For six months, Xiao Ling lived in a small concrete cell, completely bare except for bedding and a Bible in a language she could not read. Locked up in prison-like conditions with juveniles accused of murder, rape, and drug trafficking, Xiao Ling told Human Rights Watch in June 1998 that she was kept under constant supervision, not allowed to speak her own language, told not to laugh, and even forced to ask permission to scratch her nose. Bewildered, miserable, and unable to communicate with anyone around her, she cried every day.1
Only fifteen years old at the time of her detention, Xiao Ling was never charged with any crime. Every year, thousands of unaccompanied children like Xiao Ling are apprehended by the U.S. Immigration and Naturalization Service (INS). Once in the hands of the INS, the children generally either accept immediate return to their countries of origin or face removal proceedings; most of the children arrested are 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. Rarely understanding what is happening to them or why, they often end up, like Xiao Ling, in highly restrictive settings where they are denied basic rights.2
In 1997, Human Rights Watch released Slipping Through the Cracks, which documented the results of our investigation of children held by the INS in Arizona and California. The report detailed numerous violations of childrens rights, in breach of the U.S. Constitution, U.S. statutory provisions, INS regulations, the terms of court orders binding on the INS, and international law. We found that with regard to unaccompanied children, the INS has an inherent and troubling conflict of interest: children are arrested, imprisoned, and frequently removed by the same agency that is charged with caring for them and protecting their legal rights. Additionally, we found that too many children were detained in jail-like conditions for long periods of time and that the INS failed to inform children of their legal rights, interfered with their efforts to obtain legal representation, and failed to facilitate contact with their family members. Based on our findings, Human Rights Watch recommended that the U.S. Congress separate the INSs caregiving function from its enforcement function by placing unaccompanied children in the custody of appropriate child welfare authorities. We also made a series of recommendations regarding detention policies and conditions, access to legal information and representation, and monitoring of conditions and practices.3
After the INS agreed to address concerns raised by human rights and other organizations, Human Rights Watch conducted several site visits in Pennsylvania to review the agencys progress. Our follow-up investigation focused on conditions of detention for children at the Berks County Youth Center (BCYC), in Leesport, Pennsylvania. BCYCconsists of a secure detention facility and two shelter care facilities administered by the county.4 Between June and November 1998, we conducted a series of interviews with children and with their attorneys and immigration advocates. Ten of the fifteen children we interviewed were placed at BCYC at the time of interview; five had recently been released.
We visited BCYC three times, once in June 1998 and twice in November 1998. During our site visits, we met with BCYC Superintendent Jack Borden, Assistant Director Eric Ruth, and other BCYC staff. In June 1998, we met with local INS Supervisory Detention/Deportation Officer Marion Dillis (who has since transferred to a different position within the INS); and in November, with the INS National Juvenile Coordinator John Pogash, Assistant District Director Ted Nordmark, local INS Supervisory Detention/Deportation Officer James Slovik, and local INS juvenile coordinator David Savina.
Since our original research, the INS has made efforts to improve its policies and practices regarding unaccompanied minors. The INS has implemented an extensive training program, providing training for more than 1,500 INS officers nationwide. It has increased the number of shelter beds substantially, to approximately 350 from the 130 which the Flores v. Reno settlement agreement provides for;5 in Berks County, negotiations between BCYC and the INS led to the opening of a second thirty-five bed shelter care facility primarily for unaccompanied minors detained by the INS. The INS has improved its data collection efforts,6 and it is has issued new regulations for the implementation of Flores.
Despite these improvements, we found the INSs performance lacking in critical areas. Nationwide, as many as one-third of children in INS detention are placed in secure detention centers for juvenile offenders.7 Often held with youth detained for committing violent crimes, they are denied personal possessions and held in a severely restrictive, punitive environment. Children interviewed for this report were handcuffed during transport, strip searched, and subjected to other degrading treatment. We found that too often, children in INS custody do not receive adequate legal information or representation and are transferred without the knowledge of their attorneys or families. Many children are denied information about their detention or education in a language that they understand and maybe confined for months at a time without direct access to a single person with whom they can converse in their own language.
