December 2, 2009

XII. Unaccompanied Minors

Transfers are uniquely problematic in the case of non-citizens who are unaccompanied minors. An unaccompanied minor is someone below the age of 18 who enters the United States without parents or other legal custodians able to provide him or her with protection and assistance. Since these children are undocumented, they are subject to deportation and most are detained while they await the outcome of their deportation or asylum hearings. The United States policy of detaining unaccompanied minors, particularly those who are seeking asylum, contravenes established international standards on the care and treatment of children.[204] For decades Human Rights Watch has focused on the rights abuses that occur when children are detained far away from their communities of origin. As early as 1998 we recommended that the INS work to house non-citizen children near to their communities of origin, legal services, and support.[205]

Under current operational guidelines, when ICE first apprehends an unaccompanied minor, ICE is required to send him or her as soon as possible to a specialist facility run by the Office of Refugee Resettlement that is the least restrictive, smallest, and most child-friendly facility available. Therefore, as soon as ICE becomes aware that it has an unaccompanied minor in its custody, the agency “calls ORR and they tell them where the nearest open bed is, and that’s where the child goes.”[206]

The Office of Refugee Resettlement maintains 43 facilities for the detention of unaccompanied minor children throughout the United States. The limited number of facilities combined with the increasing number of unaccompanied minors placed in detention (approximately 10,350 in 2007)[207] has exacerbated problems caused by transfers. This is because unaccompanied children are often placed in facilities that are even further away from their support networks than are adult detainees, since there are so few facilities available to accommodate children.[208]

The effects of transfer upon children are really stories of unintended consequences, since the laudable goal of placing children in the least restrictive and most child-friendly facilities has motivated the policy of housing children in facilities run by ORR. Nevertheless, these placements often separate children from pro bono attorneys willing to help them or extended family members who might be able to provide some support. They may also alter the law that will be applied in their deportation cases. According to one expert specializing in this area, “What might be best for the child may not be [the] best thing for their case. We are faced with terrible choices. Transfer of children to ORR facilities often just puts people in untenable situations.”[209]

Zhen Ching Shui, a Chinese citizen, was put on a boat by his parents while he was a teenager because he had been threatened with sterilization by China’s birth planning department.[210] Zhen was 17 years old when he reached where his uncle lived in Guam. Since he did not possess a valid entry document, he was placed in detention in a facility for unaccompanied minors in Phoenix, Arizona. Although Zhen’s uncle retained an attorney for him in Guam, the lawyer experienced difficulties in representing his client because of the distance between them. Zhen filed a motion to change venue to Guam, but it was denied. As a reviewing court explained,

Even had the immigration judge granted Zhen’s motion to change venue for the removal proceedings to Guam, Zhen would have remained in physical custody in Arizona.... The original reason for Zhen’s transfer to Phoenix was the lack of a juvenile detention facility on Guam.[211]

An expert working with children in ORR facilities explained to Human Rights Watch how unaccompanied children can sometimes be transferred over and over again throughout the system, especially if they begin exhibiting behavioral problems that ironically may be exacerbated by detention itself. According to this expert, the more restrictive facilities are often the ones that break down a child’s willingness to fight against his or her deportation:

Many of these children are highly traumatized even before they get here. Lots of nightmares, lots of behavioral problems—that redoubles on itself because when they have behavioral problems they get transferred to increasingly secure systems, [such as a secure facility in Indiana].... For the kids in Indiana, the facility was very restrictive and the court was a five-hour bus ride each way. Oh my god, some of the kids detained there would say “just send me home if you’re going to keep me like this.” The kids just give up. They just give up. These are kids who are coming from places where they are highly likely to be harmed if they go back, but they give up anyway.[212]

