February 23, 2016 STATEMENT — LIRS Statement for Hearing On “The Unaccompanied Children Crisis: Does the Administration have a Plan to Stop the Border Surge and Adequately Monitor the Children?”

Committee on the Judiciary
United States Senate
February 23, 2016

By Lutheran Immigration and Refugee Service,
Kids in Need of Defense, and the Women’s Refugee Commission

Lutheran Immigration and Refugee Service (LIRS),[1] Kids in Need of Defense (KIND),[2] and the Women’s Refugee Commission (WRC)[3] appreciate the opportunity to submit our views for this hearing. Our organizations have long advocated for the protection of unaccompanied children, refugees, asylum-seekers and trafficking victims, and we believe the response to violence in Central America requires a holistic response that includes attention to improving conditions in the Northern Triangle and ensuring that refugees who are fleeing persecution receive protection in the U.S. and their due process rights are respected.

Children and Families Seeking Protection

Brutal violence and political turmoil in Central America continue to push migrants to seek refuge elsewhere. Although the majority of those fleeing violence seek protection in the United States, other countries bordering the Northern Triangle countries also receive refugees displaced by the violence. The United Nations High Commissioner for Refugees (UNHCR) documented a 1,185% increase in asylum applications in the Central American and Mexican region from 2008 to 2014, though the vast majority fleeing their home countries still head for the United States.[4] Between 2008 and August 2015, Costa Rica alone saw a sixteen-fold increase in asylum requests from the Northern Triangle countries.[5] Request for asylum in Mexico, primarily from Northern Triangle countries, have more than doubled since 2013.[6]

Unaccompanied children and mothers with their children are disproportionately affected by the violence in Central America. As refugees fleeing Central America, they are forced from their home countries to escape worsening violence by armed criminals, gender-based violence, forced gang recruitment, domestic abuse, human trafficking, and political instability. The situations in these countries have not improved over the past year. Violence and turmoil have only increased; local governments are powerless to protect their citizens, especially families and children. The factors emphasize the need for humane protection of migrants: as refugees, these migrants are fleeing their home countries because of a well-founded fear of persecution.

The strife in Guatemala, El Salvador and Honduras has not lessened in the past year. Homicide rates for Guatemala, Honduras, and El Salvador are currently all in the top five globally. In 2014, Honduras had more homicides than all 28 countries of the European Union (EU) combined. El Salvador’s 2015 national murder rate reached approximately 103 homicides per 100,000 people which is a higher murder rate than during El Salvador’s decade long civil war.[7] In fact, insecurity in El Salvador is of such concern to the Administration that the Peace Corps recently suspended operations there due to dangerous levels of community violence.[8] A 2015 report by the United Nations High Commissioner for Refugees (UNHCR) found that women in particular face a “startling” degree of violence in the Northern Triangle, including rape, assault, extortion, and threats by armed criminal groups.[9] Sixty-four percent of women interviewed for the study cited targeted threats or attacks as one of their primary motivations for leaving their communities. In the last six years, the three countries have also ranked within the world’s top-four countries for rates of femicide, with El Salvador and Honduras again first and second.[10] The State Department recently wrote about Guatemala that “in most killings of women and girls, sexual assault, torture, and mutilation were evident…the conviction rate was only 1 or 2 percent for femicide.”[11]

Victims of violence, extortion, sexual abuse, and death threats rarely find protection from the authorities. In fact, many victims fear the police as much as the criminals. In the Northern Triangle countries, rule of law and law enforcement institutions are weak and corrupted. The majority of police forces are underfunded, plagued by poor leadership, and sometimes complicit in criminal activity.[12] To fill the void criminal gangs have begun to function like quasi-governments exacting taxes on businesses, run social welfare programs to garner loyalty and having its own quasi-judicial system designed to control undesirable behavior.[13]

These tragic statistics underscore our obligation under international and national law to ensure individuals fleeing these levels of violence and instability have a meaningful opportunity to access asylum and protection, both in our own country, and by conducting refugee processing in the region. We support the Administration’s efforts to develop refugee processing to help identify persons in need of international protection before they are forced to leave their home. We want to make sure the existing Central American Minors program and the recently announced adult refugee processing program in the region are successful in protecting the most vulnerable. These programs must be fully funded to quickly process those in risk and provide relocation and resettlement as quickly as possible. Funding such programs, will also disrupt criminal organizations focused on human smuggling. They must be offered as a compliment to other protection mechanisms including the ability to request protection at our border.

