The measure of a society: The treatment of unaccompanied refugee and immigrant children in the United States

Harvard Civil Rights-Civil Liberties Law Review

Volumn 45, Issue 1, 2010, Pages 247-260

  Young, Wendy ^a   McKenna, Megan ^a  

^a NONE

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EID: 77950313356     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (86)

1. -147 CONG. REC. S398 (daily ed. Jan 22, 2001) (statement of Sen. Feinstein).
2. Id.
3. Div. OF UNACCOMPANIED CHILD. SERVS., DEPT OF HUM. HEALTH & SERVS., FISCAL YEAR SUMMARY: UAC STATISTICS (2008).
4. CHAD C. HADDAL, CONG. RESEARCH SERV., UNACCOMPANIED ALIEN CHILDREN: POLICIES AND ISSUES 21 (2007), available at http://trac.syr.edu/immigration/ library/P1642.pdf.
5. JACQUELINE BHABHA & SUSAN SCHMIDT, SEEKING ASYLUM ALONE: UNACCOMPANIED AND SEPARATED CHILDREN AND REFUGEE PROTECTION IN THE U.S. 16 (2006).
6. The Secretary-General, Report of the High Commissioner for Refugees, Questions Relating to Refugees, Returnees and Displaced Persons and Humanitarian Questions: Assistance to Unaccompanied Refugee Minors, ¶ 2, delivered to the General Assembly, U.N. Doc A/52/273 (Aug. 7, 1997), available at http://www.un.org/documents/ga/docs/52/plenary/a52-273.htm.
7. Id ¶¶114, 10, 13.
8. See, e.g., Miriam Jordan, Family Seeks Asylum After Fleeing Gang, WALL ST. J., August 21, 2009, at A3.
9. See generally BHABHA & SCHMIDT, supra note 5.
10. DIV. OF UNACCOMPANIED CHILD. SERVS., supra note 3.
11. Id.
12. The Secretary-General, Report of the United Nations High Commissioner for Refugees, Questions Related to Refugees, Returnees and Displaced Persons and Humanitarian Questions: Assistance of Unaccompanied Refugee Minors, ¶ 3, delivered to the General Assembly, U.N. Doc A/58/299 (Aug. 20, 2003), available at http://www.iom.ch/jahia/webdav/shared/shared/mainsite/policy-and-research/un/ 58/A-58-299-en.pdf.
13. See Joel Millman, Immigrants Become Hostages as Gangs Prey on Mexicans, WALL ST. J., June 19, 2009, at A1;
14. Kris Axtman, Changing Landscape of an Underground Trade, CHRISTIAN SCI. MONITOR, July 17, 2003, available at http://www.csmonitor.com/2003/0717/p03s01- usgn.html.
15. Memorandum from David L. Neal, Chief Immigration Judge, U.S. Dept of Justice, to AU Immigration Judges, Court Admins., Judicial Law Clerks, & Immigration Court Staff, Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children (May 22, 2007), available at http://www.usdoj.gov/eoir/efoia/ocij/opprn07/07-01. pdf (The concept of best interest of the child does not negate the statute or the regulatory delegation of the Attorney Generals authority and cannot provide a basis for providing relief not sanctioned by law.).
16. See 8 U.S.C. § 1362 (2006).
17. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(a)(4), 122 Stat. 5044, 8 U.S.C.A. § 1232.
18. Homeland Security Act of 2002, Pub. L. No.107-296, § 462, 116 Stat. 2135, 2202 (codified as amended at 6 U.S.C. § 279).
19. Legacy INS is the official term used to refer to the Immigration and Naturalization Service, which was abolished on March 1, 2003, when DHS was created.
20. Unaccompanied Alien Child Protection Act of 2001: Hearing on S. 121 Before the Subcomm. on Immigration of the S. Comm. on the Judiciary, 107th Cong. 21-27 (2002) (testimony of Edwin Larios Munoz (I was locked in the cell around 18 hours a day .... The officers did not know why I or other children picked up by INS were being held there. They treated us the same as the others, as criminals. They were mean and aggressive and used a lot of bad words. They sometimes hit me with their sticks and shoved me and other boys when they thought that we were not following their orders.)), available at http://judiciary.senate. gov/hearings/testimony .cfm?id = 172&wit-id=237.
21. See generally WOMENS COMMN FOR REFUGEE WOMEN & CHILDREN, PRISON GUARD OR PARENT?: INS TREATMENT OF UNACCOMPANIED REFUGEE CHILDREN (2002), available at http://www.unhcr.org/refworld/category,COI,THEMGUIDE,49ae53f32,0.html;
22. AMNESTY INTL, UNITED STATES OF AMERICA: UNACCOMPANIED CHILDREN IN IMMIGRATION DETENTION (2003), available at http://www.amnestyusa.org/refugee/ pdfs/children-detention.pdf.
23. Immigration and Nationality Act of 1952, Pub. L. No.82-414, 66 Stat. 163, 181 (codified as amended at 8 U.S.C. § 1181(a) (2006).
24. -681 F. Supp. 665 (CD. Cal. 1988) (class action challenging routine INS strip searches of apprehended juveniles).
