Refugee Children at Risk
By Wendy A. Young
In May 2000, 18-month-old Baby Jane Doe was brought to the United States by a smuggling ring and abandoned at the Miami airport. Since her arrival, she has been held in an institutional shelter operated under contract with the Immigration and Naturalization Service (INS). She became the subject of immigration proceedings and appeared at her initial hearing before an immigration judge without either a lawyer or a guardian ad litem to assist her. The immigration judge asked INS deportation to represent the child, an obvious conflict of interest. Fortunately, her case has been taken up by a pro bono legal services program.
While Baby Jane Doe was lost in the labyrinth of the U.S. asylum system, the attention of the American public was riveted on the drama surrounding the case of young Elian Gonzalez, the six-year-old Cuban rescued at sea after the boat carrying his mother and him capsized. Unfortunately, the impression left with many was that Elian's case was unique. In fact, it is not. In 1999 alone, the INS had 4,600 unaccompanied children in its custody. These children range in age from toddlers to teenagers.
What was highly atypical about young Elian's case was the amount of attention it received. Elian enjoyed the services of several lawyers; many children have none. Elian's case was addressed at the highest levels of government, from the president of the United States on down; most children's cases are handled by low-level INS deportation officers. Elian was immediately released to his Miami relatives; most children are held in INS shelters or juvenile correctional facilities. And Elian ostensibly had a loving father who wished his return to Cuba; most children have lost their families, been sent out of their homelands by families who fear for the child's safety, or-sadly-have been forced to flee abuses inflicted by the family itself. Many have fled persecution, including military recruitment, abusive child labor, sexual slavery, and female genital mutilation.
If there is a silver lining to the Elian Gonzalez case, however, it is the fact that it served to shed much needed light on these vulnerable children. This article discusses the INS detention of children and the situation of children who are seeking refugee protection in the United States.
INS Detention of Children
Under the Immigration and Nationality Act, the INS has broad authority to detain newcomers who lack appropriate documentation to enter the United States. In 1985, a class action law suit, Flores v. Reno (507 U.S. 292 (1993)), was filed against the INS, challenging the agency's arrest, processing, detention, and release of minors in its custody. In 1993, the Supreme Court ruled in favor of the INS on several issues, but the parties to the lawsuit were able to negotiate a settlement on other key issues, including the detention, release, and treatment of minors in INS custody. This settlement is known as the Flores settlement agreement.The Flores agreement recognizes two fundamental principles: (1) minors should be treated with dignity, respect, and special concern for their particular vulnerability; and (2) children should be held in the least restrictive setting possible or, when appropriate, released from detention to an individual or entity willing to ensure the child's safety and timely appearance in immigration court. The Flores agreement allows exceptions to the second principle in certain cases, including when a child is deemed a flight risk; when there has been an emergency influx of children; when a child's safety is at risk; or when a child is chargeable, has been charged, or has been convicted of a crime. In such cases, children may be housed in secure settings, i.e., juvenile jails.
These standards are not always met in practice. The INS has opened a number of children's shelters across the United States to house children pending their release to family or others or while their cases are pending if they cannot be released. Run by nonprofit agencies under contract with the INS, these shelters represent some improvement over past practices, in which the INS regularly detained children in so-called secure facilities or released them without any safety net in place to face life in the United States alone. Unfortunately, children may remain housed in these institutional settings for long periods of time, particularly if they cannot be released to family.
Since 1997, the number of children in INS custody has increased dramatically, nearly tripling in number. Because the INS lacks adequate shelter bed space to accommodate this increase in numbers, and because of the subjectivity it exercises in placement decisions, the agency often resorts to detaining children in juvenile correctional facilities. INS deportation officers usually make such placement decisions and often base these determinations (which are not reviewed by objective decision makers) on law enforcement concerns. In 1999, almost 2,000 children were held in local juvenile jails for some period of time, ranging from days to more than a year.
These children's prisons are designed primarily to house youthful offenders, and in no way address the needs of foreign-born children who have committed no crime. The staff of these facilities often lack the language skills necessary to communicate with the children and are unaware of the needs, legal and otherwise, of the children in their custody. The children are sometimes commingled with youthful offenders and treated indistinguishably from that population, forced to wear prison uniforms and live in a punitive environment subject to strict rules and regulations. The children, in turn, are often too young or uninformed to appreciate the nature of the immigration proceedings in which they are involved and are vulnerable to agreeing to deportation as their only recourse to getting out of the correctional facility. They are also often unaware that they should have legal counsel, which may not be available in any case due to the remote locations of many of the jails with which the INS contracts.
