[Congressional Record Volume 146, Number 45 (Tuesday, April 11, 2000)]
[Senate]
[Pages S2527-S2529]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRAHAM:
  S. 2383. A bill to amend the Immigration and Nationality Act to 
provide temporary protected status to certain unaccompanied alien 
children, to provide for the adjustment of status of aliens unlawfully 
present in the United States who are under 18 years of age, and for 
other purposes; to the Committee on the Judiciary.


                 alien children protection act of 2000

  Mr. GRAHAM. Mr. President, for many weeks, we have been dealing with 
the tragedy of Elian Gonzalez. If this tragedy teaches us anything, it 
is that the U.S. immigration laws have not been constructed in a manner 
that accounts for the special needs of our Nation's most precious 
resource--I also say our world's most precious resource--our children.
  Yesterday, CNN-USA Today released a Gallup Poll on the Elian Gonzalez 
tragedy. That poll said by a 2-to-1 margin Americans believe Elian 
Gonzalez should live with his father in Cuba rather than with relatives 
in the United States. But that same poll, also by a 2-to-1 margin, 
found that Americans disapprove of the way the Government has handled 
this case. That disapproval of the way in which the Government has 
handled this case could be a disapproval of hundreds of cases if they 
had the same notoriety as Elian.
  I come this afternoon to introduce legislation that will require the 
Federal Government to dramatically improve its treatment of the 
thousands of unaccompanied children who arrive in the United States 
each year.
  Many of us are parents. I personally have been blessed with four 
beautiful daughters and 10 wonderful grandchildren. We all know the 
special joy a child brings to our lives. We know that bond across 
generations that relationship between a parent or a grandparent and a 
child brings. We all want to pour all of the history, all of our 
personal experience into safeguarding and into paving the way in the 
best interests of our children.
  The Bible tells us to take this responsibility seriously. In the book 
of Proverbs, it imparts this wisdom:

       Train up a child in the way he should go, and when he is 
     old he will not depart from it.

  We all have that responsibility to train up a child.
  As that passage from Proverbs suggests, we have a responsibility to 
protect and nurture all of our children. Their future--our planet's 
future--depends on it.
  Unfortunately, U.S. law prevents us from carrying out that 
responsibility with respect to some of this planet's most vulnerable 
children.
  Each year, there are about 5,000 unaccompanied children who are 
detained by the U.S. Immigration and Naturalization Service. Some 
children come to this country seeking asylum, others hope to be 
reunified with families, and others seek nothing but a better life. 
While many of these children ultimately are deported or voluntarily 
returned home, some have legitimate claims which merit our attention.
  Regardless of the outcome of their cases, in most instances, these 
children must endure the rigors of an immigration system that is 
anything but child friendly. Unfortunately, many children in INS 
custody end up spending time in jail-like settings while their cases 
are pending. They have no one to guide them through complex immigration 
law and procedure.
  Moreover, immigration laws are technical and inflexible and do not 
permit compassion or frequently even common wisdom to enter into the 
equation when determining the fate of a child.
  I will give some examples. Six Chinese children were detained by the 
INS last year in Oregon. Though charged with no crime, they were sent 
to a juvenile detention facility for 8 months where they were exposed 
to violent youthful offenders who had committed crimes such as murder 
and drug trafficking. One of the group, a 15-year-old girl, was forced 
to remain at the jail for several weeks after she had been granted 
asylum, even though she had relatives living in New York.

  Such innocent children should not have to endure exposure to hardened 
juveniles and criminals as part of their experience with the U.S. 
immigration process.
  Equally compelling is the story of a Kosovar Albanian boy who was 
suffering from severe depression. He was held in a juvenile 
correctional facility for over 6 months during his immigration 
proceedings. The INS provided psychiatric care but by a professional 
who spoke only English. After a mental episode, the boy was placed in 
the maximum security section of the jail rather than being provided 
with appropriate care. The INS even balked at placing the boy in foster 
care after he was granted asylum, thus further delaying his stay in an 
inappropriate facility.
  The Federal Government's insensitivity to child immigrants is also 
illustrated by a recent case of two children from the Caribbean. Their 
mother is a legal, permanent resident in the United States, but she had 
left her minor children behind with the belief they would soon follow. 
The mother promptly applied for visas for her children. Yet the 
children were required to wait in their home country for months and, in 
some cases, even years before they could even get an interview at the 
local U.S. Embassy to pave the way for reunification with their mother.
  These are just three examples of children who were improperly treated 
as a result of our current immigration laws. Many of these cases are 
the result of INS's inherent conflict of interest: Children are 
detained and frequently deported by the same agency that is responsible 
for caring for them and protecting their legal rights. This system does 
not work well enough, and it needs improvement. Children are entitled 
to receive care from child welfare authorities who will act in their 
best interest and who are trained to protect children's rights.
  Indeed, there is an irony. The Federal Government requires States to 
place

