[Senate Hearing 107-867]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 107-867
 
              THE UNACCOMPANIED ALIEN CHILD PROTECTION ACT
=======================================================================

                                HEARING

                               before the

                      SUBCOMMITTEE ON IMMIGRATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 28, 2002

                               __________

                          Serial No. J-107-63

                               __________

         Printed for the use of the Committee on the Judiciary






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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                      Subcommittee on Immigration

               EDWARD M. KENNEDY, Massachusetts, Chairman
DIANNE FEINSTEIN, California         SAM BROWNBACK, Kansas
CHARLES E. SCHUMER, New York         ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois          CHARLES E. GRASSLEY, Iowa
MARIA CANTWELL, Washington           JON KYL, Arizona
                                     MIKE DeWINE, Ohio
                 Melody Barnes, Majority Chief Counsel
                Stuart Anderson, Minority Chief Counsel







                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    11
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington    77
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     4
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    82
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
Leahy, Patrick J., a U.S. Senator from the State of Vermont......    84

                               WITNESSES

Anderson, Stuart, Executive Associate Commissioner, United States 
  Immigration and Naturalization Service, Washington, D.C........    12
Creppy, Michael J., Chief Immigration Judge, Executive Office for 
  Immigration Review, Falls Church, Virginia.....................     7
Duncan, Julianne, Director, Office of Children's Services, 
  Migration and Refugee Services/United States Conference of 
  Catholic Bishops, Washington, D.C..............................    56
Morton, Andrew D., Esq., Latham and Watkins, Washington, D.C.....    49
Munoz, Edwin Larios, Grand Rapids, Michigan......................    27
Young, Wendy A., Director of Government Relations and U.S. 
  Programs, Women's Commission for Refugee Women and Children, 
  New York, New York.............................................    31

                       SUBMISSIONS FOR THE RECORD

Bendit, Heather M., Philadelphia Bar Association; Judith 
  Bernstein-Baker, HIAS and Council Migration Services; Rupal 
  Parikh, Nationalities Services Center; Shelly D. Yanoff, 
  Philadelphia Citizens for Children & Youth; Phyllis Grady, 
  Amnesty International; Metty Vithayathil, Pennsylvania 
  Immigration Resource Center; Michele Pistone, Villanova Law 
  School; Joy VanBerg, Lutheran Children & Family Services; 
  Marsha Levick, Juvenile Law Center; and Julie Slavkin, 
  Southeast Regional Immigrant and Citizens Coalition, 
  Philadelphia, Pennsylvania, March 12, 2002, joint letter.......    74
Florence Immigrant & Refugee Rights Project, Holly S. Cooper, 
  Florence, Arizona..............................................    78
Glaves, Bob, Chair, Legislative Committee, Chicago Bar 
  Association, Chicago, Illinois.................................    80
Sadruddin, Hussein, Soros Postgraduate Justice Fellow, Lawyers' 
  Committee for Civil Rights Under Law of Texas, San Antonio, 
  Texas..........................................................    84


              THE UNACCOMPANIED ALIEN CHILD PROTECTION ACT

                              ----------                              


                      THURSDAY, FEBRUARY 28, 2002

                                       U.S. Senate,
                               Subcommittee on Immigration,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, chairman of the Subcommittee, presiding.
    Present: Senators Kennedy, Feinstein, and Brownback

  OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 
                FROM THE STATE OF MASSACHUSETTS

    Chairman Kennedy. We will come to order.
    Before we get into the matter at hand, I will just take a 
moment while our colleagues arrive here to welcome some special 
guests who are with us today. They are students from Mt. 
Rainier Elementary School, in Prince George's County, who have 
demonstrated a strong commitment for improving the treatment of 
unaccompanied minors in the country. They have brought with 
them a paper doll chain that they have created with children 
from over 20 States, containing 500 links to represent the 500 
children who are detained by the INS each day.
    So maybe they and their teacher would stand up.
    [Applause.]
    Chairman Kennedy. We can do a little better than that. Why 
don't we open up a little line here and maybe they would all 
come up to the front of the hearing room. Come right up in 
front, if they can come right up in front. Come right up in 
front here so everybody can see you. Line up right along here, 
line up facing out. The second row can get down on your knees 
just down in front.
    I am used to large families.
    [Laughter.]
    Chairman Kennedy. And if we have a third row, they can come 
back here. Let's have Ms. Suess, their teacher, up here too.
    We are joined by Senator Feinstein. We are intruding on our 
Subcommittee's time for a very worthwhile purpose. These 
children have created a paper doll chain with children from 
over 20 States.
    Ms. Suess, we would like to have you just tell us quickly 
what this project is all about. Just sit down and speak through 
that mike right there.
    Ms. Suess. We are from a very special school in Prince 
George's County. We are one of ten schools nationwide that is a 
National School of Character. We have also been chosen by the 
alternative dispute resolution group in Baltimore as a Model 
Peace School.
    When we heard about this issue of unaccompanied children 
not being put into loving home care situations, we thought that 
this was a real concrete way to continue our dedication to the 
cause of peace for children worldwide.
    Chairman Kennedy. Well, I think you are to be commended, 
and all of the children.
    Now, children, I want you to stretch that chain out so 
everybody can see it. And I would like to ask our audience to 
give them a round of applause.
    [Applause.]
    Chairman Kennedy. We want to thank them for being here. If 
they want to sit down here, they can hear more, and I think it 
is OK with us. I think it is a better seat for them.
    I don't know from their teacher what their timeframe is, 
but you give me the signal. They will be here for panel one.
    Thank you very much. This is inspiring, and we want to 
thank all of the students. We just thank you for taking an 
interest in this, and we hope that you will continue to keep an 
interest in this and that you will keep an interest in the 
challenges of children both here at home, in Prince George's 
County, in Maryland, and also children in this country and 
children around the world. We want to thank you very much for 
doing this. It is a very, very important undertaking and we are 
very grateful to all of you for doing it.
    It shows a lot of work, doing all of those cards. Someone 
took a lot of time to do it, and that is what you have done. 
And I think because of that and because of our hearing today, 
those children will be helped. So you ought to take some 
satisfaction from that, too, for really helping some people.
    I want to first of all thank Senator Feinstein, who has 
been our driving force on this issue. She has had a 
longstanding commitment to this important issue. She has 
introduced the Unaccompanied Alien Child Protection Act. I am a 
proud and privileged cosponsor with her, but she has been the 
important leader in the U.S. Senate and nationally on this 
issue and on this question.
    I will just make a few comments here and put this issue in 
some framework.
    For the past few years, increasing numbers of foreign-born 
children have come to the United States unaccompanied by their 
parents or legal guardians. Last year, more than 4,600 arrived, 
and their number continues to rise this year. Some flee human 
rights abuses. Others have been abused or abandoned by their 
parents or flee armed conflict or dangerous conditions in their 
home countries.
    These children generally enter this country after traumatic 
experiences, often speak little or no English, and are rarely 
aware of their rights under U.S. law. Although they might be 
good candidates for asylum, they are not appointed counsel and 
are left to represent themselves in immigration court against 
experienced INS lawyers.
    Their situation is exacerbated by the fact that when they 
arrive they are frequently detained. Many of these children 
languish for long periods of time in shelters that are designed 
for short-term use without adequate access to translators, 
telephones, medical care, or other vital services.
    But these are the fortunate ones. While INS has made an 
effort to increase the number of beds in foster homes and 
juvenile centers, more than 30 percent of unaccompanied 
children detained last year were held in juvenile jails, often 
with dangerous criminals, subject to shackling and strip 
searches.
    The Unaccompanied Alien Child Protection Act will address 
many of the problems facing unaccompanied minors and will help 
bring U.S. treatment of unaccompanied alien children into line 
with international standards. Senator Feinstein will outline 
the details of the proposal.
    Most of these children who come here are not criminals and 
should not be treated as such. We must limit the use of 
detention in these cases, and children who aren't a danger or a 
flight risk should be released to their families or appropriate 
caregivers.
    I am pleased that Commissioner Ziglar is committed to 
addressing many of the problems facing unaccompanied minors, 
and I look forward to working with him on these issues. I also 
look forward to the testimony of our witnesses today and to 
working closely with my colleagues on this very important and 
needed legislation.
    [The prepared statement of Senator Kennedy follows:]

 Statement of Hon. Edward M. Kennedy, a U.S. Senator from the State of 
                             Massachusetts

    I'm pleased to Chair this important hearing on the treatment of 
unaccompanied children arriving in the United States. I commend Senator 
Feinstein's long-standing long-standing commitment to this important 
issue, and her introduction of the Unaccompanied Alien Child Protection 
Act, of which I am a cosponsor.
    I'm also pleased to welcome and recognize some special guests who 
are here with us today. They are students from Mt. Rainier Elementary 
School in Prince George's County and their teacher Mrs. Suess, who have 
demonstrated a strong commitment to improving the treatment of 
unaccompanied minors in this country. They've brought with them a paper 
doll chain that they created with children from over 20 states, 
containing 500 links to represent the 500 children who are detained by 
INS each day. Each paper doll carries a message of hope and justice, 
affirming values fundamental to who we are as Americans. I thank the 
students for their efforts and encourage them to continue to advocate 
for these important reforms.
    For the past few years, increasing numbers of foreign-born children 
have come to the United States unaccompanied by their parents or legal 
guardians. Last year, more than 4,600 arrived, and the number continue 
to rise this year. Some flee human rights abuses, including forced 
recruitment as soldiers, servitude, child labor, prostitution or forced 
marriage. Other children escape to the U.S. because they have been 
abused or abandoned by their parents or care givers. Others flee armed 
conflict or other dangerous conditions in their home countries. They 
may be brought into the U.S. by a family friend or relative, by paid 
smugglers, or by traffickers involved in organized crime.
    Regardless of how they arrive, these children generally enter this 
country after traumatic experiences, often speak little to no English, 
and are rarely aware of their rights under U.S. law. Although they 
might be good candidates for asylum, they aren't appointed counsel, and 
are left to represent themselves in immigration court against 
experienced INS trial lawyers.
    Their situation is exacerbated by the fact that when they arrive, 
they're frequently detained. Many of these children languish for long 
periods of time in shelters that are designed for short term use, 
without adequate access to translators, telephones, or medical care and 
other vital services. But these are the fortunate ones. While INS has 
made an effort to increase the number of beds in foster-homes and 
special juvenile centers, more than 30% of unaccompanied children 
detained last year were held in juvenile jails, often with dangerous 
criminals, subject to handcuffing and shackling, and forced to wear 
prison uniforms.
    The Unaccompanied Alien Child Protection Act will address many of 
the problems facing unaccompanied minors and will help bring U.S. 
treatment of unaccompanied alien children into line with international 
standards.
    Essential to these efforts is providing appointed counsel and 
guardian ad litem to every unaccompanied undocumented child. Statistics 
demonstrate the asylum seekers are four times more likely to be granted 
asylum when represented by counsel. However, less than half of the 
important non-immigration cases, and they should be afforded the same 
rights in immigration proceedings. In addition, trained guardian ad 
litem can be critical in identifying the needs of children when 
language and cultural barriers prevent attorneys from communicating 
effectively with their child clients. This bill will require that these 
vulnerable children receive the representation they need to ensure that 
their rights are protected ad the care they deserve to ensure their 
welfare is properly considered as they navigate through complicated 
immigration proceedings.
    Part of the problem facing unaccompanied minors arises from INS' 
dual mission of enforcing immigration laws and providing services. many 
convincingly argue that the competing responsibilities of prosecuting 
and caring for these children make impartial consideration of the 
children's best interests almost impossible. The Unaccompanied 
Children's bill addresses this issue by establishing the Office of 
Children's Services outside the INS. Working independently of the INS, 
this office will assume responsibility for custody and release 
decisions, and the oversight of juvenile foster care and shelter care 
facilities for undocumented children, thereby reducing the inherent 
conflict of interest that currently exists within INS.
    I'm pleased that Commissioner Ziglar is committed to addressing the 
problems facing unaccompanied minors. While I'm concerned that this 
decision to establish an Office of Juvenile Affairs under INS 
jurisdiction may not go far enough, I look forward to working with him 
to ensure that these vulnerable children receive the support and 
protection they need.
    Most of these children are not criminals and should not be treated 
as such. We must limit the use of detention in these cases and release 
children who aren't a danger or a flight risk to their families or 
appropriate care givers. This bill requires the release of the children 
whenever possible and supports the expanded use of shelters and foster 
care for placement of children who lack such care givers. Other needed 
protections in the bill include the establishment of detention 
standards and training for immigration personnel.
    I look forward to the testimony of our witnesses today, and to 
working closely with my colleagues to pass this much needed 
legislation.

    As I mentioned, our leader, Senator Feinstein, is here. 
Welcome, I thank her for all of her good work on this issue.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Well, thanks very much, Senator Kennedy, 
and it was a sheer delight to me that you were the first person 
to be a cosponsor. Senator Durbin is on the bill, and a number 
of others. I would also like to mention that Senators Cantwell 
and Kohl are now cosponsors of this bill.
    I can never remember numbers of bills, ladies and 
gentlemen, but if you want to help us with it, it is S. 121. 
And if you don't want to help us with it, forget the number.
    [Laughter.]
    Senator Feinstein. But I would you to help us with it 
because I think we are going to have a little bit of trouble 
with this bill with INS. We will see. I suspect they don't want 
to do it, and I suspect they don't want a bill that tells them 
to do it. So they are probably going to say a number of 
different things and we will have a chance to answer that, but 
my view is INS has not done what it should have done up to this 
point. Therefore, my view is that the only way to handle this 
is to put it in legislation.
    I had no idea of the depth of this problem until I happened 
to turn on my television set in California one night and I saw 
a young Chinese girl--I think it was in Seattle, Washington--
before a judge, crying. Her hands were shackled to her waist. 
She couldn't speak the language and she didn't know why she was 
there.
    It really struck me, and then I began to look into this 
issue and what I learned was that our Government has a lot of 
power when it wants to have that power, and that there are at a 
given time maybe 500 children, but total throughout the year 
maybe 5,000 children. The Department does try to find a 
situation where they can live that is appropriate for their 
circumstances, but very often they end up in jails, when they 
have done nothing wrong, and in detention facilities when they 
have done nothing wrong.
    I want to give you one other example which sort of stirred 
me on. I read in the newspaper that there was a young baby from 
Thailand who arrived at Los Angeles Airport, and that baby had 
been sold by his mother to human traffickers and the 
traffickers used the baby to go back and forth across the ocean 
pretending that that baby was theirs, when, in fact, the baby 
wasn't theirs.
    Well, the INS got custody of the young boy. They discovered 
he was being used as a decoy. The youngster suffered from 
dehydration, from malnutrition. He was vomiting, he had an ear 
infection, he was running a temperature.
    In its notice of intent to deny this baby's asylum claim, 
which was filed by others--that was March 14, 2001--the INS 
conceded that the events surrounding his situation, and I 
quote, ``indicate neglect that reached a life-threatening 
level.'' Nonetheless, the INS sought the child's immediate 
deportation without further investigating the matter.
    It was only after a number of congressional offices and my 
office really got involved that the INS agreed to allow the 
child to remain in the United States so that he could obtain 
proper medical attention. Then INS sought to send him back to 
Thailand to his grandmother, who had a serious criminal drug-
trafficking conviction that carried a sentence of 25 years.
    Now, according to INS, it is the standard policy for an 
unaccompanied child to be placed with the nearest possible 
relative, who will then make the necessary decisions regarding 
the child's welfare. But in this situation, these relatives 
were the same ones who either trafficked him or engaged in 
criminal behavior that is clearly detrimental to the baby's 
interests.
    Fortunately, the circumstances of this case were sufficient 
to warrant his protection under something called the 
Trafficking Victims Protection Act, which permits a minor to 
remain in the United States if there is risk to that child.
    Now, INS denied the youngster's application for such 
protection, so I wrote a letter to the Attorney General and 
asked for his assistance. Through him and his intervention, he 
was actually granted humanitarian parole, and there was a 
family here that was a good family that really wanted to take 
care of this baby.
    The Attorney General also instructed the INS to accept and 
adjudicate this child's application for something called a T 
visa, which would grant him the ability to remain in the United 
States for 3 years, given his history as a trafficking victim. 
Then earlier this year, the Attorney General announced that 
this baby was the first recipient ever of a so-called T visa.
    So I am very pleased with the end result, but I was really 
concerned because it was such an unnecessary ordeal. On the 
face of it, it sounded so clear that things shouldn't have 
worked out the way they worked out.
    We have put together a bill which essentially says that 
there should be an Office of Children's Services within the 
INS, and that that office should be responsible to do a couple 
of things: one, to appoint somebody who is called a guardian ad 
litem. Now, that is not an attorney, but that is someone who 
comes in--and the INS would set this program up and would 
determine the credentials for the individual, and there are a 
number of pro bono efforts that are willing to fill in here--
who can talk to the child in their language, can get the facts, 
and can be with the child during that child's period of 
detention, which can be a long time.
    Second, that child, when they go before a judge, would have 
some legal representation. Again, there are non-profit 
organizations that are willing to provide legal representation 
for the child.
    Any placement of the child, when it is necessary to keep 
them in some form of--well, I don't like to use the word 
``custody,'' but in some holding facility--that where that 
child is placed is appropriate for the circumstances of the 
case. Obviously, if the child has committed a crime or the 
minor has committed a crime, that is one thing. If the child 
hasn't, but is like an Elian Gonzalez, let's say, because 
everybody knows of that case, that child shouldn't be in a 
detention facility.
    I know INS is going to say they don't want the bill, and I 
am going to say back to them, if you don't want the bill, why 
haven't you done something about it before this point? I know 
you have tried, but the point is that the trials haven't really 
produced the results that they should have.
    Thank you, Senator, very much.
    Chairman Kennedy. Thank you very much.
    Our first panel of witnesses has worked on these issues on 
a daily basis and we look forward to hearing their comments.
    Michael Creppy is currently the Chief Immigration Judge of 
the INS. He has served in this position since 1994. Prior to 
that, the judge worked for 13 years in numerous positions with 
the INS. As Chief Immigration Judge, Judge Creppy established 
operating policies for the immigration courts and overseas 
policy implementation in each of these courts. I know he is 
deeply committed to ensuring that children receive fair 
immigration hearings, and we look forward to his testimony.
    Stuart Anderson is no stranger to the Committee, having 
worked for more than 4 years as immigration policy director 
first for Senator Abraham and later for Senator Brownback. He 
has extensive experience in immigration law and policy, and a 
distinguished record as a fair and effective advocate.
    As a result, Commissioner Ziglar lured him away from the 
Subcommittee to become his Executive Associate Commissioner for 
Policy and Planning. During his tenure with our Committee, he 
worked well with members and staff on both sides of the aisle, 
and I am pleased that he brings these talents to his new 
position at INS.
    I would like to thank both of you for being here today and 
look forward to your counsel and testimony.
    Judge Creppy, we will hear from you first, please.

   STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE, 
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FALLS CHURCH, VIRGINIA

    Judge Creppy. Mr. Chairman and members of the Subcommittee, 
I thank you for inviting me to testify on the Unaccompanied 
Alien Child Protection Act. I am sensitive to the way our 
Nation responds to this vulnerable population and I am pleased 
to have the opportunity to share my thoughts on S. 121.
    The 223 immigration judges across the country play a 
critical but narrow role in handling unaccompanied juveniles. 
Because of this, my comments are focused on the part of the 
process where immigration judges are authorized to act.
    The Executive Office for Immigration Review has several 
initiatives on juvenile aliens and proceedings. When I refer to 
an unaccompanied juvenile, I will mean those juveniles under 
the age of 18 who appear before an immigration judge without a 
parent or legal guardian. Let me first tell you about current 
initiatives to make the courts more sensitive to special issues 
unique to juveniles.
    In the summer of 2000, the immigration court established a 
pilot program in Phoenix consisting of special juvenile 
dockets. The purpose was to provide access to juveniles for pro 
bono attorneys and to consolidate all juvenile cases before one 
judge for consistency.
    I was so pleased with its success that I have expanded the 
program to Harlingen, Texas; York, Pennsylvania; Los Angeles, 
California; and San Diego and San Francisco, California. 
Moreover, we are working with the Executive Office for 
Immigration Review's pro bono coordinator to explore other 
programs relating to juveniles.
    Let me assure the Committee that all aliens appearing 
before an immigration court, including juveniles, are given due 
process of law. Immigration judges are committed to providing 
fair hearings for all aliens, not just juveniles, and I 
encourage the immigration judges to do all that is required to 
ensure that this occurs. For juveniles, this means that an 
immigration judge may interview the juvenile in his or her 
chambers, or grant continuances to ensure that the juvenile is 
given adequate opportunity to obtain representation.
    Now, I would like to address five aspects of Senate 121 
that involve the immigration judges. First, I will address the 
definition of ``child''; second, the legal counsel; third, the 
guardian ad litem; fourth, interpreters; and, fifth, the best 
interests of the child.
    My first topic addresses a technical but critical issue. 
The term ``child,'' as defined in the Immigration and 
Nationality Act, is at odds with Senate 121's definition. The 
difference will cause confusion. Instead, I suggest using the 
term ``unaccompanied juvenile alien,'' since the regulatory 
definition of ``juvenile'' is consistent with Senate 121.
    My second topic is on the legal counsel. Immigration judges 
know how to be fair even when only one side is represented. 
However, when you combine the complexity of immigration laws 
with the varying maturity levels of the juveniles, it provides 
a greater challenge to judges to ensure that juveniles 
understand the nature of such proceedings. If counsel was 
assured, the efficiency of the hearing would be greatly 
improved. Yet, before such a program can be established, there 
are serious issues that must be addressed which Senate 121 does 
not answer.
    For example, first is the question of the program 
structure. Factors such as oversight, administration, 
eligibility, and selection of attorneys need to be fully 
explored. Senate 121 also leaves a question of who will be 
responsible for giving the counsel direction. For example, to 
whom will the counsel be answerable? Who will have authority to 
discharge the attorney?
    This leads me to my third topic, the guardian ad litem. In 
cases where a juvenile does not have the capacity to make 
informed decisions, the immigration court process would be 
aided by the presence of an independent adult who can make such 
informed recommendations. A guardian ad litem could be an 
active participant in deciding legal issues relating to the 
juvenile.
    However, a guardian may not be necessarily desirable in all 
cases. Yet, it is mandated by Senate 121. I support the concept 
of a guardian ad litem in limited circumstances and I have 
begun to explore the viability of this option for immigration 
courts, including whether we have the organizational expertise 
to fully integrate such a program into our court system.
    My fourth topic relates to interpreters. Senate 121 does 
not contain a provision for the appointment of interpreters. If 
counsel and guardians are provided, it is necessary to make 
provisions for ensuring that the juveniles are able to obtain 
access to these services in a meaningful fashion.
    Finally, Senate 121 requires that the best interests of the 
child shall be paramount, and that this interest should not 
trump any provision of the Immigration and Nationality Act or 
its regulations. As it currently is drafted, it may do so.
    In conclusion, the Unaccompanied Alien Child Protection Act 
represents an attempt to comprehensively address a number of 
critical issues. However, it raises many unanswered questions. 
I look forward to working with the members of the Committee as 
this legislation progresses and I am happy at this time to 
respond to any questions that you might have.
    [The prepared statement of Judge Creppy follows:]

  Statement of Michael J. Creppy, Chief Immigration Judge, Executive 
          Office of Immigration Review, Falls Church, Virginia

    Mr. Chairman and Members of the Subcommittee:
    Thank you for inviting me to testify on the Unaccompanied Alien 
Child Protection Act of 2001. Like other witnesses here today, I am 
sensitive to the way our nation responds to this vulnerable population. 
I applaud you and the members of your staffs for the interest you have 
shown in this issue, and for the encouragement you have given to those 
who confront it on a daily basis.
    I am very pleased to have the opportunity to share my thoughts on 
S. 121. The 223 Immigration Judges across the country play a critical--
but essentially narrow--role in the handling of unaccompanied juvenile 
aliens. We do not apprehend the juveniles at the border or the airport, 
nor do we provide juveniles with shelter when they are taken into 
custody. Similarly, the Immigration Judges do not manage the details of 
their return to their native country, when their stay in the United 
States is concluded. Rather, these are responsibilities of the 
Immigration and Naturalization Service (INS).
    For those topics, I defer to the other witnesses appearing today. 
Instead, my comments before your Committee are focused on the part of 
the process where Congress and the Attorney General have authorized 
Immigration Judges to act--that of providing aliens with immigration 
hearings in Immigration Court.
    Let me first tell you about current initiatives which EOIR has 
established to make the Courts more sensitive to the special issues 
that are unique to juvenile aliens in proceedings. When I refer to 
``unaccompanied juvenile'' for the purposes of my testimony, I mean 
those juvenile aliens under the age of 18 who appear before an 
Immigration Judge without a parent or legal guardian.
                     Immigration Court Initiatives
    Three years ago, in 1999, I began meeting with representatives of 
INS and non-governmental organizations (NGOs) in Phoenix, Arizona, in 
an effort to develop a program that would deal exclusively with 
unaccompanied, detained juveniles in immigration proceedings. After 
much work, we established a Pilot Program in Phoenix in the summer of 
2000. Each of the participants in the Phoenix Pilot Program has a key 
role--from the INS identifying juveniles, to the NGOs assisting the 
juveniles and giving them ``legal rights presentations.'' I established 
special ``juvenile'' dockets and assigned one Immigration Judge to 
preside over all juvenile cases. The purpose of such dockets was to 
provide access to juveniles for pro-bono attorneys and to consolidate 
all juvenile cases before one Immigration Judge for consistency 
purposes. We also have developed, and I have now mandated, the use of 
the ``J'' code to better track any case involving juveniles. Currently 
our data system does not track aliens by date of birth. However, once 
we update our system, we will have the ability to do so.
    Although the Pilot Program is still in its infancy, I was so 
pleased with its success that I have expanded the ``juvenile docket'' 
program, with the cooperation of INS, to Harlingen, Texas; York, 
Pennsylvania; Los Angeles, San Diego and San Francisco, California. 
Moreover, we are working with the EOIR pro-bono coordinator to explore 
other programs relating to juveniles.
    All Immigration Judges have received training and materials to 
assist them in dealing with juveniles in their court rooms. I provide, 
on a weekly, and at times on a daily, basis, information on case law, 
regulations and other legal matters that affect immigration law, 
including issues dealing with juveniles. Further, Immigration Judges 
have been provided books, guidelines and cultural sensitivity training 
pertaining to juvenile issues. Finally, at the 1998 and 1999 
Immigration Judges' conferences, Judges received live lectures from 
experts in the juvenile area and they will again receive such 
instruction this June.
    Let me assure the Subcommittee that all aliens, including 
juveniles, that pass through our Immigration Court system are given all 
the due process that the law accords them. Immigration Judges are 
committed to provide fair hearings for all, not just juveniles, and I 
encourage the Immigration Judges to do all that is required to ensure 
that this occurs. For juveniles, this means that an Immigration Judge 
may interview the juvenile in his or her chambers, or grant 
continuances to ensure that the juvenile is given adequate opportunity 
to obtain representation.
    Now I would like to address those aspects of S. 121 that involve 
Immigration Judges. Specifically, permit me to briefly address five 
topics that are of immediate relevance to the immigration hearings we 
provide:
    (1) the definition of eligible aliens; (2) second, access to legal 
counsel; (3) guardians ad litem; (4) interpreters; and (5) the ``best 
interest of the child'' standard.
                                 S. 121
                    1. definition of eligible aliens
    My first topic addresses a technical, but critical, issue: the 
definition of ``unaccompanied alien child''. The term ``child'' is 
currently defined in Section 101(b)(1) of the Immigration and 
Nationality Act, in part, as ``an unmarried person under twenty-one 
years of age. . . .'' However, S. 121 defines ``unaccompanied alien 
child'', in part, as one who ``has not yet attained the age of 18. . . 
.'' This difference with respect to the age limitation is inconsistent 
with current law and will cause confusion.
    Instead, I suggest using the term ``unaccompanied alien juvenile'' 
in place of the phrase ``unaccompanied alien child'', since the 
regulatory definition of ``juvenile'' is an alien under 18 years of 
age. Again, I reiterate that for purposes of my testimony, when I refer 
to
    ``unaccompanied alien juvenile'', I mean those juvenile aliens 
under the age of 18 who appear before an Immigration Judge without a 
parent or legal guardian.
         2. appointment of legal counsel at government expense
    Most Immigration Judges favor increased representation by legal 
counsel. Every day our Judges conduct cases involving respondents who 
appear pro se. The Judges know how to be fair, even when only one side 
to the proceeding is represented by counsel. However, when you combine 
the complexity of the immigration laws with the varying degrees of 
maturity of juveniles, it provides a greater challenge to Judges to 
ensure that the proceedings are fair, and that the juvenile understands 
the serious nature of such proceedings. If the Judge knew that 
competent counsel were assured for every juvenile respondent, the 
efficiency of the hearing would be greatly improved. No longer would 
there be a preoccupation with procedural issues such as whether pro 
bono counsel can be located, or whether someone can assist the juvenile 
in completing the relief application.
    Yet before a program providing legal counsel for juveniles can be 
established, there are some serious issues that must be addressed, 
questions which S. 121, in its current form, does not answer.
    First is the question of how such program would be structured. 
Factors such as oversight, administration, eligibility and selection of 
attorneys to serve as juvenile counsel, need to be fully evaluated and 
developed. These are the types of questions that S. 121 does not 
answer.
    S. 121 also leaves unanswered the question of who will be 
responsible for giving the counsel direction. For example, to whom will 
the appointed counsel be answerable--the juvenile's parent, the 
Immigration Judge, or some other entity? Who will have authority to 
discharge the attorney if he or she is not competent? The counsel must 
truly represent the interests of the juvenile--and not those of some 
third party. I am sure the Subcommittee is familiar with accounts of 
lawyers who appear to be in league with the smugglers who traffic in 
human cargo. Several of our Judges have voiced concerns about attorneys 
whose interests do not seem to be truly on behalf of the juvenile, or 
with whom the juvenile appears to have little, if any, contact.
    This leads me to my third topic, the guardian ad litem.
                         3. guardians ad litem
    In some cases, a juvenile may be more than just an alien in the 
United States--the juvenile may also be unaccompanied, with no adult to 
stand in the place of the absent parent. While an attorney can provide 
advice to the juvenile about his or her legal case--such as whether or 
not the juvenile is eligible for relief from removal--that advice is 
different from advice as to whether or not the juvenile should choose 
to try to stay in the U.S. or return to his or her family, a decision 
that a parent would be better suited to make. It is inappropriate for a 
counsel--even a talented and dedicated one--to make these decisions.
    In cases where a juvenile does not have the capacity to make 
informed decisions on his or her own behalf, I believe that the 
Immigration Court process would be aided by the presence of an 
independent adult who can make informed recommendations for the 
juvenile respondent. A guardian ad litem or other adult acting in a 
similar capacity could be an active participant in deciding whether the 
juvenile should return to his or her native country or apply for relief 
from removal. Keep in mind, however, that a guardian may not be 
necessarily desirable in all cases--yet it is mandated in S. 121.
    I support the concept of a guardian ad litem for a juvenile alien 
in limited circumstances. I have begun to explore the viability of this 
option, including whether Immigration Judges have the authorization or 
the organizational expertise to fully implement such a program. There 
are a series of issues that have not been fully explored, such as 
criteria that would render an individual eligible to be a guardian and 
the purview of such a guardian over an unaccompanied juvenile.
                            4. interpreters
    Current EOIR regulations allow for the hiring of interpreters to 
translate proceedings conducted before Immigration Judges. Appointed 
guardians ad litem and counsel will also need interpreters to speak to 
client juveniles outside of the proceeding before the Immigration 
Judge. Yet, S. 121 as drafted does not contain provisions for the 
appointment of interpreters. If such professional services are to be 
made available to unaccompanied juvenile aliens, it is necessary to 
make some provision for ensuring that such juveniles are able to obtain 
access to these services in a meaningful fashion.
                   5. ``best interests of the child''
    Finally, Section 2 of S. 121 declares that the ``best interest of 
the child'' shall be held ``paramount'' when making decisions regarding 
an unaccompanied juvenile. While no one would argue with such a 
standard as an important factor in the context of family law, the 
legislation should not permit any inference that the ``best interest of 
the child'' standard trumps any specific provision of the Immigration 
and Nationality Act or its implementing regulations. This provision, as 
currently drafted, would undermine the Immigration Court process by 
prompting endless arguments about whether specific provisions of the 
INA do or do not promote the ``best interest'' of the juvenile 
respondent in proceedings.
                               Conclusion
    In conclusion, for the past several years the Immigration Judges 
have worked with children's rights advocates and the INS to identify 
concrete ways to improve our efforts on behalf of unaccompanied 
juveniles. The Unaccompanied Alien Child Protection Act of 2001 
represents an attempt to deal comprehensively with a number of critical 
issues. However, it raises as many questions as it provides answers. In 
particular, the appointment of guardians ad litem and legal counsel for 
unaccompanied juvenile aliens would constitute significant changes to 
the current immigration system. We would, however, be pleased to work 
with you to define in greater detail the roles of the guardian ad litem 
and legal counsel, should you elect to pursue these concepts. It would 
be important, for example, to think through all potential issues that 
might arise in connection with their appointment and service. Moreover, 
because of the potential magnitude of the changes under consideration, 
the Department suggests that any program that may ultimately be adopted 
be tested and evaluated on a limited, ``pilot program'' basis prior to 
implementation on a broader scale.
    Mr. Chairman, I look forward to working with the members of the 
Subcommittee as this legislation progresses. In the meantime, I am 
happy to respond to any question you might have for me.

    Chairman Kennedy. Thank you very much.
    Senator Brownback is here. I would welcome any opening 
comments that he would like to make before we hear from the 
next witness.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you very much, Mr. Chairman. I 
appreciate that, and I also appreciate all you have contributed 
to this legislative body.
    There was a tribute to Senator Kennedy--you may or may not 
have seen that--that took place this week upon his reaching of 
a certain milestone of age, which I won't repeat in the room.
    Chairman Kennedy. That is right.
    Senator Brownback. But the tribute was well deserved.
    Chairman Kennedy. Thank you.
    Senator Brownback. He has been quite a contributor to the 
legislative body in all the years of his service here.
    I have a statement I would like to put into the record, and 
I will just state briefly about Stuart Anderson before he 
speaks, Stuart served on the staff of this Committee for both 
Spence Abraham and myself before he went to the executive 
branch. So I am looking forward to his comments, as well as the 
other witnesses. He is very skilled and highly regarded in this 
field, and I look forward to that.
    I also thank the children for being here and recognizing 
the other children that are in some very difficult 
circumstances. Senator Feinstein, while I was still chairing 
the Subcommittee, had brought this issue up and we had agreed 
to schedule a hearing to recognize what is taking place with 
the children who are in these difficult circumstances in 
incarceration. I am glad the other children have recognized 
that as well.
    Mr. Chairman, I look forward to the hearing.
    Chairman Kennedy. Thank you for your kind comments.
    We will hear from Mr. Anderson.

STATEMENT OF STUART ANDERSON, EXECUTIVE ASSOCIATE COMMISSIONER, 
     UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, 
                        WASHINGTON, D.C.

