This report is based on research in California by Lee Tucker and Rosa Ehrenreich, consultants to the Children's Rights Project of Human Rights Watch, and on Lee Tucker's research in Arizona. The report was written by Rosa Ehrenreich and edited by Lee Tucker, Lois Whitman, the director of the Children's Rights Project, and Cynthia Brown, program director of Human Rights Watch. Other Human Rights Watch staff who offered helpful comments on the manuscript were Betsy Anderson, Dinah PoKempner, Allyson Collins, Alison Parker, and Linda Shipley.

We are grateful to the many individuals and organizations who helped to make this report possible. Immigration and Naturalization Services officials Alexander Aleinikoff, executive associate commissioner for programs; Ruben Cortines, director of detention management branch, Detention and Deportation Division; Elizabeth Herskovitz, detention and deportation officer; Ken Elwood, INS acting chief enforcement officer, Field Operations; and Joan Higgins, assistant commissioner, Detention and Deportation Branch, gave us essential background information and helped to facilitate our regional research. In California, we were assisted by Rosemary Melville and Leonard Kovensky, both of the Los Angeles District Office of the INS. Other INS staff members likewise helped facilitate our visit, as did Billy Burkette of the Los Angeles County Probation Department and the staff and management of the juvenile facilities at Eastlake, Sylmar and Los Padrinos. We are also indebted to the following individuals in Los Angeles's public-interest community: Judy London, Lorena Muñoz, Niels Frenzen, Gilbert Fung, Sharon Lowe, Carlos Holguin, Heidi Sanchez, Tim Everett and Vera Weisz, among others. In Arizona, we were aided immeasurably by the assistance of Gloria Goldman, Jennifer Huang, Patsy Kraeger, Deirdre Mokos, and other members of the immigration bar. From the Phoenix District of the INS we thank Bill Cravener, Pat Vroom, Annie López, and Jim Barrett, as well as the staff of the Southwest Key facility. We are indebted to Roy Petty and Hugo Ruiz for their generous assistance in Illinois. Finally, we would like to thank Mary Diaz and Wendy Young of the Women's Commission for Refugee Women and Children, and Annie Wilson and Susan Schmidt of the Lutheran Immigration and Refugee Service for their generous assistance.

Most of all, we thank the many detained children who shared their stories with us. To protect their privacy, their names have been changed in this report.

Children in INS detention are invisible: they have slipped through the cracks in America's legal system. They are arrested by the INS, detained in highly restrictive settings, and provided with little information about their legal rights and status. Unlike adults detained by the INS, unaccompanied children are not eligible for release after posting bond, and many them remain in detention for months on end, bewildered and frightened, denied meaningful access to attorneys and to their relatives. Ultimately, most of the children are deported. Because these children speak little or no English and are rarely aware of their rights under U.S. law, and because their relatives in the United States, if they have any, are frequently in the same plight, the children are extremely vulnerable. Since they are undocumented, often only the INS is aware of their whereabouts, and the INS has a lamentable history of refusing to cooperate with community groups and public interest immigration attorneys who might assist the children.

While conditions for children in INS detention vary greatly, they are typically extremely poor. This report discusses detention conditions in Los Angeles County and Arizona, and is based primarily upon site visits and interviews conducted by Human Rights Watch researchers in 1996. We found that in these places, conditions for children in INS detention violate the children's rights under international law, the U.S. Constitution, U.S. statutory provisions, INS regulations, and the terms of court orders binding on the INS.

Each year, thousands of children enter the United States illegally.1 Some of the children come with parents or relatives, but most come alone2; some are refugees, fleeing persecution in their home countries, while others hope to find work and send money home to their poverty-stricken families.

When they reach the United States (usually with little money and no ability to speak or understand English), these children face an uncertain future. Some manage to reach migrant labor communities or to find relatives already living in American cities, and they merge unnoticed into the American population, often becoming legal permanent residents in time. But many of these children are apprehended by the Immigration and Naturalization Service (INS), which in 1990 arrested 8,500 undocumented children, 70 percent of whom were unaccompanied by an adult guardian.3

Once in the hands of the INS, the children generally face deportation or exclusion proceedings, and most of the thousands of children arrested are either released to family members or expelled from the United States within a few days. But for a variety of reasons, some of the children are detained by the INS while their cases are pending; at any given time, over two hundred children are in longer-term INS custody.4 Between October 7 and October 14, 1996, for instance, the INS reported that 241 children were in longer-term detention; 28 percent of those children were fifteen or under, and 5 percent were under ten. More than half of the children had been in detention for over a month, and 20 percent had been in detention for more than four months. Most of the children were from Central or South America, with 22 percent from China and 9 percent from other countries (primarily in Africa or the Indian subcontinent).5

Some of the detained children are seeking asylum in the United States. The INS practice of detaining juvenile asylum-seekers runs counter to international standards: the United Nations High Commissioner for Refugees recommends that asylum-seekers should not be detained,6 and the United Nations Convention on theRights of the Child similarly states that detention of children (whether asylum-seekers or migrants) should be used only as a measure of last resort.7

Unaccompanied children are too young to be released on their own recognizance. This means that children who have no close relatives in the United States remain in detention, under the legal guardianship of the INS.8 This poses a troubling conflict of interest: the children are arrested, imprisoned, and frequently deported, all by the same agency that is charged with caring for them and protecting their legal rights. But the INS is subject to little meaningful outside monitoring and remains almost entirely unaccountable for violations of the children's rights. Many other nations solve this problem by separating the care-giving function from the prosecution function. In Britain, Canada, Denmark, and the Netherlands, for instance, unaccompanied children are placed in the custody of appropriate child welfare authorities while immigration officials assess the children's status.

In Los Angeles County, some juvenile INS detainees-those with previous contact with the juvenile justice system-are placed in one of several county prisons for convicted juvenile offenders. They are locked up and made to wear prison uniforms, although they are being detained for administrative reasons only: but for their INS status, they would be released. The children are given no personal privacy and cannot keep their personal possessions. In some facilities, they are illegally housed with the general prison population. Their access to counseling services and to recreational facilities is minimal. At an age when they should be in school, they are provided with few books, and those books are often in English, a language most of the children cannot read. Children are not permitted to leave the detention facilities except for court hearings, and on court dates theyare frequently transported to court in handcuffs, going without meals all day while waiting for their court appearances.

The children are given inadequate information about their legal rights, and frequently cannot obtain information in a language they understand. For non-Spanish speaking children, interpreters are rare to non-existent. Children are frequently transferred from one detention facility to another (sometimes in a different state) with no advance warning and no notice to their relatives or attorneys. Indeed, most of the children do not have attorneys. Children in detention have only limited access to telephones, and are sometimes denied the opportunity to speak privately with family members and legal representatives.

Conditions for juvenile INS detainees in Los Angeles County were the subject of a major class action suit brought in 1985. As a result of the litigation, the INS entered into a consent decree, agreeing to improve conditions nationwide and to keep all detained children in "non-secure" shelter care facilities befitting their status as non-criminal administrative detainees. (The INS defines "non-secure" facilities as facilities "without security fences or security hardware or other major construction typically associated with correctional facilities."9 ) Although some children remain in state juvenile detention facilities for convicted juvenile offenders, the INS has begun to place many children in privately operated shelter-care centers administered under contract with the INS. Unfortunately, conditions in some of the new shelter-care facilities are little better than in the county detention facilities.

In Arizona, for instance, children in INS custody are placed in a private secure facility in a remote town between Tucson and Phoenix. Children are not permitted to leave the grounds, which are surrounded by a tall wire fence, and may leave the locked building only under supervision. Many children have been confined to the facility for months without a single trip off the grounds, except for court hearings. The children live in crowded conditions, with very little free time, only one hour a day out of doors, and no personal privacy. Their access to reading materials is limited. These conditions violate INS regulations and the terms of the consent decree binding upon the INS, as well as international human rights standards.

In terms of access to legal representation, children in the Arizona facility fare even worse than their counterparts in Los Angeles County. To begin with, the region has few immigration attorneys who represent indigent clients. Furthermore, in blatant violation of the law, many children appear to receive no information about their right to be represented by an attorney, and the children are often denied the right to make telephone calls to their families or to attorneys. Local attorneys report difficulties in visiting the facility to contact clients, and the facility has repeatedly refused to permit legal service groups to make presentations to the children about their legal rights.

Overall, two factors combine to cause these inadequate detention conditions. First and foremost, the Immigration and Naturalization Service has consistently exhibited a combination of neglect and bad faith in dealing with the issue of children in detention. While there are undoubtedly numerous dedicated and conscientious individuals within the INS, many of the INS officials we encountered evidenced little concern for the rights of children. We encountered serious difficulties in obtaining accurate information about the number and status of children in INS detention, and, especially in Arizona, we had difficulty gaining access to detention facilities and getting permission to conduct confidential interviews with children. INS officials repeatedly contradicted themselves and gave us information that they knew or should have known to be false or misleading. Public interest attorneys report similar behavior from INS officials, and the testimony of the children we interviewed confirmed that INS officials and their agents were violating the law.

The problem is compounded by the dearth of funding for the provision of legal services to undocumented children. There has never been adequate pro bono legal assistance for juvenile INS detainees, and recent cuts in federal funding have worsened the situation. (In Los Angeles, for instance, virtually no one in the public interest legal community is currently able to represent indigent juvenile INS detainees.)

Furthermore, recent changes in the law prohibit all recipients of federal Legal Services Corporation funds from providing representation to undocumented aliens and from engaging in political activities or legislative lobbying. In consequence, although unaccompanied alien children are a uniquely vulnerable group, conditions for those children in INS detention are not adequately monitored or challenged. The INS thus remains free to violate children's rights in flagrant disregard of U.S. laws and international human rights standards.

Recommendations

Human Rights Watch recommends that the following steps be taken to ameliorate the situation:

Recommendations to the United States

* United States Attorney General Janet Reno and INS Commissioner Doris Meissner should order the INS to comply fully with all relevant national laws, regulations, and international standards concerning detention conditions for children.

* In particular, the U.S. government should work towards full compliance with the UNHCR Guidelines on Detention of Asylum Seekers, UNHCR Guidelines on the Protection and Care of Refugee Children, and the UNHCR Note on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum.

* To prevent conflicts of interest, the same agency should not be charged both with the care-taking and the prosecution of unaccompanied, undocumented alien children. Once apprehended by the INS, unaccompanied children should be placed in the custody of appropriate child welfare authorities.

Detention Policies and Conditions

* Unaccompanied children awaiting determination of their status should not be detained.

