Too often, the "one-size-fits-all" U.S. immigration system, designed to treat adults, fails to recognize the unique needs of children. As a result, many children fleeing violence and abuses in their home countries seek asylum in the United States, but have been subjected to routine detention in juvenile facilities that are institutional in nature. Insufficient resources, inadequate administrative and procedural oversights in the handling of children, as well as the inaccessibility to legal representation in the adjudication process, have further exacerbated the crisis in the treatment toward unaccompanied foreign-born children.

If enacted, the "Unaccompanied Alien Child Protection Act" (S121/HR1904) would represent the first time that the needs of unaccompanied foreign-born children were addressed systematically and comprehensively.

Why children come to the United States

There are many reasons that children flee their home countries, including: forced recruitment of child soldiers, forced prostitution and servitude, child labor, international sexual trafficking, street children abuses, child brides, and female genital mutilation.

Unaccompanied children arrive in the United States in several ways. They may arrive alone either by crossing the borders or through U.S. port of entry. Some arrive in the company of a family friend or non- traditional caregiver of the children. Some arrive in the company of a smuggler who has been paid to facilitate the child's escape from home. Some were trafficked or smuggled into the U.S. by organized criminal enterprises. Approximately 40 percent of children are truly alone and lack relatives in the U.S., rendering them particularly vulnerable. 1

In each of the last three fiscal years, the INS has reported an annual total of almost 5,000 unaccompanied children in its custody. At any given moment, the agency holds between 400-500 children in its facilities, their ages ranging from as young as six- months up to 17-years old.

They come from various countries, most frequently El Salvador, Honduras, Guatemala, Mexico and Colombia. Research done by the Women's Commission on Refugee Women and Children have noted other troubled countries that children have been leaving - China, Kosovo, the Democratic Republic of Congo, Burundi, Sierra Leone, Somalia, Algeria, Afghanistan, Nigeria, Haiti and India.

Upon apprehension by the INS, some of these children (without offense records) are placed in juvenile jails, commingled with youthful offenders and subjected to punitive treatment, such as handcuffing and shackling, and solitary confinement.

In 1999, only 675 cases out of 1,958 incidents of children placed in secure confinement were the children suspected or adjudicated delinquent. In 2000, non-delinquent children accounted for 1,569 of the 1,933 instances of secure detention. 2

S 121/ HR 1904

On January 22, 2001, Senators Dianne Feinstein and Bob Graham introduced the "Unaccompanied Alien Child Protection Act of 2001." In addition to establishing an Office of Children's Service within the Department of Justice, and providing children with the right to counsel and guardian ad litem (friend of the child), the legislation also:

• Reduces the routine use of detention and provides for unification of unaccompanied children with family members or other appropriate shelters and foster family in the United States, whenever possible;
• Strengthens current policies regarding foreign-born children who might reach the age of 21 while waiting for the INS to process their immigration petition or applications, thus aging out of eligibility for the immigration relief;
• Strengthens options for permanent protection when such protection is warranted.

On February 28, members of child welfare and immigration agencies, American Bar Association (ABA) advocates, and representatives of the INS and Executive Office of Immigration Review came together under one roof - for the hearing on confronting the problem of unaccompanied alien children before the Senate Judiciary Committee, Subcommittee on Immigration. All testimonies acknowledged that treat- ment of children should be a priority, and they identified princi- ples of practice, including family reunification, "soft" detention, rights to legal representation and due process of law. However, the Administration disagreed with child advocates and the ABA on the actual implementation of principle. The two major questions are:

Should federal jurisdiction over unaccompanied foreign-born children who come into contact with immigration authority be restructured?

Currently, the INS has consolidated children's programs under its Office of Field Operations-Detention and Removal Branch, a department intrinsically tied to the INS' law enforcement function. Since the Detention and Removal Branch assumed jurisdiction over children's programming within INS, enforcement concerns have consistently outweighed adjudication and physical custody of children newcomers. This pattern of negligence is evidenced in the agency's deportation functions, budgetary concerns, and administrative and logistical priorities.

For example, the INS Juvenile Affairs Divisions is the center office that oversees juvenile and family detention and shelter care, located in Washington D.C.; while the direct supervision is implemented through juvenile coordinators of each of the three INS regional and 33 INS district offices across the country. The decentralized structure gives local agencies tremendous autonomy with inconsistent practice and little accountability. Moreover, these designated juvenile coordinators, who are charged with overseeing the handling of children, are not individuals with child welfare expertise but are detention and deportation officers.

To confront these administrative concerns, S 121 would establish an Office of Children's Service (OCS) within the Department of Justice, responsible for coordinating and implementing the law for unaccompanied foreign-born children who come in contact with the INS, or otherwise to the attention of the Office. The INS would be required to transfer custody to the OCS within 72 hours. Further, OCS would be required to offer immigration training to its officers to establish appropriate standards and conditions for the detention of children.

The INS is known for its complex mandate; to be simultaneously law enforcement and service oriented. By delegating the responsibility of shelter and individualized care for children to the OCS, the INS would be relieved of the inherent conflict of interest, and the adjudication process would be streamlined. Further, if S121 is enacted, the OCS will act with a legislative mandate to adhere to minimum standards for the custody and care of unaccompanied foreign-born children.

