July 7, 2015 STATEMENT- LIRS Statement for the Record on “The 2014 Humanitarian Crisis at Our Border: A Review of the Government’s Response to Unaccompanied Minors One Year Later”

Senate Committee on Homeland Security & Governmental Affairs

July 07, 2015

By Lutheran Immigration and Refugee Service (LIRS) and Women’s Refugee Commission (WRC)

Lutheran Immigration and Refugee Services (LIRS)[1] and Women’s Refugee Commission (WRC)[2] appreciate the opportunity to submit this statement for the record. Our organizations have long advocated for the protection of unaccompanied children, refugees, asylum-seekers and trafficking victims. We urge the U.S. Congress to uphold our country’s proud history as a nation of welcome and protection for vulnerable newcomers escaping violence and oppression. Border security, rule of law and humane protection of vulnerable persons are not exclusive.  It is possible to both protect our borders and national security while upholding our longstanding traditions and leadership as a nation that upholds human rights and protection values. There are ways to improve upon our treatment of unaccompanied children and families by expanding both child protection services and due process that will increase efficiency and reduce cost.

The number of unaccompanied children and families from Central America seeking refuge both in other regional countries as well in the United States has risen significantly since 2012 with a particularly sharp rise in 2014. In Fiscal Year (FY) 2014, the number of unaccompanied children who fled without a parent to the United States’ borders rose from 38,833 in FY 2013 to 68,631. Children fled their home countries, mostly from Guatemala, El Salvador, and Honduras, to escape violence by armed criminal actors, gender-based violence, forced gang recruitment, domestic abuse, human trafficking, family reunification and poverty.  The number of children apprehended while traveling with family members increased at a similar rate, underscoring the seriousness of the life-threatening dangers faced by those in the Northern Triangle.

Just over one year ago, in June 2014, President Obama referred to the unprecedented numbers of children and families fleeing violence in Central America and arriving at the southern border as an “urgent humanitarian situation.” However, the Administration’s response has been anything but humanitarian. Instead, over the past year, the U.S. government has detained families who arrive, and forced them to have their claims for asylum heard in prison-like detention facilities. They have used expedited processing to remove mothers and children from the country as quickly as possible—with most, including children as young as toddlers, lacking access to counsel during deportation proceedings—and pursued policies designed to strip away protection and ensure that future asylum seekers are stopped before they make it to the U.S. border. For child refugees travelling alone, they proposed expedited hearings and stated key trafficking prevention provisions were hindering their ability to remove children fast enough.

It does not have to be this way: the U.S. can respond to the situation facing these children and families and address the root causes of violence in Central America while still living up to our nation’s long history as a nation that welcomes and protects refugees and other vulnerable populations.

Protection of Refugees and Vulnerable populations:

Today, the life threatening dangers these refugees face in the Northern Triangle countries of Central

America have not diminished. Notably, the U.S. in not the only country to which families and children are fleeing in search of protection.  The United Nations High Commissioner for Refugees (UNHCR) documents that asylum applications in the Central American region and Mexico have increased by 1,185 percent between 2008 and 2014. This indicates the single biggest driving factor of migration in the Northern Triangle countries is—a fear of harm. Many of the children and families choosing to come to the U.S. do so because they have family connections here in the U.S. to provide support as they undergo the legal process for requesting asylum from the violence and persecution they face in their home countries.

While the dangers in Central America have not changed, what has, is access to protection.

The current response of the U.S. government to this situation has been a refusal to accept these children and families for what they are: potential refugees with viable claims to U.S. protection. Under domestic and international law, the U.S. is required to protect—not punish—anyone expressing a credible fear of return. Protection also falls squarely in line with U.S. values. The government’s own statistics show that 88 percent of recently detained mothers and children in family detention centers who are going through the credible fear process have been found by U.S. officials to be bona fide asylum seekers. And yet the government has operated as if these refugees were instead unauthorized migrants who need to be deported as quickly as possible.

The dangers these children have faced in their home countries are illustrated by the following examples:

  • 9 year old Rosa and 12 year old Juan came from the same village in Honduras. They reported that a gang running in their neighborhood was known to kidnap children, kill them, and sell their organs on the black market. The gang was also known to kidnap children, cut them open, put drugs in their bodies, sew them back up, and use the bodies as containers to traffic drugs. Both children reported their teachers in Honduras would warn the students about this gang and instructed children to interact with nobody during their walks to and from school. Both children reported they knew children from the neighborhood that had been kidnapped and never seen again.
  • Carlos, a 13 year old boy from El Salvador, fled to the U.S. after witnessing his mother’s brutal murder. Four gunmen broke into Carlos’s home and shot Carlos’s mother right in front of him. The gunmen where never caught, which lead to the child and family feeling afraid in their community. The child suffered from severe trauma because of this event. Due to this, his family in El Salvador decided to send him to live with a relative in the U.S. where he would not be in danger of his life.

