[Congressional Record Volume 146, Number 117 (Wednesday, September 27, 2000)]
[Senate]
[Pages S9381-S9384]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE (for Mrs. Feinstein):
  S. 3117. A bill to establish an Office of Children's Services within 
the Department of Justice to coordinate and implement Government 
actions involving unaccompanied alien children to ensure that their 
best interests are held paramount in immigration proceedings and 
actions involving them; to prescribe standards for their custody, 
release, and detention; to improve policies for their permanent 
protection; and for other purposes; to the Committee on the Judiciary.


            UNACCOMPANIED ALIEN CHILD PROTECTION ACT OF 2000

  (At the request of Mr. Daschle, the following statement was ordered 
to be printed in the Record.)

[[Page S9382]]

 Mrs. FEINSTEIN. Mr. President, I rise today to introduce 
legislation to change the way unaccompanied immigrant children are 
treated while in the custody of the Immigration and Naturalization 
Service (INS). The Unaccompanied Alien Child Protection Act of 2000 
would ensure that the federal government addresses the special needs of 
thousands of unaccompanied alien children who enter the U.S. It would 
ensure that these children have a fair opportunity to obtain 
humanitarian relief when eligible.
  Central throughout this legislation are two concepts:
  (1) The United States government has a special responsibility to 
protect unaccompanied children in its custody; and
  (2) In all proceedings and actions, the government must have as its 
paramount priority the protection of the best interests of the child.
  The Unaccompanied Alien Child Protection Act of 2000 would ensure 
that children who are apprehended by the INS are treated humanely and 
appropriately by transferring jurisdiction over the welfare of 
unaccompanied minors from the INS Detention and Deportation division to 
a newly created Office of Children Services within the INS.
  This legislation would also centralize responsibility for the care 
and custody of unaccompanied children in a new Office of Children's 
Services. By doing so, the legislation would resolve the conflict of 
interest inherent in the current system--that is, the INS retains 
custody of children and is charged with their care while, at the same 
time, it seeks their deportation.
  Under this bill, the Office of Children's Services would be required 
to establish standards for the custody, release, and detention of 
children, ensuring that children are housed in appropriate shelters or 
foster care rather than juvenile jails. In 1999, the INS held some 
2,000 children in juvenile jails even though they had never committed a 
crime. Equally as important, the bill would require the Office to 
establish clear guidelines and uniformity for detention alternatives 
such as shelter care, foster care, and other child custody 
arrangements.
  The bill would strengthen options for the permanent protection of 
alien children in the United States, including providing asylum or 
adjustment of status to those who qualify.
  Finally, the Unaccompanied Alien Child Protection Act would provide 
unaccompanied minors with access to legal counsel, who would ensure 
that the children appear at all immigration proceedings and assist them 
as the INS and immigration court considers their cases. The bill would 
also provide access to a guardian ad litem to ensure that they are 
properly placed in a safe environment. The guardian ad litem would also 
make sure that the child's attorney is, in fact, operating in his or 
her best interest.
  Let me turn for a moment to the issue of access to counsel. Children, 
even more than adults, have immense difficulty tackling the 
complexities of the asylum system without the assistance of counsel. 
Despite this reality, most children in INS detention are unrepresented. 
Without legal representation, children are at risk of being returned to 
their home countries where they may face further human rights abuses.
  I am aware of two cases that demonstrate the compelling need for 
counsel on behalf of these children. The first case involves two 17-
year-old boys from China. Li and Wang were apprehended on an island 
near Guam and have been in INS custody for 16 months. During their 
detention on Guam, the two boys testified in federal court against the 
smugglers who brought them to Guam. In their testimony, they described 
being beaten by the smugglers even before leaving China, and stated 
that others were beaten during the trip to Guam. In the spring of 2000, 
the two boys were brought to a corrections facility in Los Angeles and 
are currently being held in the INS section of that facility. This is 
where the similarity in their cases end.

