Unaccompanied Juveniles in INS Custody
Report Number I-2001-009
September 28, 2001
The Immigration and Naturalization Service (INS) encounters more than 100,000 accompanied and unaccompanied illegal juveniles under the age of 18 every year. The INS quickly returns the vast majority of the juveniles to their country of origin. Most of these are Mexican juveniles who are voluntarily returned to Mexico. Our inspection concentrated on the smaller number of unaccompanied illegal juveniles who are detained for longer than 72 hours and placed in shelters or secure detention facilities by the INS while they are in INS custody. These juveniles are from many countries. They come to find work, to be reunited with their families, or to flee human rights abuses and armed conflict in their home countries. The INS apprehends them when they try to enter the United States illegally along the border; at land, air, or sea ports of entry; or are picked up inside the country as a result of an INS enforcement action. Often alien smugglers are involved.
In FY 2000 the INS detained 4,136 unaccompanied illegal juveniles for longer than 72 hours.2 This total includes 3,664 juveniles apprehended in FY 2000 and 472 juveniles in custody prior to the start of the fiscal year, but who were still in detention on October 1, 1999. Of these, 75 percent were male and 25 percent were female. Their average age was 15 years. These juveniles represented 64 different nationalities, with the largest percentages coming from Central America, China, and Mexico. Of the 3,664 juveniles apprehended in FY 2000, INS subsequently released 3,172 (87 percent) in the same fiscal year. The average length of time in custody was 33 days, and the median was 19 days.3 The INS normally has between 400 and 500 juveniles in custody at any one time.
In 1984 the INS Western Region established a policy governing the release of alien juveniles detained pending the outcome of deportation procedures. Under this policy, the juvenile could only be released to a parent or lawful guardian. Only in extraordinary circumstances could the juvenile be released to another responsible individual. In 1985 two human rights legal advocacy organizations filed a class-action suit on behalf of Lisette Flores in the United States District Court for the Central District of California challenging the release policy and the conditions of detention.4 While the Flores case was before the District Court, the INS established a single national rule for the release of juveniles in deportation or exclusion procedures, similar to the Western Region policy. However, according to this national policy, even if parents or guardians were available, detention could be continued to secure the juvenile's presence in immigration proceedings, or to ensure their safety.
In 1988 the District Court ruled in Flores' favor. The INS and the Attorney General appealed. In 1990 the United States Court of Appeals for the Ninth Circuit reversed the District Court findings in Flores v. Meese. The United States Supreme Court ruled in 1993 that the INS policy was reasonable and reversed the judgment of the Court of Appeals. In 1996 the plaintiffs and the INS entered into a settlement agreement that terminated the lawsuit. As part of the agreement, INS established new policies for the detention, processing, and release of juveniles under the age of 18 in INS custody and drafted new regulations. The INS was required to report annually to the court approving the agreement on its compliance with the terms of the agreement. The INS also was required to report semiannually to the plaintiffs on its compliance and provide data about the juveniles in INS custody longer than 72 hours.
After the Flores agreement, various groups published reports that continued to criticize the INS for alleged violations of juveniles' rights at detention facilities in Arizona, California, and Pennsylvania. Concerns raised by these groups have drawn Congressional attention, and new legislation to address them has been proposed recently. The Unaccompanied Alien Child Protection Act (S. 121) introduced in January 2001 by Senator Dianne Feinstein, would provide for appointed counsel and a guardian ad litem for unaccompanied alien juveniles and establish minimum standards for their custody.5 A companion measure (H.R. 1904) has been introduced in the House of Representatives.