[[Page S2528]]

children in facilities that are separate and apart from adult 
correctional facilities. The INS should at least abide by the same 
standard with respect to alien children.
  To address these problems, my legislation takes four actions: First, 
it requires that INS place children in its custody in a facility 
appropriate for children; in other words, no jails. These facilities 
are required to provide for the health, welfare, and educational needs 
of children.
  Two, provide children in INS custody with a guardian ad litem to 
champion that child's best interest. Notably, this guardian would not 
be associated with the INS in order to eliminate any conflict of 
interest.
  Three, give the Attorney General the flexibility and the authority in 
extraordinary cases to evaluate a child's case on the basis of what is 
in the best interest of the child.
  Four, to direct the General Accounting Office to conduct a study and 
report back to Congress regarding whether and to what extent U.S. 
diplomatic officials are fulfilling their obligation to reunify on a 
priority basis children in foreign countries whose parents are legally 
present in the United States.
  With these changes in the law, children will no longer be forced to 
struggle through the immigration process alone under the adverse 
conditions to which they are currently exposed. The INS will have the 
flexibility to treat children in its custody with greater compassion 
and common sense.
  I hope the recent attention which has and will continue to surround 
the Elian Gonzalez tragedy will encourage us to shield all our children 
from the vagaries of U.S. immigration law. Our future generations 
deserve to be protected, not persecuted or prosecuted. They deserve to 
be inspired, not incarcerated. They deserve to have decisions about 
their future made consistent with what is in their best interest, not 
confused by conflicts of interest.
  I conclude with hope that this Congress will give attention to an 
issue which affects not one child but thousands of children who are in 
the custody of the United States and whose treatment reflects our 
fundamental American values of justice and concern for their rights.
  Mr. President, I ask unanimous consent that the bill and three 
newspaper articles and editorials on the subject of ``INS Treats 
Children Shamefully'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2383

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Alien Children Protection 
     Act of 2000''.

     SEC. 2. USE OF APPROPRIATE FACILITIES FOR THE DETENTION OF 
                   ALIEN CHILDREN.

       (a) In General.--Except as provided in subsection (b), in 
     the case of any alien under 18 years of age who is awaiting 
     final adjudication of the alien's immigration status and who 
     does not have a parent, guardian, or relative in the United 
     States into whose custody the alien may be released, the 
     Attorney General shall place such alien in a facility 
     appropriate for children not later than 72 hours after the 
     Attorney General has taken custody of the alien.
       (b) Exception.--The provisions of subsection (a) do not 
     apply to any alien under 18 years of age who the Attorney 
     General finds has engaged in delinquent behavior, is an 
     escape risk, or has a security need greater than that 
     provided in a facility appropriate for children.
       (c) Definition.--In this section, the term ``facility 
     appropriate for children'' means a facility, such as foster 
     care or group homes, operated by a private nonprofit 
     organization, or by a local governmental entity, with 
     experience and expertise in providing for the legal, 
     psychological, educational, physical, social, nutritional, 
     and health requirements of children. The term ``facility 
     appropriate for children'' does not include any facility used 
     primarily to house adults or delinquent minors.

     SEC. 3. ADJUSTMENT TO PERMANENT RESIDENT STATUS.