  While both of the boys would face danger from the smugglers if they 
returned to China because of their testimony, only one was granted 
asylum. Li applied for asylum and was denied. He was not represented by 
counsel at his hearing. Despite the fact that the INS trial attorney 
mentioned that Li had testified in federal court against the smugglers, 
the judge did not include this information in her decision on the 
claim. Luckily for Li, an attorney overheard the hearing, and after 
speaking with Li, agreed to appeal his asylum claim. Li is still being 
held in a Los Angeles corrections facility. The story is different for 
Wang. Wang had an attorney and won his asylum hearing. But INS is 
appealing the decision so Wang still sits in a Los Angeles corrections 
facility, too.
  These cases demonstrate the pressing need of legal representation for 
children. Li may have won his asylum claim if he had been represented 
by counsel and if the evidence regarding his testimony in federal court 
had been incorporated into his asylum claim. Instead, a 17-year-old boy 
unfamiliar with our immigration system and our language was forced to 
navigate the tricky court system alone.
  According to Human Rights Watch, children detained by the INS, 
whether in secure detention or less restrictive settings, often have 
great difficulty obtaining information about their legal rights. On a 
visit to the Berks facility in 1998, Human Rights Watch staff found 
that none of the children they interviewed had received information 
about their rights or available legal services from either the INS or 
the facility's staff. Neither could local INS or facility staff 
identify how these children might receive this information.
  In one way or another, we have been affected by the six-year-old 
shipwreck survivor from Cuba, Elian Gonzalez. His tragic story brought 
to light the plight of numerous other youngsters who find their way to 
the United States, unaccompanied by an adult and, in many cases, 
traumatized by the experiences provoking their flight.
  Unaccompanied alien children are among the most vulnerable of the 
immigrant population; many have entered the country under traumatic 
circumstances. They are unable to protect themselves adequately from 
danger. Because of their youth and the fact that they are alone, they 
are often subject to abuse or exploitation.
  Because of their age and inexperience, unaccompanied alien children 
are not able to articulate their fears, their views, or testify to 
their needs as accurately as adults can. Despite these facts, U.S. 
immigration laws and policies have been developed and implemented 
without careful attention to their effect on children, particularly on 
unaccompanied alien children.
  Each year, the INS detains more than 5,000 children nationwide. They 
are apprehended for not having proper documentation at the ports-of-
entry for entering the United States. Their detention may last for 
months--and sometimes for years--as they undergo complex immigration 
proceedings.
  Under current immigration law, these children are forced to struggle 
through a system designed primarily for adults, even though they lack 
the capacity to understand nuanced legal principles and procedures. 
Children who may very well be eligible for relief are often vulnerable 
to being deported back to the very abuses they fled before they are 
able to make their case before the INS or an immigration judge.
  Under current law, the INS is responsible for the apprehension, 
detention, care, placement, legal protection, and deportation of 
unaccompanied children. I believe that these are conflicting 
responsibilities that undercut the best interests of the child. Too 
often, the INS has fallen short in fulfilling the protection side of 
the these responsibilities.
  The INS uses a variety of facilities to house children. Some are held 
in children's shelters in which children are offered some of the 
services they need but still may experience prolonged detention, lack 
of access to counsel, and other troubling conditions.
  The INS relies on juvenile correctional facilities to house many 
children, even in the absence of any criminal wrongdoing. Today, one 
out of every three children in INS custody is detained in secure, jail-
like facilities. These facilities are highly inappropriate, 
particularly for children who have already experienced trauma in their 
homelands.
  There is currently no provision of federal law providing guidance for 
the placement of unaccompanied alien

[[Page S9383]]

children. In 1987, the Flores v. Reno settlement agreement on behalf of 
minors in INS detention established the nationwide policy for the 
detention, release, and treatment of children in the custody of INS. 
The Flores agreement requires that the INS treat minors with dignity, 
respect, and special concern for their particular vulnerability. It 
also requires the INS to place each detained minor in the least 
restrictive setting appropriate to the child's age and special needs.
  In response to Flores, the INS issued regulations that permitted its 
officers to detain children in secure facilities only in limited 
circumstances. The INS officers were required to provide written notice 
to the child of the reasons for such placement. More importantly, the 
regulations required the INS to segregate immigration detainees from 
juvenile criminal offenders.
  Although INS officials have contended that these children are placed 
in these facilities largely because they are charged with other 
offenses, the INS statistics do not bear out this claim. In fiscal year 
1999, only 19 percent of the children placed in secure detention were 
chargeable or adjudicated as delinquents.
  According to non-governmental organizations (NGOs) such as Human 
Rights Watch and the Women's Commission on Refugee Women and Children, 
the INS regularly violates these regulations. The NGOs contend that too 
often children are placed in jail-like facilities for seemingly 
arbitrary reasons, seldom notified of the reasons why, and forced to 
share rooms and have extensive contact with convicted juvenile 
offenders.
  I was also astonished to learn that many of these children, some as 
young as four and five years old, are placed behind multiple layers of 
locked doors, surrounded by walls and barbed wire. They are strip 
searched, patted down, placed in solitary confinement for punishment, 
forced to wear prison uniforms and shackles, and are forbidden to keep 
personal objects. Often they have no one to speak with because of the 
language barrier.
  The Unaccompanied Alien Child Protection Act of 2000 would ensure 
that the particular needs of the thousands of unaccompanied alien 
children who enter INS custody each year are met and that these 
children have a fair opportunity to obtain immigration relief when 
eligible.
  In 1999, the INS held approximately 4,600 children under the age of 
18 in its custody. Some of these children fled human rights abuses or 
armed conflict in their home countries, some were victims of child 
abuse or had otherwise lost the support and protection of their 
families, some came to the United States to join family members, and 
some came to escape economic deprivation.
  Many of these children came from troubled countries around the world, 
including the Peoples Republic of China, Honduras, Afghanistan, 
Somalia, Sierra Leone, Colombia, Guatemala, Cuba, former Yugoslavia, 
and others. They range in age from toddlers to teenagers. Some traveled 
to the United States alone, while others were accompanied by unrelated 
adults.
  Sadly, a significant number are victims of smuggling or trafficking 
rings. In one recent instance, Phanupong Khaisri, a two-year-old Thai 
child, was brought to the U.S. by two individuals falsely claiming to 
be his parents, but who were actually part of a major alien trafficking 
ring. The INS was prepared to deport the child back to Thailand. It was 
not until Members of Congress and the local Thai community had 
intervened, however, that the INS decided to allow the child to remain 
in the U.S. until the agency could provide proper medical attention and 
determine what course of action would be in his best interest. Now 
his case is before a federal district court judge who will determine 
whether he should be eligible to apply for asylum.

