This article outlines U.S. policy toward children asylum seekers. It highlights the gaps in U.S. detention and asylum policy which jeopardize the protection of children. It also discusses advances made in recent years, such as issuance of the U.S. "Guidelines for Children's Asylum Claims" which establish evidentiary, procedural, and legal standards for asylum adjudicators dealing with children's claims. Finally, it suggests reforms that are necessary to bring the United States into compliance with international law and to ensure that children are provided the refuge they deserve.
Carlos (a pseudonym) fled his home country of Honduras in search of refuge in the United States. Instead, he found jail. The United States Immigration and Naturalization Service ("INS" or the "Service") apprehended Carlos in south Texas, where he was first held in a children's detention center. The agency later transferred him to a juvenile jail in Liberty County, Texas, several hours away from the legal services program which was planning to represent Carlos after he expressed a fear of returning to Honduras. While he was locked up in the Liberty County jail, the INS instead persuaded Carlos to voluntarily depart the United States. Carlos was deported before an immigration judge had even considered his asylum claim.
Carlos is just one of thousands of unaccompanied children who arrive in the United States each year. In 2000 alone, the INS took nearly five thousand children into its custody, some as young as eighteen months old. Increasingly, among these numbers are children fleeing abuses such as forced military recruitment, female genital mutilation, forced marriages, child labour, and life as street children. Others may enter the United States because they have been abused, abandoned, or neglected by their parents or other caregivers, while some are seeking to reunify with family members who already have entered the United States. These children range in age from toddlers to teenagers, and an untold number are asylum-eligible. The INS does not track the types of relief from deportation sought by children in its custody, and therefore many children are not necessarily even aware that they may pursue refugee protection. (1)
U.S. policy toward children asylum seekers reflects a certain ambivalence. In recent years, the U.S. asylum system has progressed in terms of its recognition of the unique forms of persecution that children face around the world and the need to offer children a full opportunity to articulate their claims to asylum. On the other hand, the system falls short of providing the resources children need to assist them in their claims in the form of legal representation and the appointment of a guardian ad litem. Moreover, children asylum seekers are often detained for long periods of time, often in secure facilities, with little regard for their best interests.
Detention of Unaccompanied Alien Children
Unaccompanied alien children are those who arrive in the Unites States with no lawful immigration status and have no parent or legal guardian available to provide for their care and legal custody. Under United States immigration law, an alien child is defined as a foreign national under the age of eighteen, who either is the subject of a removal or exclusion proceeding under the Immigration and Nationality Act ("INA" or the "Act"), (2) the central source of American immigration law, or has an asylum application pending before the INS. Although the INA does not actually define the term "unaccompanied minor," the Act does define the term "child" as an unmarried and unemancipated person under the age of twenty-one, (3) although an alien child is treated as an adult for detention purposes upon attaining the age of eighteen.
Being unaccompanied by a parent or other legal guardian who is capable of providing for their care and custody, these children are subject to detention by the INS. Often these children are held for long periods of time--as long as a year or more--while their cases proceed through the immigration process, under the existing system, the INS is responsible for an incongruous dual function--both the custodial care of these children, and the prosecutorial objective of arguing in favour of their removal proceedings. As a result, the INS faces an inherent conflict of interest--it is simultaneously a service provider and a law enforcement agency--which ultimately clogs the process with inefficiencies and threatens to undermine its ability to secure the best interests of the children taken into custody. Moreover, this conflict of interest is exacerbated by the fact that INS simply lacks the requisite child welfare training and expertise to care for children in an appropriate manner.
At the present time, the legal framework for custodial care and treatment of unaccompanied alien juveniles derives from a consent decree known as the Flores v. Reno settlement agreement ("Flores"). (4) Originally filed as a class action lawsuit in the Federal court system, the case broadly challenged the civil rights treatment and constitutionality of practices, policies, and regulations regarding the detention and release of unaccompanied alien children taken into the custody of the INS. Following a prolonged legal battle that ascended to the United States Supreme Court before being remanded back to the District Court of the Southern District of California, the class plaintiffs and the government reached a compromise in 1996. The resulting agreement broadly defines a litany of detention issues, including placement, transportation, monitoring and reporting, attorney-client visitation, and facilities inspection. (5) In addition, the agreement contains attached exhibits that dictate the minimum standards for licensed programs with which the Service contracts for the temporary placement of juveniles in its custody, such as access to medical and mental health care, educational materials, recreational activities, religious observance, and legal services. (6)
The central guiding principal of Flores requires that the INS treat all minors with "dignity, respect and special concern for their particular vulnerability as minors." (7) To this end, it is incumbent on the Service to place children in the "least restrictive setting appropriate to the minor's age and special needs," (8) including releasing children to an appropriate caregiver or otherwise housing them in the least restrictive setting possible, such as one of eight shelters opened by the INS to house children in its custody. The majority of these shelters are institutional in nature and offer an environment of "soft detention": the children's activities and location are closely monitored; the doors are frequently locked or alarmed; and children are not allowed off the premises of the facility unless accompanied by facility staff. However, the children wear street clothing, are offered educational classes, and are not locked in cells. Occasionally, they engage in recreational or educational trips off-site with shelter staff. The INS also has an extremely limited foster care program, generally used for young children, girls, or children with special needs.
Because of the INS backlog of cases and a grossly inconsistent system for placement determinations among the thirty-three geographic INS districts, however, the advocate community has witnessed the pervasive exploitation of secure confinement that constitutes anything but the "least restrictive setting appropriate." The INS shelter and foster care program simply has failed to keep pace with the number of children in custody. (9) Thus, as a result of the lack of bed space in the shelters and sometimes questionable placement decisions made by the INS, approximately one-third of children in INS custody spend time in a juvenile jail, for periods ranging from a few days to more than a year. (10) Many of these children have not committed any crime...