Due largely to the Flores agreement, improvements have been made in the ways the INS detains children. However, this progress is at risk of being undermined due to the growth in the numbers of children arriving in the United States and the agency's failure to commit the resources necessary to keep pace with this growth.
Clearly, the INS is not a child welfare agency but primarily a law enforcement agency, the mandate of which is dominated by its deportation functions. Because of this, the agency has an inherent conflict of interest in acting as the children's caregiver, a flaw that has recently been made more obvious by the INS's consolidation of its children's programs-including operation of the shelters-under its Detention and Removal branch. Detention represents a serious impediment to the ability of children to obtain the protection for which they may be eligible under U.S. law, including political asylum.
Special Needs of Child Asylum Seekers
More than half of the world's refugees are children. Children who have been persecuted may be eligible for refugee protection or asylum in the United States.Historically, the U.S. asylum process has been a one-size-fits-all system. The unique needs of children, including their inherent incapacity to understand asylum proceedings, was unacknowledged, and as a result, children are forced to meet the same procedural, evidentiary, and legal standards as adults.
Fortunately, this failure to focus on the needs of children has begun to change. In December 1998, the INS issued Guidelines for Children's Asylum Claims (Guidelines). For the first time, the Guidelines recognized the special needs of children who seek asylum.
Although nonbinding on adjudicators, the Guidelines represent an important step forward in creating procedural, evidentiary, and legal frameworks for children's claims. They address such issues as appropriate techniques for interviewing children, the quality of evidence a child may be able to present, and how children's asylum claims can be analyzed in the context of existing jurisprudence. Significantly, the Guidelines also embrace the notion that the principle of "the best interests of the child" should guide at least the procedural aspects of how a child's case is handled. Since issuance of the Guidelines, both INS asylum officers and the Executive Office for Immigration Review's immigration judges have been trained under their recommendations.
Early indications are that the Guidelines are having some positive impact. For example, children have recently been granted asylum on the basis of forced marriage and abuses they have faced as street children. These are unique claims, the approval of which represents an encouraging evolution in asylum jurisprudence.
Gaps in the Asylum Process
However, two gaps in the asylum process that jeopardize the protection of children remain unaddressed. First is the failure to ensure that each and every child is represented by counsel. U.S. immigration law acknowledges the right of an individual to be represented by counsel, but such representation cannot be at government expense.As a result, the practical reality is that many newcomers, particularly those in detention and those seeking asylum, depend on pro bono representation, a service that has been increasingly stretched thin due to the tremendous growth in INS detention in recent years. Children are not exempt from this lack of resources, and a significant percentage are forced to maneuver through their immigration proceedings pro se.
Second, guardians ad litem are not appointed for unaccompanied children in immigration proceedings, including those seeking asylum. This is the case despite the fact that such appointments are frequently part of abuse and neglect proceedings in U.S. domestic cases and of child asylum proceedings in other countries such as the United Kingdom. The appointment of a child-welfare professional is critical to ensuring that the child's best interests are addressed in the immigration proceeding.
A guardian ad litem fulfills several key functions. These include establishing trust with the child, learning the child's views, helping the child to articulate his or her views, helping to develop the child's awareness of the available options, eliciting the child's preferences, and acting as the child's spokesperson throughout all facets of the immigration proceedings.
Interest in both the provision of government-funded counsel and the appointment of guardians ad litem to unaccompanied children in immigration proceedings has been expressed by key officials in the U.S. Department of Justice and some members of Congress. Providing children with the professional assistance necessary to reach appropriate decisions in their proceedings is an essential element to ensuring that children are afforded due process.
Conclusion
Children in INS custody are among the most vulnerable newcomers to the United States. The U.S. immigration system must recognize that unaccompanied children are children first and have a fundamental right to due process and the care and protection that is appropriate to their young age.
Wendy A. Young is the director of government relations and U.S. programs, Women's Commission for Refugee Women and Children.