In another case documented by Human Rights Watch, a 17-year-old boy, Ramon M., was eligible for special immigrant juvenile status (SIJS), a classification that allows certain unaccompanied minors to remain in the United States.[213] Ramon had counsel representing him and an ability to prove dependency for foster care purposes in Arizona. However, he was transferred 1,660 miles away to the Southwest Indiana Regional Youth Village, an ORR facility in Vincennes, Indiana. ICE filed a motion for change of venue, which was opposed by Ramon’s counsel but granted by the immigration judge. Once venue was changed, it was impossible for Ramon to prove dependency under the state laws of Indiana without accruing six months of residency in Indiana. This time requirement caused Ramon to “age out” of eligibility for special immigrant juvenile status, which meant he lost the ability to remain lawfully in the United States.[214]

Corroborating this example, the same expert working in ORR facilities told Human Rights Watch that children’s legal cases often are negatively affected by transfers between distant juvenile detention facilities:

Sometimes the transfers can affect the client’s ability to qualify for SIJS. Sometimes the court isn’t informed that the child has been moved and they show up as a failure to appear. By the time that someone can concentrate on the case, it’s too late for them to apply for SIJS [because they have aged out], or to ameliorate [sic] the failure to appear ruling. It’s really so sad. A lot of times whether a child’s case was developed enough to see if they really had a chance to stay in the United States depends on whether the [pro bono attorneys] near to him or her were really overwhelmed. You might have a kid where the lawyers can do something for them, but then they get moved to a place where the lawyers are totally overwhelmed. They don’t stay long enough in one place to get the help they need.[215]

 

[204] United Nations High Commissioner for Refugees (UNHCR), “Refugee Children: Guidelines on Protection and Care,” Geneva: 1994, p. 37. (“Detention [of child asylum seekers] must only be used as a last resort and must always have a proper justification. For example, when identity documents have been destroyed or forged, a State might choose to detain an asylum seeker while identity is being established, but detention must be for the shortest period of time possible (CRC art. 37(b))”).

[205] Human Rights Watch, “Detained and Deprived of Rights: Children in the Custody of the US Immigration and Naturalization Service,” vol. 10, issue 4, December 1998, http://www.hrw.org/en/reports/1998/12/01/detained-and-deprived-rights, pp. 4-5 (recommending to the INS that it develop alternatives to detention that “include local social service agencies and foster families in the area in which the child was originally detained” and that “shelter-care facilities should be in major ports of entry to the Unites States, where culturally appropriate community resources and legal services are available. When possible, children should be placed in shelter-care facilities in the area in which they were originally apprehended or in which they have friends or relatives.”)

[206] Human Rights Watch interview with expert working with unaccompanied children detained by ICE and ORR, January 29, 2009 (anonymity requested for job security reasons).

[207] Administration for Children and Families, US Department of Health and Human Services, fiscal year 2007 statistics.

[208] As of fiscal year 2007, there were 43 facilities across the United States capable of accommodating unaccompanied children. These facilities were located in Arizona (4), California (8), Oregon (1), Washington (3), Illinois (2), Indiana (2), Texas (17), New York (1), Virginia (1), and Florida (3). Administration for Children and Families, US Department of Health and Human Services, fiscal year 2007 statistics.

[209] Human Rights Watch interview with expert working with unaccompanied children detained by ICE and ORR, January 29, 2009 (anonymity requested for job security reasons).

[210]Zhen v. INS, 11 Fed. Appx. 801, 802 (9th Cir. 2001) (unpublished decision) (stating that “As a teenager, Zhen had an altercation with agents of China’s Birth Planning Department, who then told his parents that Zhen would be sterilized at age twenty. Zhen’s parents, fearful for his safety, put him on a boat to Guam, where Zhen’s uncle resided.”).

[211] Ibid.

[212] Human Rights Watch interview with expert working with unaccompanied children detained by ICE and ORR, January 29, 2009 (anonymity requested for job security reasons).

[213] Special Immigrant Juvenile Status is codified at 8 U.S.C. Section 1101(a)(27)(J).

[214] Human Rights Watch interview with Emily M. (pseudonym), immigration attorney, Florence, Arizona, April 29, 2008.

[215] Human Rights Watch interview with expert working with unaccompanied children detained by ICE and ORR, January 29, 2009 (anonymity requested for job security reasons).