In general, our inspection reviewed the new policies and regulations the INS implemented after Flores, as described in the Juvenile Protocol Manual, published by the INS in March 1999. We assessed whether the INS was:
Scope and Methodology
During our inspection, we visited 16 juvenile facilities, which housed 2,410 of the 4,136 juveniles (58 percent) in custody in FY 2000.6 We reviewed the Juvenile Program at 8 of the INS's 33 districts and interviewed the INS regional juvenile coordinators for all 3 regions. We visited 3 of the 21 Border Patrol Sectors. We visited two INS Service Processing Centers (SPCs). We interviewed senior INS and Executive Office for Immigration Review (EOIR) staff, immigration judges, INS attorneys, local legal service providers or immigrant rights organizations, and Public Health Service (PHS) officials. The data analysis presented in this report was largely based on FY 1999 and 2000 data from the INS's Juvenile Alien Management System (JAMS) database. JAMS was created in response to a Flores requirement that the INS track unaccompanied juveniles in its custody and record certain basic information.7
Organization of the Juvenile Program
The INS Juvenile Program is directed by the INS National Juvenile Coordinator, who reports to the Deputy Associate Commissioner for the INS Office of Detention and Removal (D&R) at INS headquarters.8 Three regional juvenile coordinators, reporting to the respective regional head of D&R, are responsible for overseeing and monitoring the district juvenile coordinators in their regions. The 33 INS district juvenile coordinators are selected from the district D&R staff. They report through the district chain of command and to the regional and National Juvenile Coordinator. Some district juvenile coordinators work with juveniles full-time and others work with both juvenile and adult cases, according to the juvenile workload.
The National Juvenile Coordinator and the regional juvenile coordinators coordinate the placement and movement of juveniles between districts and regions. The district juvenile coordinators are responsible for juveniles in custody in their jurisdictions, including the respective Border Patrol sectors. The district juvenile coordinators work with Border Patrol sector personnel designated to handle juvenile issues.
The district juvenile coordinators work with the juveniles, make family contacts, and communicate with INS officers and with detention and shelter care facility staffs. The district juvenile coordinators are on call 24 hours a day, 7 days a week, and must be notified whenever a juvenile is taken into custody to make arrangements for the juvenile's care and placement. The district juvenile coordinators are required to visit the shelters and the juveniles on a regular basis, coordinate juvenile immigration hearings and juvenile movement between districts (often escorting juveniles between districts), and coordinate their release or removal.
At present, the Juvenile Program contracts with more than 100 facilities, which provide over 500 bed spaces for juveniles. The bed spaces include 400 non-secure beds comprised of shelter, group, and foster beds as well as 100 secure beds. In a few instances, if beds are unavailable, juveniles are housed in hotel rooms secured by contract guards. All juvenile beds are considered national beds. That is, they are not for the exclusive use of individual districts or regions, regardless of their location. The national bed concept facilitates appropriate placement of juveniles wherever they are apprehended. The regional and district juvenile coordinators must maintain contact and cooperate with one another to ensure the timely placement of juveniles in appropriate facilities.
Principal Provisions of Flores v. Reno
The Flores agreement resulted in new national policies applying to all juveniles in INS custody. The agreement stated the INS must treat juveniles with dignity, respect, and concern for their vulnerability, and must detain juveniles in the least restrictive setting appropriate to their ages and special needs. The agreement established a general policy favoring release without unnecessary delay. The INS agreed to continue its efforts towards family reunification and release of the juveniles. Release to a sponsor was to follow an order of preference ranging from a parent as the first choice, to an entity or unrelated adult willing to accept legal custody, if there were no other appropriate sponsors. Sponsors would be responsible for the juveniles' well-being and for ensuring their presence at all required immigration proceedings. The INS could terminate custody arrangements if the sponsor failed to carry out these responsibilities. The agreement stated clearly the INS was not required to release a juvenile to any person or agency if it had reason to believe the potential sponsor might harm, neglect, or fail to present the juvenile to the INS or the immigration courts when requested to do so.
The agreement requires that the INS not detain an unaccompanied juvenile with an unrelated adult for more than 24 hours and that the juveniles be held in safe and sanitary facilities. Juveniles taken into custody must be informed of their right to be represented by an attorney, to contact someone, to a hearing before an immigration judge, and to judicial review of their cases. The INS must also provide a list of free legal services available in the district. Unaccompanied juveniles should not be transported in vehicles with detained adults, except to go from the place of arrest to an INS office, or when separate transportation is impractical. Juveniles transported with adults must be separated and protected from harm. If a reasonable person would conclude an alien is an adult, in spite of claiming to be a juvenile, the INS may treat him or her as an adult. The INS may require a medical or dental examination to verify age.