* Until arrangements have been made to transfer custody of unaccompanied children from the INS to appropriate child welfare authorities:

* Attorney General Reno should order that the INS immediately cease to place detained unaccompanied children in state juvenile justice or criminal justice facilities, or in other facilities with prison-like conditions.

* In emergencies where there is no alternative to placing children in juvenile prisons, placement should be for the shortest possible period of time, and children should be separated from the ordinary prison population.

* Safety considerations may require keeping some children in secure facilities to protect them against recapture by smugglers. Such determinations should be made only on a case by case basis, however, and such children should be detained in secure facilities only if a thorough and individualized investigation reveals no possible safe alternatives.

* Shelter-care facilities should be in major ports of entry to the United States, and, 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.

* Children in detention (whether in juvenile detention facilities or in private shelter-care facilities) should be permitted to retain their own clothes and personal belongings, receive an adequate education, to attend public school whenever possible, to visit public libraries, and to go on frequent educational and recreational field trips, as required by INS regulations.

* Children should be given unrestricted and private access to telephones and assisted in making calls. The INS should enable children to call relatives who cannot accept collect calls.

* The INS should investigate alternatives to detention and should develop a roster of local social service agencies willing to accept responsibility for an unaccompanied child's care, and/or a roster of foster families in the area in which the child was originally detained. The INS should develop such alternatives to detention with the assistance and approval of local public interest attorneys and community groups.

Access to Legal Information and Representation

* All unaccompanied children awaiting determination of their immigration status should have access to meaningful legal representation.

* No agency should receive a contract to provide shelter care for unaccompanied children unless it provides a full and complete plan for ensuring that all children in its facilities will have access to meaningful legal representation.

* The government should pay for independent legal representation for all unaccompanied children awaiting determination of their immigration status.

* Children should promptly and regularly receive information about their legal rights in a language they can understand, and they should be informed of all legally relevant information (court dates, etc.). They should also be informed both verbally and in writing of their right to contact the United Nations High Commissioner for Refugees.

* The INS should ensure that all written rights advisory forms are translated into the language spoken by each child.

* A sufficient number of trained interpreters should be provided at facilities housing unaccompanied children, as required by the shifting language populations in the facilities.

* The INS should keep children, their attorneys, and the local public interest bar informed of all legal and policy developments affecting the children.

Monitoring of Conditions and Practices

* The INS should keep statistics on all children apprehended and detained, including those detained for less than seventy-two hours and those who accept voluntary departure as an alternative to deportation proceedings. For those detained less than seventy-two hours, the following information should be recorded: place of apprehension; place and length of detention; whether the child was given the opportunity to call a parent, close relative or friend, or free legal services organization and whether such a call was in fact made; whether the child accepted voluntary departure, and, if voluntary departure was accepted, when, where, and to whom the child's custody was transferred. The INS should also maintain statistics of all children apprehended who do not accept voluntary departure, including the reasons for such decisions, i.e., the child proves she is legally in the country, the child asks to apply for political asylum, the child is eligible for adjustment of status, etc.

* The INS should keep accurate and comprehensive statistics on children in longer-term detention and their ultimate legal disposition. This information should be made available to the public.

* As long as the INS retains custody of unaccompanied children, each INS district should keep comprehensive statistics on the children's status, ensure that detention facilities provide appropriate standards of care, and maintain meaningful contact with children's attorneys and the immigration and public interest bars.

* In each INS region, an oversight committee should be formed to monitor conditions for detained children. Membership of the committee should include representatives of local social service and legal service groups, and the committee should be empowered to make spot inspections of all juvenile detention facilities and to recommend changes in placement options.

* No agency should receive a contract to provide shelter care for unaccompanied children unless it provides a full and complete plan for ensuring that all applicable laws, regulations, and standards will be complied with, including those found in the Justice Department's "Alien Minors Shelter Care Program, Program Guidelines and Requirements."

Recommendations to the United Nations High Commissioner for Refugees

The UNHCR should:

* Give priority to the needs of unaccompanied children, who are particularly vulnerable;

* Actively, extensively, and regularly investigate conditions in facilities in which unaccompanied children are detained to ensure that their treatment complies with international laws and standards and with UNHCR guidelines and policies; make its findings public;

* Pay particular attention to children's access to lawyers and interpreters, and to children's ability to contact family members or adult friends by telephone or otherwise;

* Talk with children privately and for whatever time is necessary to assess their situation and treatment;

* Request the U.S. Immigration and Naturalization Service to provide full information on the total number of unaccompanied children taken into custody, including those released or those who accept voluntary departurewithin seventy-two hours. This information should include the number, ages, and nationalities of the children; place of apprehension; place and length of detention; the number of children applying for asylum; the disposition of each case; when, where, and to whom each child was ultimately released; whether the children had access to legal representation, and the number of children who contacted family members or other adult friends;

* Meet regularly with nongovernmental organizations and lawyers' groups working actively on the issue of unaccompanied children and their treatment by the INS.

The situation faced by unaccompanied minors is inherently coercive.

-Perez-Funez v. INS10

Unaccompanied minors apprehended by the INS have a number of options. If they don't wish to risk losing in a deportation hearing, they can accept "voluntary departure"; if they do this, they are permitted to leave the United States voluntarily, at their own expense and within a certain period of time. Accepting voluntary departure is legally more advantageous than deportation, because an alien who is deported for "entry without inspection" (i.e. illegal entry) develops a record that will hamper any future attempts to enter the United States through legal avenues. Allowing illegal entrants to depart voluntarily is also economically beneficial to the United States, since deportation, unlike voluntary departure, is at the expense of the U.S. government. As a result, minors apprehended by the INS are ordinarily offered voluntary departure immediately following their detention, and some unknown, but probably large, percentage of children, especially those from Mexico, accept this option.11 Children who do not wish to accept voluntary departure, or who cannot afford to pay their own way home, may choose to admit deportability, and be sent home at the government's leisure and at government expense. Immigration judges cannot accept admissions of deportability from children under sixteen, however, unless they are represented by an attorney or accompanied by an adult friend, relative or legal guardian.12

Children who wish to remain in the United States may raise one of several defenses during deportation or exclusion hearings. Some children may have traveled to the United States simply to join family members who are U.S. citizens or legal residents. Children in this situation may petition for "adjustment of status" and permission to remain in the United States under the guardianship of their legally resident relative. But many children come to the United States to avoid persecution at home. These children can defend themselves against deportation or exclusion by making a political asylum claim, for a minor who can prove a well-founded fear of persecution at home will be granted permission to remain legally in the United States.13 Some minors may also be able to remain in the U.S. by claiming "temporary protected status" if they come from a country declared by Congress to be dangerously unstable, whether because of civil strife, war or natural catastrophes such as earthquakes.14 Finally, minors who are not fleeing from persecution and do not qualify for temporary protected status may, in some circumstances, qualify to remain in the United States as "special immigrants." This occasionally happens in the case of minors who have been away from their own country, and in the United States, for a long time, and who no longer have any family in their home country. These minors are declared wards of the court, and are placed by the state in foster care until the reach the age of majority.15

Deportation and exclusion hearings take place before immigration judges, and the INS is represented by trial attorneys. Raising any of the defenses discussed above is complex and sometimes costly: compiling persuasive evidence of a well-founded fear of persecution, for instance, may require extensive research and evidence-gathering. Unaccompanied minors are very poorly equipped to get through the legal process. Even most American-born children normally have only a vague grasp of the legal process, and foreign-born children-often with little education-find the process even more bewildering, since it is conducted using rules they don't know, and in a language they cannot understand. This makes it virtually impossible for children without lawyers to prevail in deportation or exclusion hearings.

Because of the uniquely vulnerable situation of unaccompanied migrant, asylum-seeker, and other undocumented children, both the international community and the United States have developed laws and guidelines aimed at protecting their rights and welfare.

International Standards for Children in Confinement

Numerous United Nations documents lay out guidelines that affect unaccompanied minors in INS detention. The U.N. Convention on the Rights of the Child,16 the U.N. Rules for Juveniles Deprived of their Liberty,17 and the U.N. High Commissioner for Refugees' Note on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum18 are among the most salient international documents. (See appendix for the text of these documents). These agreements and documents clearly establish minimum international standards for the fair and humane treatment of children in INS detention. The United Nations High Commissioner for Refugees is responsible for supervising states' compliance with the United Nations Convention Relating to the Status of Refugees. To that end, these documents require states to cooperate with the UNHCR.19

In general, international guidelines establish the following rights relating to legal representation:

* Detained minors have a right to contact and receive visits from friends, relatives, and legal counsel.

* Detained minors must be helped to understand their rights.

* All detained minors have a right to prompt legal assistance.

* Legal procedures should be prompt, expeditious and at no cost for detained persons without adequate means.20

International guidelines also establish minimum standards relating to confinement conditions:

* Unaccompanied children seeking asylum should not be detained.21

* If detention occurs it should be a measure of last resort and for the shortest appropriate period of time.22

* The best interests of the minor should be a primary consideration.23

* Detained juvenile asylum-seekers should not be held in prison-like conditions.24

* Detention should only be in facilities guaranteeing meaningful activities and programs promoting the development and health of the young person.25

* All efforts must be made to have the children released from detention.26

* Minors in detention have a right to education, medical treatment, exercise and recreation facilities.27

* Detained minors must be held separately from unrelated adults.28

* Detained minors are entitled to a reasonable degree of personal privacy.29

United States Legal Standards for Minors in INS Detention

Rights of Aliens In General

The United States Supreme Court has long recognized that most constitutional provisions are applicable to non-citizens, including those who illegally enter the United States. In Shaughnessy v. United States, the court insisted that aliens are entitled to due process before being deported: "Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."30 In Plyler v. Doe, the court reaffirmed its commitment to protecting the rights of aliens: "Whatever his status under the immigration laws, an alien is surely a `person' in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as `persons' guaranteed due process of law by the Fifth and Fourteenth Amendments."31

Rights of Children in General

In the United States, children have the same basic right to constitutional protection as adults, as the U.S. Supreme Court noted in the 1967 landmark case In re Gault: "Neither the Fourteenth Amendment nor the Bill of Rights is for adults only."32 In 1979, the court reaffirmed this principle in Bellotti v. Baird: "[A] child, merely on account of his minority, is not beyond the protection of the Constitution."33

In Bellotti, the Supreme Court was careful to point out that in addition to their basic constitutional rights, children may require additional legal protection: "As Mr. Justice Frankfurter aptly put it: `[C]hildren have a very special place in life which law should reflect. . . .[C]onstitutional principles [must] be applied with sensitivity and flexibility to the special needs of parents and children. . . . [While] children generally are protected by the same guarantees against governmentdeprivation as are adults, the State is entitled to adjust its legal system to account for children's vulnerability.'"34

