June 29, 2014 STATEMENT–LIRS Statement for Congressional Progressive Caucus Ad-Hoc Hearing “Kids First: Examining the Southern Border Humanitarian Crisis”

Press Contact: Miji Bell

mbell@lirs.org, 410-230-2841

Washington, DC June 29, 2014–Testimony by Jessica Jones, Child and Youth Policy Associate at Lutheran Immigration and Refugee Service (LIRS) for Congressional Progressive Caucus Ad-Hoc Hearing  “Kids First: Examining the Southern Border Humanitarian Crisis”

Thank you for the opportunity to speak to you about the child and youth crisis in Central America and our child protection and trafficking laws that serve to vouchsafe their freedom from persecution, trafficking and family separation.

I am Jessica Jones, Child & Youth Policy Associate at the Lutheran Immigration Refugee Service (LIRS), and also co-author of the Women’s Refugee Commission research report Forced from Home ,which first documented the beginning of the humanitarian crisis in 2011. During my time at the Women’s Refugee Commission, I conducted numerous monitoring visits to the Office of Refugee Resettlement (ORR) custodial placements for children: shelters, staff-secure, secure, and foster care.

I have also visited Department of Homeland Security (DHS), Customs and Border Protection (CBP) stations operated by the Office of Field Operations (OFO) and Border Patrol (BP). I would like to thank both Chairmen of the Congressional Progressive Caucus; Representative Grijalva and Representative Ellison, as well as the other organizers of this hearing, Representative Chu, Representative Clarke, Representative Schakowsky and Representative Polis—thank you for your leadership in holding this hearing and for your leadership you have shown in advocating on behalf of immigrants and refugees over the years. Most particularly, I would like to extend LIRS’s
gratitude to Representative Roybal-Allard for her long history in introducing important legislation instrumental in bringing attention to the plight of children and youth who migrate to the U.S. alone and their unique protection needs.

With a 75-year history of serving refugees and migrants, LIRS has over thirty years of experience helping to resettle children from all over the world, including Central America. During this child refugee crisis, LIRS has been working alongside the government and with a national network of social service partners to address the needs of these children and youth. LIRS collaborates with the Office of Refugee Resettlement to provide services mandated under the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 and the Homeland Security Act of 2002. These services safeguard unaccompanied migrant children’s best interests and recognize their vulnerabilities to exploitation and abuse. LIRS provides these services through established service networks of community-based agencies with expertise in professional child and family services and in serving immigrant communities. These services include:

  • Finger-printing of potential non-parental sponsors
  • Home studies and Post-release services to ensure safe release to sponsors and appearance in court.
  • Foster care for pregnant teen moms, young children & children without any family in the U.S.

In response to the increase in refugee children and youth from Central America arriving in the U.S., we ask that the U.S. government protect the best interest of these children. Secondly, we ask that more resources be devoted to respond humanely to children affected by this crisis. A child’s safety and welfare should always come first.

The bulk of my testimony today will focus on the legislative intent behind the provisions related to unaccompanied migrant children in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), secondly, I will address why those provisions are critical to care and protection of these children. Lastly, I will suggest issue areas that need legislative attention to make it safe for Central American children to live in their home countries and to make our current system of care and legal processing compassionate, just, and more efficient.

A.   A History of Unaccompanied Alien Children Provisions in the TVPRA

Prior to 2008, the legal and child protections existed primarily through the Flores v. Reno settlement agreement of 1997 and key provisions in the Homeland Security Act of 2002. The Flores litigation came about because the former U.S. immigration agency, the Immigration Naturalization Service (INS), persisted in treatment of unaccompanied migrant children that violated their best interests and due process. Under Flores, unaccompanied migrant children became entitled to minimum standards of treatment. Like our child welfare system, these children were determined to be entitled to the following:

1. Detention away from adults,

2. A form of custody other than secure juvenile facilities,

3. Humane conditions while in custody,

4. A policy favoring release to family members in order to prevent family separation and indefinite detention, and

5. Legal protections that included judicial review and access to representation, human rights monitoring, and courts.

Following the 1997 Flores settlement, the Homeland Security Act of 2002 built open these protections and created the definition of the “unaccompanied alien child” (“UAC”). The definition, rooted in child welfare principles, sought to ensure a child migrant not accompanied by a parent or legal guardian in the U.S. would be cared for by an agency with expertise in best interest of child principles—the Department of Health and Human Services. Conversely, it also ensured children traveling with parents, were not ripped apart from their family members.