If there are no sponsors to whom juveniles could be safely released, the INS agreed to house them in facilities meeting certain standards. The agreement distinguished between two general levels of facility security: non-secure shelter or foster programs; and secure or medium-secure juvenile detention facilities.
The INS may hold juveniles in secure facilities only when they meet certain criteria, which include:
For juveniles who do not meet these criteria, but must be temporarily housed in secure detention, the INS agreed to separate non-delinquent juveniles from delinquent offenders. The INS further agreed to transfer juveniles not meeting the secure detention requirement to a licensed shelter, within three to five days. The INS should not use secure facilities if an appropriate shelter or medium-secure facility is available. In the event of an emergency, or an influx of minors in excess of the number of shelter beds, the INS can temporarily suspend these rules.
The settlement required the INS to designate a National Juvenile Coordinator to monitor compliance with the terms of the agreement. In response to an additional Flores requirement to track and provide certain basic information about unaccompanied juveniles in custody for more than 72 hours, the INS created the JAMS database. JAMS data is entered at the district level, forwarded weekly, and compiled at headquarters.9 Flores also required the INS to provide training to INS employees regarding the agreement.
Except for initial, short-term housing, juveniles are held in four types of facilities: foster homes, shelter care facilities, medium-secure facilities, and secure detention facilities. Occasionally, if none of these types of bed space is available, hotel rooms secured by contract guards are used. Foster care, used infrequently, is generally reserved for girls, children aged 10 or under, and long-term detainees for whom a sponsor cannot be found.
Shelter facilities, or licensed programs, are any program, agency, or organization licensed by an appropriate state agency and contracted by the INS to provide residential, group, or foster care services for dependent juveniles. They may include programs operating group homes, foster homes, or facilities for juveniles with special needs, i.e., mental and/or physical conditions requiring special services and treatment by staff.
Medium-secure facilities are state-licensed facilities designed for juveniles who require close supervision but not secure detention. These facilities provide 24-hour supervision and maintain stricter security measures, such as constant staff supervision. They may have a secure perimeter but are not equipped internally with major restraining construction or procedures typically associated with correctional facilities.
Secure facilities are state or county licensed juvenile detention facilities or INS-contract facilities that have separate accommodations for juveniles.
Immigration Process for Unaccompanied Juveniles
The largest proportion of juveniles the INS encounters are of Mexican origin. According to the Border Patrol and port of entry managers we spoke to in the field, the Mexican juveniles are typically detained in temporary holding areas and returned voluntarily within a matter of hours, and usually in no more than 24 hours to either a parent, a relative, or a representative of the Mexican government. The United States government has established repatriation agreements with Mexico and the ports of entry and Border Patrol sectors maintain close relationships with the Mexican consulates, ensuring the Mexican juveniles are properly returned and not simply dropped off across the border. About 90 percent of the juveniles who remain in the United States are processed and placed in an appropriate facility within three to five days.
INS officers apprehending unaccompanied juveniles who are not going to be voluntarily returned are required to give them a notice of their rights and a Notice to Appear (NTA) for hearings conducted by EOIR judges. The juveniles are then transported to the designated facility. Upon arrival at a shelter or a secure facility, the facility staff screens juveniles to determine their mental and physical health and conducts an initial interview to find potential family or other sponsors to whom to release the juveniles. Once appropriate sponsors are located, the INS will release the juveniles into their custody.
Home Assessment Process
A special sub-group of juveniles, including all juveniles from China and India, is considered to be vulnerable to exploitation and abuse by smugglers. The sponsors of these juveniles are required to undergo an extensive home assessment before the juvenile can be released.
The INS has contracted with two volunteer agencies, the United States Catholic Conference (USCC) and the Lutheran Immigration and Refugee Services (LIRS), to perform home assessments for all Chinese and Indian juveniles. The assessments begin with juvenile coordinators or shelter staff attempting to identify potential sponsors by talking with the juveniles. The INS sends the information provided by the juveniles to the agencies to forward to caseworkers in the sponsors' area. Agency caseworkers interview the sponsors to verify their suitability, request the INS to perform preliminary records checks, and, if no negative information emerges, complete the home assessments. The National Juvenile Coordinator reviews the results of the assessment. If the National Juvenile Coordinator recommends approval, he notifies the district juvenile coordinator, who then checks the sponsor against the National Crime Information Center database. The sponsor must not have a criminal record. Authority for release of juveniles rests with district directors, but can be delegated to lower levels. If at any point information indicating that a sponsor would be unsuitable emerges, the search for a different sponsor starts over.
