Unaccompanied Juveniles in INS Custody
Report Number I-2001-009
September 28, 2001
Length of Time in Custody Before Release
INS policies on release of juveniles may in some cases impede the INS's ability to ensure the least restrictive custody and most expeditious release. INS policies require known parents to come to INS offices, even if undocumented; undocumented sponsors to enter immigration proceedings; and homes for Chinese and Indian juveniles to be assessed before release.
During FY 2000, the INS released to a sponsor 2,238 of the 4,136 juveniles detained in the custody of the Juvenile Program for over 72 hours.34 The INS released 50 percent of these juveniles within three weeks of their apprehension, and 60 percent within four weeks. However, of the 40 percent still in custody after four weeks, 7 percent (164 juveniles) remained in custody for more than six months, and 1 percent (20 juveniles) remained in custody more than a year. One Chinese juvenile was in INS custody for 631 days.
Most juveniles who remained in INS custody for long periods did so because the INS had not yet found appropriate sponsors for them.35 About 85 percent of those held for six months or longer were Chinese or Indians, for whom the INS required often time-consuming assessments of the sponsor before releasing the juveniles. In a few cases, the INS held juveniles for longer periods of time because an identified parent was unwilling to come to an INS office to take custody or to designate another sponsor in person.
The Flores agreement established a policy of releasing juveniles from INS custody "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. The agreement listed potential sponsors in order of preference, with a parent first, a legal guardian second, and an adult relative (specifically, a brother, sister, aunt, uncle, or grandparent) third. If none of these close relatives were available, the next preference fell to an adult individual or entity designated by a parent or legal guardian, in a declaration signed before an immigration or consular officer, or in other documentation containing convincing proof of the relationship.
The Flores agreement, while preferring a parent or guardian, did not seem to prohibit passing over them to one of the family members specified. The requirement for parental consent appeared only when the potential sponsors were no longer close family members.
The Juvenile Protocol Manual confirmed the policy of release without unnecessary delay, in the order of preference of the Flores agreement, but added a requirement that potential homes for Chinese and Indian juveniles be assessed before their release. The purpose of the assessments was to protect juveniles from the smugglers who may have brought them into the country, and to make sure any sponsors were legitimate. INS headquarters officials were to administer the home assessments. The Juvenile Protocol Manual emphasized that district directors continued to have full discretion over the release of juveniles from custody, except for the specially vulnerable Chinese and Indians.
The home assessment process involves multiple steps, performed sequentially by the INS and voluntary agencies (VOLAGs) under contract with INS to make home visits and do interviews. The steps include:
These procedures often extend the length of custody for the juvenile. In some cases, several potential sponsors may be assessed before an acceptable one is found. As a result of the assessments, Chinese and Indian juveniles spent longer time in INS custody than other nationalities. In FY 2000, 77 percent of the Chinese and Indians were detained for over one month, compared to 30 percent for other nationalities. The average length of stay in custody for Chinese and Indian juveniles was 146 days. Juveniles other than Chinese and Indians stayed in custody for 29 days.
The following flow chart shows the average amount of time taken at each step by the INS and VOLAG workers in FY 2000.
We did not examine the processing of specific cases to see if unnecessary delays are occurring. Headquarters officials told us, however, that the INS is looking at home assessments to streamline the process. The INS has proposed increased use of automation to transmit information between agencies and offices as one means of making the assessments more efficient.
Clarification of Release Policy
In November 1999, the INS clarified its juvenile release policy in a letter to the United States Catholic Conference (USCC) and the Lutheran Immigration and Refugee Services (LIRS), specifically requiring the involvement of any parent in the United States in the release of a juvenile.36 The letter stated the INS's strong belief "that when there is a parent in the United States, he/she should be the sponsor of the child regardless of the parent(s) immigration status." The letter stated that any parent who was unable or unwilling to assume custody of the minor "must present him/herself before an INS Officer. . . and execute an affidavit if he/she decides that the minor should be placed with a blood relative or responsible adult."
The National Juvenile Coordinator confirmed it is INS policy not to release a juvenile to anyone other than a parent, if one was known to the INS. He said the policy has been communicated to the field and is clearly understood. However, it has not been formally incorporated into the Juvenile Protocol Manual. The requirement was based on the belief that parents are primarily responsible for the care and welfare of minors.