    Mr. Anderson. Thank you, Mr. Chairman. Thank you very much 
for your kind introduction. Senator Brownback, Senator 
Feinstein, thank you. It is a special privilege to get a chance 
to testify here today.
    Commissioner Ziglar very much wanted to be here. 
Unfortunately, he is in Canada working on border security 
issues at the moment.
    I would like to introduce some of the people at INS who 
work with juveniles--Tony Tangemin, Dave Enterella, Mark 
Matisse, and John Pogash. None of them brought any art work 
with them, which I reprimanded them for. These are good people, 
Mr. Chairman, many with children of their own, and they care 
deeply that the juveniles that come into INS custody are 
treated humanely and justly.
    Mr. Chairman, I am not here to defend every INS action or 
policy, past or present, in connection with juveniles. I went 
to INS with Commissioner Ziglar about 7 months ago, and I can 
assure you that the commissioner has no vested interest in the 
status quo. That is why he announced a reform agenda on 
juvenile affairs. The hope is that we can work together with 
the Committee to combine the best ideas to develop the best 
policies in this area.
    As part of that reform agenda, within days of his 
confirmation, the commissioner asked me to bring together key 
components of INS and to establish an initiative to improve the 
treatment of juveniles in INS custody. We reviewed policies, 
and as part of that we met extensively with advocates on the 
outside. We adopted many of their ideas, not all; others are 
still under discussion. In addition, just this week we met with 
majority and minority Subcommittee staff to further continue 
the dialog on this issue.
    In his speech at the National Immigration Forum on February 
1, the commissioner announced key parts of the juvenile policy 
initiative. First, he talked about the creation of an Office of 
Juvenile Affairs that will report directly to the commissioner. 
Having an office reporting directly to the commissioner will 
ensure that it will receive the visibility, attention, 
resources, and support that that office needs. The director of 
juvenile affairs will have the authority necessary to guide the 
placement decisions of juveniles within the agency.
    Second, whereas today we have a number of individuals at 
INS who work with juveniles as part of multiple 
responsibilities, INS will instead provide for dedicated case 
management officers who will work exclusively on juvenile 
issues and help ensure that the child has an advocate within 
the system.
    Third, while S. 121 would codify the Flores settlement, the 
INS is doing so through regulations. Fourth, the INS will 
review, in cooperation with the Public Health Service, current 
procedures for determining age and examining any improvements 
that may be able to be made in that area. My written testimony 
includes many other parts of the initiative.
    Mr. Chairman, I think it is important to keep in mind the 
complexity of this issue and the need to maintain a degree of 
flexibility. We have to have policies that take into account 
the 17-year-old who is caught coming across the border, the 16-
year-old who may have committed a crime and the police turn 
that individual over to INS custody, or the 15-year-old young 
girl who is a victim of trafficking, or the 5- or 10-year-old 
boy or girl who is abandoned at an airport by someone who had 
claimed to be a relative. Those are all very real situations 
and they all require very different responses from the Federal 
Government.
    While media attention often focuses on very young children 
who come into INS custody, of the 5,000-plus juveniles in 
custody in a year, the majority are 16- or 17-year-olds and 
they are overwhelmingly male, and the median stay in INS 
custody is approximately 15 days. The vast majority, over 80 
percent, live in residential care facilities or foster homes, 
not in secure detention.
    But it is a daily dilemma. Releasing a juvenile out of 
custody may mean that they never show for their immigration 
hearing or, more worrisome, they may suffer harm at the hands 
of smugglers or others who may seek to do them harm.
    INS supports the principles underlying S. 121, and I would 
like to acknowledge Senator Feinstein's leadership and the hard 
work of herself and her staff that they have committed to this 
important issue. A number of the issues raised in the bill can 
likely be addressed more swiftly and with more flexibility 
through administrative and regulatory action. However, we want 
to work very closely with the Subcommittee on legislative 
changes, and combine the two to see if we can get the best 
combination of policies.
    For example, the Immigration and Nationality Act prohibits 
the Government from paying for attorneys to counsel 
unaccompanied juveniles who are in removal proceedings. While 
the Department of Justice supports the principle of providing 
counsel for these juveniles, appropriations would be necessary 
and we will need to have sufficient safeguards on the fees that 
can be charged in this area.
    The adoption of a guardian ad litem program which the bill 
calls for may have value as well. There is great uncertainty 
about how a guardian ad litem would work in Federal immigration 
proceedings. Questions arise such as the ability to do home 
assessments for juveniles thousands of miles from home and the 
relationship between the guardian ad litem and an attorney 
representing the juvenile in legal proceedings. Therefore, it 
may be most prudent to look at well-crafted pilot projects in 
this area, with real deadlines, and well-structured pilot 
projects so we can all determine what the best policy is in 
this area.
    We support the principles of S. 121. While we have some 
areas of concern, its intentions are indeed noble, and we look 
forward to the opportunity to work closely with the 
Subcommittee to address the issues.
    Thank you.
    [The prepared statement of Mr. Anderson follows:]

Statement of Anderson, Stuart, Executive Associate Commissioner, United 
    States Immigration and Naturalization Service, Washington, D.C.

    Mr. Chairman and Members of the Subcommittee:
    On behalf of Commissioner Ziglar, thank you for the opportunity to 
appear before you to discuss an issue that is one of the top priorities 
within the INS today: the treatment of unaccompanied juveniles who have 
been entrusted into our care and custody. The INS would like to 
acknowledge Senator Feinstein's leadership on this issue and the hard 
work that she and her staff have committed to this issue. We look 
forward to working with her and all the Members of the Subcommittee.
    Juvenile immigration policy is complex and requires assessing our 
treatment of juveniles within the context of broader national and 
international obligations. It requires recognizing the special 
obligations imposed on any government when it takes juveniles into its 
custody, regardless of their nationality or legal status. The INS is 
supportive of the principles underlying S. 121. We believe that a 
number of the issues relating to care and custody raised in the bill 
can likely be addressed more swiftly and with greater flexibility 
through administrative and regulatory changes, some of which we have 
begun to put into place. We want to work with the Subcommittee on 
legislative changes that would address other policy issues.
                            INS Initiatives
    Since the 1997 settlement of litigation in Flores v. Reno, 507 U.S. 
292 (1993), the INS has made great strides in improving custody 
conditions for juveniles. But we can do more. We can make changes that 
acknowledge that juveniles are a particularly vulnerable population 
whose needs are not limited solely to questions of custody. To that 
end, the Commissioner recently announced a new initiative on juvenile 
policy. In his speech to the National Immigration Forum on February 
1st, the Commissioner committed the INS to a program that will 
comprehensively address juvenile issues. He articulated principles that 
should guide our discussions as we work together to shape appropriate 
responses to children's issues.
    First, the initiative adheres to the fundamental principle that it 
is generally in the best interests of a juvenile to be reunited with 
his or her parents, either in the United States or abroad, absent 
evidence that the juvenile will suffer harm. This will not be true in 
all cases, as some unaccompanied juveniles may be in need of U.S. 
protection from serious harm upon return. Absent evidence of such a 
threat, however, we should be working toward a system that quickly 
reunites children with their parents in the United States or abroad, or 
that quickly determines that reunification is not possible.
    Second, juveniles are a vulnerable population with different needs 
than adults. While this simple statement should be self-evident, many 
of our immigration laws, practices and procedures do not significantly 
distinguish between juveniles and adults. The Flores settlement 
agreement established a baseline to distinguish between adults and 
juveniles for custody determinations and we plan to standardize that 
distinction through regulation.
    Third, because the INS encounters juveniles under every 
circumstance imaginable--from the child who is a victim of trafficking 
to the teenager with a violent criminal history--the policies relating 
to juveniles must be flexible enough to permit the INS to take the 
appropriate steps in an individual case. While this is particularly 
true in custody matters, flexibility should also guide our thinking 
with respect to issues ranging from a child's ability to consent or 
speak on his own behalf to determining whether a particular case 
requires the initiation of removal proceedings.
    Fourth, juvenile issues cannot be addressed in isolation. We must 
examine our treatment of children within the total immigration 
process--from the moment we first encounter that child through 
completion of immigration proceedings--to understand how best to 
address children's issues within the immigration system.
    Building on these principles the INS is committed to:

         Minimizing the need for detention of any kind for 
        unaccompanied minors.
         Seeking alternatives to detention whenever possible.
         Ensuring that juveniles have access to apply for all 
        benefits and protections for which they may be eligible.
         Exploring additional avenues for the expedient and 
        humane return of juveniles to parents or guardians in all 
        appropriate cases.
    The INS is taking the following steps to fulfill these commitments.

         We plan to establish an Office of Juvenile Affairs 
        that reports directly to the Commissioner. The director of 
        Juvenile Affairs will have the authority necessary to guide 
        placement decisions and will continue to seek alternatives to 
        custody.
         S. 121 would codify the Flores settlement. The INS is 
        already doing so through administrative action. The INS has 
        been operating under procedures implementing the agreement and 
        a proposed rule was published in 1998. On January 14th, 2002, 
        the INS issued a notice extending the public comment period in 
        order to give the public an opportunity to discuss custody and 
        care issues with the benefit of three more years of experience. 
        After receiving these comments, we intend to make the 
        publication of the final rule a priority. Should the final rule 
        not be in place by the time of the expiration of the 
        settlement, we have agreed that the Flores settlement shall 
        remain in force until 45 days after the final rule is 
        published.
         The Commissioner directed his staff to implement as 
        quickly as possible the recommendations of the Department of 
        Justice Office of the Inspector General regarding improvements 
        to general policy and procedures. While this review indicated 
        that the INS has made significant progress since signing the 
        Flores agreement, the report noted several areas where 
        improvement is needed. These include the need to articulate 
        juvenile standards similar to those issued for adult detention, 
        a variety of operational and custody management policies, and 
        increased support for the field staff working with 
        unaccompanied juveniles. The Commissioner has directed his 
        staff to use the review and recommendations in all of our 
        future planning and policy updates.
         The INS will review and develop field guidance that 
        identifies ways in which parole and withdrawals, in appropriate 
        cases, may be used as alternatives to placing unaccompanied 
        juveniles in proceedings.
         The INS will work with Congress, other agencies, and 
        the public to develop comprehensive and creative strategies for 
        addressing the wide range of juvenile issues in immigration 
        policy. The Office of Juvenile Affairs will hold regular 
        meetings with the public on the new initiatives the INS is 
        undertaking.

    I have already noted that the INS is committed both to minimizing 
the need for the secure detention of unaccompanied juveniles and 
continuing its successful practices of seeking out alternatives to 
detention. These commitments involve the long-term goal of 
strengthening the Office of Juvenile Affairs in its new location within 
the Commissioner-s office. The INS has dedicated staff working on 
issues and activities related to juveniles in service custody. These 
men and women have many years of experience in child welfare, juvenile 
justice, victim's issues, residential services, alternatives to 
detention, and the management of grants designed to provide appropriate 
services to juveniles. The establishment of an office reporting 
directly to the Commissioner will guarantee consistency, 
accountability, and integrity in the agency-s treatment of juveniles.
    As part of our initiative on juvenile policy, the INS will also 
continue work towards:

         Development of alternatives to secure detention. While 
        the INS has made substantial progress in developing shelter 
        care, it is critical that the full array of alternatives, from 
        intake assessment and placement tools to non-secure 
        alternatives to detention, is considered. If the INS is to be 
        successful in this area, we must develop the infrastructure to 
        support these services, create opportunities to adopt the best 
        services available and allocate the necessary resources to 
        carry out our mission.
         Reviewing, in cooperation with the Public Health 
        Service, current procedures for determining age. Currently INS 
        uses dental exams and wrist x-rays to determine the age of an 
        individual in our custody or whose age is in question due to 
        false reporting, language, or other circumstances. A review of 
        the effectiveness of this approach, as well as a search for 
        other methodologies, will be conducted in consultation with the 
        Public Health Service. Refinement of age determination 
        procedures can better ensure that those under the age of 18 are 
        treated appropriately, and ensure that we are able to protect 
        juveniles in our custody from adults falsely representing their 
        age.
         Studying the efficacy of expanding the home placement 
        assessment model currently in place for certain groups of 
        children at risk from smugglers or traffickers as a placement 
        tool.
         Making further revisions to existing Juvenile 
        Detention Standards. As indicated earlier, we will review and 
        update existing polices including the use of restraints, 
        solitary confinement, and strip/pat searches and issue 
        additional training and guidance as necessary. The INS will 
        continue and enhance its efforts to solicit input from advocacy 
        groups and experts to develop standard operating procedures for 
        juvenile facilities, similar to the approach adopted in the 
        development of standards for adult facilities.
         Continuing to improve accountability and quality of 
        service within the INS including: the integration of the 
        juvenile management information system that was developed for 
        the Flores agreement into the agency data platform; updating' 
        Juvenile Aliens: A Special Population, Juvenile Protocol 
        Manual, Juvenile Detention & Shelter Care Programs' on all 
        related practices, policies, and procedures to serve as 
        standard operating procedures for all of INS; the development 
        of a training plan for all INS staff that work with or are 
        responsible for juveniles; and the development of a strategic 
        planning process that includes input from the broad immigration 
        community and the public.

    These commitments represent an immediate response to many of the 
problems and concerns that have come to light regarding the detention 
of juveniles and their access to benefits and protections. But the INS 
vision for children's issues does not end with short-term solutions. We 
are committed to providing the Office of Juvenile Affairs the resources 
and support it needs, within the INS, to ensure that all juveniles are 
treated with care, dignity, and compassion. Both the INS and the 
Executive Office for Immigration Review have worked together to discuss 
and develop alternative approaches to adjudicating children's claims. 
We invite members of Congress and the advocacy community to participate 
with the Commissioner in discussions of how best to serve the interests 
of juveniles in our care.
                                 S. 121
    Allow me to address more of the specific provisions of S. 121. The 
Immigration and Nationality Act prohibits the government from paying 
for attorneys to counsel unaccompanied juveniles in removal 
proceedings. The Department of Justice supports the principle of 
providing counsel for these juveniles.\1\
---------------------------------------------------------------------------
    \1\ It should be noted that the State Department has advised that 
it has concerns with this legislation as drafted, notably, its effect 
on U.S. policies in the area of international child abductions and on 
the rights of parents outside the United States.
---------------------------------------------------------------------------
    The bill also calls for the adoption of a guardian ad litem 
program, which may have value. However, great uncertainty remains about 
how a guardian ad litem would operate in practice. Questions arise, 
such as the ability to do home assessments for juveniles thousands of 
miles from home, and the relationship between a guardian ad litem and 
an attorney representing the juvenile in legal proceedings. Therefore, 
it may be the most prudent course to look at well-crafted pilot 
projects, with real deadlines, so we can all examine what policy makes 
the most sense in this area.
    INS asylum regulations acknowledge that unaccompanied minors may be 
exempt from the one-year filing deadline for asylum claims. In 
addition, the INS has already recognized the value of adult support in 
the context of asylum office interviews. Our 'Guidelines on Children's 
Asylum Claims' encourage the presence of a trusted adult--other than 
the child's attorney--during an asylum interview to assist the child in 
understanding the process and to feel comfortable during the interview. 
While S.121 goes far beyond the role envisioned in the Children's 
Guidelines, the Department believes that this is an issue where we can 
find common ground and can work with the committee to further refine 
the concept. In the interim, the INS will update and revise the 
Children's Guidelines to reflect new developments in law and policy and 
to provide supplemental training following publication of the 
Guidelines.
    S. 121 also provides for placement of an Office of Children's 
Services within the Department of Justice. Given the fact the duties of 
this office will be those for which the INS has long had primary 
responsibility, it is not apparent that creating a separate office that 
attempt to replicate INS functions with respect to unaccompanied minors 
offers any advantage that would outweigh the additional costs and 
complexities inherent in taking such action.
                              INS Programs
    The INS is responsible for the custody and placement of 
unaccompanied juveniles in its care--although we ``detain'' these 
juveniles, the vast majority of them are placed in residential care 
facilities or foster homes. Nonetheless, the INS retains ultimate 
responsibility for their custody and treatment.
    There are a wide range of placement programs which the INS 
utilizes. Of the 5,385 juveniles in INS custody during FY 2001, almost 
50%, or 2,417 juveniles were eventually placed with a parent or 
relative. For all juveniles, the average length of stay was 43.5 days, 
while the median length of stay was 15 days. The majority of these 
juveniles were male, and their average age was between 15 and 17 years. 
Although these juveniles came from around the world, their countries of 
origin were most frequently, in rank order, El Salvador, Honduras, 
Guatemala , Mexico, and Colombia.
    The task of managing a program to provide special care and 
treatment for juveniles ranging in age from infancy to near-adulthood 
is difficult, particularly when one takes into account the cultural and 
language barriers that must be overcome. The task is made even more 
complex by the need to protect many of these children from smugglers 
and traffickers, or others who would prey upon and take advantage of 
vulnerable children.
    INS staff have worked hard to meet the needs of these juveniles and 
to develop significant programs that limit the number of juveniles who 
are ever placed in a secure detention facility. In just four years from 
FY 1997 to FY 2001 the number of available beds in non-secure 
facilities has increased from 130 to almost 500. The INS has opened a 
family shelter care facility at the Berks County Youth Center, near 
Philadelphia, and has plans to establish similar family shelter care 
facilities in the Central and Western regions.
    The INS has made significant strides in its shelter care programs. 
We currently administer just over $18 million through 11 grant-funded 
programs that provide shelter care for unaccompanied juveniles. These 
programs are located in Florida, Texas, California, Illinois, and 
Georgia. They have a combined capacity of 369 beds and range in size 
from 4 to 70 placements. These facilities are run by profit and 
nonprofit agencies, including several faith-based organizations, all of 
which have special expertise in migrant and refugee issues. We will 
continue to review and expand these alternatives.
    The INS supports the principles of S. 121. While we have some 
specific areas of concern with S. 121, we look forward to the 
opportunity to work with the Subcommittee to address these issues.
    I look forward to answering any questions.

    Chairman Kennedy. Well, thank you both very much.
    I was interested, Judge Creppy, if you could just describe 
the situation. You have given us a good assessment about the 
concerns that you have with the legislation, but what is really 
happening out there? What do you find is really happening? How 
much of a problem is this? How much of a concern is this to you 
and to your colleagues?
    Judge Creppy. Well, I think it is a serious concern in that 
our job primarily is to ensure that everyone gets a fair 
hearing. In doing so, if it means continuing the case two, 
three, four, five times until we get somebody that will 
represent a juvenile, that is what an immigration judge is 
going to do.
    As an example, in Phoenix we had the private bar there 
agree to take juvenile cases pro bono, but they did it for a 
number of months and the burn-out, taking one case after the 
other--you start to whittle down those who have the willingness 
to do it.
    So I think juveniles having representation is a very key 
component, and I think that this bill is right on point in 
terms of recognizing, under certain circumstances, that 
representation at Government expense may be needed to ensure 
that an individual gets a fair hearing. So we support the bill 
in that vein.
    I think the guardian ad litem is another key component 
because I believe that the attorney and the guardian ad litem 
play different roles. I think people often confuse the roles of 
the guardian ad litem with that of the attorney. The guardian 
ad litem is supposed to act as the parent for the child, not as 
the attorney for the child. So I think once again that Senate 
121 is right on point.
    But, again, I would just say that there are questions that 
we need to explore, to debate, but I do think the end result 
will be adopting two components of that nature will improve the 
process.
    Chairman Kennedy. We will have a 6-minute rule.
    Let me just outline what has been the central concern, and 
that is that there are too many children that are falling 
through the cracks. We have no system now that has recognized 
that we are going to treat these children as children first. 
Later in our hearing, we will hear from Wendy Young, who says 
``children first and newcomers second.''
    As I understand it, the thrust of this whole legislation is 
that we are going to systematically and comprehensively give 
responsibility for the care and the attention and the review 
for each child. That is not happening now, that is not 
happening now. I mean, neither of you have even suggested that 
it is happening now.
    We know enough about the Immigration Service that it has 
two functions. One is a law enforcement and one is a support 
function. The law enforcement is to keep people out that 
shouldn't be here, and they have a very important 
responsibility of making sure that that is the case. On the 
other hand, it is to support those that have legitimate 
interests in coming here.
    The review of the history of responsibility that is given 
to this program would demonstrate, I think, quite clearly that 
this has been more of a law enforcement function rather than it 
has been in terms of a support function to the most vulnerable 
people in our society, which are the children in our society.
    That is what we are looking to you for your reaction and 
how we are going to deal with this. You can say, well, we are 
moving the chairs around on the deck of the ship, which all of 
us have seen at various times before. But we have to understand 
that we have got a major problem. It is a very real problem, 
and it is among the most vulnerable people in our society.
    Even if we are able to say that this kind of new 
organization makes some sense, it can be altered and changed 
tomorrow. That is why the importance of legislating and getting 
this kind of thing right is of such importance. I wish we had a 
bit more of the kind of urgency and the kinds of concerns 
reflected because, as has been pointed out, almost half, 40 
percent, of the children are alone and lack relatives in the 
United States, rendering them particularly vulnerable.
    We know very well that when these children appear before 
INS judges, the outcomes of those cases are twice as favorable 
to the child as if they do not. I mean, those are statistics. 
There may be some other justifications or reasons, but those 
are statistics and those are inherently wrong on their face.
    What we are trying to find out is, one, about your 
suggestions, and I think there have been good suggestions made 
about various provisions of the legislation, about how it ought 
to be tailored. But we basically are interested in what kind of 
assurance you are able to give us that the current situation is 
going to be altered and changed, and that there is going to be 
accountability, responsibility, a systemic kind of 
responsibility for each and every child all of the time.
    That is what, I think, is the thrust of this legislation 
and is essential if we are going to really deal with these 
children in a humane and decent kind of way. I am just 
interested in why you think the recommendations you made in 
terms of the restructuring in the Justice Department and INS 
are going to provide the kinds of protections that have been 
included in the legislation.
    Judge Creppy. Well, Senator, I just want to comment that I 
can assure you that in the immigration hearing process we go 
through to great lengths to ensure that juveniles get fair 
hearings, almost to the point where judges will call on 
attorneys that practice before the court and ask them, will you 
take the case.
    Now, I no longer work for the INS. As you know, the 
Executive Office for Immigration Review is a separate agency 
from the INS.
    Chairman Kennedy. That is right.
    Judge Creppy. So the judges are not Immigration and 
Naturalization Service judges. So I can't really speak to the 
custody issues, the apprehension issues. But what I can tell 
you and what I can assure you is that any juvenile appearing in 
an immigration court, we go to great lengths to ensure that 
there is somebody that will represent the juvenile. The judges 
are trained extensively to handle these types of issues.
    Chairman Kennedy. Mr. Anderson?
    Mr. Anderson. Well, one of the differences would be under 
the INS restructuring. The Office of Juvenile Affairs would not 
be in an enforcement office; it would actually be a separate 
office in neither the service or enforcement part of the INS 
and it would actually be reporting directly to the 
commissioner.
    We think by giving that attention and, essentially, when 
necessary, the line authority of the commissioner on any 
particular case, that will make a significant difference. You 
know the commissioner and when he wants something done, it is 
going to get done. That is why we want to make it 
institutionalized in the whole restructuring and it is not just 
an ad hoc task force.
    In addition, we do also want to have some of the other 
reforms that have been talked about in terms of dedicated case 
management officers whose only duties will be juveniles. That 
is something that is continuing to develop and I think that 
also will get at the concern you have expressed about children 
being able to fall through the cracks.
    So it is not any one thing; I think it is a whole series of 
measures. There have been improvements, but as I note in the 
testimony, we are not satisfied and we would like to see 
significant improvements continue.
    Chairman Kennedy. My time is up, but as I understand it, 
Judge Creppy, at least half of the children now go 
unrepresented, despite the best efforts of the judges. Is that 
your understanding?
    Judge Creppy. My understanding is that no child will 
proceed to a hearing that needs an attorney to assist them in 
that hearing.
    Now, I have heard the Senator talk about statistics and 
data, but the problem with the system--and we are working to 
improve the system--is that we have no accurate way to account 
for the number of juveniles coming through the present system. 
So when people throw out statistics, it is a guesstimate.
    So I can't speak to if all or a few, but I can say that a 
great majority that go through our system will get 
representation through pro bono representation, through judges 
asking attorneys and friends to take the case, and that no 
juvenile gets a hearing alone when a judge feels that he or she 
does not have the capacity to handle those proceedings.
    Chairman Kennedy. Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Senator Brownback, it is really your call.
    Senator Brownback. Please go ahead.
    Senator Feinstein. Thank you.
    Senator Brownback. And then I do have some questions I 
would like to ask.
    Chairman Kennedy. Sure.
    Senator Feinstein. Thank you.
    I am interested in the last question Senator Kennedy asked 
because according to the Executive Office for Immigration 
Review, in removal cases undocumented children are 
unrepresented 50 to 80 percent of the time.
    Now, is that your review? Is the Executive Office for 
Immigration Review your office?
    Judge Creppy. The immigration court falls under the 
Executive Office for Immigration Review, yes, Senator, that is 
correct. But I can't speak to where those statistics came from 
because I can tell you that our system does not accurately 
track statistics like that. We don't have a system that tracks 
the date of birth of those respondents.
    Senator Feinstein. So you are saying those numbers are 
wrong, Judge?
    Judge Creppy. I would say that those numbers are not 
accurate. I can't speak to them without having seen them, but I 
can speak to that we do not have a system that can accurately 
give you those types of numbers. We do not have such a system.
    Senator Feinstein. Then if you don't have a system, would 
it be fair to say that you don't really know whether it is true 
or not? I mean, you can't sit on all cases.
    Judge Creppy. No, I don't sit on all cases. This is why I 
am saying that there is no accurate way to know the truth or 
falsity of it. But what I can base my statement on is that I 
have served in every court in the United States. We have 52 
courts throughout the United States and I have inquired from 
the judges, how do you handle juvenile cases coming before your 
court? And my understanding is that the majority of 
unaccompanied juveniles that come before that court get some 
type of representation or they have a capacity to go forward.
    Senator Feinstein. I would very much doubt that, based on 
what we have seen, but I think I would like to know formally 
from INS then--this is a major discrepancy--whether those 
numbers are right or wrong, if you don't mind.
    Mr. Anderson. Sure. We will get you that, Senator.
    Senator Feinstein. I also understand that the Executive 
Office for Immigration Review, in cooperation with NGO's, non-
governmental organizations, did try to put in place the pilot 
project in Phoenix to ensure that children had legal 
representation and the assistance of guardians ad litem. I also 
am told that the project ultimately did not test the use of 
guardians ad litem.
    Judge Creppy. That is correct.
    Senator Feinstein. So there really is no use of guardians 
ad litem at the present time. Is that correct?
    Judge Creppy. Right. There is sort of an informal use in 
some courts where they ask somebody, will you act as a 
guardian. But we tried to do it in Phoenix and we termed it 
``the friend of the child,'' and the problem with it was it 
never got off the ground because it became a resource question 
and we could never get people to do it. So we never tested 
that. That is correct, Senator.
    Senator Feinstein. So you are saying you couldn't find 
suitable guardians?
    Judge Creppy. I think when Wendy Young testifies, she 
primarily led that charge trying to set up the ``friend of the 
child'' for our pilot project. I believe that the reason that 
it never got off the ground is it was a question of funding, 
that we couldn't find individuals to do it.
    Senator Feinstein. Now, let me ask you this question. I 
have also heard that INS blocked the use of guardians ad litem, 
saying that such use would require legislation. True or false?
    Judge Creppy. Well, I don't want to answer true or false. 
They raised a question as to whether or not having a ``friend 
of the child'' would interfere with their obligation as being 
the custodian of the child. So there was a question there that 
had to be resolved. So I don't know if I would call it a block, 
Senator, but they did raise it as an issue.
    Senator Feinstein. And after they raised it as an issue, 
you didn't proceed with it. Is that correct?
    Judge Creppy. Well, my understanding was that we didn't 
proceed with it because there weren't sufficient resources to 
get the program off the ground. So I can't say that INS caused 
us not to proceed with it.
    Senator Feinstein. Does INS want to respond?
    Mr. Anderson. Well, obviously this was before my time, but 
my understanding is that there were some questions about how 
the guardian ad litem would work. But what I can say is if 
there was legislation and it did specifically dictate to have a 
pilot project, it would definitely happen.
    Senator Feinstein. This is the catch-22 because we are 
told--and I know you don't like legislation, but we are told 
you are not going to go ahead with the guardian ad litem 
because it needs legislation. Yet, you don't want the 
legislation.
    Mr. Anderson. I am not sure that that was the reason why 
the guardian ad litem pilot project didn't go forward. It is my 
understanding that wasn't the reason. I will further 
investigate it, but again as stated in the testimony, we do 
support having a pilot project or a series of pilot projects, 
having them well-structured, having specific deadlines for 
reports so there can be assurance that we can actually test 
this and get experience and then know how to adapt this, 
because it would be an innovation and with any innovation it 
may work well or there may be ways we would want to fix it.
    Senator Feinstein. Right. Now, I think all of don't want 
children to fall in the hands of smugglers. It is true that we 
left a lot of this in terms of defining the regs under which 
the program would function up to the Department.
    In Section 202(a)(4), we would require the director of the 
Office of Children's Services, who would be appointed by the 
Attorney General, to take steps to ensure that unaccompanied 
alien children are protected from smugglers or others seeking 
to victimize or otherwise engage such children in criminal, 
harmful, or exploitative activity.
    If there is any way you feel we should be more precise in 
this, we would surely like to hear it. But the purpose of this 
was to give you the full ability to set regulations, to the 
best of your ability, to be able to protect children based on 
the actual experience that the immigration judges and others 
have had in these situations. I don't know a better way to do 
it. If you have one, we would surely like to have it.
    Mr. Anderson. Well, clearly, protecting juveniles from 
smugglers is already INS policy. A restatement of that I don't 
think would affect that.
    Senator Feinstein. Well, the problem you had with the 
attorney provision, having NGO's provide specific attorneys 
that would be certified by you as competent to do this work, 
was, well, they might fall in the hands of smugglers. You just 
said that earlier, or one of the two of you said it.
    Mr. Anderson. I am not sure having attorneys would 
necessarily make someone vulnerable to smugglers. I think the 
issue that needs to be decided on a particular case, especially 
if there is some concern that the person was smuggled in, if 
they were immediately released out to someone what would be the 
security of the particular juvenile. I mean, those are the 
types of dilemmas that people face.
    Senator Feinstein. There is no question about that, but we 
are talking about, No. 1, wherever it is possible, return the 
child to the parent.
    Mr. Anderson. Yes.
    Senator Feinstein. We all believe in family reunification.
    Second, to find a suitable placement for the child. Right 
now, the alternative would be, I guess, if you released a 
child, where do they go right now.
    Mr. Anderson. Well, I mean a child could be released into 
foster care if suitable foster care is found
    Senator Feinstein. Right, so that wouldn't change. There 
would still be foster care.
    Mr. Anderson. Or in a residential care facility.
    Senator Feinstein. That wouldn't change.
    Mr. Anderson. And those combined come out to about 80 
percent.
    Senator Feinstein. So that wouldn't change, so I don't 
understand what your concern is. We are trying to strengthen 
your hand to see that the circumstances a child is in are 
appropriate for that child and keep them out of circumstances 
which many of them fall in today, extended detention.
    Mr. Anderson. Well, again, we support many elements of the 
legislation and we want to keep working with the Committee on 
what the right balance is, on what can be administratively 
flexible, and then what would be helpful for a statute.
    Senator Feinstein. Well, we would very much like to work 
with you because we would like to move this bill.
    Mr. Anderson. Terrific.
    Senator Feinstein. Thank you very much. Thanks, Mr. 
Chairman.
    Chairman Kennedy. Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman.
    Judge Creppy, I would like to ask you, in your personal 
experience on these proceedings, it seems to me important that 
we treat children and adults differently in these proceedings, 
particularly young juveniles that would not be able to 
comprehend things nearly as well.
    Could you describe based on your experiences to what extent 
unaccompanied children understand what is happening to them in 
these hearings?
    Judge Creppy. Again, I think as Senator Feinstein pointed 
out, I don't sit on every case, since we do 270,000 cases.
    Senator Brownback. I am asking about your experience.
    Judge Creppy. My experience is that the judges go to great 
lengths to ensure that the story gets out, that there is 
somebody that can assist them so that they can rule on the 
particular case.
    Senator Brownback. Has that been your personal experience 
in these cases?
    Judge Creppy. Yes, sir.
    Senator Brownback. Have you had cases where you have 
adjudicated where there has been a child 10 years or younger of 
age?
    Judge Creppy. Me, personally, as the chief judge?
    Senator Brownback. Yes.
    Judge Creppy. No, I have not, but I have been in courts 
where other judges have. And again, as I indicated earlier, I 
did do a survey of all of our courts which involved our judges 
and asked them the methods which they use to try to make the 
child comfortable within the court setting so that they could 
get the story out.
    Now, what I can speak to are the number of things that I 
have done for the judges in terms of training, communications, 
providing them with books and materials, having some of the top 
experts in the country involving children's issues speak to 
them and train them to sensitive them to these types of issues 
so that when they do appear before the court, they are able to 
handle it because I think that each case is different and I 
think that they have to use their discretion and their training 
and background to decide what will constitute a fair hearing 
for this particular child.
    Senator Brownback. Mr. Anderson, you are long familiar with 
this problem from sitting on this side up here, and this has 
been raised in the past. I understand from the Office of the 
Inspector General, there are approximately--and you said in 
your testimony about 5,000, and the OIG found about 4,700, plus 
or minus, unaccompanied alien children each year into U.S. 
custody.
    It seems to me that the problem that we have here is that 
in many of the cases here then when these children are 
detained, they are not detained in INS facilities. They are 
detained in contracted-for or local facilities that the INS has 
limited control over. Maybe that is not the correct term to 
use, but these aren't probably the facilities that the INS 
would put these children in if they had that choice.
    Am I correct that this is the nature of the problem and 
that you are not really in control of the areas where these 
children are being detained?
    Mr. Anderson. Well, we do have contracts, and I don't know 
if in every case, but I just went up to the Burks facility we 
have in Pennsylvania. I know we have been trying to get the 
Subcommittee staff up there, and any of the members. We 
actually have a facility in San Francisco that you might be 
interested in when you are back in the State, Senator.
    It is worth seeing these places up close because at the 
residential care facility, for example, in Pennsylvania there 
is a person on staff there from INS that is able to watch what 
is happening. And there is a mix of--while it is primarily at 
the Burks facility, what you call non-secure, there are 
actually even families there with children.
    My observation was that there were education services going 
on. I mean, kids were going basically 4, 5, 6 hours a day for 
school. There were computers there to work with. There is 
health care on staff.
    Senator Brownback. Because my time is short, I want to get 
at a couple of other points here. In my observation, though, 
what I have seen in other places where there are not INS 
facilities, you are contracting with local law enforcement to 
do this, which sometimes is frustrated with the INS. I can tell 
you from what I get in Kansas that they don't feel like they 
are getting sometimes the guidance or they are just told, look, 
just release the people that you have taken into custody.
    I think that is probably the area where we are having the 
issue, isn't it, that you are not in strong control of those 
facilities? Maybe put it another way, could you set a level of 
standards in these cases that then have to be met by local 
contractors?
    Mr. Anderson. Well, we do have standards. We have the 
American Correctional Association standards, for example, in 
those cases. In other standards, we have our own field guidance 
on people going from INS to keep watch on these facilities. 
This is an area where the commissioner wants to have continued 
review and oversight, and that is part of the juvenile policy 
initiative to make sure in all of these cases that we are 
having the proper oversight of all the places that we contract 
with.
    Senator Brownback. Well, I want to work with you on this, 
but I am hearing from too many reputable places that we have 
got problems in too many places. I am hopeful that you can stay 
around for the next panel that is up to be able to hear what 
people are saying to us that is taking place. You are new in 
and the administration is new in. This is a good chance. You 
mentioned that the commissioner has no vested interest in the 
status quo. I think there is a good shot at being able to do 
some serious work here.
    One final question I would ask you about because I am 
struck by the number here is according to your statement the 
average length of stay for a juvenile in detention was 43.5 
days. The median length of stay is only 15 days.
    Now, if I am understanding this correctly, if a case then 
really isn't resolved quickly in the first couple of weeks, 
then the juvenile is probably going to be detained for a couple 
of months. Is that the situation?
    Mr. Anderson. There are cases that go on for a long time. I 
can turn that over to my co-panelist. It is not his fault, 
obviously, but I mean this is a more elaborate problem. 
Essentially, it is because the proceedings are taking a very 
long time. I mean, that is the issue.
    Senator Brownback. We want to particularly look at juvenile 
cases. If they are being detained for lengthy periods of time, 
we surely want to look at that. I think we need to look at it 
on any length of time, but some of these go for long periods of 
time.
    Mr. Anderson. Right.
    Senator Brownback. Mr. Chairman, I think the next panel 
will be an illuminating one as well and one that can share and 
enlighten, I would hope, as well both the individuals and the 
branches that you represent here today.
    Chairman Kennedy. Thank you.
    It seems to me we want a seamless web so that any of these 
children that are coming into the system are going to be 
followed and tracked. At all times, we are going to know where 
they are, what their circumstances are. You are going to have 
child support systems, child welfare systems that are out 
there, the trained people that are going to be following them. 
And at any given time on these computers, we are going to know 
the circumstances and someone is going to take an active review 
all the time in monitoring these and moving this process 
through.
    That is what we are going to try and do and we want to work 
with you to try and do it, but there is just too much out there 
that says that too much is falling through the cracks. I am 
just not convinced that just moving and rearranging the 
authority and responsibility on this--I know that you want you 
to do the job and I know that the INS commissioner wants to do 
the job, but I think that is what this legislation is 
attempting to do.
    I think we want to work with you in finding ways to try and 
make it efficient and effective and responsive, but it isn't 
working now in the way that it should. We appreciate it very 
much. And I would join Senator Brownback; I hope you can stay 
and listen to our next panel.
    Yes, Senator?
    Senator Feinstein. Just one quick question.
    Chairman Kennedy. Sure.
    Senator Feinstein. You mentioned a place in San Francisco. 
Well, my daughter is a juvenile court judge in San Francisco 
and I asked her about it. She said because San Francisco is a 
sanctuary city, INS contracts with another county, Sonoma I 
believe she said, and the children are there, not in San 
Francisco. So if that is different, I would surely like to go 
and see where it is.
    Mr. Anderson. It is in Castro Valley.
    Senator Feinstein. Well, that is not San Francisco.
    Mr. Anderson. Right, outside of San Francisco.
    Senator Feinstein. Thank you very much.
    Mr. Anderson. I meant outside of San Francisco.
    Chairman Kennedy. Thank you very much.
    Mr. Anderson. Thank you.
    Chairman Kennedy. If our young people want to just stretch, 
they can stretch. I know you probably have to go, but our next 
witness is a young person, Edwin Munoz. He is 14 years old, and 
maybe the young people would like to listen to him, if you have 
a minute.
    Well, they have to go. Thank you very much.
    We thank Edwin Munoz for being here. He is a member of our 
next panel. We want to thank him very much. Edwin applied for 
asylum because he feared that he would be killed if he were 
deported to his native Honduras. Like many other unaccompanied 
children, while awaiting a decision in his case, Edwin was 
housed not in a shelter but in a facility with violent juvenile 
offenders. Unlike other children, Edwin had access to a lawyer.
    We would like to thank you for coming here. I know it takes 
a lot of courage to share your story. We will hear from you in 
just a moment.
    For the past 7 years, Wendy Young has served as the 
Director of Government Relations and U.S. Programs for the 
Women's Commission for Refugee Women and Children. Ms. Young 
also oversees the Women's Commission's Detention Asylum Project 
that addresses the critical protection needs of women and 
children asylum seekers in the U.S. She has made dozens of 
visits to detention centers and has written extensively. It is 
a pleasure to have her here.
    Andrew Morton is an associate in the government relations 
group at Latham and Watkins. Mr. Morton worked as a campaign 
consultant for numerous Republican candidates, as an aide in 
the National Republican Congressional Committee, and on the 
majority staff of the House Committee on the Judiciary. Mr. 
Morton has been instrumental in an effort entitled the Child 
Refugee Project, which has provided pro bono legal 
representation for dozens of unaccompanied alien juveniles in 
INS custody. Mr. Morton and his law firm have received numerous 
awards for their excellent work.
    Julianne Duncan currently serves as Director of Child 
Services for the United States Conference of Catholic Bishops. 
Dr. Duncan has an extensive background in refugee child welfare 
and mental health programs, having worked in Washington State 
for Lutheran Social Services.
    I would point out that is from the Lutheran Immigration and 
Refugee Services. They are one of the very best, I must say as 
someone who has watched them over many years.
    So, Edwin, we want to thank you. As you can see, we invited 
the other children here and they are very interested in what is 
going on. We are trying to make sure that children are treated 
the way that you would want them to be treated, and because you 
are here it is going to help us try and do that. So that is why 
your presence here is so important. We admire your courage in 
being here and speaking to us, and also for all the hardships 
you have gone through. So we thank you very, very much.
    You take your time. There is no hurry.