There are only a few cases that deal specifically with the issues faced by unaccompanied children detained by the INS. But despite the relative dearth of case law, several federal courts have recognized the inherent vulnerability of children in INS custody. In Perez-Funez v. INS, for instance, a federal trial court in California found that the INS had violated the due process rights of unaccompanied minors by forcing them to accept voluntary departure from the United States (thus waiving their right to a hearing before an immigration judge) without their effective knowledge or consent. The Perez-Funez court noted that "the situation faced by unaccompanied minors is inherently coercive."35

Official INS regulations also acknowledge that the rights of children require special protection. Thus, the INS is normally required to notify a child's parent or guardian promptly if a child is apprehended. 36 The regulations also statethat an immigration trial judge "shall not accept an admission of deportability from an unrepresented respondent who is . . . under age sixteen and is not accompanied by a guardian, relative or close friend."37 This regulation is of particular importance, since unrepresented minors are often unaware of the option of applying for asylum, temporary protected status or special immigrant status. Far from family and friends, without access to legal counsel, and going through highly technical legal hearings conducted in a foreign language, these children may admit deportability in court only because they do not realize that they have other legal options. INS regulations such as this accord with the general judicial recognition that children are unusually vulnerable, and may be unable to understand fully the ramifications of their legal situation without adult assistance.38

Right to Counsel

In general, deportable aliens are entitled to counsel of their own choosing and at their own expense.39 Excludable aliens are entitled to counsel if they file asylum claims as defenses in exclusion proceedings.40 Although the government has no statutory obligation to appoint legal counsel for aliens who cannot afford their own lawyer, INS officials and immigration judges must inform aliens of their right to counsel and of the existence of free legal services provided by external groups such as legal aid organizations or pro bono lawyers' associations.41

Federal courts have taken the issue of the right to counsel extremely seriously: for instance, in Orantes-Hernandez v. Meese, a federal trial court observed that since aliens have both statutory and constitutional rights to a representative of their choosing, any INS regulations or practices that obstruct the right to counsel are invalid. The Orantes court went even further, however, noting that INS "detention officials must not only refrain from placing obstacles in the way of communication between detainees and their attorneys, but are obligated to affirmatively provide detainees with legal assistance."42

Statutory provisions only entitle aliens to counsel at no expense to the government. However, there is a strong constitutional basis for asserting that the government has an obligation to provide counsel at government expense for indigent detained children going through deportation or exclusion proceedings. This issue has not been directly addressed by U.S. courts. But here too, what little case law there is provides support for the view that detained children who cannot afford a lawyer have a constitutional right to government-appointed counsel.

The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal and state governments from denying liberty to any person without due process of law.43 Based on these due process guarantees, the Supreme Court held, in Gideon v. Wainwright, that the government must provide free counsel for indigent criminal defendants.44 In In re Gault, the court went further and held that due process requires the government to provide lawyers for indigent children in juvenile delinquency proceedings, even though these proceedings are technically civil, rather than criminal, in nature. The Court based its holding in Gault on the fact that children in juvenile delinquency proceedings have a strong liberty interest at stake.45

Like juvenile delinquency proceedings, deportation and exclusion proceedings are civil in nature, not criminal. Several courts have noted, however, that the consequences of a deportation proceeding are as grave as the consequences of many criminal proceedings, and a liberty interest is similarly at stake: thus, in Brancato v. Lehmann, the Sixth Circuit Court of Appeals observed that "although it is not penal in character, deportation is a drastic measure, at times the equivalent of banishment or exile. . ."46 More recently, a Fifth Circuit case, Johns v. Department of Justice, noted that "deportation is not a criminal action, but the consequences may more seriously affect the deportee than a jail sentence. The liberty of the individual is at stake and `meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standard of fairness.'"47

Two federal courts have commented directly on the issue of whether indigent aliens in deportation proceedings have a right to counsel at government expense, and have noted that when an alien's rights would be substantially impaired in the absence of counsel, the government may be constitutionally required to pay for the alien's counsel. In Escobar-Ruiz v. INS, the Ninth Circuit observed that "Congress' treatment of indigent aliens [in refusing to provide government-funded counsel] may not be constitutional as applied in individual cases. The Fifth Amendment guarantee of due process applies to immigration proceedings, and in specific proceedings, due process could be held to require that an indigent alien should be provided with counsel. . . ."48 The Sixth Circuit reached a similar decision in Aguilera-Enriquez v. INS, stating that "where an unrepresented indigent alien would require counsel to present his position adequately to animmigration judge he must be provided with a lawyer at the Government's expense. Otherwise, `fundamental fairness' would be violated."49

If there is a strong argument for asserting that the government may, at times, be required by the constitution to provide legal counsel for indigent adult aliens in deportation proceedings, the argument is still stronger as it applies to unaccompanied minors.50 Sitting en banc, the Ninth Circuit affirmed Escobar v. Ruiz and noted that "deportation proceedings are difficult for aliens to fully comprehend, let alone conduct, and individuals subject to such proceedings frequently require the assistance of counsel."51 If the proceedings are difficult for adults to comprehend or conduct, they are nearly impossible for children: as the Court in Perez-Funez observed, unaccompanied children in INS custody "encounter a stressful situation in which they are forced to make critical decisions. Their interrogators are foreign and authoritarian. The environment is new and the culture completely different. The law is complex.... In short, it is obvious to the Court that the situation faced by unaccompanied minors is inherently coercive."52

Human Rights Watch confirmed the Perez-Funez court's observations in the facilities we visited. We found that unaccompanied children in INS detention are routinely held in conditions that violate their statutory rights. Often, the children are not informed of their rights, and to the extent that they receive legal information, it is frequently in a language that they cannot read or understand, and it is often incomplete or misleading. Far from family and friends, surrounded by strangers, the children are expected to negotiate their way through a foreign and bewilderingly complex legal process. But without legal counsel, detained minors have no ability to obtain legal relief if detention conditions violate their constitutional or statutory rights, and they have equally little chance of successfully asserting legitimate legal defenses to deportation or exclusion. Thus, Human Rights Watch believes that the due process clause of the Fifth Amendment requires theUnited States government to provide counsel to indigent unaccompanied children who have been detained by the INS pending the outcome of deportation or exclusion hearings.53

Release Options and Detention Conditions for Unaccompanied Minors

The INS has broad discretion to detain non-citizens who are apprehended while attempting to enter the U.S. illegally, or who are apprehended after entry into the United States. But according to the INS regulations, as interpreted by the Board of Immigration Appeals, "an alien generally . . . should not be detained or required to post bond except on a finding that he is a threat to the national security . . . or that he is a poor bail risk."54 In the case of unaccompanied minors, the situation is somewhat more complicated, because "the INS cannot simply send [juveniles] off into the night on bond or recognizance."55 Children require a responsible adult to care for them.

Until the early 1980s, there was no codified INS policy governing the detention and release of unaccompanied minors. Some regional INS offices would release minors only to parents, while other offices would release children to any responsible adult or organization. In 1984, the INS Western Region, which consists of Washington, Oregon, California, Arizona, Nevada, Hawaii, and Alaska, adopted a policy stating that except in "unusual and extraordinary cases," minorswould be released only to parents or legal guardians. In practice, this led to the detention of many more minors, since few minors could locate adults satisfying the Western Region's stringent requirement. Children not released were placed in a variety of INS detention facilities, usually in state and county juvenile prisons.56

Conditions for detained children in the Western Region were egregious enough to prompt a class action suit, initiated in 1985. The suit, which ultimately became known as Flores v. Reno,57 challenged both the region's blanket detention policy for minors and the prison-like detention conditions. The suit resulted in two changes. First, the INS instituted a national policy governing the detention and release of unaccompanied minors. The changed policy, which applies to all INS branches nationwide, says that unaccompanied minors can be released to a parent, legal guardian or close adult relative, or to an unrelated adult designated by the minor's parents. In such cases, the minor's parents must execute "a sworn affidavit before an immigration officer or consular officer," stating that the designated adult is "capable and willing to care for the juvenile's well-being."58 In the absence of such an affidavit, and in "unusual and compelling circumstances and in the discretion of the district director," an unaccompanied minor may be released to any adult who executes an agreement to care for the child and ensure his or her presence at immigration proceedings.59

This INS policy governing the release of unaccompanied minors was upheld by the Supreme Court, which stated, however, that the INS has no constitutional obligation to release detained minors, as long as detention conditions are adequate.60 What constitutes "adequate" detention conditions has not been examined by the court, however, because the other change in INS policy brought about by the Flores suit was a settlement agreement governing detention conditions. The 1987 consent decree, administered by the district court for the Central District of California, obliges the INS to place detained minors in non-secure shelter-care settings, rather than in juvenile prisons.61 The consent decree forbids the INS from holding children in county detention facilities for more than seventy-two hours, except in emergencies, and lays out a detailed series of requirements for detention facilities (known as the "Flores requirements"). While the terms of the consent decree apply only to the Western Region of the INS, the INS adopted most of the Flores requirements as national policy. 62

The INS has attempted to meet the Flores requirements by contracting with private and non-profit organizations to provide shelter-care facilities for detained minors. According to the regulations for the "Alien Minors Shelter Care Program," these contracting facilities must meet or exceed state licensing requirements, and must "[deliver services] in an open type of setting, i.e., without security fences and security hardware or other major restraining construction typically associated with correctional facilities." Facilities must deliver services "in a manner which is sensitive to culture, native language and the complex needs of these minors."63

Like international standards and U.S. case law and statutes, the INS regulations for the Alien Minor Shelter Care Program reflect an awareness of the vunerability of unaccompanied alien children. The regulations require that facilities provide minors with "an integrated and structured daily routine which shall include, but not be limited to: education, recreation, vocational experience or chores, study period, counseling, group interaction, free time and access to legal or religious services." Specifically, the regulations also provide that:

* "Program rules and disciplinary procedures must be written and translated into . . . a language understood by the minor. These rules must be provided to each minor and fully understood by each minor."

* "Each minor is to enjoy a reasonable right to privacy."

* Facility staff must provide minors with "information regarding the availability of free legal assistance . . . the right to be represented by counsel at no expense to the government . . . the right to a deportation or exclusion hearing before an immigration judge . . . [and] that they may apply for political asylum or request voluntary departure in lieu of deportation."

* Staff at facilities "shall assist minors in making confidential contact with attorneys and their authorized representatives. An accurate and current reference list of voluntary agencies and attorneys who provide services without compensation will be posted and provided to all minors."

