A litany of accusations about the treatment of youths detained for illegal entry into the U.S. is propelling congressional legislation that would probably put more of those youths in the hands of shelters, foster care and pro bono attorneys.
The legislation would end an Immigration and Naturalization Service (INS) practice of sending hundreds of young noncriminal aliens to secure juvenile detention facilities yearly, and would create a new Justice Department office to care for them.
“More than 30 percent of unaccompanied children detained last year were held in juvenile jails, often with dangerous criminals, subject to handcuffing and shackling, forced to wear prison uniforms,” Sen. Edward M. Kennedy (D-Mass.) said during a hearing on the proposed Unaccompanied Alien Child Protection Act (S 121) last month.
The INS detained 4,136 unaccompanied illegal immigrant juveniles for more than 72 hours in fiscal year 2000, including 1,569 nondelinquents in secure detention facilities, according to the Department of Justice (DOJ) inspector general.
“Most of these children are not criminals and should not be treated as such,” said Kennedy, chairman of the Senate Judiciary Committee’s subcommittee on immigration. He is one of 11 co-sponsors of the bipartisan measure, introduced by Sen. Dianne Feinstein (D-Calif.).
Kennedy’s subcommittee heard from a minor who was improperly placed in a secure juvenile detention center after he was picked up by the INS. Edwin Larios Munoz, 15, a refugee from Honduras, arrived in the United States alone in August 2000. He spent a total of about six months in several facilities, including a secure juvenile hall in San Diego.
Munoz said he spent his first four days alone in a cell and was not allowed to make phone calls. When he was later moved to the San Diego facility, he spent another three days alone in a cell without windows. Munoz said the guards hit him with “their sticks,” shoved him and “used a lot of bad words.” He was hit with pepper spray twice when guards broke up nearby fights.
Immigration advocates said Munoz’s testimony, which moved some members of the audience and congressional staff to tears, exemplifies the need for reform. His story was one of dozens of cases presented to the subcommittee.
“Unaccompanied alien children should be treated under the same standards and be afforded the same child welfare protections that are available to other children in the United States,” said Julianne Duncan, director of the Office of Children’s Services for the U.S. Conference of Catholic Bishops’ Migration and Refugee Services.
The INS is responsible for detaining the children and providing services, as well as deporting them. That’s like having criminal prosecutors run the jail system as well as trying cases, said Bob Glaves, chairman of the Chicago Bar Association’s Legislative Committee. “There’s an inherent conflict of interest,” he said.
And immigration advocates say the agency is not equipped to supervise children. “The INS is not a child welfare agency and should not be in charge of children who have been through ordeals” such as terror in their homelands, said Carol Wolchok, director of the Center for Immigration Law and Representation at the American Bar Association.
Lawmakers and immigration advocates say they are pushing for a legislative fix because the INS has not lived up to the standards of a 1996 agreement with human rights organizations, known as the “Flores” settlement. The agreement says unaccompanied alien youth should be placed in the least restrictive settings possible and treated with “dignity, respect and special concern for their vulnerabilities.”
A September 2001 report (“Unaccompanied Juveniles in INS Custody”) by the DOJ inspector general found “deficiencies” in the treatment and handling of youth that “could have potentially serious consequences for the well-being of the juveniles.”
The INS uses four types of housing for juveniles, apart from short-term holding facilities: foster homes, shelters (such as those run by Southwest Key in Harlingen, Texas), medium-secure facilities and secure detention centers (such as Los Padrinos Juvenile Hall in Los Angeles). The INS can put children in detention centers for up to 72 hours if other accommodations are not available.
But it can place minors in secure detention for longer periods if they pose an escape risk, are at risk of harm from others, are considered delinquents or are facing a delinquency hearing, have been charged with or convicted of a crime, or are disruptive or violent in a licensed program.
Of the 57 secure facilities used in fiscal year 2000, 34 could not guarantee that the youths were held separately from criminal populations, the report said.
(It is unclear whether the INS has a minimum age for putting children in juvenile shelters or detention centers. The inspector general reported that most children of “tender age” were placed in foster care or facilities licensed to handle young children. But immigration advocates in Chicago report that children as young as two months old have been placed in INS-contracted juvenile shelters.)
Cost is a factor in the debate. The INS says it pays an average of $150 per day per juvenile placed in a secure facility. The fees vary by state and facility, and experts said they can reach $250 per day.
In contrast, foster care placement costs about $55 per day, said Duncan from the Catholic Bishops’ organization. She testified that the INS does not take advantage of available foster care settings. In fiscal year 2001, she said, the INS placed five children in foster care supervised by the Lutheran Immigration and Refugee Service and two children in care supervised by her organization.
Also at issue is legal representation. The INS is required to inform juveniles facing deportation hearings that they have a right to representation, and must provide them with a list of local pro bono attorneys. However, INS does not guarantee representation.
That disturbs many immigration professionals. “Most [of the youths] lack even the most basic English skills, to say nothing of understanding the complex legal provisions that govern the standards of detention and various forms of substantive immigration relief,” said Andrew D. Morton, an attorney with the international law firm of Latham and Watkins.
The agency tries to ensure that all minors have access to counsel, testified Michael J. Creppy, chief immigration judge of the DOJ’s Executive Office for Immigration Review. “All aliens, including juveniles, that pass through our immigration court system are given all the due process that the law accords them.”
INS Fights Back
The legislation (and an identical bill in the House, HR 1904) would prohibit the INS from placing minors in secure detention facilities unless they exhibit a pattern of violent or criminal behavior that poses a threat to themselves or others.
That means “a lot more kids should be released to relatives in the U.S., while others will be placed in alternative shelter care facilities, including foster care,” said Felicia Bartow, program coordinator for the Midwest Immigrant and Human Rights Center in Chicago.
Secure facilities that take in INS minors could lose some business, but the industry does not appear concerned. “I don’t think it would have a financial impact,” said Ned Loughran, executive director of the Council of Juvenile Correctional Administrators.
Feinstein’s legislation would also require the INS to provide an attorney for every unaccompanied minor who seeks representation, and would provide minors with legal guardians ad litem.
More children may also be granted asylum if the legislation is enacted.
“Under the current structure, it’s easier for the INS to expedite these cases when kids don’t have legal representation and there isn’t a full exploration of all legal remedies available to them,” Bartow said. “That could change if all kids have legal representation.”
In an effort to hold off the forced changes, INS Commissioner James W. Ziglar has proposed several changes to the agency’s youth policy – including the creation of a new Office of Juvenile Affairs that would report directly to him. The INS also plans to review and update its juvenile policies, including the use of restraints and strip searches, and its procedures for determining age. The agency uses dental exams and X-rays to help determine if a detainee is a juvenile.
INS officials told the Senate subcommittee that the legislation was unnecessary and problematic. For example, federal law prohibits the government from paying attorneys to represent unaccompanied minors during removal proceedings. Unless that law is changed, the system would rely heavily on pro bono attorneys, who might be difficult to find.
Immigration advocates said there would be enough pro bono attorneys if the children were brought to or near urban centers, such as Chicago.
Youth Detained by the INS
4,136 Unaccompanied illegal immigrant juveniles detained for more than 72 hours in fiscal year 2000.
75 Percent of those youths that are male.
33 Average length of stay for those youths in days.
15 Average age of those youths.
400-500 Juveniles in custody at any one time.
600+ Juvenile beds the INS has access to through contracts.
18 million Dollars the INS administers to shelter unaccompanied youth.
Source: U.S. Department of Justice.