Despite these important provisions, the Flores and Homeland Security Act framework for child protection remained incomplete. LIRS and other organizations providing services to this vulnerable population, such as the U.S. Conference of Catholic Bishops (USCCB) and the Women’s Refugee Commission (WRC), started educating Congress about the gaping holes in child welfare standards for unaccompanied migrant children. In response, Senator Feinstein first addressed this need with the Unaccompanied Alien Child Protection Act (UACPA) of 2000. Following this bill’s introduction, numerous versions of UAC protections were introduced in the ensuing years.

It is important to highlight the UACPA, as many of these provisions eventually made it into the TVPRA, while some key provisions were left out. Most notably the provisions for the appointment of a guardian ad litem (GAL) and attorney—at no expense to the government if necessary—never made it into the TVPRA. Additionally, important provisions on training for officials coming into contact with these children and safe repatriation for all children were left out. Nonetheless many of the UACPA provisions and the standards set forth in Flores were incorporated into the TVPRA.

The TVPRA became the vehicle for many of these UAC provisions because Congress recognized that many unaccompanied migrant children who have survived trafficking are afraid to come forward or may not understand that they were victimized and need protective services. They are often unaware of the illegality of the abuse or that laws and services exist to protect them. The TVPRA’s intent was to better identify trafficking survivors, provide services to children while in the custody of ORR, locate counseling and medical services, and identify those children in need of protective services or additional follow-up services after family unification. The TVPRA is a piece of legislation aimed at fulfilling our U.S. and international legal obligations towards refugees and asylum-seekers, protecting children from trafficking and ensuring appropriate and humane care that takes into account children’s best interests.

B.   TVPRA—Critical Protections & Systemic Problems

The TVPRA put the onus on the U.S. government to ensure children are screened for potential trafficking before return to their home countries. It also reaffirmed the U.S. commitment to the best interests of the child for all children in the U.S. 

I. Ensuring the non-refoulement of Mexican Minors

Under the Homeland Security Act, Mexican children were excluded from the best interest of the child protections and screenings for Refugee Act protections. Prior to the TVPRA, the U.S. automatically repatriated Mexican minors under contiguous country agreements without screening them for trafficking concerns or asylum claims. Additionally Mexican minors were sometimes dropped off at the U.S-Mexico border in the middle of the night and without any regard to ensuring their custody was transferred to Mexican child welfare officials. The TVPRA of 2008 sought to establish procedures to guarantee Mexican unaccompanied children were being screened for trafficking crimes and for asylum claims before being repatriated to Mexico. The TVPRA further required that if DHS could not make a determination within 48 hours, the Mexican child must be transferred to ORR.

Since the enactment of the TVPRA, the Department of Homeland Security has consistently failed to fully implement the legislation and fulfill its legal obligation of screening and non-refoulement of Mexican unaccompanied children. CBP, an agency tasked with law enforcement both at our ports of entry and between ports, does not have expertise in child welfare, trafficking or asylum protections and is ill-equipped to screen vulnerable children.

II. Custody by CBP

While CBP must comply with Flores minimum standards of care, the TVPRA sought to limit the custody of children in CBP to no more than 72 hours. The TVPRA recognized that border holding rooms were largely inappropriate for children. The TVPRA however did provide an exception for exceptional circumstances, which remains undefined. Historically the provisions in Flores regarding “influxes” and “emergencies” have informed its interpretation. Over the past several years, numerous human rights organizations and service providers have documented abuses by CBP of children in their custody.

Over a 3-month period this year, LIRS documented the following issues among children in transitional foster care, a program for short-term foster care pending release to a sponsor:

  • Out of 29 children, 5 reported they were abused while in CBP custody. Reports of CBP abuse are compiled from Significant Incident Reports and weekly staffing calls. This information is self-reported and therefore, is likely subject to under-reporting. Of these 5 reports, two were of great concern. One minor reported that while in CBP care, CBP staff threatened to “cut off his finger if he did not behave”. He was ten years old. Another minor reported being apprehended after a high speed chase with CBP and then being physically pushed by an officer.
  • Multiple children reported verbal abuse by CBP agents and an 8 year old child arrived at transitional care in a diaper because he reported bed wetting at night. It was later noted that the minor did have cognitive delays.
  • One minor arrived into ORR Transitional Care with a severe laceration on his foot that had become infected due to inadequate care and treatment while in CBP custody.
  • Four minors reported inadequate food and poor conditions while in CBP custody. They said that they were kept in “hieleras” or ice boxes, contracted scabies and did not have enough food to eat while in CBP custody.

