Unaccompanied Juveniles in INS Custody
Report Number I-2001-009
September 28, 2001
The Office of the Inspector General (OIG), Evaluation and Inspections Division, reviewed the treatment of unaccompanied illegal juveniles held in the custody of the Immigration and Naturalization Service (INS). We examined the INS's policies and procedures developed in response to the Flores v. Reno (Flores) settlement agreement and other issues concerning juvenile detention. Our inspection focused on unaccompanied illegal juveniles who are detained in shelters or secure detention facilities. Accompanied juveniles, juveniles voluntarily returned to Mexico, and juveniles in custody less than 72 hours were not included in our review.
Flores was a class-action lawsuit filed against the INS because of its policies related to the detention, processing, and release of unaccompanied illegal juveniles. The requirements of the agreement are intended to protect the rights of unaccompanied illegal juveniles in INS custody as well as to ensure their well-being. In March 1997, the INS's settlement of the suit resulted in new INS policies for the detention, processing, and release of unaccompanied illegal juveniles.
In fiscal year (FY) 2000, the INS detained 4,136 unaccompanied illegal juveniles for longer than 72 hours. The unaccompanied illegal juvenile population was 75 percent male and 25 percent female. Its average age was 15 years. The average length of time in custody was 33 days and the median was 19 days. The INS normally has between 400 and 500 juveniles in custody at any one time. The INS contracts with licensed facilities for shelter care programs, group homes, foster homes and juvenile detention facilities to house the juveniles in the least restrictive setting appropriate. The facilities are classified as secure, medium secure, and non-secure.
Results in Brief
During the last three years, the INS has made improvements in its Juvenile Program. The Juvenile Program staff developed a detailed Juvenile Protocol Manual that defines the policies, 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 INS employees since 1997 and also 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 FY 1997 to over 400 in FY 2000. 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. 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 Juvenile Program has also submitted its required reporting to the court and the plaintiffs for three years and has not received notification from the court or the plaintiffs that INS is substantially out of compliance with the Flores agreement.
Although the INS has made significant progress since signing the Flores agreement, our review found that deficiencies in the handling of juveniles continue to exist in some INS districts, Border Patrol sectors, and headquarters that could have potentially serious consequences for the well-being of the juveniles.
INS Compliance with Policies and Procedures
Flores and INS policy require the INS to segregate non-delinquent juveniles in temporary detention from juvenile offenders while they await appropriate placement. The INS does not interpret Flores as requiring that the segregation be maintained once the non-delinquent juveniles are formally placed in a secure facility, and INS policy does not require it. We believe the segregation of non-delinquent juveniles from juvenile delinquents should be continued as long as the juveniles are in INS custody in order to ensure their well-being. In FY 2000, 34 of 57 secure facilities did not have procedures or facilities to properly segregate non-delinquent from delinquent juveniles. As a result, there may have been as many as 484 potential instances when non-delinquent and delinquent juveniles were housed together.
The Juvenile Protocol Manual requires an INS official to visit with all juveniles in its custody on a weekly basis. At three of the eight districts reviewed, juvenile coordinators were not regularly conducting the required visits. In addition, the INS does not have procedures in place to document the visits when they do occur.
Flores requires the INS to segregate juveniles from adults during detention and transport after arrival at the first INS processing office. INS escort policy requires that juveniles be transported with same-sex escorts. The INS does not always document the detention and transport of juveniles and is thus unable to demonstrate compliance with this requirement. INS escort policy requires that all juveniles be escorted when on commercial aircraft. The INS allowed unescorted juveniles to travel on commercial aircraft. INS restraint policy also prohibits the use of restraints on non-delinquent juveniles in custody or when transported by non-INS officers/agencies. Facilities in four districts used restraints when transporting non-delinquent juveniles.
Flores requires the INS to place juveniles in an appropriate secure juvenile detention facility or a non-secure shelter facility within three to five days of entering into INS custody. In FY 2000, the INS did not meet this requirement for 19 juveniles. For 339 juveniles, INS records were not sufficient to demonstrate that it had met this requirement.
Juvenile Program Oversight
Three of the eight districts we reviewed had recurring problems with district or Border Patrol officers not carrying out the duties required by the Juvenile Protocol Manual. In several districts the effectiveness of the Juvenile Program was hampered by a lack of administrative support for the district juvenile coordinator. Three districts did not have a fully trained back-up district juvenile coordinator. Two district juvenile coordinators who handled a heavy volume of juveniles did not have clerical support.
The INS did not hold one shelter we reviewed to the terms of its cooperative agreement and did not control all actions affecting the custody of juveniles. At another secure facility, the district juvenile coordinator had difficulty meeting INS requirements for monitoring juveniles.
The INS did not have a clearly defined mechanism for analyzing its bed-space needs or a comprehensive plan for acquiring the beds. The INS needs to determine its requirements by types of beds and locations where new bed-space would best serve the Juvenile Program. In addition, the INS needs to better define district, regional, and national responsibilities for acquiring these beds.
Monitoring and oversight by the Juvenile Program managers was weak. Available data on the juveniles was not analyzed to identify systemic problems or trends in length of time in custody or facility placements. The managers failed to implement a procedure to analyze and track significant incident reports (SIRs) involving juveniles in custody. Required inspections of non-secure and secure facilities were not timely for most of the facilities. Changes in policy and guidance were not updated in the Juvenile Protocol Manual. Data entry errors were not always corrected and reconciled. Finally, the criteria for using influx as a justification for placing non-delinquent juveniles in secure facilities needs to be updated.1
The INS conducted the training agreed upon in the Flores settlement within 120 days of the final court approval. New officers also now receive the training at the law enforcement academy. However, beyond meeting the initial Flores training requirement, the INS has not developed comprehensive, INS-wide follow-up training for designated field employees.
The Flores agreement established as INS policy that juveniles would be released without unnecessary delay, consistent with its interests to ensure the juvenile's timely appearance before the INS and the immigration courts and to protect the juvenile's well-being. Juveniles must be released to a sponsor who will accept responsibility for the juvenile. Preferred sponsors included parents, legal guardians, and close adult family members. If a juvenile has a parent in the United States, however, current INS policy requires the parent to be involved in the juvenile's release, regardless of the parent's immigration status. An undocumented parent must report to an INS officer and enter immigration court proceedings before the INS will release the juvenile. If the parent is unwilling to come forward, the juvenile will remain in INS custody, even when another acceptable sponsor is available. The current INS policy if too rigidly adhered to, may impede the INS's ability to ensure the least restrictive custody and most expeditious release of juveniles.
Unaccompanied juveniles in the Juvenile Program are required to go before the immigration courts to present their cases. The court proceedings are the responsibility of the Executive Office for Immigration Review (EOIR) but are initiated by INS at the outset of the juvenile's custody. For several reasons, few juvenile cases before the immigration courts are completed while the juveniles are still in custody. After juveniles were released from custody, 68 percent failed to appear for their hearings. Legal services available for juveniles in custody are limited, hearings on the merits of cases are frequently postponed until after release of the juveniles, and in two locations hearings for juveniles in shelter care were not scheduled expeditiously.
The law does not provide for legal representation at government expense for alien juveniles. However, EOIR is actively involved in developing sources of pro bono legal aid. The other reasons for delay are, for the most part, the responsibility of EOIR. To the extent that problems in the process affect juveniles in INS custody, the INS and EOIR should follow-up on discussions already begun to find effective mutually agreeable solutions.
The report contains 28 recommendations to address the issues we identified during our review.