TROUBLING CONFLICT OF INTEREST
Unaccompanied children are unique from other individuals in INS custody. Because they are too young to be released on their own recognizance, children who have no close relatives are forced to remain in detention under the legal guardianship of the INS. This presents a serious conflict of interest, since children are subject to the enforcement of the immigration laws by the same agency responsible for their care and protection. We have previously recommended that the United States solve this problem by separating the care-giving function from the enforcement function. In Britain, Canada, Denmark and the Netherlands, for instance, unaccompanied children are placed in the care of appropriate child welfare authorities while immigration officials evaluate the children’s case.44
In a letter to Human Rights Watch, the INS argued that “[s]ince alien juveniles in INS custody are routinely placed in facilities that are owned and operated by non-INS agencies, INS believes that a ‘split-off’ of the care giving role already exists.”45 Human Rights Watch finds this argument unconvincing. Although non-INS facilities and staff may provide day-to-day services for detained children, the INS retains legal responsibility for the children and determines where the children are placed. As a result, a large number of children are placed in secure, jail-like facilities. The INS, as legal custodian, also maintains enormous influence over children’s access to information on their legal rights and their access to meaningful legal representation. The complexity of immigration proceedings and their frequent lack of English skills makes it almost impossible for children to make their way through the legal process without the help of an attorney. The INS, which is usually seeking the children’s removal from the United States, has little incentive to ensure that children receive this help.
Children are a uniquely vulnerable group and are entitled to be placed in the care of individuals or agencies which will act in the best interest of the child and are capable of protecting children’s rights. Reassigning care-giving functions from the INS to appropriate child welfare authorities would eliminate the INS’s troubling conflict of interest and would help ensure that the needs of unaccompanied children will be adequately met.