III. Access to Immigration Courts Rather than Expedited Removal

Given the lack of maturity, development, and understanding of the legal process, under the TVPRA unaccompanied children are afforded due process and entitled to full proceedings before an Immigration Judge (IJ). Expedited removal proceedings are recognized as not offering the same procedural protections as a hearing before an IJ, including the opportunity to obtain legal counsel and receive information about available forms of legal relief.

Even prior to 2008, DHS has recognized the inappropriateness of placing children in expedited removal proceedings and in practice generally avoided the practice.

IV. Custody—in the Child’s Best Interest & Safe Release

The TVPRA codified some of the custody requirements under Flores. It reaffirmed the principle of placing a child in the “least restrictive” setting and utilizing secure detention only in cases where child and community risk required it. Additionally the TVPRA outlined procedures for release to immediate family members, extended relatives and other sponsors.

To safeguard against release of children into trafficking or other abusive situations, the TVPRA required ORR to put in place the following child welfare protections:

1. Require all potential sponsors to have an identity verification and assessment for potential risk to the child through background checks

LIRS conducts the majority of fingerprinting checks on behalf of ORR. Since the increase of children arriving from Central America, ORR has at times released children through an expedited process to their parents without conducting any background check for criminal and child protection concerns. LIRS maintains that all sponsors, including parents, should have background checks and identity verification. Such mechanisms help prevent child abuse and trafficking.

2. For especially vulnerable children (who survived trafficking, child abuse or have special needs) safe release to a sponsor requires a home study and post-release follow-up services.

In LIRS’s experience, finger-printing, home studies, and post-release services have proven invaluable to identifying and preventing child neglect, abuse and trafficking. These services also help the child and family link up to community support systems, orientate them towards legal obligations of attending court and school, and connect to specific services such as access to counsel.

Among LIRS’s transitional foster care programs, we track trends of a child’s significant need or traumatic experience. Significant needs of children include behavioral or conduct issues, risks of suicide or self-harm, mental health concerns, medical needs, cognitive delays, parenting teens or pregnant children. Traumatic experiences include instances of kidnapping, CBP abuse, and separation from adult caregivers at the border, physical abuse, and sexual abuse and trafficking concerns. These significant needs and traumatic experiences are defined as those greater than what is normally found within the UAC population, present higher risk for family reunification, and have greater impact on a child’s level of care needs and program response.

Of 252 children served in LIRS’s transitional foster care programming from January through March:

  • 71 or 28 % of children were determined to have significant needs.
  • 61 or 24% children were determined to have traumatic experiences.

3. Permits, but does not require, ORR to provide post-release services for children to better integrate into their homes and communities.

Currently not every child receives post-release services. These services have been critical in orientating families to the immigration court process, identifying mental health and medical services, providing assistance with school enrollment and locating legal service providers. The below chart illustrates the role post-release service providers place in identifying legal service providers. LIRS believes every child should be eligible for a minimum of post-release follow-up services in accordance with current child welfare practice.

Table1

4. Allows ORR, but does not require, to appoint child advocates for trafficking victims or particularly vulnerable children.

The Young Center for Immigrant and Children’s Rights currently provides these services to children. This service emerged from the realization that some children were particularly young, had disabilities, trafficking experiences or other vulnerabilities requiring assistance from someone who could make best interest recommendations. This model is based on the child welfare system.

V. Safe Repatriation

Another goal of the TVPRA was to ensure children were not repatriated to their home countries in unsafe manners. The TVPRA called on ORR, DHS and the Department of State to work together in running a pilot repatriation program. It also required that DHS consult human rights reports detailing country conditions and trafficking in person reports in assessing whether to repatriate a child. Unfortunately this is another area that has gone largely disregarded in practice. Human rights groups have reported witnessing children flown back to home country airports and left unattended without proper reception by a child welfare official.