All aid directed to this region must be conditioned on strengthening protection systems to ensure that migrants are able to exercise their rights. Funding on immigration enforcement in Mexico and other countries must include toward training and implementation of meaningful screenings to identify migrants with international protection needs, providing alternatives to detention, and protecting vulnerable migrants.

The Trafficking Victims Protection Reauthorization Act of 2008 Saves Children’s Lives

Given the extreme violence in the region, we believe protections for asylum seekers, trafficking victims, children and other vulnerable migrants are critically important. Our organizations support safeguarding the protections in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) because we believe this bi-partisan legislation helps the U.S. to meet our domestic and international legal obligations towards refugees and asylum-seekers, to protect children from trafficking and to ensure appropriate and humane care that takes into account children’s best interests. 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, disrupt cross-border trafficking, provide services to children while in the custody of the Department of Health and Human Services in the Office of Refugee Resettlement (ORR), identify those children in need of protection and reunify them with family as they pursue their legal relief claim in immigration court.

When unaccompanied children are first encountered at border, they are processed and then screened for protections under our immigration laws by Customs and Border Protection (CBP). Unlike families or adults who express a fear of return, who must be interviewed by U.S. Citizenship and Immigration Services (USCIS) Asylum Division, these children are never screened for a credible fear or other legal relief by USCIS. For unaccompanied children from Mexico, a screening by CBP is their only chance at access to protection. Numerous studies have shown these screenings are inadequate and DHS is not complying with the Congressional mandate. The limited screening by agents who lack the proper training in asylum, trafficking, child welfare, trauma, abuse, and sexual assault means that many children will be returned to dangerous situations.[14] For children from non-contiguous countries, their transfer from CBP to the child welfare agency ORR is a significant child protection measure as it is often the first time a child feels safe enough to reveal the life threatening situations they faced in their home country. This measure is also consistent with state child welfare laws and best practices developed by states to protect children at risk of neglect and abuse. All children, regardless of country of origin, deserve to be adequately screened for protection concerns and treated with compassion and care.

To illustrate the importance of ORR in screening children in safe environment, here are two examples from LIRS:

  • A young girl named Maria was kidnapped by a local gang and raped daily in her home country in Central America. She managed to escape and fled to the United States. Maria did not reveal what had happened to her until she was interviewed in ORR custody by a social worker trained to interview children. CBP custody and processing limitations do not provide an environment in which children like Maria feel safe to divulge what they went through.
  • Jesus, a 3 year old boy, was sent by his family to the U.S. for his safety after his family had received threats of harm against Jesus. Jesus’s family in his home country had witnessed the torture and beheading of another toddler in their community by gangs as a punishment for not cooperating. Children like Jesus arriving alone at a CBP station would be unable to express the fear of persecution without ORR reaching out to family to discover the reason for his flight.

The TVPRA also provides for minimum due process protections for unaccompanied children. Unaccompanied children may be eligible for various forms of immigration relief, including asylum or Special Immigrant Juvenile status. Recognizing the special vulnerabilities of children and the immense difficulty of arguing an asylum case in immigration court, the TVPRA also directed that any unaccompanied child identified as seeking asylum have their case transferred to the jurisdiction of the U.S. Citizenship and Immigration Services (USCIS) Asylum Division in order to first present their asylum case to specially trained adjudicators in a non-adversarial setting.[15] In the last year, only a fraction of unaccompanied children have applied for asylum, and many of those cases are still pending before USCIS. Lower asylum rates, may be an indicator of the continued lack of legal representation among unaccompanied children.