* Facility staff must ensure that minors have the opportunity to go on frequent field trips: "All minors shall be afforded opportunities for escorted visits to the surrounding communities for leisure activities at least twice each week." Staff must also respect the religious needs of minors: "Whenever possible, minors are to be afforded access to religious services of their choice." 64

Our investigation revealed consistent and widespread violations of all of these regulations.

Although children in INS detention have a clear right to be provided with adequate legal information and to be represented effectively by counsel of their own choosing, we were informed by numerous public interest lawyers and by an immigration judge that the majority of children receive minimal legal information and are unrepresented. Our interviews with children confirmed these reports. The lack of adequate information and representation makes a mockery of due process protections and leaves hundreds of children languishing for months in sub-standard detention conditions, bewildered and afraid, while their cases move slowly through the immigration courts. Hundreds more children are deported or accept voluntary departure, despite having what public interest attorneys say are viable asylum claims. "Kids who are waifs, who don't have anyone, will get whisked away, deported," one public interest lawyer told us. "The kids with good lawyers often get to stay. It has little to do with the merits of the case."65

The lack of trained immigration lawyers able to accept indigent clients is one reason so many children are unrepresented, but the INS also bears a substantial portion of the blame for detaining the children in conditions which make it overwhelmingly difficult for the children to have access to meaningful legal representation.

Los Angeles County

At any one time, the Los Angeles District of the INS normally has about twenty or thirty minors in detention.66 Until the early spring of 1996, these children were placed in one of three county juvenile detention facilities: Eastlake, Los Padrinos or Sylmar. In late March, the INS began to transfer most minors to the new contract "shelter-care" facility in Arizona. However, the INS continues to detain many minors in Los Angeles County facilities for short periods of time, and minors deemed by the INS to be a security risk will continue to be held in Los Angeles County.

The procedures used by the INS to determine whether a minor requires detention in a secured facility seem arbitrary; at no time was a formal policyarticulated to us. Apparently, any child who had come into contact with the criminal justice system, no matter how fleeting and trivial the contact, would be deemed a security risk. None of the children we met in Los Angeles County facilities would have been in detention, but for their INS status.

Nor would the INS guarantee that Los Angeles County juvenile detention centers will not be used more extensively in the future. When we met with the INS acting district director in Los Angeles, we expressed our concern about the process by which children were being transferred to Arizona. Although we had also told her of the inadequate detention conditions in Los Angeles, her sole response to our worries about transfer policies was to say, "we could move them back [to the county facilities]."67 Thus, conditions for children apprehended in Los Angeles and detained in county facilities continue to be a problem of pressing concern.

When children are apprehended by the INS in Los Angeles, they are normally brought to the basement of the Federal Building, which serves as a "staging area." Better known as "B-18," the staging area consists of a large central room containing cubicles for INS officers, with "pods," or short-term detention cells, radiating off the side corridors. The "pods" are locked from the outside, and each pod contains unpadded benches against the walls, one pay telephone, and a small toilet stall with no door. The larger pods may contain several dozen detainees at one time. In general, detainees are placed into pods based on age, gender and language group. When we visited B-18, we were not permitted inside any of the occupied pods, because INS District Counsel John Salter told us that he "could not guarantee our safety,"68 although the pods contained only non-criminal detainees. As a result, we were unable to see whether the legally-required information pertaining to free legal service groups was properly posted in each pod. We were also unable to make sure that the telephones were working. We were permitted only to look through the windows, and we were not allowed to speak to any of the detainees.

Although B-18 serves as the sole staging area in Los Angeles, INS officials could not or would not tell us whether all children apprehended in the Los Angeles region come through B-18. They told us that they do not keep statistics on the number of minors processed monthly or yearly in B-18, nor statistics on the disposition of each case (i.e., the number of minors released to relatives, thenumber accepting voluntary departure, the number sent to county facilities, and the number ultimately deported).69 They also were unable or unwilling to tell us what steps each arrested minor would go through before release or detention.

We toured B-18 with INS Acting Assistant District Director Leonard Kovensky, District Counsel John Salter, and the head of the staging area, Narcisco Leggs, who also serves as the district's juvenile coordinator. Despite the presence of these high-level INS officials, when we asked how the INS ensured that minors actually contacted their relatives or lawyers before receiving voluntary departure forms (as required under the terms of the Perez-Funez court order), no one was able to tell us. We then asked what written information was provided to minors about their legal rights. No one was certain. When a shelf of forms was eventually found, none of the INS officials seemed clear which form was used for which purpose.

We eventually located the Spanish version of the form that minors must sign pursuant to the court order in Perez-Funez v. INS, stating that they have read and understood their rights to contact their relatives, speak to a lawyer and have a hearing before a judge. However, the box next to the line "He leido este aviso" ("I have read this notice") had been pre-checked on all the copies of the form. When we pointed this out to Mr. Salter, the district counsel, he at first told us that the form was pre-checked "to save time." He then suggested that it might be accidental, but that either way it was of little import because "maybe we don't give [the minors] those forms anyway." Needless to say, in either case this represents a violation of the minors' due process rights.

None of the legally-required forms-including the list of free legal service providers-had been translated into any language other than Spanish, despite the fact that many of the juveniles and adults processed in B-18 speak neither English nor Spanish (a significant number are Chinese). We asked how the INS ensures that minors understand their rights and were informed that when no interpreter is available to explain the forms, the INS makes use of the AT&T interpreter service, through which interpreters are provided by telephone. Children who speak "unusual" languages thus must depend on a commercial telephone service to explain their rights. (In court, immigration judges must repeat the rights advisory. But as one immigration judge said, "Sure, they get the pro bono list and all that, in English or in Spanish . . . which won't help them if they're Punjabi."70) Theproblem of comprehension is exacerbated by the high illiteracy rates among juvenile detainees; even for Spanish-speaking children, a form in Spanish is no guarantee of comprehension.

Once placed in a county detention facility, children seem to have only sporadic access to telephones. At the Eastlake detention center, Omar, age fifteen, reported that it was difficult to receive incoming calls. This was confirmed by a number of local attorneys; Judy London, who works with CARECEN, an advocacy group for Central American refugees, told us that "it generally takes the Eastlake staff ten phone calls to track down a kid when I show up to visit, and when I tried to call in myself, I was told there was no way to call my client. Finally they said, `Well, you could try. . .' I said, `Well, can he call me?' And they said that they weren't sure."71

At Los Padrinos, the situation appeared to be worse. INS detainees are kept in a unit with one pay telephone, but the phone was broken at the time of our visit, and the children reported that it had been broken since their arrival. Even had it been working, it was inadequate because it offered no privacy; the pay phone was a wall unit with no surrounding booth, and it was on the wall next to the guard office and in the small lobby containing books and the television set.

We get access to a phone sometimes every other day . . . but phone use is withheld as a privilege. I'm not sure if I can receive calls. I want to call my relatives in Acapulco but I have no money, and they can't take a collect call because there is only a pay phone in the village.

-Maria, fifteen72

I don't know my lawyer's telephone number. My husband is in San Pedro [the detention facility for adults], but I can't call him because San Pedro does not take collect calls and I have no money. We have to get permission to make a telephone call.

-Lorena, seventeen

The only call I ever made to my family in Acapulco was in December. . . . I asked to make other calls . . . we have to ask permission.

-Rosalia, fifteen, interviewed in April

During our visit to Los Angeles, no Chinese children were in detention, but attorneys told us that in the past, their Chinese clients have encountered even more serious difficulties with telephone calls, because of language problems. Negotiating for permission to use the telephone is difficult enough, but for Chinese speakers, collect calls are nearly impossible. "Some of these kids have never used a phone before," said Gilbert Fung, an attorney who has represented several Chinese children. "They come from tiny villages, and they don't even understand what the different numerals represent. Staff won't help, or they can't, because they don't speak the children's dialect."73

Janice Carter, the detention officer in charge of the Los Padrinos unit holding INS children, confirmed that the children are only permitted to make collect calls.74 This makes it almost impossible for many children to contact their relatives: adult relatives who are themselves detained in INS facilities are unable to accept collect calls, and relatives in the children's home countries often have no private telephones and must rely on a pay telephone in a nearby town. Jan Aven, one of the directors of the Los Padrinos facility, told us that if the pay phone was broken, the children could "use the phone [in the office] whenever they want," but that they can't make calls to numbers outside of the country.75

With regard to incoming calls, Ms. Aven first told us, "The policy is to put incoming calls through" to detainees, but she later contradicted this, saying, "We generally don't allow phone calls to come in to the kids, because we can't monitor them, to know who they're really from or what's being discussed. It's a matter of discretion. It's very rare to let calls in . . . . I just take messages. At one point we got some calls when we had a lot of Chinese kids here, and the calls seemed to be pranks. So I stopped putting through calls from people claiming to be calling fromChina."76 In other words, staff at Los Padrinos, fearing that some calls may be prank calls, no longer permit any, where the caller claims to be calling from China.

Even when attorneys and detained children arrange to meet in person, conditions are inadequate. All of the local attorneys reported that they found it difficult to conduct confidential conversations with their clients, since in addition to their practice of monitoring telephone calls, officials at neither Eastlake nor Los Padrinos had an area set aside for private meetings between the children and their attorneys. We confirmed this on our visits. At both Eastlake and Los Padrinos, staff appeared surprised when we asked for a private place to interview children. At Eastlake, we were permitted to interview children outside, sitting at picnic tables, with guards, other children and an INS official standing nearby. At several points during our interviews we had to repeat our request that guards and INS officials remain out of earshot. At Los Padrinos, we interviewed children in their dormitory, which meant that at any given time, the children not being interviewed had to remain outside. Guards and INS officials sat immediately outside of the dorm room, watching us through the windows. In a few cases, those we interviewed were noticeably unsettled by the presence of nearby guards or officials.

The children's inability to receive incoming calls reliably, combined with the difficulty in telephoning relatives outside the country or in INS detention centers elsewhere, the restrictions on telephone usage, and the absence of fully private interview areas for meetings with attorneys, severely interfere with the children's right to contact their legal representatives, to obtain information relevant to their status, and to consult with adult family members.

If children in INS detention find it difficult to locate attorneys and family members, attorneys find it equally difficult to locate current and prospective clients. The INS routinely transfers children from detention facility to detention facility, rarely giving the children, their families or their lawyers notice of the transfers.77 Almost every child we interviewed in Los Angeles had spent time in more than one county facility; none of the children seemed to understand the reasons, if any, for their transfers.