       Section 245 of the Immigration and Nationality Act (8 
     U.S.C. 1255) is amended by adding at the end the following:
       ``(l)(1) The Attorney General may, in the Attorney 
     General's discretion, adjust the status of an alien under 18 
     years of age who has no lawful immigration status in the 
     United States to that of an alien lawfully admitted for 
     permanent residence if--
       ``(A)(i) the alien (or a parent or legal guardian acting on 
     the alien's behalf) has applied for the status; and
       ``(ii) the alien has resided in the United States for a 
     period of 5 consecutive years; or
       ``(B)(i) no parent or legal guardian requests the alien's 
     return to the country of the parent's or guardian's domicile, 
     or with respect to whom the Attorney General finds that 
     returning the child to his or her country of origin would 
     subject the child to mental or physical abuse; and
       ``(ii) the Attorney General determines that it is in the 
     best interests of the alien to remain in the United States 
     notwithstanding the fact that the alien is not eligible for 
     asylum protection under section 208 or protection under 
     section 101(a)(27)(J).
       ``(2) The Attorney General shall make a determination under 
     paragraph (1)(B)(ii) based on input from a person or entity 
     that is not employed by or a part of the Service and that is 
     qualified to evaluate children and opine as to what is in 
     their best interest in a given situation.
       ``(3) Upon the approval of adjustment of status of an alien 
     under paragraph (1), the Attorney General shall record the 
     alien's lawful admission for permanent residence as of the 
     date of such approval, and the Secretary of State shall 
     reduce by one the number of visas authorized to be issued 
     under sections 201(d) and 203(b)(4) for the fiscal year then 
     current.
       ``(4) Not more than 500 aliens may be granted permanent 
     resident status under this subsection in any fiscal year.''.

     SEC. 4. ASSIGNMENT OF GUARDIANS AD LITEM TO ALIEN CHILDREN.

       (a) Assignment.--Whenever a covered alien is a party to an 
     immigration proceeding, the Attorney General shall assign 
     such covered alien a child welfare professional or other 
     individual who has received training in child welfare matters 
     and who is recognized by the Attorney General as being 
     qualified to serve as a guardian ad litem (in this section 
     referred to as the ``guardian''). The guardian shall not be 
     an employee of the Immigration and Naturalization Service.
       (b) Responsibilities.--The guardian shall ensure that--
       (1) the covered alien's best interests are promoted while 
     the covered alien participates in, or is subject to, the 
     immigration proceeding; and
       (2) the covered alien understands the proceeding.
       (c) Requirements on the Attorney General.--The Attorney 
     General shall serve notice of all matters affecting a covered 
     alien's immigration status (including all papers filed in an 
     immigration proceeding) on the covered alien's guardian.
       (d) Definition.--In this section, the term ``covered 
     alien'' means an alien--
       (1) who is under 18 years of age;
       (2) who has no lawful immigration status in the United 
     States and is not within the physical custody of a parent or 
     legal guardian; and
       (3) whom no parent or legal guardian requests the person's 
     return to the country of the parent's or guardian's domicile 
     or with respect to whom the Attorney General finds that 
     returning the child to his or her country of origin would 
     subject the child to physical or mental abuse.

     SEC. 5. SENSE OF CONGRESS.

       Congress commends the Immigration and Naturalization 
     Service for its issuance of its ``Guidelines for Children's 
     Asylum Claims'', dated December 1998, and encourages and 
     supports the Service's implementation of such guidelines in 
     an effort to facilitate the handling of children's asylum 
     claims.

     SEC. 6 GENERAL ACCOUNTING OFFICE REPORT.

       The General Accounting Office shall prepare a report to 
     Congress regarding whether and to what extent U.S. Embassy 
     and consular officials are fulfilling their obligation to 
     reunify, on a priority basis, children in foreign countries 
     whose parent or parents are legally present in the United 
     States.
                                  ____


             [From the St. Petersburg Times, Mar. 8, 2000]

                     INS Treats Children Shamefully

       Reaching the U.S. mainland usually is no easy feat for 
     illegal immigrants fleeing their homelands. Whether crossing 
     the ocean by boat or trudging miles across desert, immigrants 
     nearly always face a journey that is dangerous and traumatic. 
     For the children of these immigrants, who often have no say 
     in their parents' decision to flee to the United States, that 
     trauma too often is compounded once they arrive--by an 
     American immigration system that treats kids like criminals.
       The Immigration and Naturalization Service says children 
     detained by the agency must be moved to a safe, kid-friendly 
     environment within 72 hours of their initial detention, 
     unless they are suspected criminals or considered a flight 
     risk. Advocates for these children say that rule rarely is 
     enforced. Instead, immigrant children typically are separated 
     from their loved ones and locked in juvenile detention 
     facilities, often before the INS has a chance to determine 
     the family's status.
       Because of a worsening space crunch at INS facilities, 
     nearly 1,000 of the 4,000 children detained by the INS within 
     the past year have been remanded to secure, jail-like 
     facilities where many have remained for months. The children 
     typically wear prison uniforms, and many are forced to mingle 
     with the teenage convicts also housed in the facilities. 
     Unlike the convicts, immigrant children get no legal 
     representation, and no adult guardians are appointed to 
     protect their interests.
       This shameful treatment of children is a symptom of the 
     broader problems plaguing U.S. immigration policy. It is a 
     system that