Despite key child protections in the TVPRA, there is still no statute that requires children to have access to legal representation at government expense. Because of this lack of due process protection, children of all ages—even toddlers are put in the unconscionable position of arguing a case for immigration relief. In the last six months of 2014, 94 percent of those unaccompanied ordered removed did not have an attorney.[16] This illustrates how impossible it is for a child to secure relief without representation. In 2014, at the height of the influx, the representation rates reached all-time lows of only 15 percent of children represented in April. In 2015, the current rate of representation is still at a low of 38 percent of children. This failure in access to due process only increases court inefficiencies as documented by the Executive Office of Immigration Review (EOIR) and the National Association of Immigration Judges (NAIJ).[17]

Even with low representation rates among unaccompanied children, they still appear to their immigration hearings at high rates: 90 percent in Fiscal Year 2015. With representation the number is well over 99 percent appearance rate for Fiscal Year 2015.

Children Reunified with Family and In Removal Proceedings

CBP aims to transfer children to ORR within 24 hours in order to free their resources to focus on other law enforcement priorities. The children are then placed in ORR placements according to their level of risk and protection need: secure juvenile detention facilities, medium secure facilities, shelters and foster care for children of tender age or pregnant girls. Of the children placed, roughly about 85 percent are reunified with their families for the duration of their removal hearings, 60% of whom are parents. This safeguards the child’s rights to family unity and prevents long-term family separation.

Upon release from ORR, some children receive home studies and post-release services for the duration of their court case, limited post-release services, release with a safety plan, or just straight release. Evidenced-based research shows that children who receive community-based, case management style post-release services are more likely to comply with the requirement to appear at all immigration court hearings.[18] Through post-release services children benefit from additional information about what to expect in immigration court proceedings, as well as referrals for local legal service providers. In addition to legal orientation, post-release services also help connect children to schools, mental health services, medical providers, and other supports, as well as provide cultural orientation to both the child and the parent.

Currently only a small percentage of unaccompanied children receive home studies or post-release social services. In FY2014, ORR only had funding to do home studies for 1,434 children, 2.5% of those placed with sponsors and in FY2015 ORR’s funding allowed an expansion of up to 1,895. For post-release services, ORR served 3,989 children in FY2014 (7% percent of placed children) and 8,618 in FY2015 (an estimated 26% percent of placed children).[19] According to the recent Majority and Minority report from the U.S. Senate Permanent Subcommittee on Investigations, ORR performed home studies in less than 4.3% of cases from 2013 through 2015.[20]

The following case example illustrates how these services assist children:

  • Maricel a 15 year old female minor was reunified with her sister in January 2014. The minor left her home country to escape ongoing community violence. While in home country, Maricel was kidnapped and raped by a local gang. In order to find protection and safety she traveled with her older sister to the US. During the journey, Maricel and her sister were taken by unknown persons and held for three (3) days. Her sponsor paid $200.00 US and the minor was released. When she was finally reunified with her older sister in Maryland she
    notified her local worker that she was 7 months pregnant. The local worker connected her with medical and mental health resources and got her involved in a prenatal care program in her local community. Maricel responded well to the resources and gave birth to a healthy young daughter. With the assistance of her sponsor, she has grown into an engaged and loving mother. Her sponsor is assisting with financial resources while the minor continues
    her education. In addition, Maricel has been very active securing a lawyer and working on her asylum case. Her lawyer indicated that she has a strong claim for legal relief and they are hopeful she will find the safety and protection she has been seeking in the near future.
  • In the case of a young girl named Maria, recent improvements by ORR such as their creation of a new hotline, are leading to increased protections for children. In Maria’s community in El Salvador, a gang member put a gun near Maria’s head and shot once, she stated that he told her, “I give you one month for you to leave or I will kill or rape you.” She was not harmed when the gun was shot. Gang members then attempted to rape her, but stopped because her screams were so loud. They instead cut her and warned her they would rape her. At 17 years, she fled to the U.S. and was reunified with a sister without any post-release services. Later, her sister decided to move in with her boyfriend. Maria called the new ORR hotline, explained that she had lived on her brother’s couch but had to move out. She also was working in order to pay rent. ORR contacted LIRS Post Release Services who met with
    Maria and made a report to CPS. Consistent with child welfare practice, Maria was placed in CPS custody and placed into foster care.

