations that are far away from cities and away from agencies that maybe able to 

provide assistance to them. In many facilities, minors are only allowed to contact 

organizations by calling them collect. 

The treatment of many of these unaccompanied minors is abhorrent. In one secured facility, minors who were considered ‘‘flight risk’’ or ‘‘behavioral problems’’ 

were routinely stripped naked and placed in solitary confinement as punishment. 

In another facility, unaccompanied minors were continuously placed in chains and 

shackles. 

Our office has represented numerous unaccompanied minors and has assisted 

many non-profit organizations and pro bono attorneys in their representation of unaccompanied minors. Unfortunately the tales of physical and verbal abuse and lack 

of compassion for the treatment of these minors are neither unique nor scattered. 

While S 121 is a step in the right direction, we request that the committee take 

a hard look at the treatment of unaccompanied minors in this country. The Immigration & Naturalization Service has continuously shown that their interest lies in 

detaining and removing the minors rather than looking out for the child’s ‘‘best interest.’’ A change in the process by which unaccompanied minors are treated in this 

country is overdue. 

Lastly, I would like to than the committee for giving me an opportunity to share 

my thoughts and concerns about the unaccompanied minors with you. I am at your 

disposal if you need any further information.

Æ