25. Flores v. Reno, No.CV 85-4544-RJK(Px), at 7 (CD. Cal.. filed Jan. 17, 1997) (stipulated settlement agreement), available at http://www.aclu.org/pdfs/ immigrants/flores-v-meese-agreement.pdf.
26. Id.
27. Id. at 9-10.
28. See AMNESTY INTL, supra note 20, at 52;
29. Susan Benesch, Haitians Trapped by War on Terrorism, AMNESTY MAG., Fall 2003, available at http://www.amnestyusa.org/amnestynow/haiti.html.
30. Ruth Teichroeb, Jail Alternative Safeguards Teen Aliens: 3,000-mile trip from El Salvador ends in Fife facility, SEATTLE POST-INTELLIGENCER, Dec. 2, 2004, at B1.
31. WOMENS REFUGEE COMMN & ORRICK, HERRINGTON & SUTCLIFFE LLP, HALFWAY HOME: UNACCOMPANIED CHILDREN IN IMMIGRATION CUSTODY 15 (2009) [hereinafter HALFWAY HOME] , available at http://www.womenscommission.org/pdf/ halfway-home.pdf
32. Id at 28. All the children interviewed at the Abraxas Hector Garza Center in February 2007 expressed concern and fear regarding what they described as excessive physical restraining techniques and the use of physical force.
33. Unaccompanied Alien Child Protection Act of 2000. S. 3117, 106th Cong. (2000).
34. Homeland Security Act of 2002, Pub. L. No.107-296, 116 Stat. 2135 (codified as amended in scattered sections of 6 U.S.C).
35. See id. § 462, 6 U.S.C. § 279.
36. See HALFWAY HOME, supra note 28, at app. E.
37. Id.
38. Id. at 18.
39. LUTHERAN IMMIGRATION & REFUGEE SERVS., WORKING WITH REFUGEE AND IMMIGRANT CHILDREN: ISSUES OF CULTURE, LAW AND DEVELOPMENT 12 (1998).
40. HALFWAY HOME, supra note 28, at 14.
41. However, Special Immigrant Juvenile Status (SUS) is available to immigrant children under twenty-one years old. Immigration and Nationality Act § 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J), amended by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457 § 235(d)(1), 122 Stat. 5044; 8 U.S.C.A. § 1232; cf. 8 C.F.R. § 204.11 (2009); see infra notes 55-56 and accompanying text.
42. Pub. L. No.110-457, 122 Stat. 5044 (codified as amended in scattered sections of 8, 18 & 22 U.S.C.)
43. Id. § 235(c)(2), 122 Stat, at 5078, 8 U.S.C.A. § 1232(c)(2).
44. Id. § 235(c)(6), 102 Stat. at 5079, 8 U.S.C.A. § 1232(c)(6).
45. Memorandum from Jeff Weiss, Acting Dir., Office of Intl Affairs, to Asylum Officers, Immigration Officers, & Headquarters Coordinators (Asylum and Refugees), Guidelines for Childrens Asylum Claims (Dec 10, 1998), available at http://www.uscis.gov/files/pressrelease/ChildrensGuidelines121098.pdf.
46. Memorandum from David L. Neal, supra note 14. The concept of best interests of the child does not negate the statute or the regulatory delegation of the Attorney Generals authority and cannot provide a basis for providing relief not sanctioned by law. Rather, this concept is a factor that relates to the immigration judges discretion in taking steps to ensure that a child appropriate hearing environment is established, allowing a child to discuss freely the elements and details of his or her claim. Id.
47. -8 U.S.C. § 1158(b) (2006).
48. See, e.g., In re R-A-, 22 I. & N. Dec. 906 (B.I.A. 1999).
49. BHABHA & SCHMIDT, supra note 5, at 20.
50. See Center for Gender & Refugee Studies, Documents and Information on Rody Alvarados Claim for Asylum in the U.S., available at http://cgrs. uchastings.edu/campaigns/alva-rado.php (last visited Oct. 28, 2009). Alvarado fled years of severe domestic abuse in Guatemala to come to the United States in 1995. An immigration judge granted her asylum, but the Board of Immigration Appeals (BIA) reversed the immigration judges decision in 1999. Attorney General Janet Reno vacated the BIA s decision, and Legacy INS issued proposed regulations clarifying that victims of domestic violence and other gender-based persecution are eligible for asylum. However, these proposed regulations never became final. In March 2003, the BIA told Alvarados attorneys that Attorney General John Ashcroft had recertified the case to himself. Many thought that he would issue a decision to limit asylum in cases such as Alvarados. In February 2004, the Department of Homeland Security (DHS) filed a brief supporting asylum for Alvarado. The prior INS had initially opposed asylum in Ms. Alvarados case. DHS urged the Attorney General to grant asylum to Ms. Alvarado, but not to issue a broad decision that could impact other cases. DHS stated that it planned to issue regulations that would provide guidance in cases involving similar issues. Human Rights First, AG Ashcroft Sends Domestic Violence Case Back to Appeals Board, ASYLUM PROTECTION NEWS 35 (Jan. 2005), http://www.humanrightsfirst.org/ asylum/torchlight/newsletter/new-slet 35.htm. In 2008, Attorney General Michael Mukasey ordered the BIA to decide the case without waiting for the regulations to be finalized. Alvarados case is now before an immigration judge in San Francisco. Center for Gender & Refugee Studies, supra.