We believe, that ORR can and should strengthen its family reunification procedures in order to ensure a child’s access to family unity and protection. ORR has the expertise and knowledge to implement better family reunification procedures and Congress should support these efforts by adequately funding ORR so that every child is protected.

We believe ORR can further improve its processes related to the release of UACs to sponsors:

  • First, ORR should prioritize child protection and safety in reunification decisions over reunification timelines based on fiscal concerns. We need to see these as children first whom are needing safety and deserving of protection and family unity.
  • Second, ORR should ensure that all children have access to some post-release services. These services should be based on an individualized assessment intervention, community-based, case management services which are trauma informed permitting for a more flexible and tiered approach base on the child and family’s needs. Congress should also appropriate the necessary funds so that ORR can provide these services. This would ensure that all children receive at least one home visit to check on the released child’s well-being.
  • Third, ORR should revise the sponsor assessment tool and sponsor reunification packet to ensure gathering of relevant information. This should include an in-person risk assessment of the sponsor, a sponsor needs assessment, and an in-person sponsor orientation that accompanies a more user-friendly sponsor handbook that promotes children’s safety, stability, and well-being.
  • Fourth, ORR should monitor the impact of changes to fingerprint background check requirements and revise policy accordingly. The safety of children and the screening of sponsors, including parents, must be more consistent and appropriately balanced.
  • Fifth, ORR should enhance their engagement with NGOs and stakeholders in order to help improve their policies in order to utilize best practices in meeting the best interest of unaccompanied children. In consultation with ORR’s various grantees we could work together in identify and mitigating some of the risks associated with changes to policy or practices.
  • Finally, Congress should provide ORR with contingency funds so that in times of higher arrivals of unaccompanied children or refugees, ORR can adequately provide the bed space and services required.

Appearance Rates of Children in Immigration Court[21]

Upon release from U.S. Department of Health and Human Services Office of Refugee Resettlement (ORR) custody, the majority of unaccompanied children appear in immigration court without representation because, regardless of age, lawyers are not automatically provided to these children. Children as young as toddlers are often forced to present their legal case before an immigration judge in a formal court room. While the child is unrepresented, the government is represented by an attorney who has been trained specifically in the complex U.S. immigration law. The expedited hearings for unaccompanied children—the so-called “rocket dockets”— that began in fall of 2014 often do not allow children enough time to find an attorney and prepare for their case. This increases the number of children going through proceedings without an attorney, as well as those who receive removal orders in absentia. Every unaccompanied child should have legal representation in immigration proceedings – if necessary, at government expense.

Case Type Cases That Began in Fiscal Year 2014 Cases That Began in Fiscal Year 2015
Children with Legal Representation
49% of cases that began in FY14 and FY15
29,916 9,447
Number Who Appeared 29,569 9,386
Percentage Overall 98.84% 99.35%
Children Pro Se
51% of cases that began in FY14 and FY15
26,036 14,986
Number Who Appeared 16,277 12,617
Percentage Overall 62.52% 84.19%

TRAC data only reference unaccompanied children in ORR custody and all released children. Data reflect current status (most recent proceeding status). Appearance rates may represent a snapshot in time. (Data collected in December 2015)

The majority of children do appear for their first immigration court hearing.[22] In fact, the single, strongest indicator that a child will appear for an immigration court hearing is if an attorney represents that child. Representation also improves the process for judges and government attorneys, who are able to communicate directly with another attorney, rather than a child.[23]

Representation rates of unaccompanied children reached all-time lows in April 2014 at 15 percent, a period that coincided with a sharp increase in arrivals of unaccompanied children.[24] Though rates of representation have since increased, the vast majority of children now stand alone in immigration court, to respond to questions from judges and government attorneys, and to assert their defense to deportation.

Appearing Without Lawyers Denies Children Protection for Which They Are Eligible

A majority of recently-arrived unaccompanied children are eligible for legal protection that would allow them to lawfully remain in the United States.[25] Yet they cannot access these protections without an attorney to represent them in court or even to ensure they receive proper notice of their hearings. 97-99% of cases that began in fiscal years 2014 and 2015 and concluded with orders in absentia—were kids without legal representation. While there has been new federal funding and pro bono efforts to address the lack of representation, significant gaps remain in representation based on geographic areas as well as government restrictions.