Los Angeles attorneys and child advocates consistently reported difficulties in locating their clients: "The only way we find out where they're keeping kids is by accident,"said Carlos Holguin, an attorney with the Center for Human and Constitutional Rights.78 "You start kicking up a fuss about conditions for kids in one spot, the INS just moves them to another. You complain about [Los Padrinos] and they move the kids to Arizona. You complain about Arizona and they transfer them to Texas." Others voiced similar frustrations:

We started complaining about conditions in Los Angeles . . . so they shipped the kids out for parts unknown, which isn't what we had in mind.

-Sharon Lowe, County Probation Board79

Usually I get a panicky call, not from the kids, but from a relative, saying, `My kid is held somewhere in L.A.' So I make twenty calls over two days. Eventually I figure out where the kid is, if I have the name, but it's hard. And if you just want to find out, in general, how many kids are where, it's impossible. We're filing a class action suit about detention conditions, and [the INS] is now under court order to reveal names and locations of class members. We'll see if they do it. Usually the problem is, you never get this information, you just can't get anyone to tell you where the kids are. . . .

-Judy London, CARECEN80

Sometimes the INS is holding minors but they won't tell you. They throw roadblocks in your way . . . . Sometimes I think the assistant district director doesn't even know where the kids are.

-Heidi Sanchez, social worker at Juvenes, an agency that assists Latin American young people81

Without exception, none of the attorneys or other service providers we met in Los Angeles had been informed by the INS of the decision to transfer most long-term detainees to the new shelter-care facility in Arizona. "That's news to me," said Neils Franzen of Public Counsel, Los Angeles's primary multi-issue non-profit legal aid office. "But it's typical. No one knows what's going on with the kids. They don't tell us."82

In some cases, the INS transferred children out of Los Angeles even after expressly assuring attorneys that their clients would not be moved. For example, Gilbert Fung told us that his client had a hearing date set for late May, in Los Angeles. After hearing a rumor that some children might be transferred to Arizona, he called David Tally, the detention and deportation officer for the Western Region of the INS. Tally assured him that his client would remain in Los Angeles. Fung drove to Los Padrinos to prepare his client for the hearing but was unable to find the child. He was also unable to find any officials able to tell him where the child had been moved.

Shortly thereafter, he received an anxious call from his client's family, who said that they had been unable to contact the child, and that the INS would not tell them where he was. Fung called David Tally once more and was assured that only minors with final deportation orders were being transferred to Arizona. That night, however, the client's relatives called to tell Fung that they had heard from the child, who gave them a number with an Arizona area code. Fung called Tally for a third time to report that his client had called his family from Arizona. Tally said he didn't know why. Fung tried to contact his client at the Arizona facility, but for two weeks he received no response to his repeated telephone messages. He eventually confirmed that his client was in Arizona only when the INS filed a motion for change of venue, in an attempt to move his client's hearing to Arizona.83

This raises a related problem. Since the INS began to transfer many children from Los Angeles to Arizona, the INS has been routinely filing forchanges of venue in the case of all transferred children. The INS files for change of venue regardless of whether or not a given child is represented by a Los Angeles-based attorney. Of the children who have legal representation, many are represented pro bono (i.e., for free) by private practitioners or by public interest attorneys, who can ill afford numerous trips to Arizona to meet with clients and attend court hearings. Even in the case of children with relatives able to hire private attorneys, changes of venue, if successful, add greatly to the costs of representation, since either the child or the attorney must travel long distances for consultations. The INS blanket policy of requesting changes of venue seriously interferes with the children's right to effective assistance of counsel.84

But for children detained in Los Angeles, having an attorney is a luxury. In all of Los Angeles, only about half a dozen attorneys will represent indigent juvenile detainees, and with high caseloads, drastic funding cuts, and restrictions on Legal Resources Corporation recipients, that number is dwindling. "Everyone's case load is just too high," said Lorena Muñoz, a Legal Aid lawyer. "These kids slip between the cracks."85 At CARECEN, budget cuts mean that there is no one to staff the switchboard. "We're on the legal services list the kids get," said CARECEN's Judy London. "So maybe they call us. But no one will answer. They have to leave a message . . . and I just can't take all the cases." At Public Counsel, Neils Franzen was blunt: "It's uncommon for kids to get represented."86

One immigration judge who spoke to us off the record confirmed this. "Kids under sixteen can't admit deportability without a lawyer or a responsible adult present . . . . I take this seriously, and I get on the phone, trying to make sure those kids get lawyers. But all the INS people in Washington care about are the numbers, so we're under a lot of pressure just to move things along faster . . . That's a problem for kids, who can't get counsel. There are ways to get around therules, and it's in the judge's discretion to decide who's a `responsible person.' In other judges' courtrooms, I just don't know what happens to these kids. There aren't enough lawyers for them . . . The kids are scared . . . . Generally they don't know what the hell is going on."87

This comment sums up the situation for most children in INS detention, both in Los Angeles and in Arizona. Over and over, the children we met told us that they did not understand their legal situation:

They told me I'd be deported on December 30, but I'm still here [in late April]. I haven't heard anything since then. No one from the INS has talked to me since December 15. I don't know what is happening.

-Jaime, fifteen

I think I will be deported . . . . I don't know what's up, I don't want to fight anymore . . . I just don't know what's up, you know?

-Jorge, seventeen

I don't know why I am here for so long. No one explains why they won't let me go. I heard someone say, if they let me go, I would go back to Mexico.

-Maria, fifteen

I don't know what is going on with my case. No one has contacted me since November. [We spoke to Mercedes in April.] When I ask people here, they say, `Well, there's no news, when they want you they'll come and get you.

-Mercedes, seventeen

I don't know why we are staying here, I don't know anything about my case, I don't care if it's over . . . I just want to get out of here and go home.

-Ana, fifteen

When I ask the guards what is happening, they just say, `Be patient. . .'

-Jose, eighteen

Arizona

Many kids want to call their relatives but they are not allowed. They are sad and they cry.

-Shiao-yun, seventeen

In late March 1996, the INS began to transfer most longer-term juvenile detainees to a new "shelter-care" facility in Arizona.88 The facility is run (under contract to the INS) by a private Texas-based company called Southwest Key, which specializes in running juvenile detention centers. The facility was created specifically to satisfy the Flores requirements and to implement improvements over conditions in Los Angeles County detention facilities. In their operation of the facility, Southwest Key is legally required to comply with detailed guidelines, distributed by the Department of Justice, concerning all aspects of the children's care and rights.89

To date, however, there is overwhelming evidence that children detained at the Arizona facility are also being denied their right to legal information and representation. In many ways, the culpability of the INS and its agents in Arizona is even greater than in Los Angeles: in Los Angeles, children suffer primarily because they slip between the cracks, and many of the INS officials to whom we spoke seemed largely unaware of conditions for children. But if problems in Los Angeles stemmed largely from INS ignorance, incompetence and indifference, the problems in Arizona appear to exist with the deliberate and active cooperation of INS and Southwest Key officials.

The Arizona facility has space for forty-eight children. As in Los Angeles, we were unable to obtain long-term statistics on children passing through the Arizona facility. Although we were provided with information on the age, nationality and gender of children in detention at the time of our site visit, we were not able to obtain statistics on the ultimate disposition of children passing throughthe facility. No one at the facility or the Phoenix district INS office was willing to reveal whether such statistics exist. However, it appears from interviews with children and local attorneys that one half to three-fourths of the children are Chinese, and that many children remain in the facility for months at a time.

The facility is in a remote town, roughly an hour and a half from Tucson and an hour from Phoenix. Unlike Los Angeles, in which detained children are at least in geographical proximity to community groups and legal service providers, the Arizona facility is far from any sizable city, and far from a substantial community of service providers. In Phoenix, there is no provider of free legal services to undocumented children, and in Tucson, only one group-the Tucson Ecumenical Council Legal Assistance (TECLA)-provides legal services to indigent children. TECLA, however, is able to serve only Spanish-speaking children, leaving non-Spanish-speaking children, including the many Chinese children, with no means of obtaining free legal assistance. Some of the children in the Arizona facility are sent there straight from being detained at the airport, but many come after spending days or weeks in detention in Los Angeles.

At the Arizona facility, we were permitted to interview the children only for ten minutes each (fifteen minutes for Chinese children, with whom we required an interpreter), making it difficult to accurately assess each child's situation. The Phoenix district of the INS also required us, before speaking to the children, to sign an affidavit promising not to discuss the specifics of any child's legal situation with that child. However, even these brief interviews made it overwhelmingly clear that children in the Arizona facility are being denied access to the most essential (and legally required) information.90 Of the fifteen children we interviewed, over half reported that they had never received a list containing information about legal services. Many of the children knew that such a list existed, and that a few children had copies, but said that staff at the facility failed to give the lists to all children. Copies of the list were not posted anywhere in the facility.

"They told me that, since I wasn't going to be deported, since I was going to be reunited with my family, I didn't need the list," said Ernesto, a sixteen-year-old Salvadoran. Vilma, fifteen, reported that although a teacher did distribute a list in class, "I went out [and] when I came back it was gone . . . nobody has it now . . . I want to get an attorney." Huang Li, seventeen, could not recall ever seeing the list. Nien He, seventeen, had been at the facility for ten days but had not received the list, had not been to court, had not seen an attorney, and, during the interview, said that he did not know what an attorney was. Chi-Ping, seventeen, said that she did not know how to contact a lawyer, and that staff had told her that she could find a lawyer after she got out of the facility. Again and again, the children reported that they had not seen a list of legal service providers, and that staff, when asked for information about lawyers, told the children that they would not need a lawyer. One of the teachers at the facility reportedly told an entire classroom of children that they did not need copies of the list.

The INS requires contracting shelter-care facilities to assist children in reuniting with family members living in the United States.91 Family reunification, ideally, serves a two-fold purpose: first, it is preferable for humanitarian reasons to release children to family members instead of detaining them for an indefinite period, and second, detention is at government expense, and releasing children to family members relieves the government of that economic burden. It appears, however, that staff at the Arizona facility use the laudable goal of family reunification for an illegitimate purpose: that of preventing children from getting legal representation. Children repeatedly informed us that staff members had told them that they did not need a lawyer if they were going to be reunited with their families before their deportation hearings. But, as long as they are in detention, the children's right to representation is unaffected by whether or not they will ultimately be released to family members pending deportation hearings. Detained children require counsel not only to assist them in deportation proceedings but also to enable them to challenge detention conditions, if necessary. Finally, since children released to family members must nonetheless go through deportation proceedings, preventing children from getting a lawyer at the earliest possible opportunity may merely cause significant and sometimes damaging delays in the legal process.