    STATEMENT OF EDWIN LARIOS MUNOZ, GRAND RAPIDS, MICHIGAN 
     [TESTIFYING THROUGH AN INTERPRETER, ERIC UNTERNAHRER]

    Mr. Munoz. Thank you for being here. It is a privilege to 
be in front of Congress. I am here to tell you my story about 
what happened when I was in custody of the INS and all the bad 
things that happened, and I hope that me being here, things can 
resolve themselves and other children will not be treated like 
I was.
    My name is Edwin Larios Munoz. I am 15 years old and in the 
eighth grade at Thornapple Kellogg Middle School in 
Middleville, Michigan. I live with my foster parents. I enjoy 
math and soccer and want to be an FBI agent when I grow up.
    I am a refugee here in the United States. I was born in San 
Pedro Sula, Honduras. I could not stay in my country because of 
the abuse I went through for years. After my father died when I 
was 4, my mother abandoned me. I ultimately ended up living 
with my cousin.
    For 6 years, from when I was 7 to when I was 13, my cousin 
forced me to work on the streets and give him money. When I 
didn't earn enough money, he punished me, beating me with a 
noose, car tools, and other objects, leaving scars on my body, 
on my knees, legs and arms.
    I did not report it to the authorities because my cousin 
threatened to throw me out into the street. I also did not know 
how to report him and did not think the police would protect a 
child like me. I did not want to live on the streets because I 
had heard that the authorities and gangs kill children living 
on the streets. I had no other choice but to look for safety 
and a real family in the United States.
    I had heard wonderful things about the United States and 
how children were treated better there. On or around March of 
2000, I left Honduras with 100 lempira, around $15. I had to 
walk and beg for rides, and work for food and housing the whole 
way through Honduras, Guatemala, and Mexico. I finally arrived 
in Tijuana in August of 2000.
    After crossing the border by San Ysidro, California, 
however, my problems with Immigration began. On August 19, 
2000, the U.S. Border Patrol officers in green uniforms 
arrested me and took me away in handcuffs. They held me 4 days 
locked up and alone in a cell. They gave me very little food, 
and bad food, and did not let me outdoors. They did not explain 
anything to me about what was happening that I could 
understand. I did not get to make any phone calls or speak with 
a lawyer. I felt very sick to my stomach and head because of 
the food and because I was locked up all day.
    I was then taken in shackles to South West Key, a place in 
San Diego for immigrant children paid for by the INS. I could 
not wear regular clothes, but had to wear their uniform, with 
flip-flops. They had some classes and recreation outside. I 
never saw a counselor or social worker in order to talk about 
my problems in Honduras.
    The other boys from other countries there picked on me 
because I was smaller and from Honduras. When I complained to 
the guards about the boys' treatment, South West Key officials 
told me to ignore it. They did not tell the boys to stop.
    After 2 weeks at South West Key, an immigration officer 
arrived. He took me away in shackles, but did not explain why 
or where we were going. I was brought to San Diego Juvenile 
Hall, a jail for juvenile criminals. This is the worst place I 
have ever been in my life.
    When I arrived, they forced me to wear a prison uniform, 
with flip-flops. They then locked me in a cell by myself, 
without windows. They told me they had to isolate me because I 
looked very young and that they needed to verify my age. I 
spent 3 days in the cell sad and afraid.
    When they finally released me from the cell, I was placed 
in another cell with a United States citizen boy who had 
serious problems with the law. He was not as bad as the other 
boys in the jail who were there for murder, having weapons, 
violence, or theft.
    I spent around 8 months in this jail. I was locked in the 
cell around 18 hours a day, since we were only allowed out for 
a few hours a day for classes. We also had outdoor exercises 
twice a day for 20 minutes in a fenced-in area. Every time we 
walked, we had to walk silently with our hands crossed to avoid 
punishment.
    The officers did not know why I or other children picked by 
the INS were being held there. They treated us the same as 
others, as criminals. They were mean and aggressive and used 
lots of bad words. They hit me with their sticks and shoved me 
and other boys when they thought that we were not following 
their orders.
    Many of the other boys were violent, frequently looking for 
a fight. Whenever there was a fight, the officers would order 
all of us into a cover, crouching position and often used 
pepper spray. Sometimes, the pepper spray would hit children 
like me who had nothing to do with the incident. I was sprayed 
twice and it made my eyes sting and I was afraid I would go 
blind.
    I lost weight and was usually sick at this jail, since I 
could not eat the food, which was different from the food in 
Honduras, and the jail always smelled like urine. I cried a lot 
in the cell, wondering why everything was turning out so bad 
for me here in the United States and wondering if I would ever 
be free.
    After around 6 weeks in detention, I was taken in hand and 
leg shackles to the immigration court. At my first court, there 
were many adult criminals in the courtroom. I was scared and 
afraid that I would be deported. The judge asked me what I 
wanted to do in my case and I told him I needed to find a 
family to live within the United States.
    He said he would give me another date and help me find a 
lawyer to represent me. Several weeks later, I returned to 
court, again in shackles. There was a nice, free lawyer for me, 
a good man, Manuel Sanchez, who was willing to represent me. 
Together, we prepared my case for asylum and the judge granted 
me asylum in July of 2001. It was hard to prepare my case in 
jail, even with my attorney Manny. I could not call him for 
free, and every time he visited they made me take off all my 
clothes to search my body. This embarrassed me.
    I did not like going to the court, even though I would get 
to be outside. Every court trip meant wearing shackles, even at 
my final hearing when I was able to tell the judge my whole 
story. There was no way I could have won the case without an 
attorney or Manny. I did not even know that asylum existed 
before Manny, and I could not fill out all those papers in 
English and did not know what to do in court.
    There was no one to complain to about the jail, since I 
could not trust the jail officials and never saw an INS 
officer. INS only came to take me to court in shackles. I once 
complained to the judge about how horrible the jail was to see 
if I could be taken somewhere else. The judge said he could not 
do anything for me; only INS could. The INS attorney did not 
say or do anything to help me get out of this jail. After 
winning my asylum, I was brought back to the jail again in 
shackles. I stayed in the jail another month-and-a-half, 
wondering why, if I had won this asylum, I was still in jail. 
Would I ever be free?
    Finally, they arranged for me to go with Bethany Christian 
Services to a foster family in Michigan. I was transported out 
again in shackles. I asked the INS officer, why do I need 
shackles? He told me to prevent my escape. Why would I want to 
escape if I had won my asylum? Your asylum, he said, that is 
just a piece of paper we can throw away, put you in jail, and 
then send you back to your own country. It took a while for me 
to feel at home in Michigan. I still have horrible memories 
over what I went through with the INS and at the San Diego 
jail.
    I saw many children like me who gave up fighting their 
immigration cases and accepting deportation because they hated 
the jail and did not have lawyers like Manny to help them. I am 
happy that there are people like you who care to help people 
like me with their problems with the INS. I would like to see 
that they treat children better so that no child has to go 
through what I went through with the INS.
    I know that there is a proposed law right now that would 
help that happen, and I am very glad because I don't think any 
child should have to go through what I did. I know it is bad 
because I went through it myself.
    I hope what I have said today has been of some importance. 
I had horrible experiences and it was the fault of Immigration 
that I went through these experiences. I also think that there 
could be another place besides jail where people like me could 
be put because it was horrible in the jail. I had very bad 
experiences in the prison. It was really bad there, and I 
almost wish that I would have stayed in Honduras rather than 
come here and pass time in the prisons.
    Chairman Kennedy. Well, we want to thank you very much, 
Edwin. Thank you very, very much for being here.
    [Applause.]
    Chairman Kennedy. How are you liking school now? Do you 
like Michigan? It is a little cold out there, isn't it? You 
come to Massachusetts.
    [Laughter.]
    Chairman Kennedy. Well, I will tell you your worst days are 
behind you, and I think you will find that that family that has 
welcomed you cares for you and loves you. And I think you will 
find people around the community are so happy that you are 
here. We are so happy that you are here and we admire you very, 
very much, and we think you would be a very good FBI agent. 
They will be very lucky to get you. I hope the United States 
will live up to your dreams because we are all trying to make 
it that way.
    We want to thank you very much. Maybe after the hearing 
here, we will get a chance to see you a little bit and talk to 
you personally.
    Mr. Munoz. I would like to meet you.
    Chairman Kennedy. Very good, OK.
    [The prepared statement of Mr. Munoz follows:]

        Statement of Edwin Larios Munoz, Grand Rapids, Michigan

    My name is Edwin Larios Munoz. I am 15 years old and in eight grade 
at Thornapple Kellogg Middle School in Middleville, Michigan. I live 
with my foster parents. I enjoy math and soccer and want to be an FBI 
agent when I grow up. I am a refugee here in the United States. I was 
born in San Pedro Sula, Honduras.
    I could not stay in my country because of the abuse I lived with 
for years. After my father died when I was four, my mother abandoned 
me. I ultimately ended up living with a cousin. For over seven years, 
from when I was 7 to when I was 13, my cousin forced me to work on the 
streets and give him the money. When I didn't earn enough money, he 
punished me, beating me with a noose, car tools and other objects, 
leaving scars on my body, like the knees, legs and arms. I did not 
report it to the authorities because my cousin threatened to throw me 
out onto the street. I also did not know how to report him and did not 
think the police would protect a child like me. I did not want to live 
on the streets because I had heard that the authorities and gangs kill 
children living in the streets. I had no other choice but to look for 
safety, and a real family, in the United States. I had heard wonderful 
things about the United States and how children were better treated 
here.
    On or around March, 2000, I left Honduras with about 100 lempira, 
around $15. I had to walk and beg for rides and work for food and 
housing the whole way through Honduras, Guatemala and Mexico. I finally 
arrived in Tijuana in August, 2000.
    After crossing the border by San Ysidro, California, however, my 
problems with immigration began. On August 19, 2000, the U.S. Border 
Patrol officers in green uniform arrested me and took me away in 
handcuffs. They held me four days locked up and alone in a cell. They 
gave me very little and bad food and did not let me outdoors. They did 
not explain anything to me about what was happening that I could 
understand. I did not get to make any phone call or speak with a 
lawyer. I felt very sick to my stomach and head because of the food and 
because I was locked up all day.
    I was then taken in shackles to South West Key, a place in San 
Diego for immigrant children paid for by INS. I could not wear regular 
clothes but had to wear their uniform with flip-flops. They had some 
classes and recreation outside. I never saw a counselor or social 
worker to talk about my problems in Honduras. The other boys from other 
countries there picked on me because I was smaller and from Honduras. 
When I complained to them about the boys' treatment, South West Key 
officials told me to ignore it. They did not tell the boys to stop.
    After two weeks at South West Key, an immigration officer arrived. 
He took me away in shackles but did not explain where and why.
    I was brought to San Diego Juvenile Hall, a jail for juvenile 
criminals. This was the worst place I have ever been in life. When I 
arrived, they forced me to wear a prison uniform with flip-flops. They 
then locked me in a cell by myself without windows. They told me that 
they had to isolate me because I looked very young and that they needed 
to verify my age. I spent three entire days in the cell, sad and 
afraid.
    When they finally released me from the cell, I was placed in 
another cell with a United States citizen boy who had serious problems 
with the law. He was not as bad as the other boys in the jail who were 
in for murder, weapons, violence or theft.
    I spent around six months in this jail. I was locked in the cell 
around 18 hours a day Since we were only allowed out for a few hours a 
day for classes. We also had outdoor exercises twice a day for twenty 
minutes in a fenced-in area. Every time we walked we had to walk 
silently with our hands crossed to avoid punishment.
    The officers did not know why I or other children picked up by INS 
were being held there. They treated us the same as the others, as 
criminals. They were mean and aggressive and used a lot of bad words. 
They sometimes hit me with their sticks and shoved me and other boys 
when they thought that we were not following their orders.
    Many of the other boys were violent, frequently looking for a 
fight. Whenever there was a fight, the officers would order all of us 
into a cover, crouching position and often used pepper-spray. Sometimes 
the pepper-spray would hit children like me who had nothing to do with 
the incident. I was sprayed twice and it made my eyes sting and I was 
afraid that I'd go blind.
    I lost weight and was usually sick at this jail since I could not 
eat the horrible food and the jail constantly smelled like urine. I 
frequently had nightmares at the jail that the guards and other boys 
were going to kill me. I cried a lot in the cell wondering why 
everything was turning out so bad for me in the United States and if I 
would ever be free.
    After around six weeks in detention, I was taken in hand and leg 
shackles to the immigration court. At my first court, there were many 
adult criminals in the courtroom. I was scared and afraid that I would 
be deported. The Judge asked me what I wanted to do in my case and I 
told him I needed to find a family to live with in the United States. 
He said he'd give me another date and help me find a lawyer to 
represent me.
    Several weeks later, I returned to court, again in shackles. There 
was a nice, free lawyer for me, Manuel Sanchez, who was willing to 
represent me. Together, we prepared my case for asylum and the Judge 
granted me asylum in January, 2001.
    It was hard to prepare my case in the jail even with my attorney 
Manny. I could not call him for free, and every time he visited, they 
made me take off all my clothes to search my body. This embarrassed me. 
I also did not like going to court since, even though I'd get to see 
the full outdoors, every court trip meant wearing shackles, even at my 
final hearing when I was able to tell the Judge my whole story.
    There was no way I could win my case without an attorney or Manny. 
I did not even know that asylum existed before Manny and I could not 
fill out all those papers in English and did not know what to do in 
court.
    There was no one to complain to about the jail since I could not 
trust the jail officials and never saw an INS officer. INS only came to 
take me to court in shackles. I once complained to the Judge about how 
horrible the jail was to see if I could go back to South West Key. The 
Judge said that he could not do anything for me, only INS could. The 
INS attorney did not say or do anything to help me get out of this 
jail.
    After winning my asylum, I was brought back to the jail again in 
shackles. I stayed in the jail another month and a half, wondering why 
if I won this asylum, I was still in jail. Would I ever be free?
    Finally, they arranged for me to go with Bethany Homes to a foster 
family in Michigan. I was transported out again in shackles. I asked 
the INS officer why do I need shackles. He told me to prevent my 
escape. Why would I want to escape if I won my asylum? Your asylum, he 
said, that's just a piece of paper we can rip up, put you in jail and 
send you back to your country.
    It took a while for me to feel at home in Michigan. I still have 
horrible memories over what I went through with INS and at the San 
Diego jail. I saw many children like me who gave up fighting their 
immigration cases and accepting deportation because they hated the jail 
and did not have lawyers like Manny to help them.
    I am happy that there are now people like you who care to help 
children like me with their problems with INS. I'd like to see that 
they treat children better so that no child has to go through what I 
went through with INS. Thank you for listening to me.

    Chairman Kennedy. Wendy?

 STATEMENT OF WENDY A. YOUNG, DIRECTOR OF GOVERNMENT RELATIONS 
  AND U.S. PROGRAMS, WOMEN'S COMMISSION FOR REFUGEE WOMEN AND 
                CHILDREN, FALLS CHURCH, VIRGINIA

    Ms. Young. Good afternoon. On behalf of the women's 
Commission for Refugee Women and Children, I would like to 
thank you for the opportunity to testify regarding the 
treatment of children held in the custody of the INS. I would 
like to request that my full written testimony be submitted for 
the record.
    The Women's Commission has identified significant 
procedural gaps in U.S. policy and practice that jeopardize the 
protection of newcomer children. We strongly support S. 121 
which, if enacted, would represent the first time that the 
needs of unaccompanied minors are addressed comprehensively and 
that they are treated as children first and newcomers second.
    We wish to express our appreciation to Senators Feinstein, 
Kennedy, Durbin, and the other cosponsors of S. 121 for their 
leadership on this legislation.
    The INS detains almost 5,000 unaccompanied children a year. 
In addition to Edwin, we are joined in the audience today by 
other young people who were held in INS custody. I would like 
to ask them to stand as a group for just a moment.
    Chairman Kennedy. Do you want to stand?
    [The children stood.]
    Chairman Kennedy. Well, you will give us their names and we 
will make sure that they are in the record. Thank you very 
much.
    Ms. Young. Thank you.
    Children held in INS custody range in age from toddlers to 
teenagers and represent many nationalities. Many are fleeing 
armed conflict and human rights abuses. Others have been 
abused, abandoned or neglected by their families. Some children 
have been trafficked. All, without question, deserve 
comprehensive care that is sensitive to their age, past 
experience, and displacement.
    The Juvenile Affairs Division within the INS Detention and 
Removal Branch is currently responsible for the care and 
custody of children. Its work is generally carried out through 
INS regions and districts, each of which has a designated 
juvenile coordinator. These coordinators are detention and 
removal officers who lack child welfare expertise. Moreover, 
the national juvenile coordinator enjoys only dotted-line 
authority over these officers. This disconnect leads to 
decentralization, a lack of accountability, and inconsistent 
practices, often at the child's expense.
    The INS is responsible for the care and custody of 
unaccompanied children at the same time that it oversees their 
apprehension, detention, and removal. This is an irreconcilable 
conflict of interest that repeatedly results in the INS 
favoring its law enforcement goals over the needs of the child.
    For example, the INS frequently denies release from 
detention to children who have been granted asylum by an 
immigration judge because the agency itself has decided to 
appeal that grant. The INS has blocked children from pursuing 
special immigrant juvenile status by refusing to allow the 
child to proceed to juvenile court to determine whether the 
child has been abused, abandoned or neglected.
    The INS has also encouraged children to agree to voluntary 
departure from the United States even when children have 
earlier expressed a fear of return. And in some cases, the INS 
has returned children under questionable circumstances. A 
juvenile coordinator admitted to us that she was aware of 
Chinese children who were arrested and jailed upon their 
return. A 13-year-old Honduran was deported even though his 
asylum claim was still pending.
    The INS restructuring proposal is largely cosmetic and will 
not resolve the conflict of interest. Children are inherently 
different from any other population that the INS encounters and 
no matter where the box is moved on the organizational chart, 
the agency will still lack the child welfare expertise to get 
the job done.
    Moreover, under the INS proposal, it is unclear who would 
make release and placement decisions on behalf of children. 
Such authority may well be retained by INS enforcement 
officers. Comprehensive reform by way of S. 121 is essential.
    The Flores agreement requires the INS to release children 
to parents, relatives or other responsible entities, or to 
otherwise place them in the least restrictive setting possible. 
However, the INS often fails to release children even when 
family is available. Service providers in Houston report that 
family reunification has dropped from 75 to 35 percent.
    Family reunification is especially problematic when the INS 
is aware that a child has an undocumented relative in the U.S. 
The INS has refused to release a 16-year-old Guatemalan who has 
been detained for 8 months in multiple facilities, including at 
one point an adult prison, because they are aware that his 
undocumented brother resides in the United States. A Federal 
judge recently expressed outrage at the arbitrariness of this 
decision. An 8-year-old Nigerian girl was detained for 15 
months before finally being released to her aunt, despite the 
documented deterioration in her mental well-being.
    One-third of children spend anywhere from a few days to 
more than a year housed in secure detention facilities designed 
for youthful offenders, including delinquents who have 
committed violent felonies such as assault, murder, and school 
shootings. A 14-year-old Honduran asylum seeker shared a cell 
for 4 months with a boy serving time for assault with a deadly 
weapon. Such commingling of non-offenders with delinquents is 
common.
    Children are subject to hand-cuffing and shackling even at 
times during their immigration hearings. Translation assistance 
is rare. In some facilities, access to the outdoors is 
extremely limited. Education programs are often conducted in 
English. Children are sometimes cutoff from religious services 
in their chosen faith. Children are frequently transferred from 
facility to facility even when represented, and then without 
prior notice to counsel. Children are sometimes misclassified 
as adults and are commingled in adult detention centers or 
prisons.
    Also missing is the critical assistance of professionals 
who can aid children with their immigration cases. Less than 
half the children are represented by counsel, and U.S. law 
fails entirely to appoint them guardians ad litem. This results 
in ludicrous situations. In one case, an 18-month-old toddler 
appeared before an immigration judge with no attorney or other 
adult to help her.
    In conclusion, the Women's Commission is gravely concerned 
that consideration of the best interests of the children, the 
cornerstone of child welfare policy, is a concept that 
continues to elude the policies and practices of the INS.
    We strongly support the approach of S. 121, which shifts 
the care and custody of children to an appropriate office and 
leaves the INS to perform the function it does best, the 
enforcement of U.S. immigration laws. S. 121 puts in place the 
structure and resources to quickly identify an appropriate 
outcome in each child's case, safely repatriating those 
children who are not eligible for relief and quickly moving 
those children who are into stable, home-like settings where 
they can begin their lives anew.
    One true measure of a society is its treatment of children. 
We urge Congress to expeditiously pass S. 121, legislation that 
ensures a holistic, humane, and effective approach to newcomer 
children.
    Thank you again, Mr. Chairman, for the opportunity to 
appear before you.
    [The prepared statement of Ms. Young follows:]

  Statement of Wendy Young, Director of Government Relations and U.S. 
Programs, Women's Commission on Refugee Women & Children, New York, New 
                                  York

                            I. Introduction
    Isau is a 13-year-old boy from Honduras. He fled his homeland and 
came to the United States to escape severe abuse at the hands of his 
stepfather, who beat Diego with pieces of wood, rods, and a machete 
handle and burned him with various hot objects. His mother would 
disappear for months leaving Diego at the mercy of his stepfather. 
Diego finally fled his stepfather's home and began living on the 
streets. There, however, he was targeted by government death squads and 
youth gangs.
    The Immigration and Naturalization Service apprehended Diego upon 
his arrival in the United States and initially placed him in a 
children's shelter in Houston. It then denied Diego access to juvenile 
court in order to determine whether he was abused, abandoned, or 
neglected and eligible for long-term foster care, a finding that would 
have potentially rendered him eligible to remain in the United States 
under the Special Immigrant Juvenile program. Meanwhile, Diego appeared 
in immigration court, without the assistance of counsel, where he was 
denied asylum. After a pro bono attorney agreed to represent him, Diego 
filed an asylum appeal, a Convention Against Torture claim, and a 
withholding of deportation claim. The INS then transferred him to the 
Liberty County Juvenile Detention Center, one and a half hours drive 
from Houston where his attorney was based. A year later, the INS 
unlawfully deported Diego back to Honduras while his appeal was 
pending. Diego's attorney has since been trying to locate the boy but 
has been unable to find him. Diego spent two years in detention before 
his deportation, including more than one year in secure detention.
    Good afternoon. My name is Wendy Young. I am the Director of 
Government Relations and U.S. Programs for the Women's Commission for 
Refugee Women and Children, a nonprofit organization which seeks to 
improve the lives of refugee women and children around the world by 
acting as an expert resource and engaging in a vigorous program of 
public education and advocacy. On behalf of the Women's Commission, I 
would like to thank you, Mr. Chairman and members of the Subcommittee, 
for the opportunity to testify regarding the treatment of children held 
in the custody of the Immigration and Naturalization Service (INS).
    In 1996, the Women's Commission launched an assessment of U.S. 
detention and asylum policy and its impact on women and children 
seeking refugee protection in the United States. As part of this 
project, we have visited 18 facilities used to hold children in INS 
custody and have monitored numerous immigration court proceedings 
involving children. This research included a four-state assessment in 
August 2001 of the treatment of children detained by the INS. This 
study focused primarily on the use of secure facilities, or juvenile 
detention centers, by the INS. We also worked with the INS to develop 
``Guidelines for the Adjudication of Children's Asylum Claims,'' 
released in December 1998. In addition, we have acted as an expert 
resource to attorneys and other service providers working with children 
around the country.
    This work has revealed significant procedural gaps in asylum and 
immigration law and policy that jeopardize the protection of newcomer 
children. Too often, the U.S. immigration system is a ``one-size-fits-
all'' process designed for adults that fails to take into account the 
unique needs of children. As a result, children may be denied asylum or 
other forms of immigration relief for which they may be eligible and 
returned to unknown fates in their home countries. They may also endure 
prolonged detention, often in secure juvenile detention centers in 
harsh and punitive conditions that fail to address their unique 
protection needs.
    The Women's Commission strongly supports the Unaccompanied Alien 
Child Protection Act (S. 121). We would like to express our 
appreciation to Senator Dianne Feinstein, Senator Edward Kennedy, 
Senator Richard Durbin, and the other co-sponsors of S. 121 for their 
leadership on this critical legislation. If enacted, this legislation 
would represent the first time that the needs of unaccompanied minors 
who arrive in the United States are addressed systematically and 
comprehensively, thus ensuring that children are treated as children 
first and newcomers second. It would accomplish this by establishing a 
structure specifically to care for newcomer children, by mandating 
procedures for appropriate custody and placement decisions, and by 
providing the legal and social services to children that they require 
to assist them in their immigration proceedings.
    What S. 121 does not do is create new forms of immigration relief 
for children. Instead, it ensures that children are appropriately cared 
for while their eligibility for relief is determined. It also creates a 
more efficient system that will lead to quicker decisions in children's 
cases. S. 121 will be more cost-effective by decreasing the use of 
secure settings, and will ensure that children who are denied relief 
are returned efficiently and safely.
    This testimony will provide an overview of the current treatment 
that children receive and will establish the need for legislative 
reform such as that envisioned under S. 121.
               II. Why Children Come to the United States
    In each of the past three fiscal years (1998-2000), the INS has 
reported an annual total of almost 5,000 unaccompanied children in its 
custody. On any given day, the agency averages between 400 and 500 
children in its care.\1\ These children range in age from as young as 
six months up to 17-years-old. They come from many countries, with the 
top nationalities being Honduran, Guatemalan, Salvadoran, Mexican, and 
Chinese. In its own research, the Women's Commission has followed the 
cases of children from Kosovo, the Democratic Republic of Congo, 
Burundi, Sierra Leone, Somalia, Algeria, Afghanistan, Nigeria, Haiti, 
India, Colombia, and other troubled countries.
---------------------------------------------------------------------------
    \1\ ``Unaccompanied Juveniles in INS Custody,'' Office of the 
Inspector General, Report Number I-2001-009 (September 28, 2001).
---------------------------------------------------------------------------
    Children come to the United States for a variety of reasons. 
Increasingly, children are searching for protection from armed conflict 
and human rights abuses in their homelands, which may render them 
eligible for asylum.
    Human rights violations inflicted on children may be age-specific, 
such as recruitment as child soldiers, child prostitution, sexual 
servitude, child labor, street children abuses, child marriages, female 
genital mutilation, and slavery. Other children have been abused, 
abandoned, or neglected by their families, and thus may be eligible for 
Special Immigrant Juvenile status. Some children are smuggled or 
trafficked into the United States, and may be eligible for relief under 
the recently enacted trafficking legislation.
    Unaccompanied children arrive in the United States in several ways. 
They may arrive alone either by crossing a U.S. border or through a 
U.S. port of entry. Some arrive in the company of a family friend or 
distant relative who is not the child's traditional caregiver. Some 
arrive in the company of a smuggler who has been paid to facilitate the 
child's arrival. Still others are trafficked into the United States by 
organized criminal enterprises. Approximately 40 percent of children 
are truly alone and lack relatives in the United States, rendering them 
particularly vulnerable.
    Regardless of their mode of arrival or country of origin, children 
who arrive alone in the United States are indisputably a population in 
need of comprehensive care that is sensitive to their age, culture, 
past experience, and displacement.
   III. The Justice Department Structure to Oversee Children in INS 
                   Custody has Changed Over the Years
    Over the years, the Department of Justice has shifted jurisdiction 
over the care and custody of newcomer children from office to office. 
For many years, shelters which housed children in INS custody were 
overseen by the Community Relations Service (CRS), an agency that is 
within the Department of Justice but separate from the INS. CRS 
maintained a small staff of social workers to administer the children' 
shelters, the running of which was contracted out to private nonprofit 
agencies.
    However, the INS absorbed the functions of CRS related to 
immigration in 1996. The CRS staff charged with the oversight of the 
shelters moved to the INS as well. Both the staff and their continuing 
operations were housed in the Humanitarian Affairs Branch (HAB). HAB is 
commonly recognized for its service orientation and centralized 
operations within the overall INS structure.
    Despite the concerns of outside experts, the INS decided in 2000 to 
consolidate all of its children's programs into its Detention and 
Removal branch, a department intrinsically tied to the agency's law 
enforcement functions. Nongovernmental organizations, concerned about 
the handling of children in INS custody, feared that the transfer of 
authority would further aggravate the inherent conflict of interest 
between INS enforcement responsibilities and the agency's ability to 
provide child welfare services.\2\
---------------------------------------------------------------------------
    \2\ See letter from Ralston H. Deffenbaugh Jr., Lutheran 
Immigration and refugee Service, on behalf of more than 50 non 
governmental organizations and individuals, to Doreis Meissner, 
Immigration and Naturalization Service (October 17, 2000).
---------------------------------------------------------------------------
    The concerns of immigrant and refugee advocates proved well-
founded. Increasingly, since the Detention and Removal Branch assumed 
control over children's programming within INS, enforcement concerns 
have dominated decisions which are made on behalf of child newcomers. 
The agency has demonstrated a consistent pattern and practice of 
neglecting the needs of children in favor of its deportation functions, 
budgetary concerns, and administrative and logistical priorities.
    Moreover, the staffing structure of the INS has exacerbated the law 
enforcement approach the agency has favored toward the handling of 
children in its care. INS staffing for children's programs is highly 
decentralized. While decentralization characterizes most INS programs, 
it carries particularly troubling consequences for children.
    The INS Juvenile Affairs Division is the central office which 
directs and oversees juvenile and family detention and shelter care. In 
practice, however, this supervision is largely implemented through the 
INS regional and district offices across the country. There are three 
INS regions and 33 INS districts, all of which function with tremendous 
autonomy and little accountability to INS headquarters in Washington, 
DC.
    Each region and district has a designated juvenile coordinator. 
These coordinators, however, are generally not individuals with child 
welfare expertise but are detention and deportation officers who are 
charged with overseeing the handling of children in that particular 
district. In some districts, the appointment as juvenile coordinator is 
a permanent appointment, but in most cases, it is a temporary 
assignment and may even be performed on a part-time basis.
    Each of the three INS regions are staffed by a regional juvenile 
coordinator. These posts are full-time, permanent positions.
    The line authority over and supervision of the regional and 
district juvenile coordinators are through the district and regional 
structures. While counter intuitive, the national juvenile coordinator 
enjoys only dotted line authority over these officers. This disconnect 
leads to decentralization, a lack of accountability, and inconsistent 
practices with regard to children from district to district and region 
to region.
IV. INS Experiences a Conflict of Interest with Children in Its Custody
    It is often noted that the INS has been given a complex mandate 
that is simultaneously both law enforcement and service oriented. 
Perhaps nowhere is this more true than with children in the custody of 
the INS. The INS is responsible for the care, custody, placement and 
legal protection of unaccompanied children who arrive in the United 
States at the same time that it is also responsible for their 
apprehension, detention, and removal. As a result, the INS is presented 
with an inherent conflict of interest, under which it is simultaneously 
acting as a service provider and a law enforcement agency. This 
conflict ultimately clogs the system with inefficiencies and inequities 
and threatens the best interests of the children in question. Moreover, 
the situation is made worse by the fact that the INS simply lacks the 
requisite child welfare expertise to appropriately care for children in 
its custody.
    This conflict of interest was exacerbated in 2000, when the INS 
consolidated its children's programs under its Office of Field 
Operations, Detention and Removal branch. By doing so, it removed 
oversight of the children's shelters from the HAB, which included staff 
experienced in child welfare.
    Since the consolidation of children's programs under the Detention 
and Removal branch, we have witnessed a trend toward further favoring 
law enforcement goals over the needs of the child. Following are just a 
few examples of how the INS leverages its custody of children to 
advance its law enforcement goals:

         The INS has frequently denied release to children who 
        have been granted asylum by an immigration judge, because the 
        agency itself has decided to appeal the grant and has deemed 
        the child a flight risk.
         The INS has blocked abused children from pursuing 
        Special Immigrant Juvenile visas. For children in its custody, 
        the INS retains the authority to consent to the jurisdiction of 
        a juvenile court for a determination as to whether the child is 
        eligible for long-term foster care due to abuse, abandonment, 
        or neglect. Such a determination is required before a child can 
        pursue a Special Immigrant Juvenile visa. Consistently, the INS 
        refuses to allow the child to proceed to juvenile court, thus 
        cutting the child off from a critical form of protection that 
        would otherwise offer the child protection from domestic 
        violence or life on the streets.
         The INS has increasingly required undocumented 
        relatives to appear at its offices to accept custody of 
        children, at which time it issues a Notice to Appear to the 
        relative. It adheres to this policy even when other relatives, 
        responsible adults, or licensed placements are available and 
        willing to accept the child. This acts as a tremendous 
        deterrent against parents and others stepping forward to care 
        for their children. Perhaps even more significant is the guilt 
        caused to the children, who are effectively being used as bait 
        to lure the parent to appear. It also often results in the 
        prolonged detention of the child.
         Service providers have reported cases in which the INS 
        has encouraged children to abandon their pursuit of immigration 
        relief. In Houston, for example, service providers reported 
        that the INS juvenile coordinator told a child that ``The judge 
        won't buy your story, and you'll end up being in detention for 
        a long time.'' Service providers in Spokane reported that the 
        juvenile coordinator encourages children to agree to voluntary 
        departure from the United States.
         The INS in some cases has returned children under 
        questionable circumstances. The San Francisco juvenile 
        coordinator admitted that she was aware of Chinese children who 
        were arrested and jailed upon their return to China, especially 
        those returned to Beijing. A Honduran 13-year-old was deported 
        by the INS Houston District, even though his claim to asylum, 
        relief under the Convention Against Torture, and SIJ petition 
        were still pending adjudication.
  V. The INS Restructuring Proposal Will Not Resolve the Conflict of 
       Interest the INS Experiences with Children in Its Custody
    The INS has recently announced steps to reform its policies and 
practices with regard to children as part of its overall 
``Restructuring Proposal.'' \3\ The heart of the proposal is to 
separate the agency's service and law enforcement functions into two 
bureaus, which would continue to report to the INS Commissioner. 
Certain departments would not be lodged in either the service or the 
law enforcement branch, including a new ``Office of Juvenile Affairs,'' 
reporting to the INS Commissioner.
---------------------------------------------------------------------------
    \3\ ``Restructuring Proposal,'' Immigration and Naturalization 
Service (November 2001).
---------------------------------------------------------------------------
    The INS has stated that the mandate of the Office of Juvenile 
Affairs will be to act as the central policy office on children's 
matters and to direct national programs to address the needs of 
unaccompanied minors in INS custody. It has indicated that this will 
include responsibility for developing research-based best practices and 
service approaches, ensuring consistent application of policies and 
procedures, facilitating family reunification, and developing effective 
case management systems.\4\
---------------------------------------------------------------------------
    \4\ Ibid., p. 26.
---------------------------------------------------------------------------
    However, we believe that the INS's proposal will not got far enough 
to truly reform the agency's practices toward children. While this 
change reflects the INS's growing awareness that it must revamp its 
treatment of children, it does not promise the kind of meaningful 
reform that would ensure that children receive appropriate care while 
their eligibility for immigration relief is being determined.
    First and most critically, children are inherently different from 
any other population that the INS encounters. In contrast to adults, 
who are typically able to understand at least the fundamentals of the 
immigration system as they seek to regularize their immigration status, 
children lack the capacity to appreciate the complexities of U.S. 
immigration law and to make decisions that will fundamentally affect 
their futures.
    Second, the INS's proposal fails to address the fundamental 
conflict of interest that the INS experiences when charged with both 
the care and custody of children at the same time that it is seeking 
their removal from the United States. These dual functions are 
diametrically opposed and fundamentally irreconcilable.
    Because the INS is dominated by enforcement concerns at the same 
time that it is completely lacking in child welfare expertise, its law 
enforcement functions frequently override consideration of the best 
interests of the children in its custody.
    Third, it is unclear who would have the authority to make placement 
and other critical service decisions on behalf of children under the 
INS Restructuring Proposal. Such authority may well be retained by INS 
enforcement officials, who lack the child welfare expertise to 
determine the most appropriate care arrangements for children.
    Currently, the INS National Juvenile Coordinator in Washington, DC 
only has ``dotted line'' authority over regional and district juvenile 
coordinators, who remain under the supervision of their respective 
districts and regions. This results in decentralization, inconsistency, 
and a lack of accountability. The INS Restructuring Proposal does not 
appear to address this structural flaw.
    Fourth, the INS proposal is only an administrative measure that 
does not carry the force of law. Nothing would prevent future 
Administrations from revisiting these changes and reverting to old 
structures. History has already shown the tendency of the Department of 
Justice to shift jurisdiction over children's programming from office 
to office.
    Most importantly, the INS proposal will not resolve the endemic 
management issues within the agency that favor law enforcement over 
service. The proposal itself acknowledges this dilemma when it notes 
that ``reorganization should not be seen as a panacea for all the 
challenges the INS faces.'' The chronic failure of the INS to address 
critical protection issues confronted by children in its care and the 
lack of transparency in INS operations are issues that are likely to 
continue to plague the agency.
    Concerns about the INS' handling of children have been raised by 
immigration, refugee, and child welfare experts for almost two decades. 
Improvements have been made incrementally in some areas while in other 
aspects INS practices have deteriorated. Without fundamental changes in 
infrastructure, staffing, attitude and philosophy, the changes proposed 
under the INS Restructuring Proposal are likely to remain cosmetic at 
best. We cannot allow children to continue to pay the price while we 
give the INS yet another opportunity to experiment with their care.
 VI. INS Compliance with Class Action Settlement Agreement that Guides 
                  Placement Decisions is Inconsistent
                          the flores agreement
    The legal framework for the custodial care and treatment of 
unaccompanied newcomer children derives from a consent decree known as 
the Flores v. Reno settlement agreement.\5\ Filed as a class action 
lawsuit in U.S. federal court in 1985, the Flores case challenged the 
constitutionality of policies and practices regarding the detention and 
release of unaccompanied children taken into custody by the INS. The 
case went to the U.S. Supreme Court before being remanded to the court 
in which it originated, the District Court of the Southern District of 
California, at which point the plaintiffs and the government reached a 
settlement in 1996.\6\
---------------------------------------------------------------------------
    \5\ Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-
4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/FloresSettle.html.
    \6\ Reno v. Flores, 507 U.S. 292 (1993).
---------------------------------------------------------------------------
    The Flores agreement addresses a range of custody issues pertaining 
to children, including release to family members or other responsible 
entities, placement, transportation, monitoring, and attorney-client 
visitation. In addition, the agreement delineates minimum standards of 
care for licensed programs with which the INS contracts for the 
placement of children in its custody, such as access to health care, 
recreation, education, religious services, and legal representation.
    The Flores agreement is premised on the notion that the INS must 
treat children in its custody with ``dignity, respect, and special 
concern for their vulnerability as minors.'' \7\ It requires the INS to 
release children without unnecessary delay unless detention is required 
to secure the child's appearance in court or to ensure the safety of 
the child or others.\8\ The agreement lays out in order of preference 
categories of relatives, unrelated adults, and licensed child care 
settings to which children are to be released.\9\
---------------------------------------------------------------------------
    \7\ Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-
4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/FloresSettle.html.
    \8\ Ibid., paragraph 14.
    \9\ Ibid.
---------------------------------------------------------------------------
    The agreement also requires the INS to place children for whom 
release is pending, or for whom no release option is available, in the 
least restrictive setting possible that is appropriate to the child's 
age and special needs.\10\ However, the agreement defines exceptions to 
this general rule for children whom the INS has deemed escape risks, 
children who are believed or found to be criminal or delinquent, 
children whom the INS actually believes to be over the age of 18, 
children who present a risk to their own safety or that of others, or 
in cases of an emergency or influx of children.\11\ In such cases, the 
INS can place the minor in an INS-contracted facility or a state or 
county juvenile detention facility that has separate accommodations for 
minors. Under Flores, however, the child is supposed to be housed 
separately from the delinquent population in the facility.\12\ Any 
child placed in a medium secure or secure facility must also be 
provided a written notice of the reasons why.\13\
---------------------------------------------------------------------------
    \10\ Ibid., paragraph 11.
    \11\ Ibid., paragraph 12, 21.
    \12\ Ibid., paragraph 12.
    \13\ Ibid., paragraph 24.
---------------------------------------------------------------------------
    The Flores agreement has become a critical yardstick against which 
to evaluate INS practices with regard to children in its custody. It 
also provides the opportunity to challenge in federal court the 
placement of a child in a secure setting.\14\
---------------------------------------------------------------------------
    \14\ Ibid.
---------------------------------------------------------------------------
    However, at least until recently, INS compliance with Flores has 
remained almost entirely self-initiated and self-monitored.\15\ 
Attorneys for children and others concerned about the treatment of 
newcomer children have lacked the resources to challenge violations of 
the Flores requirements. Moreover, the INS itself--as it has for its 
detention policies and practices overall--has delegated the vast 
majority of its detention authority over children to its district and 
regional offices. As a result, release and placement decisions for 
children have frequently remained ad hoc, arbitrary, and inconsistent, 
with insufficient attention given to what is in the best interests of 
each child.
---------------------------------------------------------------------------
    \15\ A number of agencies are beginning to monitor INS compliance 
with the Flores agreement. These included the American Bar Association, 
the Center for Human Rights and Constitutional Law, the Florida 
Immigrant Advocacy Center, the Southern Poverty Law Center, and the law 
firm of Latham & Watkins.
---------------------------------------------------------------------------
Release to Family and Other Responsible Parties
    The Flores agreement spells out a list of parties to whom children 
may be released in order of preference. These include:

         A parent;
         A legal guardian;
         An adult relative;
         An adult individual or entity designated by the parent 
        or legal guardian as capable and willing to care for the child;
         A licensed program willing to accept custody; or
         An adult individual or entity seeking custody, at the 
        discretion of the INS, when there appears to be no likely 
        alternative to long term detention and family reunification 
        does not appear to reasonably possible.

    Increasingly, the INS has failed to exercise release of children 
even when one of these options appears available. Service providers in 
Houston, for example, report that family reunification for children 
held in the custody of the INS Houston District has dropped from 75 
percent to 35 percent. Providers indicated that this shift in policy 
began when the INS consolidated children's programs under its Detention 
and Removal branch in 2000.
    Family reunification is particularly problematic in cases involving 
release to undocumented parents or relatives. In such cases, the INS 
has increasingly moved toward requiring the undocumented individual to 
come forward to accept his or her child relative, even when a U.S. 
citizen or permanent resident relative is available to facilitate the 
reunification. In effect, the INS has interpreted the list of possible 
sponsors under Flores not as a preferential delineation of parties but 
as a hierarchical list.
    In such cases, the INS then often places the undocumented relative 
into removal proceedings by issuing him or her a ``Notice to Appear.'' 
The child in effect is used as bait to force the relative to appear 
before the INS. The Women's Commission has documented that this is now 
the practice in the Seattle, Los Angeles, Houston, Philadelphia, 
Phoenix, and Miami Districts. It may be the policy in other districts 
as well.
    One Houston service provider observed, ``The INS often cites the 
best interests of the child when it refuses to release a child to a 
family member. But, in fact, they are using the best interests 
principle as a barrier to family reunification.'' Another service 
provider in Los Angeles noted, ``This puts the kids in a terrible 
position. They feel guilty that their family member has to risk their 
own situation in order to pick them up.''
    A case is currently pending before the U.S. District Court for the 
Southern District of Florida regarding treatment of a Guatemalan boy 
who has been held in INS custody for several months, transferred from 
facility to facility (including at one point to an adult prison), even 
though there are licensed shelters which have indicated their 
willingness to care for the boy. The boy is currently housed in a 
hotel, where he has been held in isolation for three weeks. In the 
course of a preliminary hearing on the boy's request for a temporary 
restraining order, the INS Miami District juvenile coordinator 
indicated that he would not release the boy to a licensed shelter 
program as required under the Flores agreement, even if petitioned to 
do so, because the INS was aware that the boy had an 18-year-old 
undocumented brother in the United States. The juvenile coordinator 
stated:

        ``I would recommend denial [of release] in this case because. . 
        .we already know that he has blood relatives in this country 
        who are circumventing the law and refusing to come forward 
        because they would be subjected to an immigration arrest. . . 
        .So I'm not going to allow release to a non-relative when we 
        know that there are relatives in the United States.'' \16\
---------------------------------------------------------------------------
    \16\ Transcript of Hearing, A.L.S. v. Ashcroft, case number 02-
20421-CIV-MORENO (U.S. District Court, Southern District of Florida), 
p. 40.

---------------------------------------------------------------------------
    The district court judge then responded:

        ``I am outraged that someone would have made up his mind before 
        hearing any evidence whatsoever. . . .Because right now what I 
        have heard is that the INS is telling the petitioner, 'Don't 
        file any petition, because before we even consider whether to 
        release him in accordance with the regulations, I made up my 
        mind and I am not going to do it.' '' \17\
---------------------------------------------------------------------------
    \17\ Ibid., p. 42.

Placement in Shelter Care
    Since the Flores agreement has been in place, the INS has increased 
its shelter care space to approximately 400 beds. The majority of these 
shelters are institutional in nature and offer an environment of ``soft 
detention.'' The children are allowed to wear street clothing, are 
offered educational classes, and are housed in dormitory-style 
accommodations rather than being locked in cells or cell pods. 
Occasionally, they engage in recreational or educational trips off-site 
in the company of shelter staff. However, the children's activities are 
closely monitored, the doors are frequently locked or alarmed, the 
premises may be fenced, and children are not allowed to leave the 
facility unless accompanied by facility staff.
    Moreover, children may languish in the shelters for prolonged 
periods, despite the fact that the shelters are set up for short-term 
care only. The Women's Commission followed closely the case of an 
eight-year-old Nigerian girl who was held in a Miami shelter for 15 
months. Fega had begun to lose her ability to speak her native language 
and was instead speaking a combination of Creole, Spanish, and English 
by the time the INS finally released her to her aunt. A social worker 
documented a deterioration in her mental well-being as a result of her 
prolonged institutionalization.
    The INS also has a limited foster care program, offering 
approximately 36 placements nationwide. These foster homes are 
generally used for young children, girls, long-term detainees for whom 
there is no sponsor, or children with special needs.
    The limited foster care available to place children in INS custody 
is of grave concern. Foster care offers a home-like environment to 
children and an alternative to institutional care. It also is a much 
cheaper alternative to detention than either a secure facility or a 
shelter.
           VII. Children are Often Held in Secure Facilities
    As a result of a lack of readily available bed space, poor case 
management, and often questionable placement decisions by the INS, a 
significant percentage--an estimated one-third--of children in INS 
custody spend at least some time housed in secure juvenile detention 
centers, designed for the incarceration of youthful offenders. Children 
in INS custody may be detained in such settings for anywhere from a few 
days to more than a year.
    The Flores agreement theoretically limits the use of such 
facilities to just five narrow categories of children:

         Children who have been charged with or are chargeable 
        with a crime or a delinquent act, unless that is an isolated 
        offense that does not involve violence;
         Children who have committed or threatened to commit a 
        violent or malicious act while in INS custody;
         Children who have been disruptive while placed in a 
        non-secure setting;
         Children who have been deemed a flight risk; and
         Children who must be held in secure facilities for 
        their own safety.

    Under Flores, children who do not fall into one of these categories 
must be placed in the least restrictive setting possible within the 
first three to five days after apprehension by the INS. However, in 
1999 only 675 cases out of 1,958 incidences of children placed in 
secure confinement were suspected or adjudicated delinquent.\18\ In 
2000, non-delinquent children accounted for 1,569 of the 1,933 
instances of secure detention.\19\ We believe that the INS is 
consistently overusing secure confinement, placing children there who 
should have been in shelter or foster care. When the Women's Commission 
visited the Yuma County Juvenile Justice Center in Arizona, the 
facility administrator told us that he assumed that the children the 
INS had placed in the facility had been adjudicated delinquent. He 
asked, ``Why else would they be here?''
---------------------------------------------------------------------------
    \18\ Tom Brune, ``INS Housing Children in Jails,'' Newsday, p. A5 
(February 4, 2000).
    \19\ ``Unaccompanied Juveniles in INS Custody,'' Office of the 
Inspector General, Report Number I-2001-009 (September 28, 2001), P. 2.
---------------------------------------------------------------------------
    Often the children themselves and their attorneys are unaware of 
the reasons for their placement in secure facilities. Placement 
decisions are generally made at the local level by INS district 
offices, and are rarely reviewed. While under the Flores agreement 
placement decisions can be challenged in federal court, this remains an 
unrealistic option for most children, particularly those who are 
unrepresented by counsel. Furthermore, in many cases it appears that 
once placement decisions are made, they are never subsequently 
reviewed, leaving some children languishing in secure settings for 
prolonged periods.
    The INS frequently justifies its placement of children in secure 
settings under a significant exception included in the Flores agreement 
that suspends application of the least restrictive setting requirement. 
In cases of emergencies or an influx of children, the INS may place a 
child in any facility having space, including a secure facility. The 
agreement defines an ``emergency'' to include natural disasters, 
facility fires, civil disturbances, and medical emergencies. The term 
``influx'' is defined as those circumstances in which the INS has more 
than 130 children eligible for placement in non-secure settings in its 
custody.
    The influx exception is particularly problematic. The threshold 
number of 130 was agreed upon by the parties to the Flores settlement 
at the time of negotiation, as that was the number of shelter and 
foster bed placements that was then available to the INS. Since the 
agreement took effect, however, the INS has expanded its shelter and 
foster care program to approximately 400 beds. Because the threshold 
number embraced by the agreement has not kept pace with this reality, 
in effect the exception has overtaken the rule. In fact, the Women's 
Commission found in its August 2001 assessment of juvenile detention 
centers used by the INS that in many cases the INS justified placement 
of children in secure facilities by citing the influx exception. In the 
San Diego Juvenile Hall, for example, some of the children had notices 
of secure placement in their possession that cited the influx 
exception. Some had been in the facility for several months. The 
delegation had also learned that at least one INS shelter had been 
running under capacity for most of the year.
    This has been a consistent practice by the INS over the years. When 
the Women's Commission visited the Liberty County Jail in 1998, 83 
children in INS custody were detained in the facility. The Houston 
Juvenile coordinator justified these placements by stating that there 
had been an ``influx'' of children. The Women's Commission, however, 
learned that in fact there were several beds open in the Houston 
shelter at the same time, a facility that is less than two hours away, 
undermining the INS District's assertion that it had experienced an 
influx of children.
    Children are also sometimes arbitrarily labeled as ``flight 
risks.'' This has become increasingly common for children who are 
denied relief by an immigration judge and whose cases are on appeal to 
the Board of Immigration Appeals. The INS will frequently transfer such 
children to secure detention facilities. The San Francisco juvenile 
coordinator told the Women's Commission in August 2001 that it is the 
policy of the district to deem any child who has been issued a final 
order of removal a flight risk and move him or her to a secure 
facility, unless the child is very young.
    The juvenile detention centers from which the INS rents space are 
typically harsh and punitive in their environment. They are designed 
for the detention of youthful offenders and very often hold youth who 
have committed serious crimes. The facilities which the Women's 
Commission visited included in their populations young people who had 
committed violent felonies such as assault and battery, murder, and 
school shootings. In the secure facilities, the children often become 
indistinguishable from the general population. They are typically 
forced to wear prison uniforms or institutional wear.
    One 14-year-old Honduran asylum seeker remarked to the Women's 
Commission, `` I crossed a border, no more. But they treat me as if I 
am a criminal.
    Other boys here have used weapons and drugs. All I did was cross a 
border. I look at these four walls and go crazy.'' The boy had been 
held at the San Diego Juvenile Hall for four months.
    Children are allowed little privacy in the secure facilities. For 
example, during a Women's Commission's visit to the San Diego Juvenile 
Detention Center, a male guard was overseeing the girls' wing. From his 
control station, the girls' toilets and showers were in plain view. The 
doors to the toilets and showers, moreover, were only two to three feet 
in height, offering little privacy. Ironically, the boys' wing was 
monitored by female guards. Again, the toilets and showers were almost 
completely exposed to view and offered little privacy.
    Children in INS custody, moreover, may remain in secure detention 
for prolonged periods, in some cases much longer than the children who 
are held in county custody. For example, the administrators at the D.E. 
Long facility in Oregon indicated that Chinese children in the custody 
of the INS had remained in the facility for a prolonged period, noting 
``Our [county] kids are here for 30-90 days. We're just not equipped to 
handle a longer stay.'' One Chinese girl was detained in the facility 
for approximately six months before being granted asylum. Even then, it 
took the INS several more weeks to release her to her uncle.\20\
---------------------------------------------------------------------------
    \20\ Julie Sullivan, ``Political Asylum and a Child Behind Bars,'' 
The Oregonian, p. A1 (December 10, 1999).
---------------------------------------------------------------------------
    Many of the secure facilities used by the INS, of which there are 
approximately 90 nationwide, are located in rural areas far from the 
legal and other services that can assist children through their 
immigration proceedings.
    The remote location of many of these facilities has led to the use 
of video conferencing to conduct the children's immigration hearings in 
some INS districts, such as Philadelphia and Seattle. The use of video 
conferencing raises serious due process concerns, particularly for 
children.\21\ Attorneys who represent children held at Martin Hall in 
Spokane, Washington reported that their child clients are very confused 
by the video conference process, and in at least one case, reacted by 
answering ``no'' to every question the immigration judge posed. An 
attorney observed, ``Video hearings are a nightmare.''
---------------------------------------------------------------------------
    \21\ See Beth Lyon, ``Detainees Isolated in Remote County Jail for 
Hearings by Video,'' Detention Watch Network News (February 1998)
---------------------------------------------------------------------------
    Some facility staff have questioned the placement of INS-detained 
children in secure settings and the treatment they receive there. A 
caseworker who had worked at Martin Hall left his position at the 
facility partly out of concern over the treatment of children in INS 
custody. He indicated that the INS-detained children were viewed as a 
source of funding for the three counties which operate Martin Hall, and 
that the facility administration discouraged him from working with the 
children. He reported that his supervisors told him, ``Don't spend your 
time with the INS kids, they'll all be deported anyway.''
 VIII. Children in INS Custody Are Frequently Commingled with Youthful 
                               Offenders
    The Flores agreement forbids the commingling of children in INS 
custody with the general population of youthful offenders in secure 
facilities.\22\ However, the Women's Commission has documented numerous 
violations of this requirement, including in the Liberty County 
Juvenile Detention Center, TX; the Yuma County Juvenile Hall, AZ; the 
San Diego Juvenile Hall, CA; Martin Hall, WA; and D.E. Long Juvenile 
Detention Center, OR. In some cases, INS-detained children share cells 
with youthful offenders. The Women's Commission interviewed a 14-year-
old asylum seeker from Honduras in the San Diego facility who had 
shared a cell for four months with a boy serving time for assault and 
battery.
---------------------------------------------------------------------------
    \22\ It should be noted that the INS limits its reading of the 
Flores prohibition on commingling to apply only until a child is 
formally placed in secure.
---------------------------------------------------------------------------
    The Office of the Inspector General also found that the majority of 
secure facilities used by the INS did not segregate INS-detained 
children from delinquent youth.\23\ It reported that 34 out of 57 
facilities did not have procedures or facilities to properly segregate 
delinquent from non-delinquent youth. It further extrapolated that of 
the 1,933 instances of secure placement in 2000, 484 were likely to 
have been placement of non-delinquent children with delinquent children 
in facilities where the two populations are commingled.\24\
---------------------------------------------------------------------------
    \23\ ``Unaccompanied Juveniles in INS Custody,'' Office of the 
Inspector General, Report Number I-2001-009 (September 28, 2001), p. 2.
    \24\ Ibid.
---------------------------------------------------------------------------
    The INS generally provides little information to the juvenile 
detention centers about the children it places with them. This makes it 
extremely difficult for the facility to distinguish any special needs 
that the child may have.
    The administrator at the San Diego Juvenile Hall indicated that the 
INS provides scanty information about the children who are held at the 
facility. No files are transferred to the facility outlining why the 
child is in INS custody or the status of the child's immigration 
proceedings. The INS only provides the child's name, his ``A'' number, 
and the dates on which the child is to appear in immigration court.
    Facility administrators at the D.E. Long Juvenile Detention Center 
also expressed concern about the lack of information provided to the 
facility about children in INS custody. The facility received extensive 
media coverage when it was revealed that eight Chinese youth seeking 
asylum were housed there in 1999. One administrator observed, ``We 
found out more about the children from the interpreter than we did from 
the INS. The INS only gave us rudimentary information. No records came 
with the kids. We don't know if the kids are just undocumented or if 
they have been adjudicated delinquent. The INS doesn't differentiate 
between them.''
    The Office of the Inspector General reported that the juvenile 
coordinators in half of the INS Districts it visited failed to visit 
detained children on a weekly basis, as required under internal INS 
policy. This failure is in part due to heavy work loads and in part due 
to the remote location of many facilities.\25\
---------------------------------------------------------------------------
    \25\ Ibid., p. 3.
---------------------------------------------------------------------------
      IX. Children are Often Subject to Handcuffing and Shackling
    INS policy regarding the handcuffing and shackling of children 
during transport varies among districts. The San Francisco District, 
for example, does not handcuff or shackle children. The Los Angeles 
District does, however. Moreover, at the Tulare County Juvenile 
Detention Facility, a center that until recently was used by both 
districts, the facility administrator indicated that INS-detained 
children are shackled whenever they are taken outside their cell pod, 
including to go to the medical clinic on-site at the facility. During 
the Women's Commission's visit, it witnessed children in shackles 
squatting against a wall outside the medical clinic.
    The San Diego Juvenile Jail has a blanket policy requiring the use 
of restraints when children are transported or when they misbehave 
while in the facility. This includes handcuffs, shackles, and waist 
chains. Children in INS custody are not exempt from this policy.
    Children in INS custody at the San Diego facility are also subject 
to strip searches. Ironically, children who are status offenders are 
exempt from this policy. However, INS-detained children who have not 
committed a crime are still subject to strip searches. Strip searches 
are conducted after any visit the child receives with the exception of 
attorney visits.
    Children held at Martin Hall are subject to handcuffing and 
shackling when transported to the federal building in which their video 
hearings are conducted. They remain shackled during the hearing. The 
INS, however, indicated that this policy is in place due to the U.S. 
Marshals Service and disavowed responsibility itself, despite the fact 
that the children are in INS custody. The Seattle juvenile coordinator 
also noted that any use of handcuffs and shackles inside of Martin Hall 
is subject to the policies of Martin Hall, again disavowing any 
responsibility on the part of the INS.
    Facility administrators at the D.E. Long facility indicated that 
they witnessed children in INS custody subjected to handcuffing and 
shackling when transported.
    The San Diego Juvenile Hall administrator also indicated that the 
staff at the facility frequently use pepper spray to control the youth.
X. Conditions of Detention Generally Fail to Meet the Needs of Children
    Many of the secure facilities used by the INS are simply not 
equipped to meet the needs of newcomer children in immigration 
proceedings. This includes even basic communication, as translation 
assistance is rarely available in the juvenile detention centers with 
which the INS contracts and is often not even available in the INS 
shelters. In the Liberty County Juvenile Detention Center, for example, 
a Chinese boy appeared upset when he reported to the Women's Commission 
that there was no one in the facility who could speak Chinese. He also 
reported that he attends classes in the facility, but that he does not 
speak in class because his English was not good enough. A Guatemalan 
boy was transferred from a Miami shelter to an adult prison, because he 
failed to comply with instructions given to him by the shelter staff. 
However, he did not understand the instructions because he speaks only 
Mam and the staff spoke only Spanish.
    The administrator at the San Diego Juvenile Hall conceded that the 
diversity of languages spoken by INS-detained children and the lack of 
translation services are difficult for the facility to handle. He 
stated, ``It's hard for us. It creates a lot of problems.''
    The Portland INS District resisted providing adequate translation 
services to assist children who were detained at the D.E. Long 
facility. In response to a request from the facility for additional 
Chinese interpretation services, the INS responded that it would 
provide 12 hours of such services. When the facility advised the INS 
that it would need more than 12 hours of such services, the INS 
informed the facility that it would authorize further services on an 
emergency basis but that pre-approval for those expenses would be 
required. The INS officer also indicated that ``he was spending 
taxpayers' money and had to be very judicious in this regard.'' \26\
---------------------------------------------------------------------------
    \26\ E-mail from Ron G. Pitney to Rich K. Scott regarding ``INS 
Interpreter Services for Young Ladies'' (May 21, 1998).
---------------------------------------------------------------------------
    In some facilities, access to the outdoors is extremely limited. 
Children held at Martin Hall in Washington are not allowed outside 
every day. When they are allowed outside, it is typically for 20 
minutes at a time before classes. During the weekends, time outside is 
extended to 1-2 hours. The outdoor area is an extremely small cement 
area. A Guatemalan teenager held at Martin Hall told the Women's 
Commission that the children do not go outside at all on some days. 
When they do go outside, there is no sports equipment available. He 
said, ``We just stand around and talk.''
    Education programs at many of the facilities used by the INS are 
conducted in English. Moreover, they are often based on the assumption 
that children will be in the facility for a short period of time, and 
thus the classes are repetitive for children held for prolonged 
periods.
    Access to telephones is inconsistent among facilities. In secure 
facilities, children are typically forced to rely on collect calls or 
phone cards to make long distance calls, even to their attorneys. This 
undermines the ability of children without financial resources to reach 
out to their lawyers and families. Privacy is also an issue in some 
facilities, as the telephones are sometimes located in common areas.
    Children are also often cut off from religious services in their 
chosen faiths. This is sometimes due to the remote rural locations of 
the facilities. For example, the chaplain at the Tulare County Juvenile 
Detention Facility was only able to arrange visits from representatives 
of the Catholic and Evangelical faiths, even though many of the 
children held there were Buddhist. The San Diego Juvenile Hall provides 
Catholic and Protestant religious services, but is unable to provide 
Muslim or Buddhist services, as there are no representatives of those 
faiths available in the community.
  XI. Access to Secure Facilities Is Difficult for Human Rights Groups
    In August 2001, the Women's Commission sought access to twelve 
secure facilities used by the INS in California, Washington, Oregon, 
and Texas.
    To obtain access to the facilities, the Women's Commission wrote 
letters to the INS National Juvenile Coordinator and the local 
facilities themselves several weeks before the scheduled start of the 
tour. The INS Juvenile Coordinator expressed his support for the 
assessment. All but one center expressed its willingness to allow 
access to the Women's Commission, although in some cases the facility 
administrators indicated that they would also have to obtain approval 
from the INS district and/or regional offices. The administrator of the 
Marin County facility outright denied access for a visit, with the 
justification that a visit had recently been conducted by the law firm 
of Latham & Watkins and that he was disinclined to allow another visit.
    Given the cooperation from INS headquarters in Washington, DC, the 
delegation fully expected to receive a similar level of openness at the 
district and regional levels. However, this did not hold true. In the 
majority of cases, the delegation met with opposition when it 
approached the regional and district INS staff.
    Unfortunately, this resulted in the outright denial of access to 
some facilities and limitations to access in others. The Houston INS 
District forbid the delegation entrance entirely. Therefore, the 
delegation was only able to visit the Liberty County facility, and then 
only because it accompanied an attorney of a child detained there. As 
the visit was conducted under the rubric of an attorney/client visit, 
however, the delegation was unable to tour the facility. The delegation 
was denied any form of access to the Medina County Juvenile Detention 
Facility and the Catholic Charities Children's shelter. It should be 
noted that the Women's Commission was granted access to the Catholic 
Charities shelter in 1998, at which time it was impressed with the 
openness of the facility and the professionalism of the staff. That 
same year, it was also given full access to the Liberty County 
facility, about which it raised serious concerns regarding the punitive 
conditions of detention in the facility.
    The Women's Commission delegation's ability to access the 
facilities used by the San Francisco and Los Angeles INS Districts was 
somewhat more successful than in Texas, but still hampered by 
restrictions placed on the visits. It was allowed to tour Central 
Juvenile Hall, Los Podrinos Juvenile Hall, and Tulare County Juvenile 
Detention Facility, but was denied the ability to speak with INS-
detained children.
    This denial was particularly disturbing in the case of the Tulare 
Juvenile Detention Center. The delegation drove three and a half hours 
from Los Angeles to rural central California to reach the facility, 
accompanied by a Chinese interpreter, who was to facilitate interviews 
with several Chinese children detained in the center. The delegation 
had obtained the written permission of the attorney representing the 
children to interview her clients. Once the delegation arrived at the 
facility, however, the San Francisco INS District juvenile coordinator 
informed its members that they would not be allowed to speak with the 
children. The INS regional juvenile coordinator indicated that the 
prior approval of the children's attorney was insufficient to 
facilitate access, stating that he had no means to authenticate the 
letter, despite the fact that the letter was on letterhead and 
indicated the attorney's willingness to confirm her consent by 
telephone. Even after an on-site telephonic conversation with INS 
headquarters, the INS stood behind the position of the regional and 
district juvenile coordinators.
    The delegation's subsequent visit to the San Diego Juvenile Hall 
further confirmed the arbitrariness of INS policy regarding access to 
juvenile detention centers. The delegation met with no resistance from 
the San Diego facility administrators, was provided a thorough tour of 
the facility, and was allowed to speak with INS-detained children in 
private. The delegation had notified both the facility and the INS 
National Juvenile Coordinator of its intent to visit the facility, but 
in this case, the facility administrator apparently felt no need to 
confer with the INS San Diego District office.
    The delegation encountered further inconsistencies in INS policy 
during its visits to facilities in Washington and Oregon. Its visits to 
the Spokane County Juvenile Detention Center and the Grant County 
Juvenile Detention Center were open and unrestricted. However, it 
should be noted that the INS rarely uses either facility, and in fact, 
did not have children detained in either location at the time of the 
Women's Commission's visit.
    The delegation did encounter resistance to its visit to Martin 
Hall, which is used regularly by the INS. The INS Seattle District 
juvenile coordinator attempted to prevent the delegation from speaking 
with the children in INS custody. However, the delegation overcame her 
refusal because the children's attorney had accompanied the delegation 
and he insisted that the delegation be allowed to speak with his 
clients. The administrators of the D.E. Long Juvenile Detention Center 
in Oregon cooperated in the delegation's visit and provided a full tour 
of the facility. However, the INS has greatly curtailed its use of the 
Long center.
    The repeated denial of access to the Women's Commission delegation 
was troubling on a number of fronts. First, there currently exists no 
written policy on access to children's facilities, even though the INS 
has issued written guidelines for such visits to adult detention 
centers.\27\ The delegation operated in good faith and relied on the 
expression of cooperation from the national juvenile coordinator. The 
ability of local INS officers to override the authority of the INS 
headquarters is confusing and reflective of a flawed management 
structure that permeates the policies and procedures for handling 
children in the custody of the INS. Subsequent to the delegation's 
tour, INS headquarters indicated that it would develop a written access 
policy but to date no such policy has been issued.
---------------------------------------------------------------------------
    \27\ Immigration and Naturalization Service, Detention Operation 
Manual, ``Visitation'' (September 20, 2000).
---------------------------------------------------------------------------
    Second, the ability of human rights organizations such as the 
Women's Commission to evaluate U.S. treatment of children newcomers 
hinges on access to such facilities. Such organizations can play a 
valuable role in assessing current practices and offering 
recommendations for reform.
    Third, the INS's denial of access to the Women's Commission 
delegation was also questionable in its legality in one important 
aspect. An attorney designated under the Flores agreement as an 
attorney of record for all children in INS custody with regard to their 
conditions of confinement was a part of the Women's Commission 
delegation. Under the Flores agreement, such attorneys are to be given 
unfettered access to children in INS detention. The INS failed to 
adhere to this Flores requirement, however, even for this attorney. Its 
stated rationale for this was that the attorney was ``switching hats'' 
and that for purposes of the Women's Commission delegation was unable 
to act as a Flores attorney. It persisted in this justification even 
when the Women's Commission agreed to back off its own request for 
access in order to facilitate a Flores visit by the Flores attorney, 
even though under the agreement such attorneys may designate additional 
parties for purposes of a Flores visit.
    The INS would be better served if it welcomed a public/private 
partnership with organizations with expertise in immigration, refugee 
protection, and children's rights and was transparent about its 
policies and practices, including access to children's facilities. 
While clearly the INS must regulate visits to the facilities in order 
to ensure the safety of the children and the smooth operation of the 
facilities, an arbitrary denial of such visits, or an effort to create 
an artificial impression of conditions in such facilities, does not 
serve either goal.
   XII. INS-Detained Children are Sometimes Wrongfully Held in Adult 
                           Detention Centers
    The Women's Commission has followed many cases in which youth under 
18 years of age have been incorrectly identified by the INS as adults. 
This misclassification as adults carries serious consequences for the 
handling of the youth's cases and their placement in detention. Adults 
may be immediately returned to their home countries under the system of 
expedited removal unless they express a fear of return, whereas 
children under age 18 may not.\28\ Moreover, young people misidentified 
as adults may be commingled with adults in adult INS detention centers 
or prisons.
---------------------------------------------------------------------------
    \28\ ``Unaccompanied Minors Subject to Expedited Removal,'' 
Memorandum from the INS Office of Programs (August 21, 1997).
---------------------------------------------------------------------------
    Mekabou Fofana, a Liberian teenager, described his experience in 
detention after the INS misclassified him as an adult,