The November 1999 letter to the USCC included an additional requirement affecting release. The letter stated that according to INS policy, an undocumented parent, or any other undocumented sponsor, must appear before an INS officer and be served a Notice To Appear (NTA), before the juvenile could be released. The NTA initiated immigration proceedings for the sponsor. The requirement is based on the INS's belief that sponsors who are in proceedings themselves are more likely to ensure the juveniles attended proceedings when required. INS officials stated that having the person come forward and present themselves is the best way to make sure the person is not an imposter and to positively identify the individual.
Under the policies of the November 1999 letter, if an undocumented parent refuses to come forward, a juvenile remains in custody. This occurs even if another close relative, in the United States legally, is willing to accept custody. Juvenile coordinators cited cases in which days, and on occasion weeks, were added to the time juveniles spent in detention before an undocumented parent agreed to come to an INS office.
An undocumented parent or, if there is no parent, another sponsor may be unwilling to come forward for a variety of reasons, including a fear of removal, which results in the juvenile remaining in INS custody. Pro bono legal and human rights organizations view this policy as "holding children hostage" or using them as "bait" to draw out the parents. These fears persist, even though the juvenile coordinators and apprehending officers said they do not arrest family members who come in to take custody of a juvenile, unless the family member had a criminal record. The officers said the rule of thumb is, "If you walk in, you walk out." Several juvenile coordinators said as a rule a parent eventually comes forward.
Other increases in the time juveniles spent in custody results from delays in issuing NTAs to sponsors, or in documenting relationships. Even after sponsors agree to enter proceedings, backlogs sometimes delay processing the paperwork. In one instance, a parent waited for more than two weeks for an NTA to be issued. During this time the juvenile remained in detention. Also, one immigration judge expressed concerns over a requirement for what she believed to be an unreasonable degree of proof of the relationship before some INS officers would release a juvenile to a family member.
The INS release policies are designed to protect the juveniles and to secure their appearance at immigration proceedings. However, for some juveniles, if the policies expressed in the letter to the USCC are too rigidly adhered to, they may impede INS's ability to ensure least restrictive custody and most expeditious release. In some situations juveniles may remain in custody longer than is necessary to ensure their safety, when an acceptable sponsor, other than an undocumented parent, is available. We could not determine how often this happens, or how much the time in custody is lengthened. Also, because most information about family members comes directly from the juveniles themselves, it is probable some juveniles are in fact released to other relatives if they do not identify a parent to the INS. We believe that it is reasonable for district directors to have the discretion to make exceptions to the overall policies on release and that the discretion be exercised on a case-by-case basis.
Problems Related to EOIR Hearings
Limited legal services available to juveniles in custody, postponement of hearings on the merits of cases until after release, and scheduling some juveniles in shelter care for non-priority hearings caused most juveniles who sought relief from removal to be released before judges decided their cases. Most juveniles failed to appear for merits hearings after release from custody.
From our sample of 173 juveniles in the EOIR database, 9 juveniles (5 percent) had their cases completed while they were in custody. The remaining 164 juveniles (95 percent) did not have their cases resolved prior to release and 112 of the 164 juveniles failed to appear for their immigration hearings after release.
The unaccompanied juveniles in the Juvenile Program are required to go before the immigration courts to present their cases. The court proceedings are outside INS control but are initiated by INS at the outset of the juvenile's custody. Several factors contribute to the delay in deciding cases: the limited availability of legal representation; postponing hearing the merits of cases pending the juveniles' release from custody; and scheduling detained juveniles for non-expedited hearings. As a result, juveniles are frequently released from INS custody before the merits of their cases are heard.
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.
Unless a juvenile chooses voluntarily to leave the United States without a hearing, the INS is responsible for initiating hearings before an immigration judge.37 The judges determine the juveniles' immigration status, but the attorneys for the juveniles, many of them serving pro bono, and the INS attorneys have significant roles in the hearings process. For several reasons, the hearings process for juveniles in custody is not working well.
Limitations on Available Legal Aid
Our sample of EOIR data for 302 juveniles, drawn from all juveniles in custody during the first half of FY 1999, showed that 131 juveniles (43 percent) were ultimately represented by an attorney of record.38 Most of the Chinese juveniles were represented by attorneys. Most of the non-Chinese juveniles were not. Representation for the non-Chinese juveniles largely depended upon the availability of pro bono services.