[[Page S2529]]

     allows legal U.S. residents to be detained indefinitely on 
     the basis of secret evidence. It is a system that no longer 
     gives judges discretion in deportation cases. And it is a 
     system that even the INS's own chief has described as slow, 
     inefficient and poorly managed.
       The INS is expected to issue new rules that will require 
     jails housing non-criminal INS detainees to meet specific 
     standards of care. Immigrant advocates hope the new rules 
     will give detainees the right to make phone calls, meet with 
     lawyers and prevent guards from subjecting them to arbitrary 
     strip searches.
       Even if those rules pass, they should be only the first of 
     many reforms initiated by the INS and Congress to ensure that 
     all detainees--especially children--are treated more humanely 
     by the U.S. government.
                                  ____


          [From the Seattle Post-Intelligencer, Mar. 21, 2000]

                   Immigration Law Busts Up Families

                       (By Llewelyn G. Pritchard)

       Llewelyn G. Pritchard is a Seattle attorney at Helsell 
     Fetterman. He is chairman of the American Bar Association 
     Advisory Committee to the Immigration Pro Bono Development 
     and Bar Activation Project. He is a former member of the 
     boards of the Washington State Bar Association and the 
     American Bar Association.
       Lately we have been bombarded with media stories about 
     immigrant families being ripped apart due to draconian 
     measures undertaken by the U.S. Immigration and 
     Naturalization Service.
       There is the Atlanta story about the German mother of two 
     who, having applied for citizenship, faces deportation 
     instead because years ago she admitted to pulling another 
     girl's hair over the affections of a boy.
       There is the Falls Church, Va., mom who called police after 
     repeatedly being beaten by her husband. She was arrested for 
     biting him after he sat on her. She faces deportation and 
     separation from her children, all of whom were born in the 
     United States.
       But we don't have to look beyond he boundaries of 
     Washington to hear terrible tales.
       There is the case of Emma Hay. This Puyallup mother of 
     four--all U.S. citizens--is being deported. Her crime was to 
     answer the telephone for a visiting relative who said he 
     didn't speak English well enough to talk to the caller.
       By simply saying her relative ``couldn't help the caller 
     today, but could help tomorrow,'' Hay was caught in a drug 
     sting and charged with ``using a communications facility to 
     facilitate the distribution of cocaine.'' Although she 
     claimed she wasn't aware of her cousin's activities, she 
     pleaded guilty and was convicted on federal drug charges. She 
     got no jail time, and was placed on probation for three 
     years, which she successfully completed.
       After living in our state for more than 20 years and 
     running a restaurant, Hay now faces deportation. While the 
     original incident earned her a probationary sentence because 
     she agreed to plead guilty, it has now become a deportable 
     offense.
       Hay was grabbed by the INS upon returning from a vacation, 
     all because the tough 1996 Illegal Immigration Reform and 
     Immigrant Responsibility Act has tipped the legal scales 
     against non-citizens * * *. This draconian law reclassifies 
     past infractions and makes them deportable offenses even in 
     cases where no prison time has been served or where there is 
     evidence of rehabilitation.
       This law also widely expanded the definition of aggravated 
     felony. Non-citizens convicted of ``aggravated felonies'' are 
     now not only deportable, but are also ineligible for a waiver 
     from deportation or even judicial review.
       Woe to the immigrant who applies to become a citizen only 
     to be trapped in the INS web, as in the case of the German 
     mother in Atlanta, or who seeks to re-enter the country as 
     Hay did.
       So now Hay sits in a Louisiana jail, thousands of miles 
     away from her lawyer and her children, awaiting deportation. 
     Her 20-year-old daughter has quit school to support the 
     family.
       What's the benefit of justice to her, her family or our 
     country? There is none under this new act.
       The INS has the fastest growing prison population in the 
     United States. There are more than 17,000 immigrants 
     detained, with predictions of 23,000 by year's end. Most 
     detainees do not have legal representation, even though the 
     INS adopted standards in 1998 allowing lawyer access in 
     federal INS facilities.
       The majority, or 60 percent, are warehoused in state and 
     local jails, at great cost to our overburdened prison budget. 
     Those folks are far away from immigration lawyers and have no 
     guarantee of legal access. Even those in federal INS 
     facilities are in remote areas and access is often difficult.
       We should be outraged. This can't be happening in America. 
     Newcomers live in all our communities, work at our sides, 
     attend our churches and our schools. They are our neighbors 
     and our friends.
       But there is some good news.
       The 60,000 member American Bar Association Section of 
     Litigation, which will meet in Seattle in early April, 
     announced that it will adopt our ABA immigration project as 
     one of its pro bono efforts, pairing up with lawyers with 
     detainees around the country.
       Their efforts will help some of the most defenseless in our 
     country. I applaud and welcome them in this worthy fight.
       We must make certain that the basic premise and promise of 
     our country is not forgotten: ``Justice for all.''
                                  ____