Based on our site visit and interviews, Human Rights Watch found that many of the concerns raised in our 1997 report remain unaddressed and that the INS continues to violate its own regulations and the rights of children in its custody. The following recommendations reiterate many of those made in our 1997 report.
To the U.S. Congress:
· To prevent conflicts of interest, the U.S. Congress should not charge the same agency with the care of unaccompanied, undocumented children and also the enforcement of the immigration laws against them. Once apprehended by the INS, unaccompanied children should be placed in the custody of appropriate child welfare authorities.
· Congress should request that the General Accounting Office initiate a study into the use of local juvenile detention centers by the INS to house children. The study should produce information on the number of children held in juvenile detention centers, including the number of those children who are asylum seekers; the number and location of all detention centers used; the average length of detention of children at each facility; transfer policies; language abilities of local detention center staff; compliance with INS detention stanadards and American Correctional Association guidelines; and compliance with international and domestic standards on the treatment of juvenile administrative detainees.
To the U.S. Department of Justice:
· United States Attorney General Janet Reno should direct the INS to work towards full compliance with the United Nations High Commissioner for Refugees (UNHCR) Guidelines on Detention of Asylum Seekers, UNHCR Guidelines on the Protection and Care of Refugee Children, and the UNHCR Guideline on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum.
· United States Attorney General Janet Reno should order the INS to comply fully with all relevant national laws, regulations, and international standards concerning detention conditions for children.
· 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 Janet Reno should order that the INS immediately cease to place unaccompanied children in state juvenile justice or criminal justice facilities, or in other facilities with prison-like conditions.
· The Special Litigation Section of the Civil Rights Division should investigate conditions of confinement of children held by the INS in local juvenile detention centers.
To the U.S. Immigration and Naturalization Service (INS):
Detention Policies and Conditions
Until custody of unaccompanied children is transferred to appropriate child welfare authorities:
· The INS should develop and implement alternatives to detention, consistent with its expressed policy of placing children in the least restrictive setting appropriate to the juveniles age and special needs. These alternatives should include local social service agencies and foster families in the area in which the child was originallydetained. The INS should develop such alternatives to detention with the assistance of local public interest attorneys and community groups.
· In emergencies where there is no alternative to placing children in juvenile detention facilities, placement should be for the shortest possible period of time, and children should be separated from juvenile offenders.
· 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, and such children should be detained in secure facilities only if a thorough and individualized investigation reveals no possible safe alternatives. If children must be detained in secure facilities, they should be held separately from children adjudicated delinquent.
· Shelter-care facilities should be in major ports of entry to the United States, where culturally appropriate community resources and legal services are available. When possible, children should be placed in shelter-care facilities in the area in which they were originally apprehended or in which they have friends or relatives.
· 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 visit public libraries, and to go on frequent educational and recreational field trips. Children in longer-term custody should be permitted to attend public school whenever possible.
· 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.
· Children in INS custody should not normally be subjected to the use of handcuffs or other restraints. In those rare instances in which the use of restraints must be used to protect a childs safety or the safety of others, instruments of restraint should not cause humiliation or degradation, and they should be used restrictively and only for the shortest period of time.
· Grievance procedures, including mechanisms for making confidential complaints against facility staff, should be made available and described in writing and clearly explained to children upon their arrival at a facility. INS officials and local facility supervisors should promptly investigate and respond to all complaints.
· Where the INS employs age assessments, it should take care to ensure that the method of assessment conforms to the United Nations High Commissioner for Refugeess Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. Any assessment must take into account both the physical appearance and the psychological maturity of the child. Any examination must allow for a margin of error and must take into account the possibility of overestimating a childs age because of the inherent unreliability of many assessment tools which purport to measure chronological age. Further, examinations must employ methods which are safe and which respect human dignity. Finally, immigration authorities should err on the side of extending the protections accorded to minors in cases where an individual cannot be identified as an adult with certainty.