VI. Legal Orientation and Counsel

The TVPRA also requires ORR to ensure (to the greatest extent practicable) the legal representation of all unaccompanied children in legal proceedings and matters to protect them against trafficking, exploitation and mistreatment. Currently the Vera Institute for Justice, the ORR contractor who manages the contracts for legal orientations and screenings, estimates 70-90% do not have legal representation depending on the location of their immigration hearing and the lack of legal resources in the area.

Without attorneys children find it tremendously difficult to submit their legal claims for relief. Children should not be forced to navigate a difficult legal system alone. This means that many children who are eligible for relief—are not getting it. For many children who have experienced compounded trauma, it takes time to articulate the trauma. Often without legal assistance children cannot even identify what legal protections exist to them. Attorneys also assist with a child’s appearance rates in court. EOIR and National Association of Immigration Judges (NAIJ) have also found attorneys for children greatly improves court efficiency, by allowing a judge to hear a case more expeditiously.

C. Final Recommendations

Finally, it is LIRS’s position that the TVPRA sets out important due process and protection schemes necessary to prevent children from being returned to persecution or falling prey to trafficking. These protections, however incomplete, provide critical protections to children. Instead of amending the TVPRA to prevent the reception and protection of children seeking refuge, we urge Congress instead to focus on filling the protection gaps of the TVPRA. If the following protection mechanisms are addressed, the current child refugee crisis and resource inequalities will be alleviated:

1. Legal protections: Guarantee children’s access to counsel by allowing courts to appoint counsel at no expense to the government. Provide adequate resources for immigration courts, judges and support staff so that cases can be heard in a timely and just fashion and with more efficiency.

2. Safe repatriation & rule of law support: Children should not be sent back to unsafe conditions or into the hands of traffickers and smugglers. Instead the U.S. should bolster reintegration and repatriation policies to make sure children can return home safely. Additionally, the U.S. should support greater development towards rule of law mechanisms in Central America.

3. In-country processing: For children who are displaced because of refugee situations, the Department of State should conduct in-country refugee processing so that children are not forced to make difficult and dangerous journeys to the U.S. alone.

4. Greater access to post-release services: All children should be entitled to some post-release social services to assist with basic protection needs. No child, especially a refugee child, should go without adequate care and preventative services.

5. Contingency fund for ORR: ORR must have a fund to provide for emergency care for situations where there are increased numbers of unaccompanied children. Such funding would prevent extremely costly use of “emergency shelters” and emergency child care workers. Such funds also ensure there is no gap in services and that medical and protection needs to not go unmet. Additionally, a contingency fund would alleviate the need to reprogram money away from critical needs for resettling refugees in order to shelter and care for unaccompanied children.

I would like to close with the following story of a girl LIRS had the privilege of serving:

Maria a 12 year old girl from Central America was trafficked for labor and sex, she fled with her baby to escape slavery. Maria was 12 years old, when she was kidnapped at gunpoint and taken to a home where she was held captive. She was beaten and raped on an almost daily basis and eventually forced into prostitution. Because of this she became pregnant and gave birth to a girl while captive. Maria fled with her child, riding on top of trains so that they might escape the sexual bondage. Maria received LIRS foster care services. She eventually ended up qualifying for a T-visa and is currently doing well in the Unaccompanied Refugee Minor (URM) foster care program. She has now graduated high school.

Stories like Maria’s and the children who are testifying here today, stress how important it is for children to come first. Thank you again for the invitation to submit LIRS’s views on the child refugee crisis from Central America.

Additional LIRS Resources:

  • Recent LIRS Policy Statements
  • LIRS Backgrounder on services to Unaccompanied Children
  • LIRS Backgrounder on Legal Protections for Unaccompanied Children
  • LIRS Principles for Children and Families Seeking Refuge

If you have additional questions about this testimony, please feel free to contact Jessica Jones, LIRS Child & Youth Policy Associate, at jjones@lirs.org or (202) 643-8319.

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Started by Lutheran congregations in 1939, LIRS walks with migrants and refugees through ministries of service and justice, transforming U.S. communities by ensuring that newcomers are not only self-sufficient but also become connected and contributing members of their adopted communities in the United States. Working with and through over 60 partners across the country, LIRS resettles refugees, reunites children with their families or provides loving homes for them, conducts policy advocacy, and pursues humanitarian alternatives to the immigration detention system. For more information, please visit www.lirs.org.