        ``I arrived at JFK International Airport on July 11, 1999, nine 
        days before my 16th birthday. . . .I was taken to the Wackenhut 
        Detention Center in Queens, New York. I was held at an adult 
        facility even though I was a minor, because the INS claimed 
        that they could tell that I was over 18 from a dental 
        examination. I was detained at Wackenhut for about six months. 
        I was very sad at Wackenhut because I was put with adults and I 
        wasn't supposed to be with them. . . .I was transferred to 
        Lehigh County Prison, a criminal prison in Pennsylvania--moving 
        me far from my family and my pro bono lawyers. I was detained 
        there with criminals for one week. I felt like I was treated 
        like a criminal. I was the youngest one among them and was very 
        scared that the criminal detainees would hurt me. My cellmate 
        had killed someone and would tell me about the crimes he had 
        done. I was so afraid that I couldn't sleep at night. . . .I 
        was transferred to York County Prison, another remote detention 
        facility in Pennsylvania. I was detained there about five 
        months....I felt like my life was finished. I was too young to 
        be there.'' \29\
---------------------------------------------------------------------------
    \29\ Testimony of Mekabou Fofana, before the Senate Committee on 
the Judiciary Immigration Subcommittee (May 3, 2001).

    Mekabou was detained as an adult for one and a half years before 
being granted asylum by the Board of Immigration Appeals.
    To determine the age of young people whose age is not readily 
apparent, the INS relies primarily on dental radiography exams. Such 
exams base age assessments on the eruption patterns of teeth. Dental 
experts have questioned the use of such exams for definitive age 
determinations. For example, in a letter to the Women's Commission, Dr. 
Herbert H. Frommer, DDS, Professor and Chair of Radiology at New York 
University, concluded, ``It is my opinion that it is impossible to make 
an exact judgement based on radiographs of whether an individual is 
above or below the age of 18.'' \30\ Other experts have echoed Dr. 
Frommer's concerns.\31\
---------------------------------------------------------------------------
    \30\ Letter from Herbert H. Frommer, DDS, Professor and Chair of 
Radiology New York University, to Rachel K. Jones, Fellow, Women's 
Commission for Refugee Women and Children (August 7, 1997).
    \31\ See letter from Neil Serman, BDS, DDS, MS(Rad), Professor and 
Head, Division of Oral Radiology, Columbia University School of Dental 
and Orayl Surgery, to Rachel Jones, Fellos, Women's Commission for 
Refugee Women and Children (August 21, 1997) (noting that there is 
great variation in age in eruption patterns of teeth); Alan Elsner, 
``New York Dentists Can Settle Fate of Migrants,'' Reuters (January 11, 
2002) (citing concerns from dental experts that dental x-rays cannot 
accurately identify a person's age).
---------------------------------------------------------------------------
    These concerns are also shared by the Department of State. It 
discontinued the use of bone testing to establish age in 1998 out of 
recognition that ethnic and individual variations in development may 
also be exacerbated by cultural differences, malnutrition, and 
disease.\32\
---------------------------------------------------------------------------
    \32\ Alan Elsner, ``New York Dentists Can Settle Fate of 
Migrants,'' Reuters (January 11, 2002).
---------------------------------------------------------------------------
                XIII. INS Transfer Policies for Children
    The INS has designated all bed spaces as ``national.'' This means 
that any INS district can request transfer and placement of a child to 
wherever a shelter, foster care, or secure placement is available. This 
policy is critical to ensuring that the Flores mandate of placement in 
the least secure setting possible is fulfilled, as many INS districts 
lack shelter care facilities in their jurisdictions. However, it also 
means that children are frequently transferred hundreds or thousands of 
miles from their original port of arrival into the United States, even 
if their family members or attorneys are located at that site.
    Transfers of children, in fact, occur frequently and often seem to 
be conducted for arbitrary reasons that have more to do with the 
logistical concerns of the INS than to do with the best interests of 
the child. Moreover, the attorney representing the child is often not 
notified of the transfer ahead of time, even though this is required 
under the Flores agreement.
    The experience of three Guatemalan youth demonstrates the 
disruption caused by transfers. In March 2001, three Guatemalan youth 
ranging in age from fifteen to seventeen were given 30 minutes notice 
in which to pack their bags and prepare for transfer from Miami to 
Chicago. Two of the three youngsters had been held in a Miami shelter 
facility for more than a year. The third had recently arrived and was 
scheduled for her first immigration court appearance the next day. 
Despite this, their attorney, who works for a local charitable 
organization, was not notified of the transfer and only found out when 
she arrived at the shelter the next day. The INS meanwhile had 
convinced the immigration judge to change venue over the case to 
Chicago, thus precluding her continued representation of the three 
youth. The attorney was given several justifications for the transfer 
from the INS Miami District, including a lack of bed space and an 
influx of Colombian children. However, she discovered that the shelter 
in Miami was in fact not full and that only three Colombian children 
were housed there.
XIV. Children Lack the Services Needed to Navigate the U.S. Immigration 
                                 System
    Also absent in the current system for children in INS custody are 
professionals who can assist children through their immigration 
proceedings. Less than half of the children in INS custody are 
represented by counsel. U.S. law also fails to appoint guardians ad 
litem to unaccompanied children.
    The Women's Commission was pleased and encouraged by the INS's 
issuance of ``Guidelines for Children's Asylum Claims'' in 1998. The 
United States is only the second country in the world to establish a 
framework for the consideration of children's asylum claims. The 
Guidelines are groundbreaking in their comprehensive establishment of 
legal, evidentiary, and procedural standards to guide adjudicators.
    However, the continuing success of the Guidelines in identifying 
and ensuring protection of refugee children will hinge in large part on 
the adequacy of the assistance they are provided to navigate U.S. 
asylum law. Children must be provided the assistance of counsel and 
guardians ad litem to identify any relief for which they may be 
eligible and to advocate for such relief in immigration court. Asylum 
proceedings are extraordinarily complex, and a recent study revealed 
that represented asylum seekers are 4-6 times more likely to win their 
asylum cases.\33\ The ability of children who remain unrepresented to 
win their cases is even more questionable given their inherent lack of 
capacity to understand the proceedings in which they have been placed.
---------------------------------------------------------------------------
    \33\ Memorandum from Andrew Schoenholtz, Georgetown University 
Institute for the Study of International Migration (Washington, D.C.: 
September 12, 2000).
---------------------------------------------------------------------------
    The American Bar Association, working in cooperation with 
charitable organizations, local bar associations, and law firms such as 
Latham & Watkins, has done an extraordinary job of raising awareness 
about the needs of children in immigration proceedings and increasing 
the pro bono services available to them. However, the practical reality 
for most detained children is that they cannot afford or cannot access 
legal counsel. Moreover, they may not be aware of the importance of 
counsel to their cases. In addition, the sheer number of detention 
facilities in which children in INS custody are detained, combined with 
the remote location of many of these facilities, create innumerable 
obstacles which charitable legal services organizations lack the 
resources to overcome. The lack of legal representation results in 
sometimes ludicrous situations; in one case, an 18-month-old toddler 
appeared at a master calendar hearing before an immigration judge with 
no attorney or other adult representative to help her.
    Also out of step with the practice of other countries, as well as 
the practice in other areas of U.S. law such as abuse and neglect 
proceedings, is the fact that unaccompanied children in immigration 
proceedings are not appointed guardians ad litem. A guardian could 
facilitate the child's participation in his or her immigration 
proceeding by helping the child to understand the proceedings and 
encouraging the child to participate to the fullest extent possible in 
the proceedings. The guardian could also gather information regarding 
the reasons why the child is in the United States, advising the child's 
attorney and the immigration judge about the circumstances of the 
child.
    The experience of two young Indian children who appeared before an 
immigration judge in Chicago demonstrates the efficacy of appointing 
guardians ad litem to unaccompanied children. The attorney representing 
the children had struggled to understand the children's situation and 
reasons for being in the United States. After the immigration judge had 
agreed to the appointment of a guardian, who was a trained social 
worker, the guardian quickly determined that the 8-year-old boy wished 
to return to his parents in India, who then readily agreed to accept 
his return. The 11-year-old girl, on the other hand, revealed for the 
first time to the guardian that she had been subjected to severe child 
abuse and had been sold by her parents to traffickers. The guardian 
testified at their immigration hearing and the child was granted 
asylum.
    The lack of adult assistance available to children asylum seekers 
means that many of them give up hope and agree to deportation; in some 
cases, children had actually earlier espressed a fear of return. In 
other cases, children are forced to struggle through their immigration 
proceedings alone with an inadequate understanding of the laws and 
procedures that dictate the handling of their cases.
                             XV. Conclusion
    The Women's Commission remains gravely concerned about the 
disturbing lack of attention to the needs and rights of children asylum 
seekers and other young newcomers who are in the custody of the INS. 
The frequent failure to make individualized determinations with regard 
to each child's placement and psycho-social needs leads to an 
inconsistent and ad hoc system based more on the logistical needs of 
the agency charged with their care and its institutional bias toward 
law enforcement than on the needs of the child. Consideration of the 
best interest of the child, the cornerstone of child welfare policy and 
practice, is a concept that continues to allude the policies and 
practices of the INS. While we appreciate INS Commissioner James 
Ziglar's stated commitment to improving the agency's handling of 
children, we do not believe that the agency has the expertise to 
adequately take into account the unique needs of this vulnerable 
population.
    We strongly support the approach of S. 121, which shifts the care 
of custody of children to an appropriate office with no interest in the 
outcome of the child's immigration proceedings and leaves the INS to 
perform the functions it does best: the enforcement of U.S. immigration 
laws. The development of an Office of Children's Services and the 
provision of legal counsel and guardians ad litem to unaccompanied 
children is not only a humane solution to the problems outlined above, 
it is also a cost-effective solution. S. 121 puts in place the 
structure and resources necessary to quickly identify an appropriate 
outcome to each child's case, safely returning those children who are 
not eligible for relief from removal to their homelands and quickly 
moving those children who are provided relief into stable, home-like 
foster care settings where they can begin their lives anew.
    In conclusion, one true measure of a society is its treatment of 
children. The United States must acknowledge and uphold and rights and 
needs of newcomer children in order to live up to its reputation as a 
leader in human rights and a nation that cherishes and protects 
children. We urge Congress to expeditiously pass S. 121, legislation 
that ensures a holistic, human, and effective approach to newcomer 
children.
    Thanky you for considering out input on this. I would be happy to 
address any questions you may have.

    Chairman Kennedy. Very, very helpful and knowledgeable, but 
troubling comments. Thank you.
    Mr. Morton?

STATEMENT OF ANDREW D. MORTON, LATHAM AND WATKINS, WASHINGTON, 
                              D.C.

    Mr. Morton. Good afternoon, Chairman Kennedy, Senators 
Brownback and Feinstein. We thank you for convening this 
hearing.
    I appreciate the opportunity to share my experiences 
working on behalf of the vulnerable population of unaccompanied 
alien juveniles in INS custody. We appreciate your support of 
the Unaccompanied Alien Child Protection Act, bipartisan 
legislation that will bring objectivity, efficiency, and 
accountability to the custodial care of these children.
    My testimony today focuses on a key deficiency in the 
current system of custodial care for these unaccompanied alien 
juveniles, the need for safeguards of legal counsel while 
children are detained through the pendency of an immigration 
proceeding. This bill would foster a network of pro bono 
private attorneys, as well as create a safety net of court-
appointed counsel for those rare instances where pro bono 
representation is not available.
    In the seminal case establishing a child's right to counsel 
under domestic law, Judge Fortas wrote, ``The juvenile needs 
the assistance of counsel to cope with problems of law, to make 
skilled inquiry into the facts, to insist upon regularity of 
the proceedings, and to ascertain whether he has a defense and 
to prepare and submit it. The child requires the guiding hand 
of counsel at every step in the proceedings against him.''
    Those words ring as true today as 35 years ago, and as true 
for undocumented minors as for juveniles in domestic 
proceedings. Mr. Chairman, they should ring as true for members 
of this Congress as they did for the Justices of the U.S. 
Supreme Court.
    During the adjudication of every removal proceeding, the 
Government is represented by INS staff attorneys who are 
trained and experienced in prosecuting violations of 
immigration law. In contrast, more than half of unaccompanied 
juveniles now appear in court with a lawyer, a guardian or 
adult assistance of any kind. Without such objective and 
informed support, it is impossible to ensure a detained child's 
due process rights and it is not feasible to expect a 
determination truly based on a full consideration of each 
child's individual circumstances.
    This lack of legal assistance is especially troubling, 
given the life-altering decisions that are reached in asylum 
cases and other immigration-related adjudication. Alarmingly, 
these same children that we do not permit to be unaccompanied 
in some department stores and movie theaters are expected to 
fend for themselves alone in a court of immigration law.
    Notably, in other legal proceedings, children regularly are 
appointed attorneys to assist them through the process. For 
juvenile appearances in many State courts, ranging from 
delinquency hearings, to civil suits, to allegations of 
parental abuse and neglect, States, including Massachusetts, 
Kansas and California, mandate the appointment of counsel to 
ensure a fair and objective adjudication for minors who are 
ill-equipped to represent themselves.
    Surprisingly, under the present system INS functions as 
legal guardian for each and every one of these children. Thus, 
the responsibility to care for the well-being of these 
juveniles lies with the very agency whose primary mission is to 
secure the deportation of undocumented aliens. The obligation 
to ensure decisions in the child's legal interest falls upon a 
Government bureaucracy with no child welfare expertise and with 
an incurable predisposition toward law enforcement motives.
    Every daily assessment affecting custodial care, and more 
critically the final determinations of appropriate substantive 
relief, constantly is vulnerable to this unsettling conflict of 
interest. INS now has the incompatible yet simultaneous roles 
as caregiver, prosecutor, and jailer.
    And most troubling, in the absence of counsel to advocate 
and safeguard a child's legal interests, each and every INS 
decision respecting the well-being of a detained and 
unrepresented child remains completely unchecked. My written 
testimony outlines the litany of examples that document this 
conflict and its appalling effects.
    As Americans, we never would stand for a system where the 
district attorney serves as public defender in the same case. 
For these same reasons, the INS, with its primary mission of 
immigration law enforcement, simply cannot ensure the legal 
interests of an unrepresented child. They should not want that 
responsibility, they should not have that responsibility. The 
system is to blame and the system must be fixed.
    Without appropriate legal assistance, many abused, 
abandoned and neglected children with valid claims to asylum or 
the special immigrant juvenile visa face tremendous obstacles 
to accessing these legal remedies. By the same token, without 
counsel to review each child's circumstances, the system is 
clogged with the inefficiencies of cases for which there is no 
substantive relief.
    Often, it will be the conclusion of an attorney that no 
legitimate immigration claim is available and the client 
properly is advised to accept voluntary departure. This was 
exactly the case in Latham and Watkins' first child refugee 
case. Without this legal analysis, countless children risk 
being removed and returned to violent situations and subjected 
to further human rights abuses. The role of counsel simply 
cannot be underestimated in these high-stakes proceedings which 
necessarily result either in securing appropriate immigration 
relief or, on the contrary, to the potentially uncertain fate 
of deportation.
    As Judge Creppy has testified, immigration judges are 
reluctant to issue a final order of removal against an 
unrepresented child, and instead continue the case, in his 
words, two, three, four, five times, resulting in protracted 
detention in juvenile jails and institutional shelters. Not 
only does this prolong confinement and inflict an unnecessary 
and substantial emotional cost on these young children, but at 
contracted daily rates of up to $250 a day, the lack of 
representation inflicts a substantial cost on the budget as 
well, needlessly wasting taxpayer dollars on extended detention 
and repeated court proceedings. Having the assistance of 
counsel for these juveniles invariably would speed the 
adjudication process and minimize both the emotional harm of 
detaining a child and the senseless taxpayer cost of an 
inefficient system.
    Mr. Chairman, the advocacy of an attorney for alien 
juveniles is essential to secure bedrock American principles of 
due process and equal justice under law. Moreover, access to 
counsel is of paramount importance to safeguard against the 
conflict of interest and unchecked authority inherent in INS 
legal custody.
    By implementing a system to grant representation to 
unaccompanied alien juveniles, the entire immigration process 
will be resolved in a manner that is more effective, more 
efficient, and more just. Mr. Chairman, I urge your support of 
the Unaccompanied Alien Child Protection Act and I welcome your 
questions.
    Thank you.
    [The prepared statement of Mr. Morton follows:]

  Statement of Andrew Morton, Attorney, Latham & Watkins, Washington, 
                                  D.C.

    ``The juvenile needs the assistance of counsel to cope with 
problems of law, to make skilled inquiry into the facts, to insist upon 
regularity of the proceedings, and to ascertain whether he has a 
defense and to prepare and submit it. The child requires the guiding 
hand of counsel at every step in the proceedings against him''--Justice 
Abe Fortas, In re Gault \1\
---------------------------------------------------------------------------
    \1\ 387 U.S. 1 (1967).
---------------------------------------------------------------------------
    Chairman Kennedy, Senator Brownback, Senator Feinstein, members of 
the Committee-good afternoon, and thank you for convening this hearing 
on the conditions of confinement and governing legal standards faced by 
unaccompanied alien juveniles detained by the Immigration and 
Naturalization Service (INS). My name is Andrew Morton, and I am an 
Associate practicing with the Government Relations Group of the law 
firm of Latham & Watkins (``Latham''), which currently includes over 
1,400 attorneys in twenty offices throughout the world. I appreciate 
the opportunity to testify and share my experiences working on behalf 
of this vulnerable population of children.
    I also strongly encourage your support of S. 121, the 
``Unaccompanied Alien Child Protection Act''-critical bipartisan 
legislation that would bring objectivity, efficiency, and 
accountability to the system of custodial care affecting these 
children.
        I. THE NEED FOR COUNSEL IN JUVENILE REMOVAL PROCEEDINGS
    My testimony today focuses on a key deficiency in the current 
system of custodial care for the nearly five thousand unaccompanied 
alien juveniles apprehended annually by the INS-the critical need for 
these children to receive the guidance and safeguards of legal counsel 
while detained through the pendency of an immigration proceeding. 
Enacting S. 121, the ``Unaccompanied Alien Child Protection Act,'' 
would remedy this need by fostering a network of pro bono private 
attorneys, as well as by creating a safety net of court-appointed 
counsel for the rare instances where pro bono representation is not 
available.
    These unaccompanied alien children detained and taken into legal 
custody by the INS range in age from toddlers to teens. Most lack even 
the most basic English skills, to say nothing of understanding the 
complex legal provisions that govern the standards of detention and 
various forms of substantive immigration relief. Many are the victims 
of smuggling and trafficking operations, meaning that they had no 
involvement and should not be punished for the circumstances that led 
to their undocumented arrival in the United States. Perhaps for the 
first time, each unaccompanied juvenile is experiencing separation from 
family, so quite understandably they become frightened, confused, and 
depressed. Frequently they are detained in facilities with no one to 
whom they can speak in their native language-or even are restricted to 
an ``English only'' rule in some facilities when fortunate enough to be 
detained with another native speaker. In any event, the vast majority 
are without the guidance and support of a responsible adult to speak on 
their behalf, let alone competent legal counsel to evaluate their 
situation and advise them of their rights.
    In the seminal case establishing a child's right to counsel in 
domestic law, Justice Abe Fortas wrote that ``[t]he juvenile needs the 
assistance of counsel to cope with problems of law, to make skilled 
inquiry into the facts, to insist upon regularity of the proceedings, 
and to ascertain whether he has a defense and to prepare and submit it. 
The child requires the guiding hand of counsel at every step in the 
proceedings against him.'' \2\ His words ring as true today as thirty-
five years ago, and as true for undocumented minors as for juveniles in 
domestic proceedings. Mr. Chairman, they also should ring as true for 
the members of this Congress as they did for the Justices of the United 
States Supreme Court.
---------------------------------------------------------------------------
    \2\ In re Gault, 387 U.S. 1 (1967).
---------------------------------------------------------------------------
    During the adjudication of every undocumented child's removal 
proceeding, the government is represented before immigration judges by 
INS staff attorneys who are trained and experienced in prosecuting 
violations of immigration law. Of these nearly five thousand 
unaccompanied juveniles apprehended annually by INS, however, as many 
as 80% appear in an immigration court without the benefit of a lawyer, 
a guardian ad litem, or adult assistance of any kind. Often these 
children are placed in remote contract facilities-great distances from 
urban centers where willing pro bono attorneys may be located and 
trained. Without such objective and informed assistance, it is 
impossible to ensure that a detained child's due process rights are 
respected. Moreover, it is not feasible to expect a proper 
determination in their case that truly is based on a full consideration 
of the individual child's circumstances. This lack of legal assistance 
is especially troubling given the life altering decisions that are 
reached in asylum cases and other immigration related adjudication. 
Alarmingly, these same children who we do not permit to be 
unaccompanied in some movie theaters and department stores are left to 
fend for themselves in a court of immigration law.
    In United States legal proceedings apart from the context of 
immigration, children regularly are appointed attorneys to assist them 
through the process. In fact, for a wide variety of juvenile state 
court proceedings-ranging from delinquency charges, to civil suits, to 
allegations of abuse and neglect-states such as California, Kansas, 
Massachusetts, Ohio, and Pennsylvania mandate the appointment of 
counsel to ensure a fair and objective adjudication to the benefit of 
minors, who invariably are ill-equipped to represent themselves.\3\
---------------------------------------------------------------------------
    \3\ See, e.g. Cal. Welfare and Institutions Code Sec. 317 (2002) 
(``Where a child is not represented by counsel, the court shall appoint 
counsel for the child. . . .''); Iowa Code Ann. Sec. 232.126 (2000) 
(``The court shall appoint counsel or a guardian ad litem to represent 
the interests of the child . . . unless the child already has such 
counsel or guardian.''); Kan. Stat. Ann. Sec.  60-217 (2000) (``[T]he 
court shall appoint a person who is an attorney to serve as guardian ad 
litem for a child. . . .''); Mass. Gen. Laws ch. 119, Sec. 29 (2001) 
(``[A] child shall have and shall be informed of the right to counsl at 
all hearings, and if said child is not able to retain counsel, the 
court shall appoint counsel for said child.''); Ohio Rev. Code Ann. 
Juv. R.4 (2001) (``Every party [in a juvenile proceeding] shall have 
the right to be represented by counsel. . . . When the compliant 
alleges that a child is an abused child, the court must appoint an 
attorney to represent the interests of the child.''); PA, Cons. Stat. 
Ann. TiT. 42, Sec. 6311 (2002) (``[T]he court shall appoint a guardian 
ad litem to represent the legal interest and the best interests of the 
[dependent] child. The guardian ad litem must be an attorney at law.'')
---------------------------------------------------------------------------
    Surprisingly under the present system, however, the responsibility 
to care for the well-being of these juveniles lies with the INS itself-
the very agency whose primary mission is to secure the deportation of 
undocumented aliens-which accepts and maintains the legal custody of 
each and every one of these children. In essence, the sensitive 
obligation to ensure decisions in the child's legal interests falls 
upon a government bureaucracy with absolutely no child welfare 
expertise, and with an incurable predisposition towards law enforcement 
motives. Thus, daily assessments affecting custodial care-and more 
critically the final determinations of appropriate substantive relief-
constantly are vulnerable to the agency's inherent conflict of 
interest, given INS's incompatible yet simultaneous roles as caregiver, 
prosecutor, and jailer. And most troubling, in the absence of legal 
counsel to advocate on behalf of a child and safeguard legal interests, 
each and every INS decision respecting the well-being of a detained and 
unrepresented child remains completely unchecked.
    As Americans we would not stand for a system where the district 
attorney serves as a public defender, or where an arresting officer is 
appointed the guardian ad litem for a juvenile. For the same reasons, 
Mr. Chairman, the INS with its primary mission of immigration law 
enforcement simply cannot be expected to ensure the legal interests of 
an unrepresented child. The system is to blame for this ineffectual 
situation, and that system must be fixed.
      II. RESPONSIBILITIES OF COUNSEL FOR UNACCOMPANIED JUVENILES
    Effective representation for these vulnerable children includes all 
aspects of ensuring the legal interests of the child that arise during 
often complicated and protracted immigration proceedings. Such issues 
include conferring with the INS to secure that a child is detained in 
the least restrictive setting appropriate; evaluating the child's 
ability to access any available forms of immigration relief; filing 
applications, pleadings, and motions before immigration judges; 
representing the child during hearings and asylum interviews; 
safeguarding proper INS compliance with transfer and age determination 
requirements; and attempting to reunite children with parents or 
suitable adult relatives living in the United States or abroad.
    Because the current system lacks a procedure for ensuring that 
every child is afforded the opportunity to receive appropriate legal 
assistance, however, many abused, abandoned, and neglected children 
with valid claims to asylum or the special immigrant juvenile visa face 
tremendous obstacles in accessing these legal remedies. By the same 
token, without counsel to review each child's circumstances, the system 
is clogged with the inefficiencies of cases for which there is no 
substantive relief available-often it would be the conclusion of an 
attorney that no immigration relief is available, and the client 
properly is advised to accept voluntary departure. But without this 
objective legal analysis, countless undocumented children in the United 
States risk being removed and returned to violent situations in a home 
country where they will be subjected to further human rights abuses. 
The role of counsel simply cannot be underestimated in these high-
stakes proceedings, which necessarily result either in securing 
appropriate immigration relief, or on the contrary to the potentially 
uncertain fate of deportation.
    Knowing this, immigration judges may be reluctant to issue a final 
order of removal against an unrepresented child and instead choose to 
continue the case, necessarily resulting in protracted detention in 
juvenile jails and institutional INS shelters. Not only does this 
prolonged confinement inflict an unnecessary and substantial cost on 
the emotional development of these young children, but at contracted 
daily rates of up to $250/day, the consequence of having children 
appear without representation inflicts a substantial cost on the budget 
as well-needlessly wasting taxpayer dollars spent on extended detention 
and repeated court proceedings. Having the assistance of counsel for 
these juveniles, however, invariably would lead to structural 
improvements that will speed adjudication, and minimize both the 
emotional harm of detaining a child and the taxpayer cost of an 
inefficient system.
    Furthermore, apart from the unassailable need for counsel when 
navigating the various forms of potential substantive immigration 
relief, the presence of an attorney is critical to secure rigid 
adherence with the laws and regulations that govern a detained 
juvenile's conditions of confinement. Over the past year, Latham 
attorneys have inspected numerous facilities that contract with the INS 
to house unaccompanied minors, and have conducted interviews with 
countless detained children. During the course of this review and 
oversight, our efforts have uncovered widespread and egregious 
violations of the conditions of confinement mandated by the Flores v. 
Reno consent decree, a 1997 settlement agreement that forms the basis 
of legal standards to which the INS must adhere when taking legal and 
physical custody of an unaccompanied minor.\4\ Many of these findings 
were confirmed by the Department of Justice Office of the Inspector 
General's ``Report on Unaccompanied Children in INS Custody'' \5\ 
(``OIG Report''). Representative examples of violations include the 
following:
---------------------------------------------------------------------------
    \4\ See Stipulated Settlement Agreement, Flores v. Reno, Case No. 
CV-85-4544-RJK (C.D. Cal. 1996), available at http://
www.centerforhumanrights.org/floresSettle.html.
    \5\ U.S. Department of Justice, Office of the Inspector General, 
Unaccompanied Juveniles in INS Custody, Rep. No. I-2001-009 (Sept. 28, 
2001), available at http://www.usdoj.gov/oig/i0109/index.htm 
[hereinafter Report].