Access to Legal Information and Representation
· All unaccompanied children awaiting determination of their immigration status should have access to meaningful legal representation. If an unaccompanied child is indigent, the government should pay for legal representation. All legal representation should be by an attorney or accredited representative who is given adequate time to prepare the case and who commits to representing the child through completion of the proceedings.
· Just as regulations currently in place provide that immigration judges cannot accept an admission of removability from an unrepresented child, the INS should adopt a regulation or operating instruction to prohibit INS officers from presenting a voluntary departure form or accepting a voluntary departure request from an unaccompanied, unrepresented child.
· 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 INS should promptly and regularly provide children with information about their legal rights in a language they can understand.
· The INS should promptly inform children of their court dates verbally and in writing in a language they can understand.
· The INS should inform children both verbally and in writing of their right to contact a local office of 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 and provided to each child.
· The INS should provide a sufficient number of trained interpreters 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 in their custody.
Monitoring of Conditions and Practices
· In compliance with the data collection provisions of the Omnibus Appropriations Act of 1998, 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 INS should record the same information which it is required by law to collect on longer-term detainees, including the place of apprehension; whether the child was given the opportunity to call a parent, relative, friend, or free legal services organization; 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 childs custody was transferred.
· In addition to the aggregate data which the Omnibus Appropriations Act of 1998 requires the INS to collect, the INS should maintain comprehensive individual statistics on each childs age and country of origin; place and length of detention; whether the place of detention is also used to detain juvenile offenders; if so, whether the child shares a cell with a juvenile offender; and the ultimate disposition of the childs case.
· As long as the INS retains custody of unaccompanied children, each INS district should keep comprehensive statistics on detained children, ensure that detention facilities provide appropriate standards of care, and maintain meaningful contact with childrens attorneys and the immigration and public interest bars.
· Each INS regional office should form an oversight committee 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 U.S. Department of Justices Alien Minors Shelter Care Program Guidelines and Requirements.
To the Working Group on Arbitrary Detention of the U.N. Human Rights Commission:
· The Working Group on Arbitrary Detention should investigate the detention of unaccompanied children in the United States by the INS.
· The Working Group on Arbitrary Detention should issue written guidelines, in consultation with nongovernmental organizations, juvenile specialists, and detention experts, to delineate the minimum standards appropriate for administrative immigration detainees. These guidelines should contain a special section on unaccompanied children detained by immigration authorities.
To the United Nations High Commissioner for Refugees (UNHCR):
· UNHCR should give priority to the needs of unaccompanied children, who are particularly vulnerable.
· UNHCR should 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; UNHCR should make the findings of such investigations public.
· UNHCR should pay particular attention to childrens access to lawyers and interpreters, and to childrens ability to contact family members or adult friends by telephone or otherwise.
UNHCR should talk with children privately and for whatever time is necessary to assess their situation and treatment.
· UNHCR should request the INS to provide UNHCR with full information on the total number of unaccompanied children taken into custody, including those released or those who accept voluntary departure within 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.
Local offices of UNHCR should apply to the U.S. Department of Justices Executive Office for Immigration Review to be placed on the legal services lists for each immigration court to enable unaccompanied minors to contact UNHCR.
· Local offices of UNHCR should develop the capacity to respond to requests for assistance from detained unaccompanied minors or to refer such requests for assistance to local pro bono counsel.
· UNHCR should meet regularly with nongovernmental organizations and lawyers groups working actively on the issue of unaccompanied children and their treatment by the INS.
To the Organization of American States:
· The Inter-American Commission on Human Rights of the Organization of American States should investigate the treatment and conditions of confinement of children in INS detention in the United States.