What is the accessibility of court appointed counsel and guardian ad litem for unaccompanied foreign-born children in immigration proceedings?

During the adjudication process of unaccompanied foreign-born children removal cases, the government is represented in every immigration court by INS staff attorneys who are competent and experienced in prosecuting violation charges. However, more than 80 percent of the children go through their immigration proceedings without any adult assistance, either from a legal representative or a guardian ad litem. Children must be provided the assistance of counsel and guardian ad litem to identify immigration relief-for which the children would be eligible-and to advocate for such relief in immigration court.

According to S 121, a guardian ad litem should be a child welfare professional or other individual who has received training in child welfare matters, and specially trained on the nature of problems encountered by unaccompanied foreign-born children. The guardian ad litem will conduct interviews and investigate the facts and circumstances relevant to such child's presence in the U.S.

As a result, the guardian ad litem will develop recommendations on issues relevant to the child's custody, detention, release or voluntary departure from the U.S. Such recommendations will ensure the child's best interests are met without expanding any rights to substantive grants of asylum or other forms of immigration relief beyond the current scope of U.S. immigration law. It will not modify the jurisdiction of either the INS or the Executive Office for Immigration Review to adjudicate claims for immigration relief.

The role of appointed counsel is described by Justice Abe Fortas, who wrote: "The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he [or she] has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him [or her]." 3

During adjudication, the appointed counsel would be able to review each child's eligibility for asylum or the special immigrant juvenile visa. By the same token, if the child is ineligible, the child will be advised to accept voluntary departure.

Although the American Bar Association and several regional law firms have developed pro-bono attorney projects to represent the forgotten people in the U.S., the INS detention facilities are usually located two to three hours away from where pro-bono attorneys are available. Further, the INS often transfers detainees to different detention facilities without prior notice to their attorney. This constant moving further exacerbates the inaccessibility to seek out legal representation during adjudication.

The INS has insisted that systemic reform could be done administratively; however, numerous internal restructurings in the past, and personal stories, have shown that children's welfare requires legislative action to ensure individualized care.

Footnotes

1. Written testimony submitted by Ms. Wendy Young, Director of Government Relations and U.S. Programs, Women's Commission on Refugee Women and Children. Her written testimony along with others can be found online.
2. Ibid.
3. In written testimony submitted by Mr. Andrew Morton, Attorney, Associate practicing with the Government Relations Group of the law firm of Latham and Watkins.

What can you do?

Learn more about this issue by contacting Jenny Lin in the Washington Office: JLIN@ctr.pcusa.org or 202-543-1126.

• Call the local offices of your Senators and Representatives to schedule a meeting with the imm- igration staff member-local office numbers can be found in your local phone book.
• Ask your Senators and Representatives to submit an inquiry to the Immigration and Naturalization Service (INS) requesting information on the detention of unaccompanied minors in your area. This includes information on the number of children detained, the age of the children, and the country of origins of children detained by the INS.
• Write an article for the opinion/editorial column for your local newspaper.
• Write letters to your senators and representatives and urge them to support and co-sponsor this bill.

***California Presbyterian members, your Senator, Dianne Feinstein needs to hear from you. Senator Feinstein and her staff have demonstrated great leadership since she introduced the bill on January 2001. Periodically, Sen. Feinstein has written press releases to raise social awareness, and has time and time again brought this issue to the forefront. Partly due to the combined effort of the grassroots and Sen. Feinstein, "The Unaccompanied Alien Child Protection Act" was adopted into the House, HR 1904, sponsored by Rep. Zoe Lofgren (D-16-CA).

Sen. Feinstein and her staff have worked tirelessly with non-governmental organizations (NGOs) and religious organizations on the bill. Although she was finally granted a hearing date on September 15th, it was eventually canceled due to the tragic events of September 11. Though with the understanding that war on terrorism isn't war on immigration or foreign-born children, many lawmakers hesitated to support this bill. Since the passing of the "PATRIOT-USA Act," Sen. Feinstein and NGO advocates resumed their pre-September 11th agenda. After many meetings and numerous letters to congressional members, this bill is now gaining traction in the Congress. California Presbyterian members, please express your support by contacting Sen. Feinstein 's office: San Francisco: 415-393-0707; Fresno: 559-485-7430; Los Angeles: 310-914-7300; San Diego: 619-231-9712; and Washington, D.C.: 202-224-3841.

General Assembly
"A Vision for Children and the Church," adopted by the 205th General Assembly (1993) of the Presbyterian Church (U.S.A.), particularly highlighted the importance of the "first call" of world resources for children. As noted by Reverend Robert Smiley, Director of the Presbyterian Church (U.S.A.) United Nation Office, the concept of "first call" is premised on an understanding of the vulnerability and dependency of children and responsibility of a society to care for, protect and guarantee the survival of the world's children. It is also rooted in an understanding that the child is recognizable human being, with unique individuality and integrity.