        `` Children must be placed in the ``least restrictive setting 
        appropriate'' \6\ under the circumstances, however, last year 
        INS detained nearly two thousand children in secure facilities 
        (i.e., juvenile jails), and more than eighty percent of these 
        minors were non-delinquent juveniles.\7\ This is the case 
        notwithstanding the INS's continuing obligation to transfer a 
        non-delinquent juvenile from secure confinement into a licensed 
        shelter care program ``as expeditiously as possible.'' \8\
---------------------------------------------------------------------------
    \6\ Flores para. 11 (``The INS shall place each detained minor in 
the least restrictive setting appropriate. . .'').
    \7\ See Report, ch. 2 (documenting that non-delinquents accounted 
for 1,569 of the 1,933 secure detentions).
    \8\ Flores para. 12(A)(3).
---------------------------------------------------------------------------
        `` Non-offender alien juveniles in secure confinement must at 
        all times be provided with sight-and-sound separation from 
        adjudicated delinquents,\9\ yet the majority of the secure 
        facilities housing undocumented minors have no such segregation 
        procedures in place.\10\ In fact, many of these facilities 
        commingle non-offenders with delinquents as a matter of 
        necessity, lacking the physical structure to separate the two 
        populations. In one instance during a Latham inspection, a non-
        offender INS detainee was assigned to share a tiny jail cell 
        with a violent juvenile delinquent convicted of felony drug 
        possession and assault with a deadly weapon.
---------------------------------------------------------------------------
    \9\ See Flores para. 12 (``[M]inors shall be separated from 
delinquent offenders.'')
    \10\ See Report, ch. 2 (noting that thirty-four of fifty-seven 
secure facilities housing INS juveniles in FY 2000 cannot guarantee 
segregation of non-delinquent INS juveniles from the population of INS, 
county, and state delinquent juveniles).
---------------------------------------------------------------------------
        `` Flores provides for the prompt release of unaccompanied 
        minors to responsible adults based on an established ``order of 
        preference,'' which includes parents, designated legal 
        guardians, and close relatives.\11\ Current INS procedure, 
        however, does not permit an unaccompanied minor's released to 
        appropriate related adults when the agency believes that an 
        undocumented parent is in the United States. Instead, INS may 
        use the minor as bait, requiring the undocumented parent to 
        come forward under a threat of the child's protracted 
        detention, and then placing the parent into removal proceedings 
        on arrival to claim their children.\12\
---------------------------------------------------------------------------
    \11\ Flores para. 14; see also Report ch. 4 (``The Flores 
agreement, while preferring a parent or legal guardian, did not seem to 
prohibit passing over them to one of the family members specified.'').
    \12\ See Report, at Exsec. Summary (``An undocumented parent must 
report to an INS officer and enter immigration court proceedings before 
the INS will release the juvenile. If the parent is unwilling to come 
forward, the juvenile will remain in INS custody, even when another 
acceptable sponsor is available'').
---------------------------------------------------------------------------
        `` INS policy specifically prohibits a contract facility from 
        the use of restraints for non delinquent juveniles.\13\ Latham 
        interviews and the OIG Report confirm, however, that standards 
        are not in place to document compliance, more than one half of 
        facilities ignore this procedure, and non-delinquent children 
        routinely are shackled during transport, movement within 
        facilities, and appearances in immigration court 
        proceedings.\4\
---------------------------------------------------------------------------
    \13\ See Immigration and Naturalization Service, Detention and 
Deportation Officers' Field Manual, at VII.C.2.a (``Agencies handling 
non-criminal juveniles under contract or inter-agency agreement with 
the Service do not have the authority to restrain such juveniles.'').
    \14\ See Report, ch. 2 (``Contract guards and secure facilities 
under contract with the INS or that have signed interagency agreements 
with the INS, as a regular course of action, restrain in INS's 
unaccompanied non-delinquent juveniles during transport.'').
---------------------------------------------------------------------------
            III. THE LATHAM & WATKINS CHILD REFUGEE PROJECT
    In March, 2001, after learning of this vast need for representation 
of unaccompanied alien juveniles, Latham created a firm-wide pro bono 
effort titled the ``Child Refugee Project.'' The project involves three 
aspects of legal representation, each benefiting this largely unaided 
and at risk population of undocumented minors. First, the firm serves 
as pro bono counsel to the Women's Commission for Refugee Women and 
Children, a non-profit research and advocacy organization dedicated to 
protecting refugee women and children around the world. Together, 
Latham and the Women's Commission-in conjunction with dozens of non-
profit advocacy groups-formed a wide-ranging coalition to support S. 
121 and H.R. 1904, the ``Unaccompanied Alien Child Protection Act.'' 
Owing to extensive efforts by the dedicated members of this coalition, 
the bill enjoys broad bipartisan support in both chambers of Congress.
    In addition, Latham became co-counsel with the Center for Human 
Rights and Constitution Law (CHRCL), the non-profit legal service 
provider that served as attorneys to the plaintiff class of 
unaccompanied alien juveniles in the landmark Flores case. Despite the 
INS's failure over the past five years to promulgate regulations that 
would codify these requirements, the settlement agreement contained a 
sunset provision that this month would have resulted in the expiration 
of these legal standards, leaving unaccompanied children with no basis 
for a legal challenge to individual conditions of confinement. Through 
persistent discussions with the INS, however, Latham and CHRCL were 
able to negotiate the republication of a proposed rule that will codify 
the agreement into regulations.\15\ Further, the negotiations led to a 
stipulation that modifies the sunset date of the Flores consent decree-
extending the required adherence of its provisions until 45-days after 
the INS publishes those regulations as a final rule.
---------------------------------------------------------------------------
    \15\ Processing, Detention, and Release of Juveniles, 64 Fed. Reg. 
39,759 (proposed July 24, 1998) to be codified at 8 C.D.R. pt. 236).
---------------------------------------------------------------------------
    Finally, through this project, Latham's lawyers around the country 
provide individual pro bono counsel and services to ensure the 
appropriate conditions of confinement for otherwise unrepresented alien 
juveniles in INS custody, as well as to assist these children with 
navigating the complexity of immigration and asylum proceedings. 
Latham's individual child refugee clients come from a wide variety of 
troubling backgrounds, circumstances, and ages, including: Honduran and 
Guatemalan youth who have fled the documented genocide of street 
children in those countries; young Chinese and Indian children who have 
been the victims of trafficking and smuggling operations; and many 
other victims of unspeakable persecution-including intended victims of 
forced labor, sexual servitude, parental abuse and neglect, forced 
marriages as child brides, or female genital mutilation.
    Since the project's inception not quite one year ago, Latham 
lawyers and staff have donated more than six thousand hours in pro bono 
services on behalf of refugee children. To date, the project has 
resulted in an equivalent of more than $1.4 million donated to 
representation and advocacy on behalf of unaccompanied alien children, 
helping to ensure that every child's legal interests are protected. 
Additionally, Latham's lawyers are working in partnership with various 
child advocacy groups and legal service providers across the country 
including: the Midwest Immigrant & Human Rights Center, the Florida 
Immigrant Advocacy Center, the Florence Project, Catholic Legal 
Immigration Network Incorporated, Hebrew Immigrant Aid Society, the 
Pennsylvania Immigration Resource Center, Casa Cornelia, and the San 
Francisco Bar Legal Services Program.
    For its commitment to pro bono legal efforts-including these much-
needed services to unaccompanied alien juveniles-in 2001, Latham's pro 
bono program and the Child Refugee Project won numerous awards from 
many organizations, including: the National Law Journal pro bono 
recognition; the District of Columbia Bar Association's ``pro bono Firm 
of the Year''; the Bar Association of San Francisco's ``Outstanding Law 
Firm in Public Service''; and the Los Angeles Public Counsel's ``Law 
Firm of the Year.''
    To expand further the universe of dedicated law firms addressing 
this pressing need for pro bono assistance, the American Bar 
Association (``ABA'') leadership mobilized to address the plight of 
detained immigrant and refugee children, launching the Detained 
Immigrant and Refugee Children's Emergency pro bono Representation 
Initiative (``Initiative''). Through the Initiative, the ABA has 
provided ten grants to major detention sites for comprehensive pro bono 
legal care programs for immigrant and refugee children detained in 
Arizona, California, Florida, Georgia, Illinois, Pennsylvania and 
Texas, and is developing two additional programs in New York and 
Washington State. In August, 2000, the ABA sponsored a national summit 
for pro bono attorneys and grantees in Chicago resulting in the 
training of more than 115 pro bono attorneys from over twenty-five 
states. Through the coordination and training of the ABA, participating 
state and local bar associations, and pro bono legal service agencies, 
Latham and other private firms thus far have donated over $3.5 million 
in billable hours representing detained alien children across the 
country.
    Regrettably, even the admirable and extensive efforts of these 
concerned private organizations have only scratched the surface of 
providing representation for unaccompanied alien children. For both 
institutional and jurisdictional reasons, the INS itself would not and 
cannot provide counsel to the detained children in its legal custody-
rectifying this situation is a problem that requires the congressional 
action of a legislative solution, and promptly enacting S. 121, the 
``Unaccompanied Alien Child Protection Act'' would do just that.
                             IV. CONCLUSION
    Mr. Chairman, the advocacy of an attorney for alien juveniles is 
essential to secure the bedrock principles of due process and equal 
justice under law. Moreover, for these vulnerable children, access to 
counsel is of paramount importance to safeguard against the conflicts 
of interest and unchecked authority inherent in the current system of 
INS legal custody. By implementing a system to grant legal 
representation to unaccompanied alien juveniles, however, the entire 
immigration process will be resolved in a manner that is more 
effective, more efficient, and more just.
    Therefore, Mr. Chairman, I urge your support of S. 121, the 
``Unaccompanied Alien Child Protection Act,'' and I welcome any of your 
questions. Thank you.

    Chairman Kennedy. Julianne Duncan?

 STATEMENT OF JULIANNE DUNCAN, DIRECTOR, OFFICE OF CHILDREN'S 
  SERVICES, MIGRATION AND REFUGEE SERVICES/U.S. CONFERENCE OF 
               CATHOLIC BISHOPS, WASHINGTON, D.C.

    Ms. Duncan. I am Julianne Duncan. I am responsible for 
children's services at Migration and Refugee Services of the 
United States Conference of Catholic Bishops. I come before you 
today as a child welfare professional with 25 years of 
experience in the field, predominantly with refugees and 
immigrant children.
    I also testify today on behalf of Lutheran Immigration and 
Refugee Service. Our two agencies both offer child welfare 
services to unaccompanied alien children, including foster care 
placement and family reunification services. On behalf of our 
agencies, I would like to thank you for convening these 
hearings, and I would like especially to thank Senator 
Feinstein for her great advocacy in this very important cause.
    Mr. Chairman, the main theme of our testimony today is that 
child welfare principles should govern our Nation's treatment 
of unaccompanied children. In every child welfare system in the 
United States, the best interests of a child is placed ahead of 
other concerns. Unfortunately, and tragically, this is not the 
case in the system which handles unaccompanied alien children.
    We think that we must conform our handling of these 
vulnerable children with the principles endorsed and legislated 
by this very body for United States children: first, that a 
child's best interests are primary; that children are placed in 
the least restrictive setting possible; and that permanency 
planning is a central component of any child welfare system. 
Children, no matter what their country of origin, should not be 
mistreated simply because they lack documentation.
    Before I proceed, I would like to reaffirm our agency's 
support of the entirety of Senate bill 121, the enactment of 
which would enshrine child welfare principles into our handling 
of unaccompanied alien children. In particular, we strongly 
support the creation of a new Office of Children's Services 
within the Department of Justice. We support the requirement 
that attorneys be made available for unaccompanied children. We 
support the streamlining of procedures for making special 
immigrant juvenile visas available for children who qualify and 
the establishment of appropriate standards of care.
    The more specific focus of my testimony today is the 
requirement that INS more liberally use alternatives to 
detention, such as foster care and family reunification 
services, as well as that guardians ad litem be appointed to 
assist unaccompanied alien children.
    Our two agencies work with INS to identify and screen 
prospective foster care settings, including families and small-
group homes, for unaccompanied alien children who await 
adjudication of their asylum claims. We believe that foster 
care can provide an appropriate, secure setting for a 
vulnerable child.
    In fact, however, INS rarely uses foster care as an 
alternative to detention. During fiscal year 2001, our two 
agencies combined provided foster care homes to only 16 child 
asylees, including Edwin. These are children who waited in 
various INS detention facilities until their cases could be 
finally adjudicated. In addition, we provided care for seven 
children whose asylum claims were still in process.
    The average length of stay in detention for those children 
whose asylum claims were granted and who were eventually placed 
in care--their average length of stay in detention was 8 
months.
    Since the beginning of fiscal year 2002, we have placed 
only one child in foster care. This is in spite of the fact 
that our agencies have the capability to place several hundred 
children in foster care. Between us, we have recently placed 
more than 600 refugee and asylee children, placed predominantly 
from overseas.
    Chairman Kennedy. Your point isn't that they have to stay 
in detention while they are looking for someone. You are 
suggesting now that you would be able to place them very, very 
quickly. Do I understand this part of your testimony?
    Ms. Duncan. Yes, that is right.
    Chairman Kennedy. There is a lot of availability out there, 
is what I am hearing from you.
    Ms. Duncan. That is right. We can increase capacity if 
capacity is needed, but right now we have unused capacity.
    In regard to family reunification, another task of our two 
agencies is that we provide family reunification services for 
Chinese and Indian unaccompanied alien children, including 
locating and identifying whether or not these are true family 
members and assessing the suitability of the home. We do 
believe that this is an alternative to detention that is 
underutilized as well, especially for children who are awaiting 
their asylum hearings.
    Guardians ad litem, we think, are of just invaluable 
assistance to children who are in the custody of the Federal 
Government. The bill proposes that a guardian ad litem, 
normally a child welfare professional, would be appointed to 
look after the well-being and best interests of the child. The 
legislation spells out the qualifications and duties of the 
guardian, who is charged with interviewing the child and 
investigating the child's situation so that the courts can 
understand the full range of circumstances of the child and can 
assist in developing a long-term plan for the child's care.
    The guardian ad litem could also accompany the child 
throughout the immigration proceedings, advising the child of 
his or her situation and ensuring that a child's best interests 
are served. Guardians are routinely appointed for children in 
State and local child welfare systems and in any situation in 
which a parent is not available to look out for the child's 
welfare. It is not an unusual concept in the United States 
child welfare system.
    Guardians are especially necessary for unaccompanied 
children who are alone. They have no adult guidance, they are 
in a new culture, and they are in a land with a different 
language and an extremely complex system. Guardians ensure that 
the due process rights of children are respected and that a 
determination of the case is based on a full consideration of 
the child's circumstances.
    The role of the attorney is to represent the child in the 
immigration proceedings. The guardian looks out after the best 
interests of the child both in terms of treatment in the United 
States, making sure that basic needs are met, and that an 
appropriate long-term plan of care is instituted.
    We think that the guardians would not only benefit the 
child; we think it would also benefit the system. With full 
knowledge of the circumstances and a trusted adult, a child is 
much more likely to provide information which is helpful in 
resolving their plight. The decisionmakers would have complete 
information upon which to make a judgment about a case.
    In earlier testimony, two of the gentlemen testifying for 
the Government have made much of the difficulties of 
designating and implementing a guardian ad litem program and 
the difficulty of conducting home assessments overseas. I would 
like to speak to those points very briefly.
    Chairman Kennedy. Very quickly.
    Ms. Duncan. Guardian ad litem programs exist in most 
States. Almost all State and local courts have them. It is not 
impossible to do this. Our agencies would be prepared to 
assist.
    Overseas home assessments are also not insurmountable 
problems. Each of our agencies has considerable experience in 
conducting both domestic and foreign home assessments. Other 
international agencies do this work as well. The International 
Committee for the Red Cross and the International Organization 
for Migration both do this work in certain circumstances. We 
are prepared to assist in the design of an appropriate program.
    My final thought: While I understand that the INS is 
creating a new Office of Juvenile Affairs, from a child welfare 
perspective I agree with my colleagues that charging one agency 
with responsibility both for law enforcement and for child 
welfare planning cuts against all the principles that we 
operate on within the United States. Child welfare planning and 
detention and enforcement are separate functions in State and 
local child welfare systems. We believe that they should be 
separate in the case of alien minors as well.
    Thank you.
    [The prepared statement of Ms. Duncan follows:]

Statement of Julianne Duncan, Office of Children's Services, Migration 
  and Refugee Services/United States Conference of Catholic Bishops, 
                            Washington, D.C.

    I am Julianne Duncan, Director of Children's Services for Migration 
and Refugee Services of the United States Conference of Catholic 
Bishops (MRS/USCCB) I testify today on behalf of MRS and the Lutheran 
Immigration and Refugee Service (LIRS).
    Mr. Chairman, I would like to thank you for your leadership in 
holding this hearing and for the leadership you have shown in 
advocating on behalf of immigrants and refugees over the years. I would 
also like to thank Senator Brownback, who has shown special sensitivity 
and attention to the plight of immigrants and refugees.
    Most particularly, I would like to extend the bishops' gratitude to 
Senator Dianne Feinstein, Representative Zoe Lofgren and Representative 
Chris Cannon, who are the primary sponsors of the Unaccompanied Alien 
Child Protection Act of 2001. Senator Feinstein's leadership and 
foresight, in particular, in introducing this important legislation has 
been instrumental in bringing attention to the plight of Unaccompanied 
Alien Children and will be critical to ensuring its passage in the days 
ahead.
    The Lutheran Immigration and Refugee Service (LIRS) was founded in 
1939 and has helped resettle more than 280,000 refugees from all over 
the world. A hallmark of LIRS' work has been its work on behalf of 
Unaccompanied Alien Children, including family reunion services and 
foster-care placement to children who enter the United States alone. 
LIRS has long been concerned about our government's practice of 
detaining immigrant children.
    LIRS advocates for just, compassionate policies for all newcomers 
to the United States and administers a fund from Lutheran and 
Presbyterian churches that provides grants to independent grassroots 
programs to serve particularly vulnerable newcomers, including children 
in detention.
    MRS/USCCB is the resettlement agency of the U.S. Catholic bishops 
and provides foster-care, family reunification, and other child welfare 
services to unaccompanied minors who enter the United States. During 
calendar year 2000, we assisted a number of unaccompanied alien minors 
obtain foster-care families and reunify with immediate or extended 
family members. We also have resettled 250 unaccompanied refugee minors 
in the United States during the past year.
    The U.S. Catholic Bishops have spoken out on behalf of children, 
especially immigrant and refugee children. Upon the introduction of the 
Unaccompanied Alien Child Protection Act, Bishop Nicholas DiMarzio, 
chairman of the USCCB Committee on Migration, stated that the 
legislation was necessary to reverse our nation's shameful treatment of 
children: ``Our country must employ a national policy which protects 
children and is governed by the best interest of the child. Because of 
their special vulnerabilities as children and the special circumstances 
in which they enter our country--alone and without support--we must 
provide special care to these children, no matter their country-of-
origin.'' \1\ Thus, from the perspective of the Catholic Church, all 
children around the world deserve special care and consideration and 
that care is preferably provided within a family setting.
---------------------------------------------------------------------------
    \1\ Statement of Bishop Nicholas DiMarzio, Chairman, NCCB Committee 
on Migration, On The Unaccompanied Alien Child Protection Act of 2000, 
Office of Migration and Refugee Services, September 27, 2000.
---------------------------------------------------------------------------
    Together, MRS/USCCB and LIRS have resettled unaccompanied refugee 
minors for 25 years, providing child welfare services to more than 
12,000 unaccompanied children. We also work with the Immigration and 
Naturalization Service (INS) to provide family reunion services to 
Chinese and Indian youth and to place asylee children into foster-care 
services. We speak with one voice today united in our support for the 
Unaccompanied Alien Child Protection Act of 2001.
                Summary of Recommendations in Testimony
    The bulk of our testimony will focus upon our support for 
provisions in S. 121 that promote alternatives to detention for 
Unaccompanied Alien Children, the need for and availability of expanded 
use of foster care for these children, the need for guardians ad litem 
to make recommendations about what is in their best interests, and the 
urgent need for Congress to legislate changes in the care and custody 
of Unaccompanied Alien Children rather than depending on yet another 
administrative restructuring of the entities charged with these 
responsibilities.
    We also wish to take this opportunity to express our strong support 
for other important aspects of the bill. In particular, we urge that, 
as the Committee moves to markup this legislation and report it to the 
full Senate, at a minimum, it maintains the following important aspects 
of the legislation:

         the creation of an office within the Department of 
        Justice to handle children's care and custody issues that is 
        separate from the Immigration and Naturalization Service (INS);
         the provision of access to counsel for Unaccompanied 
        Alien Children so as to help them navigate the legal processes 
        in which they are involved;
         the provision of impartial guardians as litem to 
        investigate Unaccompanied Alien Children's circumstances and 
        make recommendations on what would be in their best interests;
         the enactment of standards of detention that ensure 
        that Unaccompanied Alien Children are not mistreated by being 
        placed in facilities with adults, in facilities with juvenile 
        offenders, and are not unnecessarily restrained;
         the enactment of unambiguous standards ensuring that 
        Unaccompanied Alien Children are placed in the least 
        restrictive settings possible pending the resolution of their 
        immigration situation, and that those settings take into 
        account their educational, health, recreational, and spiritual 
        needs;
         the enactment of standards favoring the release of 
        children to responsible caregivers if the children are not a 
        danger to themselves or the community;
         the establishment of family reunification as a desired 
        principle in placement decisions; and
         reforms in the Special Immigrant ``J'' visa to make it 
        a more useful option for permanent protection to abused, 
        neglected, and abandoned children.

The Government's Special Responsibility to Unaccompanied Alien Children
    The main theme of our testimony today is that Unaccompanied Alien 
Children should be treated under the same standards and be afforded the 
same child welfare protections that are available to other children in 
the United States. Such standards were developed to protect children as 
vulnerable human beings; they should not discriminate based upon legal 
status or national origin, but they currently do. These fundamental 
principles of making decisions based on the best interest of the child, 
of placing children in the least restrictive setting, and of moving 
children towards permanency as soon as possible are absent from current 
laws and regulations governing our treatment of Unaccompanied Alien 
Children.
    Indeed, Congress itself already has ensured that these protections 
are incorporated for U.S.-citizen children in child welfare systems in 
the United States. Under the Federal Adoption Assistance and Child 
Welfare Act of 1980, Congress requires that a child's case plan be 
designed to achieve placement in the least restrictive, most family-
like setting available, consistent with the best interest and special 
needs of the child. The same law, which governs the treatment of 
children in the foster care system of the United States, defined child 
welfare services as social services that seek to: 1) promote and 
protect the welfare of all children; 2) prevent or resolve problems 
which may result in the maltreatment or delinquency of children; 3) 
prevent the unnecessary separation of children from their families; 4) 
reunite families and children; and 5) assure adequate care of children 
away from their home.
    S. 121 would enshrine these fundamental protections into law for 
Unaccompanied Alien Children as well, bringing the treatment of these 
children into alignment with other domestic approaches to helping 
children in need. It also would bring the United States up to date with 
Canadian and European guidelines which have developed over time to deal 
appropriately with alien children in their societies.
Principles that Should Govern Treatment of Unaccompanied Alien Children 
 Because of our long experience in caring for and advocating on behalf 
 of unaccompanied minors, Mr. Chairman, our testimony today will point 
  out changes in law we believe are required, as laid out in Senator 
  Feinstein's bill, to reform the current system. In the view of MRS/
   USCCB and LIRS, our government's treatment of Unaccompanied Alien 
        Children should be governed by the following principles:

         The Federal government has a special responsibility to 
        ensure that Unaccompanied Alien Children are treated with 
        dignity and care. Children are our most precious gifts. Their 
        youthfulness, lack of maturity, and inexperience make them 
        inherently vulnerable and in the need of the protection of 
        adults. Unaccompanied Alien Children are among the most 
        vulnerable of this vulnerable population. They are separated 
        from both their families and their communities of origin, they 
        are often escaping persecution and exploitation, they often 
        find themselves in a land in which the language and culture are 
        alien to them, and they are thrust into complex legal 
        proceedings that even adults have great difficulty navigating 
        and understanding.
         Unaccompanied minors should be held in the least 
        restrictive setting as possible, preferably with family members 
        or with a foster family. Secure facilities should be used on a 
        very limited basis and only when absolutely necessary to 
        protect a child's immediate safety or the safety of the 
        community.
         Minors should be reunited with parents, guardians, or 
        other family members within the United States as soon as 
        possible. While a family is in temporary detention, they should 
        not be separated unless it is in the best interest of the 
        child.
         Because of their special vulnerability and inability 
        to represent themselves, unaccompanied children should be 
        provided with legal representation and guardians as litem to 
        assist them in immigration proceedings and to see that care and 
        placement decisions are made with a child's best interest in 
        mind.

    Mr. Chairman, these principles are not currently governing U.S. 
policy toward Unaccompanied Alien Children in the United States. 
Instead, thousands of children each year are held in detention, some 
with juvenile criminal offenders, with little or no access to legal 
assistance and with decreasing ability to reunite with family members. 
Some children are detained for months awaiting their asylum hearing, 
while others are deported immediately back to their country-of-origin 
without substantial attempts to locate their parents or immediate 
family members.
    Moreover, as a child welfare expert with knowledge of the foster 
care and juvenile justice systems, I find it shocking to see how 
children in INS custody are treated. Equally disturbing is that 
children in immigration proceedings are not ensured legal 
representation, a practice which is not accepted in other types of 
court proceedings.
    The Unaccompanied Alien Child Protection Act of 2001, introduced by 
Senator Feinstein, would reform U.S. policy governing Unaccompanied 
Alien Children. It would ensure that children are provided appropriate 
child welfare services and are placed in an appropriate settings. The 
legislation would create a new office within the Department of Justice, 
staffed by child welfare professionals, to handle the care of 
unaccompanied children who enter the United States. It also would 
require the appointment of guardians as litem to look after the best 
interests of the child and it would provide for attorney representation 
of these children in any immigration proceeding. The bill also would 
encourage family reunification or other appropriate placement for 
Unaccompanied Alien Children whenever possible.
             U.S. treatment of Unaccompanied Alien Children
    ``After I was transferred, I was always put in handcuffs for court. 
It always made me feel like a criminal and not a refugee.'' \2\
---------------------------------------------------------------------------
    \2\ Quotations are from interviews with unaccompanied alien 
children conducted in August 2001 by Satish Moorthy, Human Rights 
Coordinator, Center for International Studies, University of Chicago. 
Interviews were conducted voluntarily and anonymously of children 
already awarded asylum. Children are identified by interview. Interview 
L is source of above quotation.
---------------------------------------------------------------------------
    Unaccompanied alien minors are children under 18 years of age who 
are found in the United States without legal status and who have no 
parent or guardian to care for them. Many enter the United States to 
escape persecution while others are smuggled into our nation or, in 
some cases, are victims of trafficking subject to forced prostitution 
or labor. An increasing number are victims of human rights abuses such 
as child prostitution, street children abuses, child marriages, 
slavery, and recruitment as child soldiers. Unaccompanied children come 
to the United States from all parts of the world, most especially from 
Central America, India, China, and some parts of Africa.
    The Immigration and Naturalization Service (INS) is charged with 
responsibility for apprehending, detaining, caring for, placement of, 
legal protection of, and removal of Unaccompanied Alien Children. Many 
unaccompanied children are apprehended by the INS and returned to their 
country of origin, while others are placed in detention settings to 
await their asylum hearing or removal hearing. A number are released to 
relatives after a short amount of time. A handful are placed in 
appropriate foster care settings.
    Unaccompanied minors are particularly vulnerable because of 
emotional and physical traumas they have experienced. Some of these 
children may be victims of abuse, neglect, or abandonment, while 
others, separated from their families, become depressed, moody, 
withdrawn, or experience psychosomatic symptoms.\3\ Separated from 
their communities of origin, unaccompanied children experience an 
unfamiliar culture and loss of a social network. They should be treated 
with special attention and care instead of shackled and placed in 
detention.
---------------------------------------------------------------------------
    \3\E.M. Ressler, N. Booth by, and D.J. Steinbock, Unaccompanied 
Children: Care and Protection in Wars, Natural Disasters, and Refugee 
Movement (New York: Oxford, 1988). 
---------------------------------------------------------------------------
 Responsibility for the Care and Custody of Children should be placed 
                              outside INS
    ``I don't know why they [INS] are so mean. They treat you like they 
don't care about you. I wish they wouldn't make you feel so scared. 
Sometimes you don't know what's going on. They don't tell you. And it's 
worse when you don't speak the language.'' \4\
---------------------------------------------------------------------------
    \4\ Moorthy, Interview D.
---------------------------------------------------------------------------
    We strongly support the provision in S. 121 that creates an Office 
of Children's Services within the Department of Justice and outside the 
INS. Under S. 121, this new office would be charged with the custody, 
placement, and release of Unaccompanied Alien Children and staffed by 
child welfare professionals. We believe that such an office would 
eliminate the current conflict of interest within INS and ensure that a 
child's best interests drive decision-making in these cases.
    Currently, the Detention and Removal branch handles the placement 
of unaccompanied minors, a direct conflict of interest which sometime 
pits a child's best interest against the INS' role as jailer and 
deporter.\5\
---------------------------------------------------------------------------
    \5\ In the Houston district, providers indicate that family 
reunfication for children's programs under the Detention and Removal 
branch in 2000.
---------------------------------------------------------------------------
    Because of its role as enforcer of U.S. immigration law, the INS 
has great difficulty in providing care for children it is charged with 
removing from the country. All too often, it seems as though the INS' 
enforcement concerns suspersede the best interests of the child.
    There are many examples of this conflict in current practice in 
which a child's needs are sacrificed. For example, unaccompanied minors 
are regularly transferred from one facility to another without notice 
to their attorney or family members. Children also are placed with 
juvenile offenders ``as a safety precaution,'' regardless of their need 
for a more nurturing and less threatening environment. And the INS 
often appeals grants of asylum to unaccompanied minors, leaving them 
languishing in detention for additional months while the appeal is 
heard. Finally, the INS often denies consent to the jurisdiction of a 
juvenile court for purposes of special immigrant juvenile visa (SIJ) 
relief for children who are abused, abandoned, or neglected.
    The Department of Justice has shifted responsibility for dealing 
with Unaccompanied Alien Children from office-to-office over the last 
twenty years:

         Prior to 1996, responsibility for the care of these 
        children resided in the Department's Community Relations 
        Service (CRS), which contracted out to private nonprofit 
        agencies the responsibility of operating shelter facilities for 
        them. At the time, CRS maintained a small staff of social 
        workers to administer the program.
         In 1996, the Immigration and Naturalization Service 
        took over the functions of handling these children. Initially, 
        the functions were handled by the International Affairs Office, 
        which also managed the INS's asylum and refugee operations.
         In 2000, the INS moved responsibility for handling 
        these children to INS's Detention and Removal branch, much to 
        the dismay of child welfare advocates who feared that placing 
        control for care and custody of these children in the hands of 
        the agency responsible for removing them would exacerbate what 
        they viewed to be an already unacceptable situation, whereby 
        the INS was using care and custody issues as a tool in their 
        efforts to remove children, regardless of the merits of the 
        child's efforts to remain in the United States.