In fiscal year 2014, advocates documented an increase in problems with children being notified of their immigration court hearings. Children received no notice of their hearing prior to their hearing, received a notice after the hearing already took place, the EOIR hotline failed to update court information in a timely manner, and/or they were required to appear at a court far from where they lived. This may have resulted in higher in absentia removal orders.[26] This is also supported by fact the vast majority of recent cases with orders in absentia were cases that began in fiscal year 2014. Without attorneys to address these issues, children are at high risk of losing their opportunity to seek protection, and may be returned to harm. A robust mix of government-funded and pro bono representation by the private sector is needed to fill the enormous representation gap that currently exists.

Conclusion: Post-Release Services and Legal Assistance are Critical

Overall, we believe the responsibility for the care and custody of unaccompanied children should remain with the Department of Health and Human Services, the federal agency whose mission is child protection. Care and custody should not be transferred to DHS, the agency tasked with immigration and border enforcement. For good reason, Congress decided, through the Homeland Security Act of 2002, that the agency charged with enforcement, the former INS (now DHS) should not also have responsibility for the care and custody of unaccompanied children.

ORR must be given adequate funding to provide post-release services. Congress should provide ORR with funds for family reunification services and other post-release services so that in times of higher arrivals of unaccompanied children or refugees, ORR can adequately provide the bed space and associated supportive services required. ORR has a variety of post-release programs that successfully ensure children’s safety and also ensure children comply with the requirements of the immigration court process. Specifically, ORR contracts with non-governmental agencies to provide post-release follow-up services, legal representation and child advocates for vulnerable unaccompanied children. Provision of these services should be based on an individualized assessment. The services should be community-based, case management services which are trauma informed permitting for a more flexible and tiered approach based on the child and family’s needs. Congress should appropriate the necessary funds so that ORR can provide these services and should require HHS to report on the post-release services provided to individual children and families.

Children must be provided legal representation regardless of whether they have been identified as eligible for relief during an initial screening. At present, upon release from ORR custody, the majority of unaccompanied children appear in immigration court without representation. While the child is unrepresented, the government is represented by an attorney who has been trained specifically in the complexities of U.S. immigration law. A child who does not have an attorney may be fearful of going to court, walking into the courtroom, figuring out what to say—especially in an adversarial setting. Children who are represented are more likely to appear in immigration court, allowing another opportunity for adults other than the sponsor—attorneys, Child Advocates and immigration judges—to interact with a child and verify their safety.

The most vulnerable children should be appointed a child advocate to advocate for the child’s best interests on issues including placement and permanency. Federal law permits the appointment of independent child advocates—best interests advocates or guardians ad litem—for child trafficking victims and other vulnerable unaccompanied children. Because ORR must consider the best interests of the child when making decisions regarding placement, and because every decision-maker should consider a child’s best interests when making a decision regarding a child, child advocates play a critical role. For over a decade, immigration judges, immigration officers and other federal and state officials have relied upon reports received from independent child advocates in order to consider children’s best interests in part of the decision-making process—whether that decision involves release to a sponsor or the grant of a discretionary immigration benefit. It is important that Congress continue to provide resources to ensure that the most vulnerable children have a child advocate, whether those children are identified as particularly vulnerable while still in custody or after their placement with a sponsor.