Often the Chinese and Indian juveniles, who require home assessments, are in custody much longer than other nationalities. In FY 2000, for a sample of 280 Chinese and Indian juveniles, the average time in custody was 146 days. Records show juveniles spent an average of 33 days in custody if they did not require home assessments.
Several factors affect the time required to complete home assessments: whether juveniles can or will identify acceptable sponsors, the reliability of the information juveniles provide, and the experience and workload of the voluntary agency caseworkers.
All juveniles are entitled to a hearing before an immigration judge, who will determine if they will be allowed to remain in the United States. When INS officers take juveniles into custody, the juveniles are notified of their right to hearings conducted by an EOIR judge. INS officers also inform the juveniles of their right to be represented by an attorney, and give them a list of free legal service providers who may help them if the juveniles do not have funds to pay for a private attorney. A lawyer or paralegal representing a pro bono legal service provides most juveniles who come into INS custody (at the districts we visited) with at least a basic explanation of their rights and of immigration proceedings. While all juveniles are entitled to a hearing, many decline their right and elect to voluntarily return to their country of origin.
During hearings, the judges consider any claim for relief from removal the juvenile may put forward, most often an application for asylum. Judges may grant or deny the applications for relief. If the judges deny relief, the juveniles may be allowed to depart voluntarily, or they may be ordered removed from the country.
Results of the Inspection
We concluded that the INS has made significant progress since signing the Flores agreement. The juvenile program staff developed a detailed Juvenile Protocol Manual that defines the procedures and responsibilities that INS officers are expected to follow with juveniles from initial encounter through release or removal. The INS has provided training on the provisions of the Flores agreement to over 15,000 employees since 1997 and made it part of the law enforcement academy training received by INS officers. The number of juvenile shelter bed spaces has increased from 131 in 1997 to over 400 in 2000. The INS implemented facility inspection standards for secure juvenile detention and shelter care facilities. Jail inspection training has been made part of training received by all juvenile coordinators. To meet the Flores requirement for data reporting, the INS developed the Juvenile Alien Management System (JAMS), enabling improved tracking and reporting on juveniles in its custody. JAMS is updated weekly at INS headquarters. All of the facilities we visited had programs in place to meet the Flores requirements for providing education, medical services, recreation, and social orientation programs in addition to providing the necessary food and shelter. The National Juvenile Coordinator and the regional juvenile coordinators hold formal meetings with nonprofit groups, advocacy groups, pro bono groups, and shelter care facility providers. The INS has also submitted its required reporting annually to the court and semi-annually to the plaintiffs for three years. According to the INS, the court and the plaintiffs have not notified them of any instances of substantial non-compliance with the Flores agreement.
Although the INS has made significant progress since signing the Flores agreement, our review found deficiencies with the implementation of the policies and procedures developed in response to Flores in INS districts, Border Patrol sectors, and at headquarters. Some of the problems existed across INS districts while some problems were specific to a few districts. This report alerts senior INS managers to the existence of problems that could lead to potentially serious consequences affecting the well-being of the juveniles.
Our findings are organized into three chapters. Each section within the chapters is followed by recommendations. Chapter 2 discusses deficiencies in the Juvenile Program's compliance with policies and procedures and identifies four areas that need improvement: segregating non-delinquent juveniles from delinquent juveniles, visits made to juveniles and facilities, management of custody issues, and timely placement of juveniles. Chapter 3 discusses shortcomings in Program oversight and identifies four areas that need improvement: managerial support and enforcement of Flores, roles and responsibilities of the INS and the facilities, acquisition of bed space, oversight of the Juvenile Program at INS headquarters, and training. Chapter 4 discusses two process issues related to the Juvenile Program we identified during our site visits: policies on release of juveniles to sponsors and problems related to the EOIR proceedings process. In these chapters we point out a number of best practices we observed. In Chapter 5 we list all the recommendations we made in the report.