Even those children who do receive the legal services list are handicapped, because the list contains inaccurate and incomplete information. Of the free legal service providers whose numbers appear on the list, several receive federal LegalServices Corporation funds and therefore are prohibited from representing undocumented children. Of the rest, only TECLA routinely assists undocumented indigent children. None of the legal services providers listed have Chinese-speaking capabilities, although when we visited the Arizona facility, more than half of the children detained there spoke only Chinese.

One of the Chinese-speaking staff members at the facility allegedly referred several children who wanted legal assistance to a relative of his in Pennsylvania, who reportedly charged a minimum of $2,500 to represent each child.92 Several children also told attorneys that facility staff became less friendly to them once they discovered that the child had successfully obtained outside legal representation.

Children at the Arizona facility also lack meaningful access to telephones. During the first two weeks of its operation, the facility had no telephone; as far as their Los Angeles-based attorneys and their families were concerned, children taken to Arizona had vanished off the face of the earth. There are still no private pay telephones available for the children's use. Instead, children must use telephones in staff offices, with no assurance of privacy. One attorney told us that, on repeated occasions, telephone calls to clients were monitored by Southwest Key staff.

Staff at the facility assured us that children have unrestricted private access to phones for purposes of obtaining representation and contacting family members,93 but this was contradicted by local attorneys and by the children we interviewed. Gloria Goldman, the attorney appointed by a local immigration judge to find pro bono representation for children at hearings, reported that childrenappeared able to use the telephones only every other week.94 Patsy Kraeger, the chair of the Arizona Immigration Law Association, reported that she met with one child who had been at the facility for two months without being able to contact his family, because his telephone access was so limited. She offered him the use of her cellular phone, and he was able to reach his family right away.95 Kraeger also recalls a child who told her that phone use was reserved as a privilege for children who got "stars" for good behavior. Several children told our researcher this as well.

The children we interviewed spoke constantly of the difficulty in contacting anyone by telephone. Children reported that they were not permitted to receive incoming calls from family members outside the Unites States, and many children were upset at their inability to contact adult family members held by the INS at the adult detention center in Florence, Arizona-since neither facility will accept collect calls, the children have no way of calling relatives or receiving calls from them.96 Children must ask for permission to use the telephone, and permission is routinely and arbitrarily refused.

Shiao-Yun, seventeen, reported that the staff do not let her call her uncle, although he has called her. Staff repeatedly tell children that if their relatives want to talk to them, "They'll call you, you don't need to call them." According to Shiao-yun, "Many kids want to call their relatives but they are not allowed . . . they are sad and they cry." Iwei, seventeen, said that "You have to apply to make a phone call-it's difficult. They always ask why you want to call . . . you have to answer." Yung-Chi, seventeen, also reported being told that he had to apply to make telephone calls, "but that is difficult to do." Ming-Yang, sixteen, said that she had not yet called her relatives in her two weeks at the facility. When she asked to make a call, she was told that there was no need, and that her relatives would call her.

Che-Hao, sixteen, asked for permission to call his cousin to congratulate her on getting married. He wrote a note asking for permission to call her, but permission was denied. He was permitted to call relatives in China in order to getnumbers of relatives in the U.S., "but I am only allowed to say two sentences: where I am, and what is the phone number of a relative. These were calls to my mother, and I was only allowed to say two sentences, then the staff hung up the phone." Sung Bae, sixteen, said that it is "very difficult" to make a call, and he does not understand why. When he asks to call, staff normally say no. He is permitted to contact a cousin every few weeks. Esteban, sixteen, reported, "When you ask to make a call, [staff] say they're going to make it [for you], but they don't. This happens to everyone."

As with the Los Angeles County facilities, Arizona lawyers have experienced difficulties in gaining access to children. The only organization in the region that provides legal assistance to indigent undocumented children is TECLA, but TECLA lawyers told us that they have consistently found facility staff and INS officials uncooperative and hostile. TECLA attorney Deirdre Mokos approached the INS to get names of children in the facility who required legal assistance, but the INS refused to provide her with the names of children. Mokos also told us that when she visited the facility to interview clients, staff members intruded into confidential discussions with clients, and her telephone conversations with clients were also monitored by staff.97

The INS and the facility staff initially permitted Deirdre Mokos to visit the facility and give presentations to the children on their legal rights, but after Mokos began to express her concern that many children were unrepresented, the staff refused to permit her to continue making presentations. A variety of explanations were given for the refusal to permit the rights presentations; Mokos was sometimes told that the dates and times were inconvenient, and she was also informed that the presentations were unnecessary because all of the children were represented, and that several Phoenix non-profits were representing the children. When we spoke to representatives of the non-profits mentioned, however, they said that they had no contact with the facility or the children. TECLA has been unable to visit the facility to give rights presentations since April 25, 1996.98

Representatives of the INS and the Southwest Key facility assured Human Rights Watch that all children were represented by attorneys, but they refused to give out the names of the attorneys. Interviews with the children, however, made it clear that many-if not most-of the children were unrepresented. Deirdre Mokos of TECLA was also informed that all children were represented, and didreceive some names of attorneys, but when she called the attorneys, hoping to discuss ways of coordinating their efforts, they told her that they were not representing any children. Not only did the INS and facility staff significantly misrepresent the extent to which detained children are represented, but they made it overwhelmingly difficult for children to obtain representation on their own initiative.

In mid-1996, a local immigration judge initiated a program whereby children are represented at their initial calender hearings by attorneys working pro bono. This representation, though, is largely a matter of legal fiction. As discussed in the legal background section of this report, immigration judges are prohibited from accepting admissions of deportability made by unrepresented children under sixteen. If a child is unrepresented, the judge must either continue the case until the child acquires a representative or hold a merit hearing on the issue, in which the INS would bear the burden of proving that the child is deportable. In either case, this would substantially delay the deportation process.99 In an effort to expedite the process, Immigration Judge John Richardson asked area attorneys to volunteer their services for the children's initial calendar hearings (at which they admit deportability, declare a defense to deportability, or seek a continuance).100

Not surprisingly, local attorneys who have volunteered to represent children on calendar days have mixed feelings about their role. Gloria Goldman, who was asked to coordinate the pro bono effort, says that most attorneys will only have an hour to meet the children before their hearing; with a full docket, this gives attorneys six minutes per child. Similarly, Jennifer Huang, a Tucson attorney, told us that she was assured that her commitment was only for one day's calendar, andthat if any of the children refused to admit deportability, but instead applied for asylum, she could withdraw from the representation. She said that she had represented approximately ten children at each calendar date, with about two hours to meet and interview them before going into court.101 This works out to roughly ten minutes per child, clearly an inadequate amount of time, especially since some attorneys need interpreters. Goldman candidly expressed her apprehension about the program she coordinates, saying, "I don't want to be a vehicle for kids to be deported."102

In a November 1996 telephone interview with Human Rights Watch, INS Phoenix District Counsel Pat Vroom expressed her frustration that TECLA continued to seek access to detained children for the purpose of giving legal rights presentations and assuring dissemination of required legal information. "All of these kids are represented!" she insisted. On inquiry, we learned that she was referring to the pro bono representation at calendar hearings. Our researcher asked, "Don't you think it's a stretch to say that these kids are represented, when they don't know they have an attorney, have never seen or spoken to an attorney, and will not meet an attorney until shortly before their hearing?" Reluctantly, District Counsel Vroom agreed that to say these children are represented is indeed "a stretch."103

District Counsel Vroom also acknowledged that "there are a few problems" with the current pro bono calendar hearing arrangement. "The system is not perfect yet," she said. "Some attorneys are getting saddled with lots of work, while others just stand there and get cases continued until the following date-this creates some confusion as to who [which attorney] is to handle the cases."104

Surprisingly, given her position as district counsel, Ms. Vroom also told Human Rights Watch that she was largely uninformed about the legal situation of the detained children. "This has all been very fluid," she said. "I don't knowexactly what's going on with the handling of legal cases."105 Nor, despite more than seven months of disagreements with TECLA over the suspended legal rights presentations (last permitted by the INS in April 1996), had she inquired into the possibility of having routine presentations done by a different organization, by a law school clinic, or by rotating members of the immigration bar, to name just a few possibilities.106

Every day is a kind of punishment, to be imprisoned here.

-Jorge, seventeen, detained at the Arizona facility

Everything is very sad and bleak here.

-Josefina, seventeen, detained at Los Padrinos

In 1985, the extremely poor conditions of confinement in Los Angeles facilities gave rise to the Flores lawsuit and the subsequent consent decree, discussed earlier in this report. Los Angeles lawyers who represent unaccompanied children report that immediately after the settlement, conditions in county facilities did improve somewhat, but that they soon deteriorated again. The plaintiffs in the Flores class action suit have returned to California district court in an effort to enforce the terms of the settlement decree, and are now in the process of negotiating a second settlement with the INS. Unfortunately, given the absence of monitoring and oversight and the inability of most children to obtain adequate representation, it seems unlikely that the new settlement will have any more effect that the first. This is particularly likely to be the case given that conditions in Arizona-in a facility designed specifically to meet the already-stringent Flores requirements-are also poor.

Los Angeles County

Children detained in Los Angeles county are normally sent to county facilities for juvenile offenders, even though children in INS detention are being detained for administrative reasons only. The INS currently claims that all children who do not pose a "security risk" will be sent to Arizona, and that only children with some history of contact with the criminal justice system will be held in Los Angeles. Most of the children we interviewed in Los Angeles were children who had initially been picked up by police and charged with misdemeanors before being turned over to the INS. All of these children were, however, being detained only because of their immigration status, and not because of any pending criminal sentences or delinquency dispositions.

We also interviewed three young girls being held as material witnesses against Mexican smuggling gangs. The girls were brought into the United States by a gang of smugglers, and when police raided the smugglers' house, the girls, though charged with no crime, were detained for immigration reasons. Since they were also potential witnesses in the government's case against the smugglers, they were eventually transferred by the INS to the legal custody of the U.S. Marshals. When the cases for which they are witnesses are over, they will again revert to thelegal custody of the INS. (The INS acting assistant district director called them "once and future INS detainees.")107 Staff at the county facility holding them seemed unsure of whether the children were under the control of the INS or the Marshals, and the girls themselves had no idea. At the time we interviewed them, the girls had been in detention for over a year.

The INS is unwilling to guarantee that county detention centers will not in the future be used again even for children who pose no security risk, if space is unavailable elsewhere.108 Thus, although at the time of our visit fewer than ten INS detainees were at the county facilities, poor conditions remain a matter of urgent concern.