51. Matter of E-A-G, 24 I. & N. Dec. 591 (B.I.A. 2008).
52. Greg Campbell, Remembering Edgar Chocoy, FORT COLLINS NOW, Mar. 27, 2008, available at http://www.fortcollinsnow.com/article/20080327/NEWS/230019754.
53. Letter from American Immigration Lawyers Assn to Tom Ridge, Sec, U.S. Dept of Homeland Sec. et al., (July 1, 2004) (advocating reforms for children seeking asylum), available at http://www.aila.org/content/default.aspx?docid= 10988.
54. Id.
55. Id.
56. Id.
57. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(d)(8), 122 Stat. 5044, 5081.
58. -8 U.S.C. § 1101(a)(27)(J)(i) (2006).
59. -8 C.F.R. § 204.11(b) (2009).
60. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110457, § 235(d)(1)(B)(ii), 122 Stat. 5044, 5079-80, 8 U.S.C.A. § 1232(b)(1).
61. Victims of Trafficking and Violence Prevention Act of 2000, §§107(e)(4), 1513(c), Pub. L. No.106-386, 114 Stat. 1464, 1479, 1535-36 (as amended, 8 U.S.C. §§1101, 1184).
62. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(a)(5)(D)(ii), 122 Stat. 5044, 5077, 8 U.S.C.A. § 1232(a)(5)(D)(ii).
63. See id.
64. See, e.g., In re Gault, 387 U.S. 1, 35-37, 41 (1967).
65. OLGA BYRNE, VERA INST, OF JUSTICE, UNACCOMPANIED CHILDREN IN THE UNITED STATES: A LITERATURE REVIEW (2008) (
66. citing Claire L. Workman, Kids are People Too: Empower Unaccompanied Minor Aliens Through Legislative Reform, 3 WASH. U. GLOBAL STUD. L. REV. 223, 233 (2004);
67. OFFICE OF THE INSPECTOR GEN., UNACCOMPANIED JUVENILES IN INS CUSTODY, REPORT I-2001-009 (2001), available at http://www.justice.gov/oig/reports/INS/ e0109/index.htm
68. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 376 (2007).
69. NINA SIULC ET AL.. VERA INST, OF JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM (2008).
70. Unaccompanied Alien Child Protection Act of 2000, S. 3117, 106th Cong. (2000).
71. Id.
72. -8 U.S.C. § 1362 (2006) (In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.).
73. BHABHA & SCHMIDT, supra note 5, at 104.
74. Homeland Security Act of 2002, Pub. L. No.107-296, § 462, 116 Stat. 2135, 2203 (codified as amended at 6 U.S.C. § 279(b)(1)(A)).
75. VERA INST. OF JUSTICE, UNACCOMPANIED CHILDREN PROGRAM (2009), http://www.vera. org/project/unaccompanied-children-program.
76. Id.
77. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(c)(5), 122 Stat. 5044, 5079, 8 U.S.C.A. § 1232(c)(5).
78. Cf. Crossing the Border: Immigrants in Detention and Victims of Trafficking: Testimony before the Subcomm. on Border, Maritime and Global Counterterrorism of the H. Comm. of Homeland Security, 110th Cong. 4 (2007) (statement of Christina Fiflis on behalf of the American Bar Association).
79. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235, 122 Stat. 5044, 5081, 8 U.S.CA. § 1232.
80. Id. § 235(d)(7)(C), 8 U.S.C.A. §§1232(a)(2), (3).
81. Memorandum from Joseph E. Langlois, Chief, USCIS Asylum Div., to All Asylum Office Staff, Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Field by Unaccompanied Children (Mar. 25, 2009), available at www.uscis.gov/files/nativedocuments/UAC-fiungs- 25mar09.pdf.
82. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(a)(2)(C), 122 Stat. 5044, 5075.
83. BHABHA & SCHMIDT, supra note 5, at 16 (citing a DHS Office of Inspector General report that states that Customs and Border Protection apprehended 122,122 juveniles in fiscal year 2004 at the U.S. southern border, of which 101,731 were from Mexico and 20,391 were Other-Than-Mexican. Of this total figure, 103,274 were immediately returned (usually to Mexico, very rarely to Canada).).
84. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, § 235(d)(8), 122 Stat. 5044, 5081.
85. Memorandum from David L. Neal, supra note 14.
86. Memorandum from Jeff Weiss, Acting Dir., Office of Intl Affairs, to Asylum Officers, Immigration Officers, & Headquarters Coordinators (Asylum & Refugees), Guidelines for