[1] Lutheran Immigration and Refugee Service (LIRS) is the national organization established by Lutheran churches in the United States to serve uprooted people. LIRS is nationally recognized for its leadership advocating on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States.
[2] Kids in Need of Defense (KIND) serves as a leading organization for the protection of unaccompanied children who enter the US immigration system alone and strives to ensure that no such child appears in immigration court without representation. We achieve fundamental fairness through high-quality legal representation and by advancing the child’s best interests, safety, and well-being.
[3] The Women’s Refugee Commission’s mission is to improve the lives and protect the rights of women, children and youth displaced by conflict and crisis. We research their needs, identify solutions and advocate for programs and policies to strengthen their resilience and drive change in humanitarian practice.
[4] UNHCR, Children on the Run, http://unhcrwashington.org/children.
[5] http://www.nacion.com/sucesos/seguridad/Violencia-lanza-salvadorenos-buscar-refugio_0_1533846604.html
[6] http://www.comar.gob.mx/es/COMAR/Estadisticas_COMAR
[7] Washington Office on Latin America,
http://www.wola.org/commentary/five_facts_about_migration_from_central_america_s_northern_triangle
[8] Peace Corps, http://www.peacecorps.gov/media/forpress/press/2618/
[9] UNHCR, Women on the Run, http://www.unhcr.org/5630f24c6.html
[10] UN Women http://www.unwomen.org/en/news/stories/2013/4/femicide-in-latin-america
[11] Department of State 2014 Human Rights Report Guatemala,
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
[12] Washington Office on Latin America,
http://www.wola.org/commentary/five_facts_about_migration_from_central_america_s_northern_triangle
[13] Douglas Farah, Foreign Policy Magazine, Central American Gangs are all Grown Up, January 19, 2016.
[14] See e.g. Confidential Report UNHCR Regional Office Washington, D.C. for the United States and Caribbean, “
Findings and Recommendations Relating to the 2012-2013 Missions to Monitor the Protection Screening of Mexican
Unaccompanied Children Along the U.S.-Mexico Border (June 2014). See also Betsy Cavendish & Maru Cortazar, Children at the Border: The Screening, Protection and Repatriation of Unaccompanied Mexican Minors, Appleseed (2011) (“Children at the Border”).
[15] This is the same setting as adults or children submitting affirmative asylum applications from within the United States.
Like those who apply affirmatively, when those who are not in status in the U.S. are denied asylum by a USCIS
adjudicator, they are referred to the immigration court for removal proceedings, where they may present an asylum claim as a defense from removal.
[16] See Rogers, David. “Child migrants without lawyers pay a high price.” Politico. April 27, 2015.
[17] See e.g., NAIJ Letter to Senate Committee Staff, “Special Concerns Relating to Juveniles in Immigration Courts,” (July 22, 2014).
[18] Benjamin J. Roth and Breanne L. Grace, “Post-Release: Study Summary and Policy Recommendations,” University of South Carolina College of Social Work, available at: http://bit.ly/1cpMtvZ
[19] Molly Hennessy-Fiske, “Young immigrants placed in sponsor homes are at risk of abuse, experts say,” (LA Times August 2015), available at: http://www.latimes.com/nation/la-na-immigrant-sponsors-20150818-story.html
[20] “Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of ORR,” available at: http://www.hsgac.senate.gov/download/majority-and-minority-staff-report_-protecting-unaccompanied-alien-childrenfrom-trafficking-and-other-abuses-the-role-of-the-office-of-refugee-resettlement
[21] This is an excerpt from the LIRS, KIND, WRC and the Young Center backgrounder, titled, Reunified Children and
Services, available at http://lirs.org/wp-content/uploads/2015/12/Children-Representation-Info-Sheet-Update-12-
15.pdf
[22] This fact runs contrary to a statement by Senator McCain at an April 29, 2015 DHS budget hearing in the Senate Homeland Security and Government Affairs Committee hearing that only 10-20 percent of unaccompanied minors appearing for scheduled immigration hearings.
[23] Letter from National Association of Immigration Judges (March 22, 2013), http://bit.ly/1KbTmtJ .
[24] Syracuse University’s Transactional Records Access Clearinghouse (TRAC) “Representation for Unaccompanied
Children in Immigration Court,” 25 November 2014. http://trac.syr.edu/immigration/reports/371/.
[25] United Nations High Commissioner for Refugees (UNHCR), Children on the Run (March 2014).(UNHCR reports 712%
increase in asylum applications in the countries neighboring Honduras, El Salvador and Guatemala, namely Mexico,
Panama, Costa Rica, Belize and Nicaragua, from 2008-2013).
[26] See a February 9, 2015 sign-on letter detailing this issue, available at: http://lirs.org/wpcontent/ uploads/2015/06/20150127Advocacyletterreinabsentiachildren-FINAL-2-w-names.pdf.