The most fundamental problem with detention facilities in Los Angeles is that they are prisons. For any children who are not security risks, this clearly violates the Flores requirements. Given the apparently arbitrary process through which the INS declares some children to be security risks, this violates the rights of many "security risk" children as well. "These children-even the security risks-are supposed to be detained, not incarcerated," said Sharon Lowe, a lawyer and member of the Los Angeles County Probation Board. "But basically they are incarcerated. The INS doesn't call it that, but that's what it is."109

Eastlake, Los Padrinos and Sylmar are all surrounded by barbed-wire fences. To reach the units where children are housed, visitors must pass through several guard stations and locked doors. (During our visit, no INS detainees were at Sylmar, and the INS says that they plan to stop using Sylmar). At both Eastlake and Los Padrinos, INS detainees are forbidden to wear their own clothes and must instead wear white or orange prison uniforms, many of them stamped with the words "Detention Bureau" on the legs and sleeves.

At Eastlake, boys in INS detention were housed in a dormitory-like setting; each bedroom contained anywhere from two to six or eight beds. Girls, both INS detainees and adjudicated offenders, were housed together in one enormous barracks-like room containing about forty beds; neither boys nor girls had access to private toilet facilities. Toilets were at the side of each room, butneither toilets nor shower stalls had doors. When we visited the boys' unit at Eastlake, the boys were all marched in together after their recreation period and made to strip down to their underpants in a large room, separated from observers of both sexes only by large glass windows.

At Los Padrinos, boys and girls in INS detention are housed in the same small unit, which has room for only sixteen children. Boys (none were there during our visit) occupied one room off the central corridor, with girls in a room off the other side of the corridor. Each room was about twenty feet by twenty feet, and had a row of small windows facing the courtyard. The windows could not be opened, however, and were painted black on their lower halves, so that only the sky could be seen through the top half of the windows. Each room contained eight metal cots, each with a thin blanket. Each room also contained one toilet, a sink and a shower cubicle, none of which had doors. The cinder block walls were entirely bare. Each child had a small locker in which to keep personal possessions, but the children were not permitted to display personal possessions around their beds. Of the three girls we met at Los Padrinos, two (both material witnesses) had been there for over a year without ever leaving the facility, except for court dates.

I don't like this place. The food is bad, the clothes they make us wear are ugly and they don't fit. At night it gets cold. I have never left this place in a year. We can keep school books in the lockers, but they do not lock . . . we are not allowed to put up pictures . . . some of the staff are nice, some are not. When they have personal problems they take them out on us. We can have books, but the books are all in English, and the television is in English. We can go out and play [in the courtyard in front of the unit], but you have to have [a staff member] go with you. You can't go out alone. There is nowhere here to be alone. If you are bad-if you do not do your exercise, or use bad language-they send you to "the box."110 Then you are alone in a room, with nothing.

-Marielena, fifteen

Everything is very sad and bleak here. They take all of your property and your clothes when you come in. You can only go out of the room with staff, and if you do not do your exercise, you get in trouble, you go to the box. The TV is in English, and there is no radio. Sometimes there are more kids here, and they are from different gangs and neighborhoods, and they fight.111

-Josefina, seventeen

All of the children we interviewed said that they were frustrated by their inability to get any privacy and by their difficulty in getting reading materials in their own language. During our visit, there were no non-Spanish-speaking children in the Los Angeles facilities; local attorneys report that non-Spanish-speaking children have an even more difficult time than children from Latin America, who can usually find Spanish-speaking staff members. Very few of the county detention center staff speak Chinese.

The result, said attorney Gilbert Fung, is that "Chinese kids get herded around like sheep. Staff can't communicate with them, so they basically just push and pull the kids to get them to go somewhere. The education is meaningless for these children-they just sit and listen, but have no idea what's going on. Even the food is a problem-they don't know what American food is. They're used to rice and noodles, and they are given food that's too salty, too rich . . . Most get sick in their first week in detention, but they don't know how to ask for doctors."112

Neither the INS nor the facility staff bring in interpreters. This not only means that children have little meaningful access to legal information, but also greatly increases the level of psychological stress for many children, who find themselves arrested and put in jail, all with no way of understanding what is happening to them. As in the B-18 staging area, staff at detention centers rely on the AT&T telephone interpretation service in emergencies. "Sometimes we have a kid who's crying and crying, and we can't figure out what's wrong . . . so we call AT&T and ask the operator to speak to the kid."113

Although relying on commercial telephone operators to communicate with crying, bewildered children hardly seems like an adequate form of counseling, the alternatives that normally occur to the INS are little better. Lorena Muñoz, a legal aid lawyer, told us about one of her clients: "I had a Pakistani kid who spoke no English, and he was so scared and depressed, he was suicidal. We got an interpreter and we had him observed, and the psychologist said yes, he was suicidal. We told the INS, and so they evaluated him-in English! And they said he was fine."114

Children detained in county facilities suffer most from sheer neglect. Put in prison, they receive virtually nothing in the way of counseling, are seldom visited, and leave their units only to go to court hearings. Recreation consists of television, often in a language they do not understand, and mandatory calisthenics. When taken to court, children remain in their prison uniforms, and local attorneys report that the children are regularly transported in shackles. Children are often taken to court at odd hours and made to wait all day in holding cells; as a result, missed meals are frequent. "Kids get brought in at weird hours, like three in the morning. It's just whenever the INS feels like transporting them. So they miss breakfast because they're being transported, and they miss lunch because of the hearing."115

Commingling has been an ongoing problem in Los Angeles. Children are sometimes placed in adult detention centers, or kept overnight with unrelated adults in the holding cells at B-18. Local attorneys allege that, on some occasions, children have had to sleep for several nights in offices in the federal building when space in county facilities was unavailable. Even more common is commingling of administrative INS detainees with juvenile offenders currently serving sentences. Virtually every lawyer we spoke to reported finding INS administrative detainees mixed in with the general prison population at one time or another. On our visits, it seemed that children at Los Padrinos were segregated from the general population and mixed only with status offenders; the same appeared to be true of boys at Eastlake. But all the girls at Eastlake were mixed in together, regardless of category.

Arizona

The Arizona facility is a nondescript two-story building on a rural road, several miles from the nearest town. The grounds are surrounded by an eight-foot-high fence, and access to the grounds is controlled by a guard. The building itself is also locked, and monitored by electronic surveillance cameras. Inside, the facility consists of two levels. The downstairs level holds offices, classrooms, a meeting room and a recreation room with a ping-pong table, a foosball table and a television. The classrooms are small, and extremely crowded when full. The upper level contains dormitories for the children. There are two rooms for girls, one with seven beds and one with three. The girls' bathroom, in the hall, has three toilet stalls, three sinks and two showers. Boys sleep in one of two large rooms; together, the rooms hold thirty-five beds. Despite the much larger number of boys than girls in the facility, the boys' bathroom is the same size as the girls' bathroom. One boy told us that because of overcrowding, they are hurried through the bathrooms ("We don't fit"); after the girls wash up in the morning, boys are sent in to use their bathroom.

The children normally spend only an hour a day outside, during supervised physical education from 8:00 a.m. to 9:00 a.m. The rest of the time they are indoors, either in class or in other supervised activities. Several children complained that they are never allowed outside for unstructured play. The director of the facility told us that the children's outdoor time is curtailed because the intense desert heat might be harmful to them. But while this explanation implies a laudable concern for the well-being of the children, it was belied by reports we received from the children: while not allowed out to play, they told us that they are sometimes made to work outside as punishment for minor disciplinary infractions. One boy we interviewed told us that he has just come in from four hours outside, cleaning the grounds.116

INS policy requires that the children be taken on field trips at least once a week.117 Staff at the facility told us that they take the children on one field trip every six weeks. While this in itself represents a major violation of INS regulations, the children we interviewed reported even less frequent field trips. During their period of detention at the Southwest Key facility (a period which, for the children we interviewed, ranged from one week to seven months, and averaged twomonths), only three of the fifteen children with whom we spoke had ever been off the premises for a reason other than a court date. Two of these three children-both girls who had been in detention for about two months-were taken to a shopping mall in Phoenix on the day before our site visit. The other child who had been taken on a field trip was a boy, Ernesto, who had also been detained for two months. He reported that he was taken to Phoenix for a day, along with four other boys, and said that "It was like a prize. You had to have sufficient points." Another boy, Yung Chi, told us that "You're allowed to go on a field trip if you have enough points. Most of us have enough points, but [still are not allowed to go out]." At the time of our visit, Yung Chi, like another boy we interviewed, had been in detention for seven months (four months in Los Angeles County facilities and three in Arizona), without ever going on a single field trip.118

INS policy also requires that children be given the opportunity to engage in religious worship should they desire to do so.119 At the INS facility in Arizona, this right is observed in the most cursory fashion. A small and uninviting altar is tucked away in a corner of the lot outside the facility, next to the gravel driveway and the eight-foot metal fence. It offers no protection from the sun, and only a small, cracked concrete bench for children to sit upon. Southwest Key staff told us that children were permitted to go to "the prayer center" in groups of two or three at a time, under staff supervision. There is no arrangement to have clergy visit the facility, nor any provision made for the children to attend services in nearby towns.120

None of the children we interviewed were aware of any opportunity to worship, nor were most aware of the existence of the small altar. (The altar is in the front of the building, and the children are only permitted to be on the grounds behind the building). One boy, Nien He, told us that he knew that they were not allowed to play by the altar, but did not know whether or not worship was permitted there: "A staff person showed it to us, and then we never went thereagain . . . . No one has ever told me that I can worship here [at the facility]." Nien He and several other children, most of them practicing Chinese Christians, told us that they would like opportunities to attend religious services. Another Chinese boy told us, "I am a Christian, but there is no possibility of worshiping here." A third boy reported being told by staff that someone would come from a church to lead services for the children, "But no one ever came . . . I would like to go to church. Here, the only time I can pray is when I go to bed at night."121

Although INS policy requires that children be given access to public libraries,122 none of the children had ever been to the library, and none seemed aware of the possibility of going to libraries. Staff did not appear to be offering children these opportunities. The facility itself has no library, and children reported difficulties in getting reading material: "There are no books or magazines to read. The only reading we do is in class," said Villa, age fifteen. Li Zhen, seventeen, said that there were some books and magazines, but reading them was only allowed in class.