Immigration judges we spoke to said they were reluctant to decide juvenile cases without an attorney in the courtroom to represent the juvenile. The efforts made by the EOIR, bar associations, and other legal assistance and voluntary organizations to recruit and maintain pro bono legal aid have improved access to basic legal information for juveniles in custody. Judges in most locations agreed that pro bono attorneys met with the juveniles and sometimes appeared in court informally with them. Often, however, the pro bono attorneys merely requested continuances on behalf of the juveniles or addressed custody issues.39 Very few of the pro bono attorneys actually represented the juveniles in the hearings process.
In the locations we visited, pro bono legal services available for most juveniles in custody were limited to group presentations of their rights and an explanation of the hearings process itself. Sometimes the group sessions were followed by screening cases in individual interviews to determine whether the juvenile might have a basis for seeking relief from removal.40
Voluntary agency attorneys said that only in exceptional circumstances were they able to represent a juvenile or find a private attorney to take a case on a pro bono basis. The attorneys said they lacked the time and funds needed to fully develop and support claims for relief, usually applications for asylum.41 Pro bono attorneys said some juveniles who were removed might have made a case for relief, if they had been given time and had been able to find adequate legal representation. Several attorneys suggested this might be true in 10 percent of the cases.
Some juveniles in custody were given little legal assistance, even when they had a private attorney of record. Frequently Chinese juveniles brought in by smugglers had been informed, prior to their arrival in the United States, that a private attorney at their final destination would represent them. Their destinations were usually far from the custody site. For example, Chinese juveniles in custody in the Phoenix District would have an attorney of record in New York City. These Chinese juveniles were often reluctant to speak with pro bono attorneys, even though the private attorneys provided few or no legal services while the juveniles were in custody. Immigration judges, INS attorneys, and pro bono attorneys expressed concern the Chinese juveniles were not well served by their attorneys in many cases. The failure of the attorneys to appear in court to represent the juveniles contributed to immigration judges' reluctance to hear the cases.
Continuances of Immigration Hearings
An unwritten practice has developed concerning the granting of continuances for juveniles in immigration hearings. Immigration judges regularly postpone hearings on the merits of cases until after the juveniles' release to sponsors, usually involving a change of venue. For Chinese and Indian juveniles, the scheduling of hearings is tied to the progress of the home assessment required before their release. In several districts, pro bono attorneys who did attend the hearings asked for continuances to correspond with the projected release of the juvenile from custody.42 Immigration judges said INS counsel offered little opposition to the continuances, and judges regularly granted them as requested.
INS attorneys agreed that release from custody and the merits of the cases were not inherently related. However, the INS attorneys did not consistently oppose continuances based on the status of a juvenile's home study. One attorney said the INS had recently started to oppose requests for continuances solely on this basis. If the continuances were based on release combined with other factors, such as obtaining legal representation or attorney preparation, the INS attorney said the INS would probably not oppose them.
One judge, in explaining the practice of granting continuances, said he was reluctant to schedule a juvenile for the 3-hour block of time required for merits hearings in asylum cases if the juvenile was likely to be leaving his jurisdiction. He said this wasted valuable court time when a juvenile scheduled for a merits hearing ended up released to another jurisdiction before the hearing date.
Juvenile Docket Management
In the Chicago and Houston Districts, the INS and EOIR did not ensure that juveniles in shelter care were expeditiously scheduled for hearings. In other locations, the immigration courts scheduled detained juveniles on an expedited basis for hearings. In Chicago and Houston, juveniles in shelter care were included with adults on the slower non-detained schedule, with a longer waiting period before their hearings. Hearings for non-detained aliens, juveniles or adults, typically occur at a much slower pace than is usual for detained aliens, with much longer intervals between the date of detention, the first master hearing, and any subsequent hearings.
After the juveniles are released, the INS can no longer ensure their attendance at hearings. The EOIR data showed 112 (68 percent) of the 164 juveniles released to a sponsor prior to completion of their hearings subsequently failed to appear.
Those juveniles who do complete the hearings process are rarely granted relief. The EOIR data showed that of 168 juveniles who completed their hearings, only 2 were granted relief. The two most common outcomes were removal (122) and voluntary departure (37).
We observed that the hearings process works best when the INS, the immigration courts, pro bono attorneys, voluntary agency groups, and the facilities' staff establish communication, develop respect for one another's roles, and participate cooperatively. At the Harlingen and the Phoenix Districts and at the Berks County facility in the Philadelphia District, particularly, all groups concerned with legal processes for juveniles, including the juvenile coordinators, cooperated well. To develop cooperation, the EOIR assigned specific judges and the INS assigned specific counsel to juvenile cases, to provide liaison and continuity in handling them. Also, all of the groups concerned met together on a regular basis.