    INS Commissioner James Ziglar recently announced plans to create 
yet another structure for dealing with these children. He indicated 
that soon he will create an Office of Juvenile Affairs which would be 
directly under the supervision of the INS commissioner.
    It is critical that the Committee retain the provision in S. 121 
that would remove control of care and custody of Unaccompanied Alien 
Children from the INS and, instead, place it into the new Office of 
Children's Services that the bill would create.
    First, the INS does not possess the child welfare expertise 
critical to the care of vulnerable children. Unlike most adults, 
children are less able to understand the complex immigration system or 
articulate their needs. They also are in need of special attention and 
care because of their youth.
    Second, Commissioner Ziglar's proposal would not eliminate the ever 
present and potential conflict-of-interest between enforcement goals 
and the care of children. For example, it would not change the 
decision-making authority of regional juvenile coordinators who 
regularly place children in juvenile detention centers.
    Third, an administrative change does not carry the effect of the 
force of law, leaving future INS officials to alter any new structure, 
however carefully planned.
    Fourth, in a more general way, because of its role as enforcer of 
our nation's immigration laws, it would be inappropriate and unworkable 
for the INS to implement many of the much needed reforms included in S. 
121, such as the appointment of attorneys and guardians as litem for 
children.
    Finally, in no other child welfare system in the United States is 
the entity charged with enforcing the law also charged with the well-
being of the child. For example, in the foster-care system enforcement 
officials become involved in investigating cases of child abuse and 
grounds for removal, while child welfare professionals determine 
appropriate placement and care. The same is true of the U.S. juvenile 
justice system, in which law enforcement does not impinge upon the role 
of the child welfare system, which is to rehabilitate a juvenile 
offender, where appropriate.
                Detention of Unaccompanied Alien Minors
    ``I was transferred to Reading, PA. I stayed in the shelter for 5 
months. But they said I behaved bad. I remember that if you did 
anything wrong they would make you do push ups and make you sit with 
your head down for an hour. It made me feel so bad. They [the staff] 
used to hassle me. The Chinese kids and I got into a fight, after that 
I was transferred to a detention center in Berks County. It was a place 
where there were criminals. I was there for 4 months. It was not right 
how they treated me. I was not a criminal.'' \6\
---------------------------------------------------------------------------
    \6\ Moorthy, Interview K.
---------------------------------------------------------------------------
    As stated, MRS/USCCB and LIRS believe that children should be held 
in the least restrictive setting, preferably with family members or a 
foster-care family. An estimated 475 unaccompanied minors are in INS 
custody at any given time, ranging between the ages of six months to 17 
years old. Children may be detained in separate facilities from their 
parents or family members and remain in secure facilities for months 
until their status is resolved or they are removed to their country of 
origin. Some of these detention facilities are INS shelter care, or 
``soft'' detention, and others are juvenile facilities for convicted 
offenders. During Fiscal Year 2000, the INS detained 4,136 
unaccompanied children for more than 72 hours, placing one-third in 
juvenile detention centers and a large majority of the remainder in 
shelter care.
    Of particular concern to us is the placement of children in secure 
detention facilities with juvenile offenders, some of whom have 
committed violent crimes. In these detention centers, children remain 
confined and have few opportunities for education in their native 
language or any field trips outside of the facility.\7\ They are 
commingled with violent persons, sometimes in the same cell. The 
psychological and emotional effects on a child in secure detention, 
alone and often unable to speak the language, can be devastating. Upon 
apprehension, INS sometimes transports these children by shackling 
their legs and arms, despite the fact that they have committed no 
criminal acts.
---------------------------------------------------------------------------
    \7\ Human Rights Watch, Detained and Deprived of Rights: Children 
in the Custody of the U.S. Immigration and Naturalization Service, 
December 1998.
---------------------------------------------------------------------------
    A recent report by the Office of the Inspector General of the 
Department of Justice concluded that the INS often commingles non-
delinquent juveniles with juvenile offenders in secure facilities, a 
violation of a court settlement known as Flores v. Reno. The settlement 
stipulates that, absent evidence of delinquent behavior, unaccompanied 
alien minors should be placed in the least restrictive setting 
possible. According to the report, in FY 2000, 34 of 57 secure 
facilities did not have proper procedures or facilities to segregate 
non-delinquent from delinquent juveniles. During the same fiscal year, 
the INS held 1,933 unaccompanied alien minors in juvenile jails, of 
which 1,569 were non-delinquent juveniles. It further concluded that at 
least 484 instances occured in which non-delinquent children were 
commingled with delinquent children.\8\
---------------------------------------------------------------------------
    \8\ U.S. Department of Justice, Office of the Inspector General, 
Unaccompanied Juveniles in INS Custody, Report No. 1-2001-009, 
September 2001, p. ii, 13.
---------------------------------------------------------------------------
    The OIG also found that the INS commonly does not use readily 
available bed space in shelter-care facilities to house non-delinquent 
juveniles. Citing an exception in the Flores settlement which allows 
for the placement of children in secure facilties as a result of an 
``influx''--defined as 131 children at the time--the INS often places 
non-delinquent juveniles in juvenile jails. This occurs despite the 
fact that available shelter bed space has nearly tripled since the 
settlement, from 130 to over 400.\9\
---------------------------------------------------------------------------
    \9\ OIG Report, p. 10.
---------------------------------------------------------------------------
    In addition, the INS regularly transfers children from one facility 
to another, often at different places throughout the country and 
without notice to guardians or attorneys, a violation of the Flores 
agreement. This leads to a lack of permanency and sense of isolation 
for the child. It also limits the ability of guardians or attorneys to 
maintain access to the child. In a recent case, a 16-year old Mayan boy 
fleeing persecution in Guatemala was transferred seven times within two 
months. Currently, he is being held at Berks County Youth Center in 
Pennsylvania, 1200 miles from his attorneys in Miami.
    Over the past year, MRS/USCCB and LIRS placed 16 children into 
foster-care who went through their entire asylum proceedings while in 
INS detention. Their average length of detention was eight months. 
Children seeking asylum arguably are the most vulnerable of all 
children but spend the most time in INS detention. In one case, twin 
brothers fled physical abuse and separation in their native Honduras, 
arriving here at the age of 14. They were held in an INS facility in 
Texas. Due to a state regulation that children could not remain in the 
shelter for longer than 3 months, they were transferred after 3 months 
to foster care for one day and then returned to the shelter. This was 
repeated again at 6 months. The brothers were held for 8 months before 
they were granted asylum and permanently released to foster-care, 
funded by the Office of Refugee Resettlement.
    In another case, a 14-year old Honduran boy made his way to the 
United States after his caretaker grandmother died, leaving him to live 
on the street. Upon arriving in the United States, he gave himself up 
to the INS because he was tired, cold, and hungry with no money and no 
one to care for him. He then spent his next 11 months in INS detention. 
Because of his young age, he was placed in foster care for 3 weeks. 
Unfortunately, though, he later was transferred to a detention facility 
for the next ten months. He says he missed being part of a family when 
returned to the detention facility, where he often felt scared and 
alone and felt he had no one to turn to for help.
    The Unaccompanied Alien Child Protection Act of 2001 would help 
ensure that children are placed in appropriate and less restrictive 
settings. It would expand shelter care facilities and foster care 
services as alternatives to detention; require family reunification or 
other appropriate placement for children, wherever possible; and house 
release decisions with child welfare professionals, not enforcement 
personnel.
           Access to Legal Remedies for Unaccompanied Minors
    ``A paralegal from the attorney's office would visit me and prepare 
me for court. She was very great. After 10 months in the shelter, I got 
asylum.'' \10\
---------------------------------------------------------------------------
    \10\ Moorthy, Interview L.
---------------------------------------------------------------------------
    Many children found in the United States without parent or guardian 
have experienced persecution directed at them or their families and are 
in need of protection. Under the current U.S. system, however, children 
in INS custody often receive little information about legal resources 
and often have no legal representation. Attorneys who do represent 
unaccompanied minors have trouble doing so because children often are 
transferred from one facility to another, sometimes in different parts 
of the country. As a result, even those children with valid asylum 
claims often have difficulty obtaining fair representation. According 
to the Catholic Legal Immigration Network, Inc. (CLINIC) and the 
Women's Commission on Refugee Women and Children, less than 11 percent 
of INS detainees receive representation. Children detainees receive 
even less assistance.\11\ Without appropriate legal assistance and 
representation, children with valid asylum claims are less likely to 
obtain asylum and more likely to be sent back to their countries of 
origin and possible persecution.
---------------------------------------------------------------------------
    \11\ See Don Kerwin, ``Throwing Away the Key: Lifers in INS 
Custody,'' Interpreter Releases 649 (May 11, 1998), and ``Protecting 
the Rights of Children: The Need for U.S. Children's Asylum 
Guidelines,'' Women's Commission for Refugee Women and Children, 
December, 1998.
---------------------------------------------------------------------------
    Assuring representation by counsel is necessary for this particular 
class of children, who face overwhelming obstacles in a complex 
immigration system. S. 121 would permit the new Office of Children's 
Services to develop relationships with non-profit organizations to 
enhance their ability to represent children. The minimal cost of the 
appointments of legal counsel, when such appointments are necessary, 
would be offset by greater efficiencies and effectiveness for INS and 
reduced court and detention time. In addition, S. 121 targets an 
extremely limited class of beneficiaries. Similarly-situated children 
in other child welfare systems are provided legal representation.
    In addition, a child's asylum claim and well-being would be aided 
by the appointment of a guardian as litem, an adult, preferably a child 
welfare professional, who would look after the best interest of the 
child in immigration proceedings and in decisions regarding appropriate 
placement. The guardian as litem would investigate the circumstances of 
a child's presence in the United States, and, using that information, 
develop recommendations for the child's placement and avenues for legal 
relief. Guardians are used for children in other areas of U.S. law, 
such as in abuse or custody cases. Moreover, the INS Guidelines for 
Children's Asylum Claims calls for the appointment of an individual to 
play a guardians as litem role, explaining that a ``trusted adult'' can 
help the child explain his/her asylum claim, assist the child 
psychologically, and provide comfort and assistance for the child.\12\
---------------------------------------------------------------------------
    \12\ Immigration and Naturalization Service, Guidelines for 
Children's Asylum Claims, September, 1998.
---------------------------------------------------------------------------
    S. 121 would address the lack of legal representation and other 
assistance to children by requiring that all children have access to 
legal counsel and that a guardian as litem be appointed for each child. 
Legal counsel would be appointed to help children through the 
complexities of immigration proceedings, representing their legal 
interests in asylum court, and in filing the appropriate paperwork with 
INS and other relevant agencies. A guardian as litem would make 
recommendations to ensure that the child's best interests are served.
    Additionally, S. 121 streamlines the procedure for vulnerable 
children to obtain a special immigrant juvenile visa (SIJ), legal 
relief which often is inaccessible to many children. Under legislation 
enacted in 1990, unaccompanied alien minors who a children's court 
determines should not be returned to their home country and are 
eligible for long-term foster care (family reunification is not 
possible) may obtain a special immigrant juvenile visa (SIJ) and legal 
permanent residency.
    Unfortunately, because of lack of knowledge of their rights and 
access to representation, children often do not obtain this form of 
relief. Moreover, the INS commonly does not pursue this avenue for 
children and must ``expressly consent'' to a judge's order that the 
visa was sought for relief for abuse and neglect and not primarily for 
immigration purposes. Again, a conflict of interest arises in this 
situation, in that INS maintains undue authority over a child's ability 
to even seek legal relief at the same time it seeks to deport the 
child. Despite the thousands of children detained by INS each year, INS 
rarely allows children in its custody to apply for SIJS.
    S. 121 revamps the system for the grant of a SIJ visa by granting 
the new Office of Children's Services (OCS)--staffed by child welfare 
professionals--the authority to certify to the Attorney General that a 
child has been abused, abandoned, or neglected. This requirement 
removes the conflict of interest that the INS has while also ensuring 
the SIJ system is not abused. It also gives children fairer access to 
juvenile courts and to possible relief and permanency.
    Another area of concern which S. 121 addresses is children's access 
to asylum protection. First, because of lack of access to legal 
representation, most children are unable to navigate the complex legal 
system to pursue asylum claims or other forms of relief. For those who 
do obtain representation, their chances of relief are markedly 
improved.\13\ The INS does not maintain statistics concerning the 
percentage of children who win asylum, although reports from attorneys 
and private organizations indicate it is very low.\14\ Second, once a 
child wins asylum, the INS often appeals the decision, extending a 
child's stay in detention.
---------------------------------------------------------------------------
    \13\ See Slipping through the Cracks: Unaccompanied Children 
Detained by the Immigration and naturalization Service, Human Rights 
Watch, April, 1997.
    \14\ During FY 2000, USCCB and LIRS provided foster care services 
to only 40 children out of a total of 4,614 detained by INS.
---------------------------------------------------------------------------
    In 1998, the INS took a step in the right direction by adopting 
guidelines for asylum officers to use in adjudicating children's 
claims. Known as the Guidelines for Children's Asylum Claims, the new 
policy has aided asylum officers in their handling of juvenile cases. 
Unfortunately, many children present their cases before immigration 
judges who are not required to follow the guidelines in their decision-
making. Further, other immigration officers, such as enforcement 
officials, have not been trained in the rights of children and their 
special circumstances as outlined in the guidelines. S. 121 calls upon 
the Executive Office for Immigration Review (EOIR) to adopt the 
guidelines and requires all immigration officers and personnel who come 
into contact with children to receive special training on the special 
needs and circumstances of children asylum seekers.
                       Alternatives to Detention
    ``My foster care family cares for me and I care for them. It's 
better than the shelter because I can be free and I have a home where 
people care for me. It's the opportunity to have a family that I never 
had before even in my home country. It makes me feel included. They 
never exclude me from anything.'' \15\
---------------------------------------------------------------------------
    \15\ Moorthy, Interview G.
---------------------------------------------------------------------------
    In order to ensure that children are protected and cared for, 
alternatives to detention are available and necessary which address a 
child's special needs, especially the need for emotional security, 
love, and attention. Studies have demonstrated that children are better 
adjusted emotionally, psychologically, and mentally, when placed in a 
family setting. LIRS and MRS/USCCB assist the INS by identifying family 
members of children and, in the alternative, recruiting foster-care 
families to provide a home for a child until an asylum claim is 
adjudicated.
    Despite the wide availability of foster-care settings, the INS 
rarely uses this appropriate alternative to detention, regardless of 
the fact that foster care ($55 per day) is much cheaper than detention 
($200 per day). The INS has placed very few children in foster-care 
settings, citing security concerns and the likelihood that children may 
take flight. During FY 2001, LIRS placed 5 and MRS/USCCB 2 children in 
foster-care settings pending the completion of immigration proceedings.
    As child welfare providers, it has been the experience of LIRS and 
MRS/USCCB that children do not take flight if appropriate services are 
in place to ensure that they are safe and loved. For example, the 
presence of a guardian as litem to explain the asylum process to a 
child would help calm the child. In addition, requiring suitability 
studies of families in countries of origin would help assure a child 
that he/she would be safe upon return to their homeland.
    Perhaps more troubling is that the INS does not follow any criteria 
or guidelines for determining whether a foster-care setting is 
appropriate for a certain child: those children who are placed in 
foster care families often are done so on an ad hoc basis and only 
following lengthy detention. For example, no guidelines or procedures 
are in place for INS to identify a child victim of trafficking or a 
child with other special needs.
    MRS/USCCB and LIRS also help locate family members in the United 
States for children and conduct suitability assessments of U.S.-based 
families of Chinese and Indian youth and children granted asylum. 
Absent mitigating circumstances, such as evidence of abuse, children 
should be reunited with their families, especially their parents. 
Suitability assessments are necessary in determining the validity of 
family relationships, whether family members or relatives are willing 
or able to care for a child, and whether there is a safe and 
appropriate home.
    Suitability assessments are an important tool in ensuring a child's 
safety prior to placement. Therefore, S. 121 requires the INS to 
conduct suitability assessments overseas for children repatriated to 
their country of origin. Such a process is necessary to ensure that 
children are not being sent back into an abusive family situation from 
which they originally fled. Non-governmental organizations, such as 
International Social Service, are able to conduct such assessments in 
the child's country of origin.
    Further, other countries ensure that children are returned to 
safety in their home country. The United Kingdom, Norway, Switzerland, 
and Holland will not return a child to their home country unless 
country conditions are satisfactory and there is a suitable caregiver 
available. Holland requests the International Organization on Migration 
(IOM) to ensure that an appropriate caregiver exists in the home 
country. Denmark notifies the Red Cross when a child is returned and 
the Red Cross attempts to ensure that a caregiver is available. 
Finally, Canada follows guidelines that require a child not be returned 
unless a suitable caregiver has agreed and is able to assume 
responsibility for the child and to provide appropriate care and 
protection.\16\
---------------------------------------------------------------------------
    \16\ Children or refugees? A survey of West European policies on 
unacompanied refugee children, Children's Legal Center, United Kingdom, 
1992.
---------------------------------------------------------------------------
    Again, for flight reasons the INS is reluctant to place some 
children with family members in the United States prior to adjudication 
of their asylum claims. The Flores agreement spells out a list of 
parties to which a child can be released. The list includes, in 
descending order, parent(s), legal guardians, an adult relative, a 
licensed program willing to accept custody, or another adult or 
individual who INS approves and is willing to accept. Nevertheless, INS 
consistently has failed to release children to relatives or even legal 
guardians.
    If a parent is undocumented, the INS requires a parent to report to 
them for processing; otherwise the child remains in detention. The INS 
also declines to place a child with a relative if an undocumented 
parent is available but will not report. While we do not condone 
undocumented migration, we oppose the practice of using children ``as 
bait'' to apprehend undocumented migrants.\17\ Children should not be 
punished or used in this manner. At a minimum, INS should place a child 
with a legal relative even if an undocumented parent is present.
---------------------------------------------------------------------------
    \17\ For more information, see ``Unaccompanied Juveniles in INS 
Custody,'' U.S. Department of Justice, Office of the Inspector General, 
Evaluations and Inspections Division. Report no. 1-2001-009.
---------------------------------------------------------------------------
    The INS must use alternatives to detention for children on a more 
regular basis. S. 121 requires family reunification or other 
appropriate placements, such as foster-care, for children as well as 
clear guidelines for the standards of care for children, including the 
provision of education, recreation, health care, and access to an 
interpreter and an attorney.
            The Need for Congress to Legislate on this Issue
    We are aware that there are some who have contended that the 
principles embodied in S. 121 can be accomplished by an administrative 
reorganization of the entities responsible for the care and custody of 
unaccompanied children. Indeed, INS Commissioner Ziglar recently 
announced a number of steps which he said would improve the treatment 
of these children, at least hinting that this would obviate the need 
for legislation.
    We have no reason to doubt Commissioner Ziglar's sincerity. 
However, we strongly believe that the reforms embodied in S. 121 must 
be legislated by Congress and should not be left to either his ability 
to harness a INS bureaucracy and field structure that is well known for 
ignoring directives of the Commissioner, or left to the discretion and 
whim of whomever is occupying the Commissioner's position at any given 
time.
    The United States government has a special responsibility to ensure 
the well-being of children in its custody, regardless of their legal 
status or national origin. This is especially the case for 
Unaccompanied Alien Children. Since 1996 alone there have been three 
separate administratively-mandated structures for the care and custody 
of these children. Each time their conditions have grown worse, not 
better. Commissioner Ziglar has just announced his intention to impose 
yet another administratively-mandated structure. We strongly believe 
that it is time for Congress to step in and set the direction and 
policy for handling these children. S. 121 would accomplish this; these 
children should not have to wait any longer.
                               Conclusion
    Mr. Chairman, we believe that removing responsibility for the care 
and custody of children from the culture of enforcement which pervades 
the INS is essential. Approximately five-thousand Unaccompanied Alien 
Children are found in our nation each year and are placed in the 
custody of the federal government. They are not a threat to our society 
and only seek our protection. As a leader in human rights around the 
world, our treatment of unaccompanied alien minors is shameful and 
undercuts our ability to defend the rights of others, especially 
children, around the world.
    It is time to conform how we treat Unaccompanied Alien Children 
with the standards which govern our treatment of U.S. children. 
Children, our world's most precious resource, should not be 
discriminated against because of their lack of documentation or their 
country of birth. Being undocumented should not equate with criminality 
and we should not treat children as such. Instead, our system should 
ensure that an Unaccompanied Alien Child's best interests are a primary 
consideration, that their care and custody should take place in the 
least restrictive setting possible, and that permanency planning 
becomes a central component of an Unaccompanied Alien Child's care.
    With long experience in caring for unaccompanied alien minors and 
as advocates on their behalf, LIRS and MRS/USCCB ask the subcommittee 
to consider more seriously the impact of U.S. policy on unaccompanied 
alien minors. Mr. Chairman, it is incumbent upon our government to 
fashion a system which places the welfare of a child, no matter their 
country-of-origin, as primary, regardless of legal status. The 
Unaccompanied Alien Child Protection Act would help reform our system 
for handling unaccompanied minors appropriately and should be enacted.
    Thank you for your consideration of our views.

    Chairman Kennedy. Thank you very much.
    I want to just thank Eric--is it Unternahrer?
    Mr. Unternahrer. Unternahrer.
    Chairman Kennedy. Unternahrer. We want to thank you very 
much for being here. The idea that you are translating and 
speaking and listening, doing all of those things at the same 
time, is perplexing. We have trouble doing one of them up here 
and doing it right, so we want to thank you very much for your 
good work and your appearance.
    Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman.
    I am going to have to leave in a few minutes and the 
chairman has graciously allowed me to make a comment or two, if 
I could. No. 1, I would like to announce I am going to join the 
Feinstein bill. It is a great piece of legislation.
    [Applause.]
    Senator Brownback. Thanks to Senator Feinstein for bringing 
this forward. This is, to me, reminiscent of a hearing we held 
about a year ago on asylum seekers where we were keeping these 
people locked up for long periods of time for what appeared to 
be not any good reason.
    I think actually, Wendy, you testified at that hearing. 
And, Mr. Morton, I don't know if you did or not.
    Mr. Morton. I was sitting behind her.
    Senator Brownback. But it was the same situation where we 
have got these wonderful people that are fleeing a horrible 
situation and they come here and they are locked up. It is even 
worse when it is a child in the situation, like what Edwin so 
bravely brought forward here today. It just doesn't make any 
sense, where we have excess capacity, as Ms. Duncan was noting. 
I know there are other ways to be able to handle this than 
children sitting in jail. That is not necessary to do.
    I am really hopeful that we can correct this because this 
just doesn't need to take place the way it is. So I am very 
appreciative of the hearing and I am very appreciative of the 
legislation and the work of Senator Feinstein, who has worked 
on this for some period of time and has brought it on forward. 
I am hopeful we can get this passed.
    I would note for Senator Hatch, who is ranking member of 
the Committee, that he wanted to be here. He couldn't; he had a 
conflict. He apologizes for that. He has got a statement that 
he wants to put into the record and he wanted to discuss a bill 
that he put forward that deals with an adjoining issue, but not 
this one, the DREAM Act, a student adjustment bill. He wanted 
to particularly thank Edwin Munoz for being here to testify.
    Edwin, he had a present that he wants to give you today.
    Chairman Kennedy. Is it one of his disks?
    Oh, there we go.
    Senator Feinstein. There is your FBI hat.
    Senator Brownback. Would you care to come up? I want to 
give this cap to you.
    Senator Feinstein. Boy, you are on the spot.
    Chairman Kennedy. You are on the ball here.
    Senator Brownback. No, Edwin is.
    Chairman Kennedy. Look back and see which staffer deserves 
a gold medal on that one.
    [Laughter.]
    Chairman Kennedy. I know it was Senator Brownback's idea.
    [An FBI cap was presented to Mr. Munoz by Senator 
Brownback.]
    Chairman Kennedy. Good for you, all right.
    Senator Feinstein. There you go.
    Chairman Kennedy. Well done, good for you. Congratulations.
    [Applause.]
    Senator Brownback. A fine young man.
    Mr. Chairman, we should move forward aggressively. There is 
no reason to delay on this. Thank you for holding the hearing, 
and thank you really for pressing this issue, Senator 
Feinstein.
    Chairman Kennedy. Thank you, Senator Brownback.
    I just would pick up on this point. Let me ask Mr. Morton, 
Wendy, and Ms. Duncan, why not do it the way that has been 
recommended in the earlier panel? Why not just do this under 
the proposed restructuring plan that will place an Office of 
Juvenile Affairs directly under the commissioner, with the 
assurance that there would be responsibility under that program 
for following through to give the kinds of protections intended 
to be given under the Feinstein legislation? Why won't the 
restructuring they talk about do the job?
    Then, second, the judge mentioned some of the technical 
matters. We always welcome ideas, particularly from those who 
have experience dealing with these kinds of problems, and their 
suggestions. Do you think any of these points that the judge 
mentioned are insurmountable?
    Ms. Young. First, let me thank Senator Brownback, even 
though he has left, for joining in this effort. I think that is 
very, very important.
    In response to your first question, Senator Kennedy, first 
of all something that I didn't have time to bring out in my 
oral testimony but which is in my written testimony is if you 
look back over the years, the Department of Justice has 
actually moved these functions from office to office, with the 
Community Relations Service, which is outside the INS, then 
moving it within the Humanitarian Affairs Branch of the INS, 
which is where the Asylum Corps is lodged, and then in 2000 
moving it into the Detention and Removal Branch.
    My point here is that unless this is statutorily codified, 
what is to stop a future administration from moving this office 
once again? I do appreciate Commissioner Ziglar's commitment to 
looking at these issues and trying to find a new approach, but 
I believe this is too critical an issue for Congress not to 
step in and make sure that these kids are treated appropriately 
this year as well as in coming years.
    Second, I would like to flag again that I am very concerned 
that the restructuring proposal does not outline clearly that 
the officers who have the day-to-day responsibilities with 
these children will, in fact, be reporting directly to that new 
Office of Juvenile Affairs.
    Mr. Morton. Wendy is a great client to have. She speaks so 
well, I don't need to respond to your first question, but I 
will address your second question.
    With respect to attorneys, there are some implementation 
issues, unquestionably. I believe that if we go with the 
outlined structure in the bill, if we have an Office of 
Children's Services, it will be very simple to move forward 
with implementing programs such as right now we have with the 
American Bar Association, grant programs which get pro bono 
training, get pro bono counsel off the ground.
    For as little as a $100,000 grant, you can establish a 
program that can provide 100 to 150 pro bono lawyers in one 
location. What that is going to do is if we codify this bill, 
if we put the responsibility of INS to provide counsel for 
these children, then that will give them an incentive to move 
children to the areas where the counsel are located.
    One of the problems now is that their incentive is not to 
provide counsel. In fact, for their law enforcement motives, it 
is not to provide counsel, and we see children in facilities 
like Tulare Juvenile Hall three-and-a-half hours away from San 
Francisco and Los Angeles. There is no way to expect pro bono 
counsel to drive those lengths to take on a case and represent 
those children.
    If we put the incentive to have counsel, then they will 
move these children where they should be located, near the 
urban centers, near these programs, and we can move forward 
with the implementation issues without a problem.
    Chairman Kennedy. I might ask you if you would, then, Mr. 
Morton, and the other members of the panel, if you have 
technical recommendations I would invite you to work with our 
staff in terms of dealing with them.
    Ms. Duncan, is there anything that you wanted to add?
    Ms. Duncan. No. I think I covered in my testimony that we 
believe that the detention function is a separate function and 
that the child welfare planning should not be housed in the 
detention section.
    Chairman Kennedy. I just want to underline your testimony 
about the guardians ad litem. As I understand it, there are 900 
programs. Every State in the U.S. has volunteer guardians.
    While family court objectives in the system are somewhat 
different from the immigration system, my question would be do 
you believe that it is time that unaccompanied alien children 
have someone to look out for their best interests and do you 
think that the kind of training that they would need would be 
generally pretty accessible to have them do the job?
    Ms. Duncan. Yes, I do. I think that States and localities 
have great experience providing this kind of service to 
children and the service can be provided to alien children as 
well.
    Chairman Kennedy. Senator Feinstein?
    Senator Feinstein. Thanks very much, Senator.
    Ms. Young, let me begin with you. My understanding is that 
you visited 18 facilities used by the INS to hold unaccompanied 
children.
    Ms. Young. That is correct.
    Senator Feinstein. I want to ask you a question. What did 
you see in those facilities, and do you think these changes 
that INS wants to do are sufficient to solve an improve the way 
INS handles these children?
    Ms. Young. What we saw in visiting those 18 facilities was 
a real spectrum and variety in facilities. The INS shelter care 
facilities offer an environment of what we call soft detention.
    Senator Feinstein. I missed that.
    Ms. Young. They offer an environment of what we call soft 
detention. In other words, it is a better environment than the 
juvenile detention halls that the INS utilizes. Kids are 
provided some educational services. They are wearing their own 
street clothing. They do have some activities. However, the 
facilities still remain highly monitored, sometimes fenced, 
sometimes using security cameras, and the child is not free to 
come and go as he or she pleases.
    In addition, what we are concerned about in this facilities 
is children may remain in those facilities for very, very long 
periods of time. And whether better than the juvenile detention 
centers or not, they are still institutional in nature and that 
is not a good environment to leave a child in for a prolonged 
period.
    The juvenile jails stand in a category of their own. These 
are facilities, it is very important to remember, that were 
designed primarily to punish and to incarcerate youthful 
offenders. And the children that we are talking about, the 
large percentage of them, have in no way committed a crime of 
any sort and, in fact, are seeking relief to which they are 
rightly eligible under our immigration laws.
    Senator Feinstein. Let me stop you right here. As Edwin 
made his remarks, it is very clear that Edwin isn't a gang-
banger. It is very clear that he is a sensitive young man, and 
anybody ought to be able to see that within the first 3 minutes 
that they deal with him. On the other hand, there are those 
problems out there.
    If you automatically put a child in a situation--let's say 
a teenager, let's say a 16-, 17-year-old--where they can go and 
come before you have had the opportunity to do the necessary 
classification, as they would say in the other sector, to know 
what you are dealing with, that minor can just disappear, as 
has been said up here by the Ariana Felix organization in 
Tijuana, for example.
    Ms. Young. I think what really is the heart of S. 121 and 
is so critical that we put in place is that we make 
individualized determinations in each and every child's case.
    Senator Feinstein. That is right.
    Ms. Young. Yes, there will be children whom the INS 
encounters who may have some problem with the law, but we 
should treat those children accordingly. I believe S. 121 
really puts in place the structure so that we can make those 
kinds of nuanced, sophisticated decisions on behalf of each 
child.
    Senator Feinstein. Mr. Morton, under the Constitution and 
your interpretation of the law, is a child in this situation 
entitled to representation?
    Mr. Morton. I would not sit here and try to make a 
constitutional claim for the right to counsel of alien 
juveniles. In fact, there is a body of law that dictates how 
many constitutional rights an alien has and a separate body of 
law that dictates the constitutional rights that are extended 
to children. And where these two intersect, I think that we 
need to depend upon legislation to move forward with counsel 
for juveniles.
    Senator Feinstein. What I would like those people who have 
helped us with the legislation to know is I went over the 
legislation word by word the other day and we took some things 
out and we tightened it up, and I would love for you to take a 
look at it.
    One of the aspects that concerned me was really whether 
there should be in Justice. I think the Attorney General ought 
to make the appointment and the head of the office ought to be 
responsible to the Attorney General, not to the Commissioner of 
INS. But my question to you who work in this area is does it 
make sense to leave it within the INS as long as the reporting 
chain is outside?
    Ms. Young. If I could suggest perhaps that there is a 
little bit of a model here that we could look at, which is the 
fact that--I can't remember what year it was, but at one point 
we did move the Executive Office for Immigration Review out 
from underneath the INS and made it into a separate office 
within the Department of Justice responding to the Attorney 
General.
    I think that is a model that we should really follow here. 
I think it is a clean break. It separates those functions well. 
I agree with you that probably there is some tightening that 
needs to be done in this legislation, but I do believe that 
this is a structure that we should leave intact within the 
legislation.
    Mr. Morton. I would agree with that and I would just also 
say again I outlined in my testimony what we perceive to be 
some very inherent conflicts of interest within a law 
enforcement agency to provide for the interests of the child.
    Keeping it with the INS, no matter where it is within INS, 
it is still within INS. According to the restructuring plan, as 
Wendy mentioned earlier, there is a great deal of ambiguity. 
What kind of direct line authority would work its way down from 
this Office of Juvenile Affairs?
    We have had experiences with the current structure where it 
is very clear that anybody who works with INS will tell you 
these are fiefdoms; these are district directors who do not 
feel like they report to headquarters. And we were told 
directly from the districts that they do not report to the 
juvenile director.
    Unless there is a great deal of assurance that this new 
office that they are proposing has direct line authority, can 
make decisions, will take care of placements, will take care of 
transfers, and will not be some policy office with nebulous 
oversight of the system, then I just do not feel that that 
would ever be the right solution.
    Senator Feinstein. There is an infrastructure there, the 
connection between the Border Patrol, not to have to set up a 
whole other infrastructure, but to be able to utilize the good 
part of what is there and then remove the bad part by law.
    Mr. Morton. I would have to be assured that there was a 
great deal of separation between the Enforcement Branch and the 
children's services office. According to what has been proposed 
thus far, it does not appear that this is anything more than a 
policy with shared responsibility, where district directors, 
district juvenile coordinators, Border Patrol-type people, 
removal officers, detention officers, will be making the 
decisions about care and custody of children.
    Senator Feinstein. Well, all right, go back to Edwin's 
case. He comes across the border. He is picked up by the Border 
Patrol, who then takes him to an INS facility. Now, under our 
plan, how do you see this functioning from the time the 
individual is picked up by the Border Patrol?
    Mr. Morton. Within S. 121, with the Office of Children's 
Services?
    Senator Feinstein. Yes.
    Mr. Morton. Well, what the bill would do is transfer the 
legal and physical custody of the child from INS Border Patrol, 
local law enforcement, whoever picks up the child, and 
transfers that custody to the Office of Children's Services, 
the key being that the office is staffed with child welfare 
professionals and has no vested interest in the outcome of the 
case.
    Senator Feinstein. You are talking about an imminent place 
to keep him out of detention?
    Mr. Morton. I think that within the first several days, we 
are always going to be in a situation where the detention needs 
are going to have to be met. Even under the governing law right 
now, Flores v. Reno, that settlement agreement, within the 
first 72 hours INS can detain children wherever they need to. 
That includes secure facilities.
    But once that window has past, once they have gone beyond 
the 72 hours, they need to put the child into the least 
restrictive setting appropriate, and that is what I envision 
the Office of Children's Services would do. I don't think that 
there is any way that we can ensure from the moment that they 
get picked up that they would never be detained in an 
unpleasant situation because the fact is that some of the 
border-crossing areas, that is just the closest place to detain 
the child.
    But very soon thereafter, once the custody is transferred 
to an agency without an interest in the outcome of the 
immigration proceeding, I think that you would see a very 
different set of circumstances for where these placements would 
be made in areas like foster care, like shelter care, like 
residential facilities, and that is just not the case right 
now.
    Senator Feinstein. My understanding is that at any given 
time there are approximately 500 children that are going 
through this process, and I just wonder if you can get done 
what you have to get done within 72 hours.
    Ms. Young. Can I jump in here for just a second?
    Senator Feinstein. Yes, please.
    Ms. Young. I think picking up on a phrase Senator Kennedy 
used, I think the point here is to create, as best we can, a 
seamless web for these children. There is the practical reality 
and there is also the ideal. I think the practical reality is, 
of course, the INS will probably be the agency that first 
encounters these children and that they will need to have a 
place to house these children.
    The 72 hours is incorporated into S. 121 that custody be 
transferred at that point from the INS to the Office of 
Children's Services. However, I think if this bill were to 
become law, we may be able to actually move toward the ideal, 
my thought being that we would probably reach a point where the 
Office of Children's Services might have services available 
readily at those points where kids are encountered along the 
border.
    Senator Feinstein. Ms. Duncan?
    Ms. Duncan. It is typical in county or State child welfare 
systems to have a system of receiving care where children are 
held in safe haven while their initial case parameters are 
being determined. It is likely that INS will need to have some 
sort of secure facilities while things are being sorted out.
    But it is also probable that there could be safe haven 
foster care settings or safe haven receiving care settings 
where children could be held for a short period of time. Ten-
year-olds may not need to be in a security facility; 5-year-
olds probably don't. So it wouldn't happen right away, but the 
Office of Children's Services could devise a series of 
placements so that there are places for children to go.
    Senator Feinstein. Thank you.
    Edwin, let me just give you my thanks. You are a very brave 
young man and I have no doubt that you are going to be 
successful. If you study hard, who knows, you may even be head 
of the FBI 1 day. I have a little thing to go you afterwards, 
if I might.
    Chairman Kennedy. Very good. We want to thank all of you 
for excellent testimony, very helpful, a lot of very important 
information and a great deal of thoughtful commentaries from 
people who have really lived through this system in a very 
important way. Their experience and insights, and most of all 
their sense of compassion and decency has come through so well 
today. I want to thank all of you very much for a very, very 
helpful hearing.
    The Committee stands adjourned.
    [Whereupon, at 4:46 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]

                       SUBMISSIONS FOR THE RECORD

                                                     March 12, 2002

The Hon. Edward M. Kennedy
Chair, Subcommittee on Immigration
Committee on the Judiciary
United States Senate
Washington, DC 20515

    Mr. Chairman and members of the Subcommittee:
    We the undersigned are writing on behalf of the Philadelphia legal 
community to express our support for the Unaccompanied Alien Child 
Protection Act (S. 121). This legislation is essential to ensure that 
the best interests of the child will govern the care and custody of 
unaccompanied minors who travel to this country seeking protection from 
further persecution, abuse, mistreatment and neglect.

    I. S. 121 cures the INS's conflict of interest with respect to 
children in its custody in which the INS has favored prosecution over 
care.

    Currently, the U.S. Immigration and Naturalization Office (``INS 
'') is charged with both the care and prosecution of children it takes 
into custody. The INS role as custodian of unaccompanied minors is 
severely compromised by its primary function as an enforcement agency.
    This conflict perhaps is best exemplified by INS' refusal to 
release children to parents without legal status unless the parents are 
in removal proceedings. Even though other family members with legal 
status may be available to take custody, the INS holds children as 
`bait' until their parents place themselves in removal proceedings. 
This practice places unnecessary stress on a child by pitting her 
against her parents.
    The INS is required to release children to relatives. However, it 
frequently detains children despite the presence of close relatives who 
are willing to care for them.

        ``Sara'' is a 14-year old girl from Eritrea. Her parents and 
        siblings were arrested 4 years ago for political reasons, but 
        Sara escaped arrest because she was spending the night at a 
        friend's house the night that the police came for her family. 
        She hid with friends of her family in a neighboring country and 
        then came to the U.S. in September 2001. Her aunt, who is a 
        legal permanent resident, lives in Ohio and was desperate to 
        have Sara released to her, but INS challenged whether their 
        relationship was valid. INS was provided with extensive 
        documentation, including the birth certificates of Sara and her 
        aunt, school records listing family members, and notarized 
        affidavits from family friends, tax documents from the aunt, 
        and the aunt's resident alien and social security cards but INS 
        continued to demand further documentation from Sara's 
        representatives. Sara was released to her aunt in March 2002, 
        nearly six months after she was placed in detention.

    Even when family members seek custody, the INS often conditions 
release on arbitrary and unreasonable demands, so that detention is 
unnecessarily protracted. This prolonged, unnecessary detention is 
psychologically damaging to the children and a needless expense to 
taxpayers.

        ``Sonia'' a nine year old child was detained for over four 
        months although her father, present in the US and already in 
        court proceedings, produced all the necessary documentation for 
        her release within a few days of her arrival. This non-English 
        speaking child endured not only separation from her family, but 
        extensive weight loss due to dietary changes. She also 
        contracted the chicken pox and was held isolated in quarantine.

    In Pennsylvania, children with active immigration cases have 
remained in detention for over a year, even when less restrictive 
alternatives are available and even mandated by the INS' existing 
Flores agreement. Often this is due to INS' failure to use foster care 
options while a child's case is pending.
    The INS frequently shuffles children in detention from facilities 
in one state to another. This unnecessarily prolongs the child's stay 
in detention by delaying the proceedings while the hearings are 
rescheduled in the local tribunal. Furthermore, it impacts the child's 
access to legal representation. Many of these children were able to 
secure pro bono counsel where they were first detained, but the 
transfer forces them to search anew for local counsel who must then be 
brought up to speed on their case.
    The INS also arbitrarily and unfairly hinders the ability of 
children victimized by abuse, abandonment and neglect to secure special 
protections for which they are eligible. Last year, the Philadelphia 
District INS refused to release from its custody six children who were 
entitled to seek a dependency order from juvenile court in order to 
obtain a Special Immigrant Juvenile Visa from the INS. In each of these 
cases, the Philadelphia District INS ignored the fundamental principle 
of acting in the best interest of the child and either ignored the 
request and allowed the child to ``age out'', or denied the request 
outright.

        ``Vladamir'' is a 17-year old boy from Azerbaijan. His parents, 
        who were Christians of Russian and Armenian ethnicity, were 
        killed by Muslims from the Azerbaijani ethnic group during the 
        civil war in Azerbaijan in the 1980's. Vladamir went to live 
        with a family friend in Russia, but had no legal immigration 
        status there. When he was 15, the family friend died and he 
        ended up living on the streets. As an orphaned child, Vladamir 
        is eligible for a Special Immigrant Juvenile visa, and asked 
        for INS to grant permission for him to pursue this visa in 
        December 2001. In March 2002, his request was denied.

    One of the most crucial aspects of the proposed legislation is that 
it offers a constructive solution to this untenable conflict of 
interest. It is impractical and irresponsible to expect the INS to 
balance the competing interests of prosecution and custodial care, and 
we do not hold any other enforcement agency to this expectation. By 
placing these children in the care of a special Office of Children's 
Services, this would ensure that the physical and mental health of the 
child are not disregarded in the face of the INS interest in 
deportation.

    II. S. 121 assures that children in INS custody will have access to 
legal representation and counsel, as well as other essential health 
care services

    Each year, nearly 5,000 children arrive in this country without 
lawful immigration status and no parent or legal guardian to provide 
them with care and legal custody. A significant number of these 
children are routinely placed in secure detention facilities by the 
INS, further victimizing them. Placing the children under the care of a 
newly created Office of Children's Services, charged with assuring 
comprehensive care with a team-based approach to providing an array of 
social, medical and educational services, supported by legal 
representation, is a substantial improvement to the current system of 
detention.
    A host of legal, social and psychological issues surround children 
in detention:

         The legal needs of unaccompanied minors are complex, 
        ranging from developing a defense for their removal 
        proceedings, working towards their release to family members, 
        or securing their voluntary departure back to their country of 
        origin. Detained children frequently face linguistic barriers 
        and cultural isolation, in addition to experiencing trauma from 
        their extended separation from family.
         Children detained by the INS often have experienced 
        emotional or physical persecution by individuals in their home 
        country; some have seen family and friends killed and/or 
        tortured; and others, are victims of abuse, abandonment or 
        neglect. Many of these children have suffered unspeakable 
        torture, the loss of family members and loved ones, hunger and 
        deprivation prior to their arrival in this country. INS 
        detention often compounds the anxiety and stress of these 
        children. Moreover, the detention causes many children to 
        abandon viable claims for relief because they cannot bear the 
        conditions of confinement.
         Most troubling is the placement of children who suffer 
        from serious mental health problems in secure detention, a 
        practice the INS alleges is for their own protection.

