Refugees
Download the Full Report in PDF format"Why am I here?" Children in Immigration Detention
EXECUTIVE SUMMARY
In January 2001, 16-year-old Malik arrived in the U.S by himself, seeking asylum from persecution in his native Guinea. His family was singled out as part of a well-publicized incident in which the government destroyed several thousand homes and reportedly displaced 120,000 citizens. Upon arrival, the U.S. Immigration and Naturalization Service (INS) imprisoned Malik in an adult prison and placed him in removal proceedings. He was then seemingly forgotten, remaining in detention for nine months until he was given his first hearing before an immigration judge - and only after older inmates who felt sorry for the boy helped him write to an attorney. Despite producing a birth certificate showing his age to be under 18, the INS refused to transfer him to a juvenile facility. Further, a psychological evaluation showed that Malik suffers from moderate mental retardation. During his time in adult detention, older inmates abused him and guards sprayed him in the face with a pepper solution. Malik remains in detention.
According to the INS, the number of unaccompanied children detained in the United States has more than doubled over the last five years, rising from 2,375 in 1997 to 5,385 in 2001. On any given day, it is estimated that 500 children are held in US immigration detention. Escaping political persecution or fleeing war, abusive families or other dangerous conditions in their home countries, these children -- ranging in age from toddlers to teenagers -- arrive in the US unaccompanied by their parents or legal guardians. Once US immigration authorities take them into custody, approximately one-third are detained in harsh conditions in secure, jail-like facilities designed for juvenile offenders.
It is important to note that these children are held in detention for administrative reasons, not as punishment for criminal behavior. They are not charged with any crime, but are often held for months or even years in punitive conditions pending resolution of their immigration status. Unaccompanied children have little choice in the decisions that lead to these predicaments, but they do have special rights that are guaranteed under international laws and standards.
To research the issues related to juveniles in immigration detention, Amnesty International (AI) sent a questionnaire in December 2002 to 115 facilities in the US that reportedly have been used by immigration authorities to house unaccompanied children, requesting information on the policies, procedures and conditions of detention. AI also visited three detention facilities housing unaccompanied minors. As a result of this research, AI found that unaccompanied children caught in the U.S. immigration system are routinely deprived of their rights. The organization's report, "Why Am I Here?" Children in Immigration Detention, released on June 18, 2003, covers these violations in detail.
Results of AI Research - Use and Conditions of Detention
According to international standards, children should be confined and imprisoned only in exceptional circumstances or as a last resort, and then only for the shortest possible time. Nevertheless, AI found that unaccompanied children in the U.S. are not only detained, but often are held in facilities that routinely fail to adhere to both international and domestic standards. Only 17 percent of the secure facilities responding to AI's survey reported that they house unaccompanied children separately from the juvenile offender population. Nearly half (48%) of the secure facilities reported that they house unaccompanied minors in the same cells as the juvenile offenders.
Moreover, many children spend months or even years in detention -- even though relatives or other appropriate adults are willing to take care of them, an arrangement that is permissible and even preferable according to U.S. standards governing the treatment of unaccompanied minors. These standards' criteria are ignored, as immigration authorities often fail to ensure the timely release of children.
Excessive Force, Restraints, Strip Searches
Disturbingly, AI also documented allegations of excessive use of force, administered in a manner that may constitute cruel, inhuman and degrading treatment or punishment, to a degree that reflects major organizational deficiencies as well as personal misconduct. Children are subjected to pepper spray, placed in solitary confinement, and routinely restrained in violation of international standards.
Children and advocates told AI that at Berks County Youth Center's Secure Unit in Pennsylvania, physical abuse might be used as a punitive and disciplinary method. Staff reportedly kick children, throw them to the floor and knock their heads into walls for infractions such as looking the wrong way, saying "can I use the bathroom" instead of "may I," or not being able to count properly.
Unaccompanied children are frequently restrained during transportation and may be subjected to other forms of restraint in detention, in contravention of standards stating that restraints can only be used in exceptional cases. Eighteen out of 31 children to whom AI spoke reported being restrained while under the care of immigration authorities. Of those children, 61 percent reported they were restrained more than once, and 72 percent told AI that they were restrained using both leg shackles and handcuffs.
Mentally ill children are often subjected to these kinds of disciplinary actions; AI found a pattern of failure to diagnose the mental health of children properly, as well as inadequate access to counseling and other assistance.
AI is concerned about use of restraints in court settings. International standards provide that restraints be used only as a precaution against escape during transfer "provided that they shall be removed when the prisoner appears before a judicial or administrative authority." AI is alarmed by reports that not only are some children routinely shackled during transportation to court hearings, but in some instances they also may be shackled in the courtroom.
One advocate described to AI how she had seen a seven-year-old boy from Central America in handcuffs before a judge in California. An attorney in Washington reported that children's hands and feet are routinely shackled during transportation to court and that the leg chains remain on during the entire time in the court building.
In addition, 61 percent of all secure facilities responding to AI's survey reported that they routinely strip search the children in their care. Patting down and strip-searching represent intrusive physical contact and compound the sense that the child has done something wrong. The searches cause the children considerable distress and do not allow for an individual assessment of the security concerns. In addition, children in some secure units are reportedly required to take off all clothing after any visit with attorneys or others.