The facility is operated with a breathtaking level of cultural insensitivity. Mauricio, seventeen, told us that sometimes, as punishment, the Spanish-speaking children are made to sit in class or attend meals with the Chinese children. Li Zhen told us that staff told all the Chinese children "to behave like Americans, not like Chinese. They tell us to act like good Americans, not like bad Chinese." Several Chinese children complained about the food; Cheng Sha, seventeen, told us that the facility only serves Chinese food when visitors come.123

In theory, good behavior will earn children extra privileges, while bad behavior results in the denial of privileges. INS policy requires facilities to provide students with a written explanation of facility rules, in a language they can understand. None of the children we met appeared to understand on what basis, if any, privileges were granted or withdrawn. One Chinese girl recalled getting a card in English, explaining the point system, but said she could not read it and no one explained it to her. Several children told us that although they had many points, they still did not get the privileges to which they were ostensibly entitled. Almost all of the children also complained about the lack of privacy. Children are notpermitted to remain alone in their rooms, reading or thinking; they are always together and always supervised. In general, one boy told us, "Every day is a kind of punishment, to be imprisoned here. . . ."124

During our mission, we were able to speak to fewer than thirty children, and we had to conduct interviews in highly unsatisfactory conditions. We were only able to speak to each child for a short time. In Los Angeles we had to speak to children in semi-public settings, and in Arizona we were not allowed to speak to children about any aspect of their legal cases, nor for more than ten minutes per child. (Normally, a Human Rights Watch interview with a detained child would be for thirty to forty-five minutes.) The INS told us that they do not keep comprehensive statistics on children in its custody, and we were therefore unable to obtain precise information about the number of children ultimately deported, the number who successfully filed asylum claims, or the number who were released at some point to family members living in the United States.125 The information we obtained was thus incomplete and anecdotal, but our findings accord with the observations of many public interest lawyers who represent detained children, as well as with affidavits submitted by children in pending court cases. Our findings also accord in broad outline with the findings of researchers with Physicians for Human Rights, who interviewed juvenile INS detainees in Texas and Michigan.126 We therefore believe that our findings can be generalized, and point to a pattern of ongoing violations of the rights of children in INS detention.

Children in INS detention are systematically denied rights that are fundamental under international agreements and under the U.S. Constitution and statutory law: they are denied due process, denied access to legal representation,denied humane living conditions, denied personal privacy, and denied meaningful opportunities to understand what is happening to them and why. If they wish to remain in the United States, they must negotiate their way through a maze of technical and bewilderingly complex legal procedures, all in a language and setting utterly foreign to them. The lack of effective legal representation means that many children who might be eligible for release remain for months in detention, while others are deported back to countries in which they may face political persecution.127 Denial of such crucial rights would be disastrous for any group, but it is particularly disastrous for children, who are at a uniquely vulnerable stage of their lives.

The denial of these fundamental rights is particularly shameful in a country like the United States, which prides itself on its respect for international human rights norms. And the blame for this situation falls squarely on the U.S. government, and in particular on the INS, which has demonstrated incompetence, neglect and bad faith in addressing the needs and rights of detained children. Many INS officials we spoke with were indifferent to the issue, while some deliberately sought to obstruct our attempts to monitor conditions. In Arizona, for example, our efforts to speak with detained children were met with suspicion and hostility, and it was only after numerous phone calls and meetings that we were finally permitted access. Even then, our work was hampered by the imposition of an arbitrary ten-minute time limit on interviews.

Before beginning our on-site investigations, we met with a number of high-level INS officials in Washington, DC. We were repeatedly assured by these officials that the INS had a national commitment to child welfare. "Our goal is not to have custody for long . . . . We handle these kids in a very special manner," said Elizabeth Herskovitz, a detention and deportation officer in Washington. Ken Elwood, the INS acting chief enforcement officer for field operations, reaffirmed this: "We're trying to professionalize and set up a non-punitive atmosphere . . . . We want to get kids through the process quickly, and if we can't get them out right away, we want to put them in shelter-care or foster care, so that we at least get them into a non-restrictive setting."128

Washington INS officials were sanguine about detention conditions for children: "We pay a lot to keep them in safe, wholesome facilities," Arthur Strathern, an attorney with the INS General Counsel's Office, told us. He went on to assure us that any child in custody for more than seventy-two hours would be placed in a shelter-care facility rather than a juvenile detention center, and that when placed temporarily in detention centers, "our juveniles are segregated completely [from convicted offenders]. They have completely different programs. The programs just happen to be located in the sites where offenders are. . . . [Places like Los Padrinos] comply with all the regulations: they provide books, counseling, recreation, support, etcetera." Officials painted a similarly rosy picture when it came to access to counsel. Rubén Cortines, the INS director of detention management, told us that children are never transferred without notification: "The attorneys know right away where the kids have gone. We've never had any complaints from attorneys. They have no problem getting access to the kids."129

As the preceding sections of this report make clear, none of these statements were borne out by our investigations. And while the misinformation we were given by officials in Washington may result from ignorance rather than bad faith, it is nonetheless difficult to excuse. Top-level INS officials have an obligation to make sure that regional offices comply with U.S. law and with INS policies.

Even less excusable was the level of ignorance that seemed to prevail among top INS officials at a regional level. In Los Angeles, Rosemary Melville, the INS Acting District Director, told us that "We have a very open environment with local attorneys. They're given policy changes and everything, and have lots of access to the kids. . . . We're all concerned with the welfare of the kids. . . As far as we know, all our facilities are up to the Flores standards. . . Access to phones and representation is no problem for the kids."130

When pressed for details on national and district policies relating to unaccompanied minors, however, Ms. Melville appeared unaware of many of the most basic legal requirements and of the actual circumstances in which minors are detained in Los Angeles. Ms. Melville said she did not know what would happento an unrepresented minor under the age of sixteen at a deportation hearing. She was unsure whether or not minors held in Los Angeles County detention centers are always kept separate from convicted offenders (they are not), and equally uncertain about whether the INS had any policy about separation from offenders (there is a policy, and it states that INS minor detainees should be segregated from offenders). John Salter, the Los Angeles INS District Counsel, was similarly uninformed: "There may be an INS policy . . . I don't know." When we asked how the Los Angeles district INS ensured that minors passing through the B-18 staging area made telephone calls as required by Perez-Funez, Mr. Salter was vague: "Maybe Detention and Deportation documents that . . . I don't know." 131

When asked about circumstances in which minors might be released to area shelters or to foster families rather than placed in INS detention, Salter and Melville were equally uncertain. "I don't know," said Ms. Melville: "Again, I'm not an expert on this." Mr. Salter stated firmly that no minors could be released, except to immediate relatives, "without a directive from Washington. A home-study would be required, and it would be up to Washington." We pointed out that on the contrary, the regulations permit children to be released to shelters, lawyers or foster families at "the discretion of the District Director"-who was, in this case, Rosemary Melville. Ms. Melville appeared unfamiliar with this release option, and Mr. Salter asserted that the regulations permit such discretionary releases "only in `extraordinary circumstances'-that's what the regulations say."132

This is inaccurate; the Western Region's regulations did indeed say this until the mid-eighties, when the Flores litigation led to the adoption of a national policy to replace the old policy, precisely because the old policy was deemed overly restrictive. The regulations were reworded, and the word "extraordinary" was deliberately removed, and replaced by the phrase "unusual and compelling," which was meant to be a more flexible standard for discretionary releases. While the change may appear trivial, it was made deliberately to discourage local INS officials from applying the regulations in an excessively rigid manner. The distinction was lost on Mr. Salter, however: when we drew his attention to the current wording of the regulations, he shrugged and said, "`Extraordinary,' `unusual. . . .' What difference does it make?"133

More troubling than the high level of ignorance we encountered in INS officials was their attitude towards children in detention and their advocates. In Los Angeles, INS officials appeared cavalier about the fate of juvenile detainees. When we asked Rosemary Melville if she would consider looking into alternatives to detention, such as foster care and release to local shelters, she said that she had "no plans to look into anything like that." She acknowledged that she had not notified any local immigration attorneys of the change in policy resulting in the transfer of their clients and potential clients to Arizona, and she only reluctantly agreed to bring the issue up at a future meeting with attorneys.134 Leonard Kovensky, the Los Angeles acting assistant district director, told us, "We inform attorneys of client transfers when we have the luxury to do so."135 Ms. Melville finally told us bluntly that "our priority is dealing with the immigration business at hand. You don't understand how busy this place gets. Kids make up only a few of our detainees and we can't spend all our time worrying about minor procedural things."136 District Counsel John Salter also defended procedural violations on the grounds that officials needed to "save time," and when asked whether he thought non-Spanish speaking children ought to get translations of legal materials and rights advisories, he simply shrugged: "It's not in the regulations."137

Narcisco Leggs, the Los Angeles juvenile coordinator and the official in charge of the B-18 staging area, revealed his attitude towards detainees in a telling analogy: "I think of [the staging area] as being a kind of warehouse. We have shipping and receiving. Only it's human beings in the warehouse." Leggs refused to provide us with a clear policy on who, if anyone, might spend the night in the staging area; after first insisting that no one ever spent the night, he finally acknowledged that "when people come in after midnight, they might stay here," and that women with small children might be held in B-18 for up to twenty-four hours if they arrived after midnight. When we asked if unaccompanied children would ever be overnight, Leggs responded by saying, without elaboration, that"the people who belong here stay here," and he repeatedly referred to INS detainees as "the prisoners."138

INS officials , like officials in many other government agencies, are often overworked and under great pressure. Nonetheless, however busy and stressful regional INS offices may become, INS officials remain obligated to protect the rights of detained minors, as required by both United States law and international standards. To the extent that the rights of children are violated because the responsible INS officials are too overworked to attend properly to the children's needs, the INS should re-assign personnel so that an adequate number of staff are available to ensure that detained children do not continue to slip between the cracks.

If INS officials in Los Angeles were characterized by ignorance and indifference towards detained children, officials in Arizona distinguished themselves by what often appeared to be overt ill-will towards detained children and their advocates. In Los Angeles, we did encounter some difficulties in gaining access to facilities and in having confidential discussions with children, but the difficulties seemed a matter of passive resistance. In Arizona, however, we met with active hostility. INS officials and their agents at the detention facility seemed determined to prevent us from gaining access to accurate information about the children in their custody. We encountered everything from the standard forms of bureaucratic resistance139 to transparent and deliberate falsehoods, along with a wide variety of blatantly obstructive behavior. For instance, officials told us falsely that all detained children had legal representatives. In some cases, officials actually gave to public interest attorneys the names of organizations they claimed were representing children, but when we checked this information we found that attorneys at the organizations concerned had had no contact with the children or the facility. In other instances, officials refused to provide us with the names of the attorneys claimed to be representing the children, despite the fact that this is public information.