                 [From the Miami Herald, Jan. 9, 2000]

         The Littlest Refugees Merit Better Treatment From INS

       Immigration and Naturalization Service Commissioner Doris 
     Meissner projects uncommon compassion. ``Both U.S. and 
     international law recognize the unique relationship between 
     parent and child,'' she said in announcing her decision to 
     return 6-year-old Elian Gonzalez to his father in Cuba. 
     ``Family reunification has long been a cornerstone of both 
     American Immigration law and INS practice.''
       Unfortunately her agency doesn't always practice what she 
     preaches. Case in point: Two children, ages 8 and 10, were 
     repatriated to Haiti while their mother, desperate with worry 
     not knowing what had happened to them, was brought to Miami 
     for medical care.
       Yvena Rhinvil and her children were among some 400 
     passengers on the boat from Haiti that ran aground off Key 
     Biscayne on New Years Eve. They were trying to enter the 
     United States illegally. Both the Coast Guard and INS now say 
     that they didn't know about the children. Had it known, INS 
     says it would have tried to keep the kids with their mother.
       But Ms. Rhinvil says she spoke of her kids both to an 
     interpreter before being taken off the ship and once again on 
     land. What mother wouldn't?


                         kids don't come first

       If indeed the INS didn't know, it should have known before 
     it sent the children back. Nobody asked, which is 
     inexcusable. Fortunately an aunt watched Ms. Rhinvil's 
     children. But who knows if there were other unaccompanied 
     youths aboard that boat?
       The problem is that the INS is not equipped either by 
     mission or staffing to look out for the welfare of children. 
     First and foremost it is an enforcement agency, charged with 
     protecting our borders. Both policy and practice reflect it.
       Another case: A 15-year-old Chinese girl remained in a 
     Portland, Ore., juvenile jail more than six weeks after being 
     granted asylum and after an uncle in New York had agreed to 
     take her. She and five other teens fled China in April, only 
     to spend eight months in a criminal facility.
       Unfortunately, locking up minors such as these teens is not 
     an exception. That's because INS practices regarding children 
     vary widely by their nationality and INS district. Even 
     though international law and common decency dictate that 
     refugee children be detained only as a last measure and only 
     for a short time, detention in criminal juvenile facilities 
     happens regularly in some districts. Without caretakers and 
     most often without legal advisers, what hope can detained 
     children have of knowing or demanding their legal rights?


                           little protection

       For the most part, the Florida INS District treats minors 
     better than most. Unaccompanied children without U.S. 
     relatives are often placed with Catholic Charities facilities 
     such as Boystown. Children who arrive with parents are 
     typically placed in a hotel until the family is deported or 
     released from detention.
       Ideally all minors could be released to caring relatives, 
     and the INS frequently does this. Yet without the 
     intervention of child-welfare authorities, there is little 
     protection from abuse. The INS mandates such intervention 
     only when the child is from China or India because of the 
     track record of child servant-slaves. Yet Haitian children, 
     too, have been known to be sold into servitude.
       Capricious and inconsistent treatment of children simply is 
     unacceptable when last year alone the INS had some 5,300 
     minors in its custody.
                                 ______