    Most of the detention facilities are located more than one hour 
outside the nearest urban center. This significantly restricts access 
to experienced immigration attorneys, social service providers and 
interpreters to assist children with their legal case or address other 
medical and/or mental health needs.
    The Philadelphia District INS detains unaccompanied minors between 
the ages of 7 and 17 at the Berks County Youth Center (BCYC). In 2001, 
INS detained approximately 200 unaccompanied or separated children at 
BCYC. BCYC is located nearly 1\1/2\ hours from Philadelphia, making it 
difficult to recruit pro bono attorneys, secure interpreters and other 
social services providers, and to meet the legal, medical and mental 
health needs of the children.
    BCYC consists of two medium secure units with 24 hour intensive 
staff supervision and a high security or ``secure'' facility that holds 
immigration detainees and U.S. citizen juvenile offenders.
    The secure facility used by Philadelphia District INS is highly 
punitive, depriving children of the most basic services. The children 
are strip-searched after attorney visits, prevented from speaking any 
language except English, handcuffed while transported and physical 
restraints by staff are frequently reported for small transgressions.

        ``Jin'' was placed in Secure detention by INS after INS claimed 
        he acted out in shelter care. He was told that he would be sent 
        to secure detention until he learned to behave himself and 
        after a few days he would be brought back to ``regular 
        detention''. Weeks went by and this boy with no criminal 
        convictions sat languishing in a secure cell. He was not 
        allowed to speak his language and was stripsearched after 
        visits from his representative. Jin was so upset by his stay in 
        secure that whenever his representative visited him to discuss 
        his asylum case he only wanted to talk about how difficult it 
        was for him to stay in secure.

    Sara, Sonia, Vladamir and Jin's experiences illustrate the need for 
5.121. They are just a few examples of the thousands of unaccompanied 
children whose best interests have been compromised as a result of the 
system that combines care and custody with prosecution. Presently, 
5.121 provides the only viable alternative to ensuring that the unique 
needs of unaccompanied immigrant children are served.
    We strongly encourage the members of this committee to take 
advantage of the opportunity presented by S. 121 to adopt well-
established national and international conventions and laws 
safeguarding the best interest of children. These reforms embody a 
free, democratic and civilized society.

        Heather M. Bendit
        Philadelphia Bar Foundation

        Judith Bernstein-Baker
        HIAS and Council Migration Services

        Rupal Parikh
        Nationalities Services Center

        Shelly D. Yanoff
        Philadelphia Citizens for Children & Youth

        Metty Vithayathil
        Pennsylvania Immigration Resource Center

        Phyllis Grady
        Amnesty International

        Michele Pistone
        Villanova Law School

        Joy VanBerg
        Lutheran Children & Family Services

        Marsha Levick
        Juvenile Law Center

        Julie Slavkin
        Southeast Regional Immigrant and Citizens Coalition

                                

  Statement of Hon. Maria Cantwell, a U.S. Senator from the State of 
                               Washington

    I would like to thank Senator Kennedy for chairing this important 
hearing on S. 121, the Unaccompanied Alien Child Protection Act 
introduced by Senators Dianne Feinstein and Bob Graham. I am pleased to 
cosponsor this bill.
    Every year, the INS detains thousands of children who arrive at our 
borders without documentation and without a parent or guardian. Due to 
the lack of adequate detention facilities for these minors, the INS 
often places these children among juvenile offenders or even adult 
prisoners. This happens in every state including my own. The children 
are often subjected to disciplinary measures such as handcuffing, 
shackling, and solitary confinement.
    These children, who generally speak little or no English, have no 
right to a guardian ad litem or government-appointed counsel. They 
consequently appear in immigration court alone against experienced INS 
attorneys. Attorneys who represent these children have difficulty 
communicating with their clients because the children can be moved from 
one facility to another without their attorney's knowledge. Without 
proper legal assistance, these children are at high risk of deportation 
to countries where persecution, civil unrest, and human rights abuses 
abound. The inherent conflict of the INS overseeing both the care and 
deportation of these children is further compounded by the absence of 
any special office within the INS to monitor these children and their 
welfare.
    Of the thousands of children subjected to this process each year, 
one that I am personally familiar with is that of Ramon Zepeda. Ramon 
was born in Nicaragua to a mother who abused him and sold him into 
slavery. He later became homeless, and after spending years living on 
the streets, Ramon walked out of Nicaragua, through Honduras and El 
Salvador, and eventually into Mexico. He was apprehended at the border 
when he tried to gain entry into the United States. At the age of 16, 
Ramon was initially placed in a detention facility in Arizona with 
adult men. Prior to being granted asylum before an immigration judge, 
Ramon spent five months in juvenile jails in four states ending up in 
Washington. Fortunately, a loving couple from my state in Bellingham is 
working with the INS to become foster parents for Ramon. Many children 
like Ramon do not find such a happy ending.
    I want to commend INS Commissioner Ziglar for acknowledging the 
problems with the current system, and I am pleased that he recently 
announced the creation of the Office of Juvenile Affairs to oversee the 
protection of juveniles. While I applaud this initiative, I remain 
concerned that children still remain under INS jurisdiction, and will 
not receive counsel and guidance from outside the INS.
    The Unaccompanied Alien Child Protection Act responds to many of 
these concerns by establishing the Office of Children's Services within 
the Department of Justice to coordinate legal and social services for 
unaccompanied minors. The Office of Children's
    Services would establish standards for custody, detention, and 
release to ensure that detention is in an appropriate facility, to 
require release whenever possible to parents and legal guardians, and 
to expand the use of foster care placement. Additionally, the Act 
provides minors with access to counsel and a guardian ad litem to 
safeguard their legal rights. Finally, this legislation protects the 
immigration status of children who age-out of eligibility while INS 
approval of an immigrant visa is pending.
    The Unaccompanied Alien Child Protection Act does not change INS 
jurisdiction over enforcement matters or adjudication of asylum claims, 
nor does it interfere with custodial rights of parents or guardians to 
seek family reunification.
    The Unaccompanied Alien Child Protection Act is a pro-children bill 
that addresses the special circumstances of unaccompanied alien 
children with respect to their particular custodial and legal needs. I 
look forward to working with my colleagues on this important piece of 
legislation.
    Thank you again, Mr. Chairman.

                                

Florence Immigrant & Refugee Rights Project, Holly S. Cooper, Florence, 
                                Arizona

            Mentally Retarded Child Highlights Need For S121
    Juan Carlos (real name withheld) crossed the border on October 6, 
2000. He was placed in a county jail in Yuma, Arizona because there was 
no room at the INS shelter. After space became available at the INS 
shelter, Juan Carlos was moved the Southwest Key in Casa Grande, 
Arizona.
    Juan Carlos, however, was transferred out of the shelter only 
twenty-four days after his arrival. On November 3, 2000, Southwest Key 
requested Juan Carlos be removed from the program and recommended he be 
placed in a juvenile jail. Staff believed he did not take the rules of 
the shelter seriously because he would smile when reprimanded for what 
appeared to be escape attempts. Staff at Southwest Key also noted that 
client refused to participate in class due to withdrawn behavior.
    Juan Carlos was then transferred to a juvenile jail in Globe, 
Arizona. In the jail, Juan Carlos was ``hog-tied'' when he refused to 
go back to his cell. He was reprimanded for trying to hold another 
child's hand. Undoubtedly, the boy was confused and had no 
understanding of what was happening.
    The Immigration Court in Phoenix contacted the Florence Immigrant & 
Refugee Rights Project to see if they could represent the child. The 
Florence Immigrant & Refugee Rights Project had not yet begun to work 
with children but agreed to visit Juan Carlos and engage in 
representation. I, Holly Cooper, agreed to assist Juan Carlos and I 
immediately noted that the child was so completely withdrawn that he 
could not even speak. He answered ``yes'' to every question, even if 
the question did not call for a yes or no answer.
    After several visits, I discovered the child could not speak 
Spanish. The boy was an indigenous Guatemalan who spoke and indigenous 
language. When an indigenous translator attempted to communicate with 
the child, it became apparent that the child was either so neglected or 
so mentally disabled that he could speak no language fluently. The 
child and I slowly began to develop our own special language, using key 
words that we both understood. I learned that the child had lived alone 
in Mexico since he was eight years old. He had no contact information 
for any family. He had no one left in Guatemala. The child guessed that 
he was about 15 years old but did not know his true age. Slowly, the 
child and I came to form a trusting relationship.
    On January 31, 2001 at 3:30 p.m., I was informed that the INS was 
having procurement issues with the jail in Globe and Juan Carlos was 
going to be moved to Los Padrinos Juvenile Hall in Los Angeles, 
California.The child was moved about one hour after the phone call.
    The next day, with the help of another child, Juan Carlos called me 
collect from a staging area in San Diego. The children all stated that 
they had not eaten in twenty-four hours. He asked the me, ``Will I be 
going to a better place?"
    The next day the child was admitted to Los Padrinos Juvenile Hall. 
I then requested a psychological evaluation for the child, but was told 
that he would be provided a psychological evaluation when he arrived at 
Tulare County Juvenile Jail in Visalia, California. Twelve days later 
Juan Carlos was transferred to Tulare County Jail. The same day of the 
transfer, a social worker approached Juan Carlos to see if a 
psychological evaluation was necessary. The social worker said the 
child would not get a referral because he was merely a behavioral 
problem because he refused to talk to her.
    The INS said that they would not transfer the child back to Arizona 
but they would allow his court case to stay in Arizona. Knowing I could 
not adequately represent him due to the distance between Florence, 
Arizona and Visalia, California. I tried to find a volunteer lawyer to 
help Juan Carlos but Visalia, California was four hours from either Los 
Angeles or San Francisco. No attorney could help. I then personally 
paid for a plane flight and transportation to visit Juan Carlos because 
as attorney of record I had to prepare for his legal case.
    On March 6, 2001, Juan Carlos was transferred back to the Gila 
County Juvenile Detention Center in Globe, Arizona. Then in May 2001, 
INS agreed to transfer Juan Carlos back to the shelter at Southwest 
Key.
    I continually requested a psychological evaluation for the child. 
The INS finally agreed to a psychological evaluation. The INS sent Juan 
Carlos to a psychological examination where a doctor conducted a 
thirty-minute exam translated by a deportation officer.
    The attorney then begged INS to have a private psychologist do a 
comprehensive examination of Juan Carlos. The INS agreed to the 
evaluation only if the child would agree to waive the psycho-therapist 
privilege.
    The psychologist discovered that Juan Carlos is mildly retarded and 
has the maturity level of a five to six-year old. Juan Carlos 
eventually won his asylum case. Juan Carlos' request for state court 
jurisdiction for purposes of Special Immigrant Juvenile Visa status was 
never adjudicated. Juan Carlos currently lives in foster care in New 
York. The child was detained for eighteen months and was released on 
February 26, 2002.

    This case highlights the following:
    (1) Why a guardian ad litem is necessary: If Juan Carlos had been 
appointed a guardian ad litem, the child could have had someone 
determining his ``best interest'' from the initiation of proceedings. 
The guardian could have understood that Juan Carlos was mentally 
incompetent from the outset and there never would have been the initial 
misunderstanding which sent Juan Carlos to juvenile jail for seven 
months. Presumably, the guardian could make an independent request for 
a psychological evaluation that would have been respected.
    (2) Why INS should not adjudicate consent requests: In this 
particular case, INS never adjudicated the consent request. Even though 
INS stipulated that the child's family was in Mexico and that the child 
was mentally disabled, the INS still thought it was in the child's best 
interest to be deported to Guatemala where he had no family. INS' job 
is to deport people to their countries of origin if there is no legal 
relief under US immigration laws. The INS cannot create a special 
firewall in their judgment for children. The INS cannot realistically 
articulate a child's best interest while seeking deportation. Also, INS 
has NO specialized training in determining what is in a child's best 
interest.
 social workers/clinicians working in the ins shelters cannot provide 
   for children's psycho-social needs because communications are not 
    confidential and social workers/clinicians are violating their 
                         licensing requirements
    At Southwest Key, an INS shelter, there are two categories of 
individuals who pose liability concerns for INS: (1) the clinician and 
(2) the caseworker. Communications to both these persons should be 
confidential and when the worker violates that right, it subjects INS 
to potential liability for violation of the child's privacy.
    The clinician provides for each child's pyscho-social needs while 
detained. For example, if a child is struggling to deal with the 
psychological affects of child abuse, the child would confide in the 
clinician at Southwest Key. However, because the clinician is under the 
umbrella of the INS enforcement office, the communications between the 
clinician and the child are NOT confidential. The clinician has weekly 
meetings where s/he discusses each child's case with the caseworkers 
and the program director. The information a child discloses can 
prejudice the child because the information can be given to the INS 
trial attorneys and the INS deportations officers. Many times the 
reports are used to transfer a child from a shelter environment to a 
jail.
    In one instance the Program Director at Southwest Key recommended 
the removal from the shelter a child diagnosed with Post-Traumatic 
Stress Disorder. This ``referral'' letter always results in the child 
being placed in a juvenile jail and removed from the shelter. Thus, the 
psychological evaluation of the child was in part used to have him 
removed from the shelter. Moreover, the shelter staff have used 
declarations from other children to serve as witnesses against their 
peers.
    The caseworker also poses unique ethical questions for the INS. 
First, the caseworker's title is often translated into Spanish as 
``trabajador social'' which means ``social worker'' in English. 
Representation of oneself as a social worker invokes the ethical 
responsibility of confidentiality on each caseworker.
    Notwithstanding the title confusion, the role of the caseworker/
social worker also sends mixed signals to the children. The caseworkers 
call the children their ``clients.'' From the child's point of view 
this person is there to help them and serve their needs - just as a 
social worker would be in a normal setting. The caseworker is 
responsible for helping each child seek reunification with his or her 
family. The caseworker initiates contact with the family and verifies 
if the family members are documented or undocumented. If the family 
members are undocumented, the caseworker/social worker would report the 
family member's legal status to the INS deportation's branch. Moreover, 
if parents or brothers and sisters are in the country illegally, the 
INS will use the child as bait until the parents or siblings ``come 
forward'' to be processed for deportation. Thus, a caseworker telling 
the INS that a child's parents are in the U.S. illegally can mean long-
term detention for the child. On the one hand, the caseworker sends the 
signal to the child that they are ``helping'' the child reunify with 
family, one the other hand, the caseworker in most cases reports 
illegal family members to the INS and inhibits the child's ability to 
be released from detention.
    Thus, the S 121 Bill would help create a firewall between social 
workers/clinicians and the INS' enforcement responsibilities. 
Currently, the system in unworkable. Children cannot trust the 
clinicians. The children are coping with trauma of child abuse, 
persecution, and mistreatment by smugglers. The children must have an 
opportunity to voice their concerns to a person who they can trust and 
who can respect the child's privacy. Moreover, the currently system 
violates each child's privacy rights and could subject the INS to 
enormous liabilities if the system is not promptly remediated.
 providing free legal assistance to ``trafficked'' children decreases 
                   the smuggler's access to the child
    Zheng Wei Zun (real name withheld) had been represented by an 
attorney for over one year. The attorney never appeared in court yet 
promised her they would help her win her case. The case was continually 
reset by the court because the attorney failed to appear.
    When the Florence Immigrant & Refugee Rights Project finally began 
its representation of detained minors, the Court requested that the 
attorneys help the child. Within three months, the child was granted 
political asylum and released from detention. The child later confessed 
that she feared her attorney because she believed she was hired by a 
smuggler.
    This fact pattern has repeated itself countless times. It is 
relevant because it shows:

    (1) economic waste because children are detained for longer periods 
of time at government expense while incompetent attorneys drag cases on 
for unconscionable periods of time;
    (2) psychological harm to children because they are living in a 
detention setting while the ``private'' attorney fails to adequately 
represent the child;
    (3) when children are provided with a ``free'' alternative to an 
incompetent attorney, the child will inevitably choose an attorney who 
they trust and who can handle their cases as expeditiously as possible.
    (4) attorneys often are the smuggler's link to the child. Children 
often do not even know the attorney that is representing them. 
``Smuggler'' attorneys help the smugglers track the child after release 
because the attorney is notified where the child is detained and when 
the child will be released.
  the district director should not determine whether the state courts 
 have jurisdiction over detained abused, abandoned. neglected children
    Currently, the INS District Director determines whether abused, 
abandoned and neglected children in its custody can become wards of the 
state. The District Director of Phoenix INS has never granted consent 
on any case where the child is detained in Arizona. As a result, the 
child must file a mandamus action in federal court if they want access 
to the state foster care system. This places an enormous burden on the 
child.
    The District Director defines her role in this process as being a 
threshold adjudicator of whether the child qualifies for Special 
Immigrant Juvenile Visas. If she believes the child is not credible or 
state court proceedings would not be in the child's best interest, she 
``sits'' on the consent request. The District Director is any every 
sense making a preadjudication of the child's case. The District 
Director has no training in child welfare, in child abuse or child 
psychology. The consent adjudication process should be in the hands of 
an independent decision-maker who has specialized training in child 
welfare. The inquiry of whether the child should become a ward of the 
state, should be left in the hands of the state court judge.

                                

  Statement of Bob Glaves, Chair, Legislative Committee, Chicago Bar 
                     Association, Chicago, Illinois

    Mr. Chairman Kennedy and Members of the Immigration Subcommittee:
    My name is Bob Glaves and I am the Chair of the Chicago Bar 
Association's Legislative Committee. The Chicago Bar Association (CBA) 
is the over 22,000 member voice of the Chicago area legal community, 
and I submit this testimony today to underscore the CBA's strong 
support for the Unaccompanied Alien Child Protection Act of 2001 (S. 
121). This critical legislation would begin to correct a major 
injustice in our country by insuring that unaccompanied immigrant 
children fleeing persecution and terror in their home countries are 
treated humanely as children and afforded basic due process rights.
    Each year, about 5,000 children arrive in the U.S. (many in the 
Chicago area) without appropriate documentation and without a parent or 
guardian to care for them, and at that point the Immigration and 
Naturalization Service (INS) takes the children into custody. These 
``unaccompanied children'' may be fleeing any number of dangerous 
circumstances, including smugglers; parental abuse or neglect; war; 
child prostitution; female genital mutilation; forced labor; and forced 
recruitment as child soldiers.
    More than anyone, these children need the due process protections 
that are the backbone of our country. Yet in too many cases, they are 
forced to proceed with no legal representation and no guarantee that 
will be treated fairly and humanely or afforded even the most basic due 
process rights.
    Under the current system, there is an inherent conflict in the role 
of the INS. The INS is responsible for the care and custody of these 
children and also is charged with prosecuting their removal 
proceedings, which includes trying to disprove their claim for asylum 
or other immigration status. Individuals are eligible for asylum if 
they can prove that they have a wellfounded fear of persecution based 
on their race, religion, nationality, political opinion or membership 
in a particular social group. The standard for children seeking asylum 
is the same as for adults, which means the burden of proof lies on the 
children who, lacking familiarity with the U.S. legal system and often 
with the English language itself, must prove their claims in 
adversarial court proceedings. Their opponent, in contrast, is a highly 
trained, educated legal staff with virtually unlimited resources.
    The existing system governing unaccompanied immigrant children runs 
completely contrary to the well-established principles that govern 
other cases involving the status of vulnerable children in the United 
States. In all other cases, our legal system is designed so that every 
effort is made to protect the best interests of the children. For 
instance, in proceedings involving allegations of child abuse or 
neglect in Illinois, during the pendency of the proceedings children 
are:

    (1) Placed with a responsible caretaker,
    (2) Evaluated by experts in child welfare and provided with 
necessary services, and
    (3)Monitored by a private social services agency to insure proper 
care.
    In other legal proceedings, children always are represented by an 
independent attorney and a guardian ad litem is appointed to advocate 
for the children's best interests. In addition, in more complex cases, 
a court appointed special advocate is assigned to thoroughly monitor 
the child's wellbeing throughout the proceedings. This system insures 
that the children receive safe and proper care while the case is 
pending and that there is a full and fair hearing of the merits before 
the judge renders a decision.
    Unaccompanied immigrant children, in contrast, are guaranteed none 
of these statutory protections we take for granted in all other cases 
involving children. Specifically,

         As noted above, the party responsible for their care 
        (the INS) is also the party charged with prosecuting their 
        removal proceedings, an inherent conflict of interest.
         While the locked facility where these children are 
        housed in Chicago is considered a model, in other parts of the 
        country children often are housed in juvenile correctional 
        facilities without access to appropriate services.
         The children do not have a guardian or other party to 
        look out for their best interests.
         There is no guarantee that these children will have 
        legal representation in the adversarial removal proceedings and 
        they too often do not. The CBA continues to work with the 
        American Bar Association (ABA) and the nationally acclaimed 
        Midwest Immigrant and Human Rights Center (MIRHC) to recruit 
        and train top attorneys from throughout the legal community to 
        represent these children on a pro bono basis, and the ABA is 
        coordinating similar efforts throughout the country. In fact, 
        pro bono attorneys throughout the country already handle 
        hundreds of cases for these children. Despite these efforts, 
        however, 50% of the children go unrepresented in these cases 
        due to the inherent flaws in the structure of the current 
        system.
         Children are often asked by the INS to sign documents 
        they cannot read or understand without legal representation or 
        are summarily transferred without notice to their legal 
        counsel.
    The lack of these basic due process protections would be bad enough 
for adults familiar with our country, but it is absolutely devastating 
for traumatized children unfamiliar with the language and culture who 
find themselves forced to navigate the complex immigration system 
alone. The system must be changed.
    The proposed legislation would go a long way towards remedying 
these problems by, among other things, separating the custodial and 
prosecutorial responsibilities of the INS, appointing independent 
parties with expertise in child welfare as guardians, and guaranteeing 
that children in these proceedings are represented by independent legal 
counsel. The bill would not expand the remedies available under current 
immigration law. While S. 121 will require some amendments to clarify 
the guardian ad litem and attorney representation provisions, we 
believe this bill is a critical and necessary first step towards 
creating a fair and appropriate procedural framework for cases 
involving unaccompanied immigrant minor children.
    Contrary to the claims of the INS, internal restructuring of the 
INS is not a valid substitute for this legislation. While the INS 
commitment to undertake internal reforms regarding their treatment of 
children is laudable, it cannot solve the inherent INS conflict in 
these cases (i.e., the INS serving as both caretaker and prosecutor), 
nor can it possibly insure basic due process protections for these 
children. Only a system of checks and balances, with independent legal 
counsel and guardians, can insure these protections.
    The inherent conflict of the INS in these cases is illustrated well 
by recent events in Chicago. Until recently, children held in detention 
here were regularly and proficiently given basic ``Know Your Rights'' 
presentations by MIRHC and its pro bono legal counsel in the Chicago 
area. However, the INS recently has barred these presentations, and 
local advocates have informed us that the local INS Juvenile 
Coordinator is now giving these presentations.
    It doesn't require a lawyer to recognize that in taking this 
action, the INS has turned our entire justice system on its head. 
Imagine a detained adult prisoner (let alone a child) asking to consult 
with an attorney and then getting a visit from the State's attorney who 
will prosecute him to explain his rights. That of course is 
unfathomable in our country, yet that is exactly what is happening to 
detained unaccompanied immigrant children right now. And the existing 
system allows the INS to do it, with absolutely no recourse for the 
minors, which underscores why this proposed legislation is so 
necessary.
    In short, legislation to provide fundamental protections for these 
children is more necessary than ever. We strongly support the core 
principles of S. 121, which goes to the heart of what our nation of 
immigrants is built upon, and we hope you will do so too. Thank you for 
your consideration.

                                

  Statement of Hon. Orrin Hatch, a U.S. Senator from the State of Utah

    I am pleased that our attention is focused today on the plight of 
children who lack lawful immigration status in the United States. In 
the aftermath of September 11, 2001, we have, in a very bipartisan 
manner, tightened some of the immigration laws and procedures that have 
left us vulnerable to those who would seek to do us harm and we will 
continue to do so. Accordingly, it is my sincere hope that the Senate 
will quickly pass the Enhanced Border Security and Visa Entry Reform 
Act of 2001, which the House passed last year. That bill, which is a 
measure of true bipartisan support, is a product of many hours of hard 
work and is desperately needed. However, we must also remember our 
humanitarian legacy when it comes to special consideration of the 
immigration status of particularly vulnerable classes of people.
    Sadly, more than a few foreign-born children arrive in the United 
States each year without parents or legal guardians. In 1999, for 
instance, more than 4,600 such children entered the country. Some 
children are rented--yes, you heard me correctly, rented--to 
unscrupulous smugglers, who then use the children to perpetuate the 
fraudulent entry of others who either lack a valid visa or have no 
intention of abiding by the terms of the same. Other children come in 
hopes of escaping desperate circumstances and persecution in their home 
countries. Whatever the case, unaccompanied minor children are often 
victims in the truest sense of the word.
    Once here, these children, who usually speak little or no English, 
face a very complex legal process. In addition, the INS must determine 
where to place the children pending the oftentimes lengthy ordeal. All 
too often, these children have been unnecessarily placed in highly-
secured facilities, co-mingled with violent juvenile offenders.
    Today, I am very interested in the discussion of S. 121. 
Particularly, I would appreciate the comments of the witnesses 
regarding (1) the need for legal counsel and guardians ad litem to 
assist unaccompanied children and (2) the proposed change to transfer 
custody of unaccompanied minor children from the INS to a separate 
office within the Justice Department, and why it is suggested that both 
are necessary.
    However, before I end, I would also like to briefly discuss an 
equally important and related issue: that of a slightly different class 
of children--those being long-term illegally resident children. That 
is, minor children who were illegally brought to and remain in the 
United States through no fault of their own. Long-term illegally 
resident children often are not even aware of their illegal status in 
the United States. They are, by law, accorded the right to education 
through high school. However, they are provided no independent ability, 
no matter what their individual accomplishments, to become lawful 
permanent residents. That is why I have introduced student adjustment 
measures. I should also recognize and commend a similar, but different 
approach to this issue sponsored by my good friend, Senator Durbin. We 
recognize that although the parents of long-term illegally resident 
children knowingly remain in the United States in violation of the law, 
their children are assimilated into American culture; they attend 
school, participate in extracurricular activities, and earn 
scholarships to college. They are largely intent on being contributors 
to society, and want to better themselves. Current law provides a 
disincentive for that to happen. They lack the right to work. It is 
very difficult for them to obtain the college degrees so many of them 
desire. For instance, under current law, individual states are not 
permitted to allow long-term illegally resident children to pay in-
state tuition despite having what would normally be resident status for 
tuition purposes.
    To illustrate, allow me to briefly mention the moving story of one 
of my constituents, Danny. When he was 6 years old, Danny's mother 
illegally brought him into the United States. After a very difficult 8 
years, Danny was finally abandoned and left to roam the streets of Salt 
Lake City. While Danny had been attending school, he dropped out so he 
could earn enough money to survive on his own. Finally, Danny met Kevin 
King, the owner of a Utah landscape company, who agreed to hire him. 
Discovering that Danny had no home, Kevin invited Danny to live with 
him in what he believed would be a temporary arrangement. In a recent 
letter to me, Kevin mentions that, ``The first couple of months 
together I learned a great deal about Danny. I learned that one of the 
things he missed most was being able to go to school.'' Kevin then made 
the necessary legal arrangements for Danny to resume his education. 
Although Danny had a full year of classes to make up, he did so under 
Kevin's care by attending night and summer school, and even taking some 
correspondence home study courses.
    On September 25, 2001, Kevin adopted Danny as his son. However, 
because of the date of the adoption, Danny is ineligible to become a 
lawful resident of the United States. Instead, he lives in legal limbo, 
ever-fearful that the INS may take steps to remove him from the only 
true family he has ever known. He cannot legally work, and securing a 
college degree is proving difficult and costly. However, that has not 
stopped Danny. He is now in his third semester of college at the 
University of Utah and I am proud of him.
    Again, I quote from Danny's father's letter. ``Danny is exactly 
what our country needs more of. He is a natural born leader with 
charisma and intelligence and a drive that will take him wherever he 
wants to go. But this will not be possible if Danny is unable to obtain 
permanent residency.'' Danny also writes and states, ``My father gave 
me the gift of feeling . . . and the opportunity to dream.''
    Danny's story is one of thousands. The student adjustment bill I 
introduced last year, called the Dream Act (S. 1291), can remedy this 
grave situation. It provides for earned or incentivized adjustment. It 
does not grant amnesty. Qualified children must be long-term illegal 
residents of the United States, meaning those who entered the United 
States only recently are ineligible for adjustment of status under the 
bill. Further, the child must have good moral character ensuring that 
we do not extend any benefit to those who do not deserve it.
    In short, I am very pleased that we are discussing these issues 
today and commend the chair and Senator Kennedy for their leadership 
and for holding this hearing.

                                

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    First, let me thank Senator Kennedy for holding this hearing about 
a most vulnerable population--unaccompanied minors entering the United 
States. I would also like to praise Senator Feinstein for her 
consistent attention to this important issue. I remember that while 
this Committee and others in Congress were debating the fate of Elian 
Gonzalez, Senator Feinstein sought to have us focus on all the children 
who arrived here as Elian Gonzalez did. Early last year, she introduced 
the Unaccompanied Alien Child Protection Act.
    Senator Feinstein's bipartisan bill would establish an Office of 
Children's Services to coordinate the government's treatment of 
unaccompanied minor aliens. That office would be responsible for taking 
care of unaccompanied alien children while their immigration claims 
were heard. The bill would forbid detaining these children in 
facilities for adults or delinquent children and ensure that all such 
children would have counsel and a guardian ad litem. It would also 
create a special immigrant juvenile visa.
    We will hear today from strong proponents of S. 121, and we will 
also hear from the INS and the Justice Department about its concerns. I 
know that Commissioner Ziglar is committed to improving conditions for 
children in the immigration system, and I appreciate his involvement in 
this process. I would hope we can work with the INS and with the 
Justice Department to do something this year to protect children. 
Senator Feinstein's bill does many important things, and deserves the 
full consideration of this committee.

                                

  Statement of Hussein Sadruddin, Soros Postgraduate Justice Fellow, 
 Lawyers' Committee for Civil Rights Under Law of Texas, San Antonio, 
                                 Texas

    Mr. Chairman Kennedy and Members of the Immigration Subcommittee:
    My name is Hussein Sadruddin and I am a Soros Postgraduate Justice 
Fellow with the Lawyers' Committee for Civil Rights Under Law of Texas, 
Immigrant & Refugee Rights Project (``Texas Lawyers' Committee ''). The 
Texas Lawyers' Committee is the only statewide organization dedicated 
to defending the rights of immigrants and refugees in the state of 
Texas. I submit this testimony today to highlight serious concerns 
about the treatment of minors is INS custody. I have had the 
opportunity visit various juvenile detention facilities and have 
provided assistance to many minors who are in INS custody. The Texas 
Lawyers' Committee also assists in providing ``Legal Rights'' 
presentations to minors in Liberty County Juvenile Detention Facility 
in Liberty, Texas as well with legal assistance to minors in El Paso, 
Dallas and San Antonio, Texas.
    I would like to bring to your attention three cases which highlight 
the treatment of unaccompanied minors in Texas.

        (A) Case of I.A.F-P: This thirteen (13) year old minor was 
        placed in a secured juvenile detention facility in Liberty 
        Texas for nearly a year and a half. After conducting a rights 
        presentation, we found the child to have a credible fear of 
        returning back to his home country. His pro bono counsel filed 
        an appeal in his case but prior to his appeal, the Service 
        unlawfully removed the child back to Honduras. Furthermore, the 
        child was never turned over to the mother by the Honduran 
        authorities and is now missing.
        (B) Case of C.D.: The Immigration & Naturalization Service 
        placed this sixteen-year-old Chinese national in a secured 
        juvenile facility for nearly two-years. Nearly 3 months ago, 
        his pro-bono counsel noticed a change in his behavior. The 
        child refused to eat or talk to anyone. He refused to take his 
        medication. Despite several requests from the pro bono counsel 
        as well as other non-profit organizations, INS did not provide 
        mental health assistance to the minor for months. Once such 
        assistance was eventually provided, it was revealed that the 
        child was suffering from sever psychosis and needed immediate 
        hospitalization. His mental condition was severely worsened by 
        his lengthy stay in the secured facility. Furthermore, INS 
        initially refused to transfer the child to a non-secure 
        hospital recommended by INS's own physicians. Eventually, upon 
        requests from various non-profit advocacy organizations as well 
        as faith-based groups, INS finally transferred the child to a 
        hospital nearly 3 months after the request for mental health 
        evaluation was made.
        (C) Case of N.E.K.: This is a sixteen year old child from 
        Burundi who came to the United States as a stowaway after both 
        his parents were brutally murdered in Burundi. Despite the lack 
        of any criminal record or behavioral problems, he was placed 
        immediately in a secured juvenile facility. Although the child 
        was detained in the San Antonio INS District, the Houston INS 
        District was processing his case. No nonprofit agency was ever 
        notified of this child until a sympathetic jailer contacted an 
        organization requesting assistance for a child who has been 
        ``crying continuously for a week''. Two weeks later, he was 
        transferred to an adult facility after a faulty dental 
        examination revealed that he was over the age of eighteen. A 
        thorough evaluation of the dental exam revealed that the exam 
        was incorrect and the child war re-transferred to secured 
        juvenile facility after spending nearly a week in an adult 
        facility.

    The cases listed above merely shed a light on a larger problem that 
the advocates face daily. The unaccompanied children are constantly 
placed in facilities that are designed to hold criminal juveniles. The 
non-profit organizations dedicated to providing assistance to minors in 
INS custody are routinely not notified of where the minors are being 
held. The unaccompanied minors in Texas are routinely placed in 
locations that are far away from cities and away from agencies that 
maybe able to provide assistance to them. In many facilities, minors 
are only allowed to contact organizations by calling them collect.
    The treatment of many of these unaccompanied minors is abhorrent. 
In one secured facility, minors who were considered ``flight risk'' or 
``behavioral problems'' were routinely stripped naked and placed in 
solitary confinement as punishment. In another facility, unaccompanied 
minors were continuously placed in chains and shackles.
    Our office has represented numerous unaccompanied minors and has 
assisted many non-profit organizations and pro bono attorneys in their 
representation of unaccompanied minors. Unfortunately the tales of 
physical and verbal abuse and lack of compassion for the treatment of 
these minors are neither unique nor scattered.
    While S 121 is a step in the right direction, we request that the 
committee take a hard look at the treatment of unaccompanied minors in 
this country. The Immigration & Naturalization Service has continuously 
shown that their interest lies in detaining and removing the minors 
rather than looking out for the child's ``best interest.'' A change in 
the process by which unaccompanied minors are treated in this country 
is overdue.
    Lastly, I would like to than the committee for giving me an 
opportunity to share my thoughts and concerns about the unaccompanied 
minors with you. I am at your disposal if you need any further 
information.

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