Lack of Protection from Arbitrary Detention
AI also documented violations of rights essential to protection from arbitrary detention, including access to counsel. Unlike the criminal justice system, children deprived of their liberty in the US immigration system are not guaranteed legal representation; less than half of these unaccompanied children have legal counsel to represent them in an immigration court. Nor is there any system in the US to ensure the appointment of a guardian ad litem ("friend of the child") who, in the absence of a traditional caregiver, ensures that all decisions are made with a child's best interests in mind.
AI also found that unaccompanied children are deprived of their right to contact their consulate immediately upon arrest. Of the facilities responding to AI's questionnaire, several seemed unaware of the children's right to contact their consulate; only 12 out of 33 reported that they notify the children of this right. AI also documented that authorities fail to provide children with appropriate access to translators, telephones, education and exercise.
Gender and Age Sensitivity
With regard to unaccompanied girls, AI found that they might be afforded fewer rights due to their gender. Girls are more likely to be housed with adults or with delinquent juveniles because they are fewer in number. Though international guidelines recommend the use of female guards in detention centers housing women, such steps have not always been taken by facilities under contract with the INS; only 27 percent of the facilities responding to AI's survey retain female staff for girls.
Amnesty International notes that the U.S. Immigration Court does not have a designated set of special procedures for handling cases of unaccompanied minors and questions whether initiatives have gone far enough to ensure that court personnel are trained in dealing with issues of special relevance to children, including credibility determinations, child sensitive questioning and listening, and the presence of a trusted adult in the courtroom. There is a need to be sensitive to cultural and developmental differences of this vulnerable group; the experience of trauma, age, education level and even gender are all factors that can affect a child's ability to articulate and understand events that may be relevant to his or her claim for asylum.
International Standards and US Law
According to Article 14 of the Universal Declaration of Human Rights, everyone, regardless of age, has the right to seek asylum if forced to flee his or her country to escape persecution. The UN Convention relating to the Status of Refugees (Refugee Convention, 1951) also provides that no one should be returned to a country where he or she would be at risk of serious human rights abuses. The US accepts these principles and was one of the main architects of the international system of refugee protection.
As noted earlier, international standards offer a higher degree of protection for children seeking asylum. Children seeking asylum should not be detained. However, if detention is necessary, this should be demonstrated by a prompt and fair hearing before a judicial authority and an independent body should review the decision regularly. Asylum seekers should be advised of the reasons for their detention, of their rights and release options, and of access to assistance. They should be distinguished from other detainees and held in conditions appropriate to their status as people seeking international protection. Unaccompanied children should receive legal representation and, in the absence of a traditional caregiver, should be appointed a guardian.
Domestically, Flores, et al. v. Janet Reno was a class action lawsuit filed against the former INS in 1985 that challenged policy dealing with unaccompanied children and resulted in a settlement agreement. The Flores agreement, which became effective in 1997, sets out a nationwide policy for the detention, release and treatment of children in immigration custody -- based on the premise that authorities must treat children in their custody with "dignity, respect and special concern for their vulnerability as minors."
Specifically, the agreement placed three obligations on the former INS to (1) ensure the prompt release of children from immigration detention; (2) place children for whom release is pending, or for whom no release option is available, in the "least restrictive" setting appropriate to the age and special needs of minors; and (3) implement standards relating to care and treatment of children in U.S. immigration detention. Flores stipulates various requirements relating to standards of treatment, including transportation arrangements, access to legal representation, telephones, health care, counseling, education, recreation and religious services.
The former INS has been criticized for failing to comply with Flores' provisions. The Office of the Inspector General concluded that, while the former INS had made progress, "deficiencies in the handling of juveniles continue to exist in some INS districts, border patrol sectors and headquarters that could have potentially serious consequences for the well-being of the juveniles." AI's findings demonstrate that these problems continue.
Recent Developments
AI and many other organizations have long advocated that the responsibility for the care of unaccompanied children be transferred from the INS to an agency that is not also charged with acting as a prosecutor seeking the child's removal from the U.S. The Homeland Security Act, passed on March 1, 2003 by the U.S. Congress, has created an opportunity to change the way that unaccompanied children are treated. The INS has ceased to exist and the newly created Department of Homeland Security (DHS) has assumed many of its responsibilities. Furthermore, some critical functions relating to the care, custody and treatment of unaccompanied children have now been assigned to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services.
However, these changes have not yet directly impacted the experiences of children in immigration detention as they move through an immigration system that is now arguably more complex. The ORR has inherited the network of facilities that the former INS used to house unaccompanied children and many still remain in those detention centers and jails throughout the U.S. Moreover, legislation must be passed to provide statutory guarantees for guardians or pro bono counsel, reform questionable age determination procedures, and ban practices such as routine shackling, handcuffing, solitary confinement and strip searches.
Therefore, despite taking an important step in the right direction, the U.S. government has far to go to ensure that unaccompanied children are treated in accordance with international law and its own standards. The ORR must move quickly to implement critical changes in order to safeguard the rights of children under its care and the U.S. Congress must demonstrate its commitment to this process by allocating adequate funds to support them.
** Since the completion of "'Why Am I Here?' Children in Immigration Detention," the Unaccompanied Alien Child Protection Act (S. 1129 ) was introduced by Senator Diane Feinstein. The Act provides that children may be given guardians ad litem ("friends of the child") and be guaranteed legal representation via a network of pro bono or, as a last resort, government-supplied lawyers. The act also would prohibit non-criminal unaccompanied children from being detained with juvenile offenders and require detention facilities to provide education, medical (including mental health) care, and access to telephones and interpreters. Amnesty International is encouraging the passage of this act as part of the organization's campaigning around this report.