The United States has historically been a leader in refugee protection issues. However, in response to last year’s unprecedented numbers of children and families arriving at the southern border, the Administration and many in Congress responded by treating the increase as a matter of border security. Instead of release to family members and the community, thousands of children arriving with parents seeking protection have been detained in newly built, remote Immigration and Customs Enforcement (ICE) family detention facilities located far from life-saving legal services. At the same time, in summer 2014 the Administration and many in Congress sought unsuccessfully to roll back crucial protection mechanisms in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). LIRS and WRC believe it is imperative to maintain and restore access to justice and protection in our policies and laws toward UACs fleeing persecution.

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

Our organizations support safeguarding the protections in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). This bi-partisan legislation aimed to fulfill our U.S. 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 safely 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.[3] 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 did not provide an environment in which Maria felt safe to divulge what she 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. 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.[4] 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 legislation to require children 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.[5] 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).[6]

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. Upon release, 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 case-management style post-release services are more likely to comply with the requirement to appear at all immigration court hearings.[7] 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 post-release social services. In fiscal year 2015, an average of 3,300 children will receive the post-release services required for particular vulnerable children by the TVPRA following a home study. This represents roughly 12% of the total unaccompanied children projected to be in ORR’s care for fiscal year 2015. For all other children who do not need a home study, ORR only has capacity to provide services to an estimated 3,000-7,000 children annually. This represents roughly 14% to 32% of children projected to be in ORR’s care (who do not receive a home study) for fiscal year 2015.[8]

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.

Detention as a Deterrent to Refugees, a Failed Policy

Despite having ended large-scale family detention in 2009 due to public pressure and a lawsuit, and after a review of the detention system overall, the Administration announced in June 2014 that it would expand the detention of parents arriving with children as a deterrent for further migration. Family detention capacity in the U.S. has now expanded by roughly 3,000 percent.[9] Asylum seeking women and children are held often without bond, in remote facilities, with limited access to attorneys. In addition to initially converting a training facility in Artesia, New Mexico that it later closed, the Administration has plans to double capacity at the existing family facility in Berks County, PA, converted the Karnes County facility in Texas to house families (with plans to double its capacity), and has built the largest immigration detention center in the country: the 2,400-bed facility in Dilley, TX. The latter facilities were built in remote locations, far away from the public and public oversight.

Numerous reports have documented that family detention in any form is inhumane and damaging to children’s health and development. Detention breaks down family structures, creates and exacerbates irreparable trauma for children and their parents, and their inability to access attorneys inhibits access to due process and the ability to make their asylum case.[10] Furthermore, detention as a deterrent is a violation of international and U.S. law, and is not an effective deterrent for refugees, as evidenced by regional asylum application statistics. Families are still coming even though they know they may be detained for an indefinite period of time because they fear for their and their children’s lives.

In addition, detaining families is extremely costly—$343 per person per day as per the President’s fiscal year 2016 budget—and unnecessary, as existing alternative to detention programs have been proven to be effective, and cost only $5.50 per day.

Increased Number of Children Denied Protection In Mexico

While the number of unaccompanied children and families arriving at our borders this year has decreased, the situation in the home countries has not changed. Migrants continue to flee the Northern Triangle countries of Guatemala, Honduras, and El Salvador in record numbers in search of protection outside of their home countries. However, fewer are arriving at the U.S. border because they are being intercepted along the way. The U.S. government has financially and politically supported Mexico and Central American governments to seal their borders to prevent migrants, even refugees, from traveling north.

As the number of apprehensions on the southern U.S. border has decreased, the number of apprehensions and deportations at the southern border of Mexico has increased proportionately. These children and families are being apprehended at Mexico’s southern border and returned in increasing numbers, without the screening required under both international and Mexican law to determine if they have potential international protection claims, and are at risk if they are returned.[11] As a result, thousands of children are prevented from accessing protection and are being returned to potentially life-threatening situations.  These interdiction efforts by Mexico and the United States violate the cornerstone principle of international refugee protection- non-refoulement- the obligation of a State to ensure from returning a refugee to territories where her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.[12] In other words, the Administration has not dealt with these issues, it has simply pushed the problem south, where Americans cannot see it. These actions are a violation of the framework that was created and agreed to by the international community to protect those who are fleeing their countries to save their lives.

Most critically, it puts children’s lives at risk.  For example, just last week on June 30th, a teenage boy of 15 was returned to Honduras from Mexico. He had fled Honduras seeking protection because he feared the gangs in his home town who had threatened him. Upon repatriation, he stated he was planning on just leaving again because he was still afraid. In the middle of the night after his return to his home by the Honduran child protection agency, two hooded men entered his home and shot him to death.[13]

We have a responsibility to ensure that everyone, especially the most vulnerable, has access to due process and the protections they deserve. The United States is an international leader in welcoming refugees fleeing persecution and violence and we must uphold this status by implementing humane and just treatment of vulnerable children seeking protection in our nation.

The U.S. Congress has a unique and important role in the response to the increased number of children seeking protection in the United States. Specifically, Congress should be providing robust oversight to the agencies charged with the care and custody of unaccompanied children to make sure these children are housed in safe and appropriate facilities and conditions while they are in federal custody. In addition, Congress should be appropriating funds to, and monitoring the Justice Department to guarantee all immigration claims are fairly and timely adjudicated and these children are provided with pro bono or government funded counsel if they cannot afford counsel. Congress should support ORR by providing adequate funding to provide necessary post-release case management services to assist with child protection, community integration, and immigration court appearance after children’s release from federal custody. Finally, we must ensure that U.S. policies strengthen and do not undermine access to protection in the region.

We must remain steadfast in our commitment to protecting vulnerable migrants and remember migrant children are children first and foremost.

The cost of detaining and denying protection is high— both financially and in terms on human life and the erosion of our core values. Solutions exist to deal with unaccompanied children and families fleeing violence in Central America in a humane and protective way. The U.S. has a long and proud tradition of welcoming refugees and the Obama Administration and Congress must not destroy this legacy. The first step is to recognize the challenge at hand: this is about refugees.

Recommendations from Lutheran Immigration and Refugee Service and the Women’s Refugee Commission to address the needs of refugees, the U.S. must:

  • Ensure that migrants seeking international protection are able to seek protection when arriving at U.S. territory by implementing improved screening procedures at Customs and Border Protection facilities.
  • When arriving at the U.S. borders, properly identify and allow each person to tell his or her story to a judge or asylum officer.
  • Provide access to attorneys, and meaningfully facilitate pro bono representation of these children by the private sector, and end the use of rocket dockets
  • End family detention, and use low cost, effective alternatives when deemed necessary.
  • Expand case management style of alternatives to detention that are evidence based, humane, and more cost effective.
  • Fully fund and resource the U.S. immigration courts and U.S. Citizenship and Immigration Services to ensure that claims can be heard in a fair and timely manner.

Further recommendations from the Women’s Refugee Commission:

  • Maintain and support the international refugee protection framework, by recognizing that many of these children and families are potential refugees, and treating them as such.
  • Prioritize efforts for long-term development and protection in foreign assistance to the region that will stem the tide of violence and help ensure the safety of children and families at home.
  • Address current humanitarian needs by ensuring that any foreign assistance to governments in the region that includes support for, or references, border enforcement, be conditioned on adequate screening for asylum claims and full implementation of these governments’ shared obligations under the Refugee Convention.
  • Develop and implement a reintegration program in Central America to ensure that children returning can do so safely and in a way that is sustainable.

For more information:

Jessica Jones, Policy Counsel, Lutheran Immigration and Refugee Service, jjones@lirs.org. More information can be found at: http://lirs.org/our-work/people-we-serve/children/advocating-for-children/

Jennifer Podkul, Senior Program Officer, Migrant Rights and Justice Women’s Refugee Commission, JenniferP@wrcommission.org. More information can be found at: http://womensrefugeecommission.org/programs/migrant-rights

[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] 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.

[3] 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”).

[4] 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.

[5] See Rogers, David. “Child migrants without lawyers pay a high price.” Politico. April 27, 2015.

[6] See e.g., NAIJ Letter to Senate Committee Staff, “Special Concerns Relating to Juveniles in Immigration Courts,” (July 22, 2014).

[7] 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

[8] Data provided by ORR is based on weekly rates of service. Estimates and percentages are based on current rate of arrival statistics from CBP, which just below fiscal year 2013 arrival rates and total placed in fiscal year 2013 with ORR (24,668).

[9] For a more comprehensive look at current family detention practices, see “The Detention of Immigrant Families.” http://immigrantjustice.org/sites/immigrantjustice.org/files/FamilyDetentionBackgrounder_June2015.pdf

[10] A recent complaint filed by American Immigration Lawyers Association, Women’s Refugee Commission, and American Immigration Council reiterated that family detention either creates or exacerbates trauma for the asylum-seeking families detained there. See: https://womensrefugeecommission.org/news/press-releases-and-statements/2278-crcl-complaint-june-2015

[11] “The cost of Stemming the Tide: How Immigration Practices in Southern Mexico Limin Migratn Children’s Access to International Protection.” Georgetown Law Human Rights Institute Fact-Finding Protect, April, 2015

[12] U.N. High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol 12 (2007), available at http://www.unhcr.org/4d9486929.html; Id. at ¶ 43 (“It is UNHCR’s position, therefore, that a State is bound by its obligation under Article 33(1) of the 1951 Convention not to return refugees to a risk of persecution wherever it exercises effective jurisdiction. As with non-refoulement obligations under international human rights law, the decisive criterion is not whether such persons are on the State’s territory, but rather, whether they come within the effective control and authority of that State.”).

[13] “Hombres encapuchados asesinana a un menor de edad,” (El Heraldo.Hn June 30, 2015), available at: http://www.elheraldo.hn/sucesos/854184-219/hombres-encapuchados-asesinan-a-un-menor-de-edad