  The Unaccompanied Alien Child Protection Act aims to prevent 
situations like this from recurring by centralizing the care and 
custody of unaccompanied children into a new Office of Children's 
Services within the INS, but outside the jurisdiction of the District 
Directors. By doing so, the Act resolves the conflict of interest 
inherent in the current system--that is, the INS retains custody of 
children and is charged with their care while, at the same time, it 
seeks their deportation.
  I would like to take a moment to share with you a few other examples 
of how the federal government has fallen short in the manner in which 
we handle vulnerable unaccompanied minors. One would think that our 
country would treat unaccompanied minors with the sensitivity and care 
their situations demands. Unfortunately, in too many instances, that 
has not been the case. Too often, these children are often treated like 
adults and, under the worst circumstances, like criminals.
  Xaio Ling, a young girl from China who spoke no English, was detained 
by the INS at the Berks County Juvenile Detention Center. The INS 
placed her among children guilty of violent crimes, including rape and 
murder. Xaio was never guilty of any crime, and yet she slept in a 
small concrete cell, was subjected to humiliating strip searches, and 
forced to wear handcuffs. She was forbidden to keep any of her clothes 
or possessions and, under the policies of the Berks Center, Xaio was 
not allowed to laugh.
  Imagine the fear this child had: thrust into a system she did not 
understand, given no legal aid, placed in jail that housed juveniles 
with serious criminal convictions, including murder, car jacking, rape, 
and drug trafficking. She did not speak English and was unable to speak 
to any staff who knew her language, and she had to submit to strip 
searches. It is hard to believe that our country would have allowed 
this innocent child to be treated in such a horrible manner.
  Situations like that of the young Chinese girl make a compelling case 
for a change in the way our nation treats unaccompanied alien children. 
Under the legislation I have introduced today, this youngster would 
never have been placed in a detention center with criminal offenders. 
Rather, she would have immediately been placed in shelter care, foster 
care, or a home more appropriate for her situation. She would have been 
provided an attorney for her immigration proceedings and a social 
worker would have been appointed as guardian ad litem to ensure that 
the child's needs were being met. Sadly, this young girl was given none 
of these options. Neither was a 16-year-old boy from Colombia.
  This youngster fled Colombia to escape a life of violence on the 
streets of Bogota, where FARC guerrillas attempted to recruit him and 
the F-2 branch of the Colombian government harassed him in its attempt 
to get rid of street children. Fearing for his life, he fled Colombia 
for Venezuela where he lived without shelter or sufficient food. In 
search of a safer life, he sneaked into the machine room of a cargo 
ship bound for the United States. He was lucky to survive; many other 
stowaways were thrown overboard when discovered by the ship's crew.
  The boy remained on the ship from November 1998 until March 1999, 
when he arrived in Philadelphia. He was soon turned over to the INS and 
placed into the same detention center the young Chinese girl was held 
in. He, too, was kept with criminal offenders. He did not understand 
English, which created a myriad of problems because he was unable to 
understand what was expected of him in the detention center. He was 
held in an inappropriately punitive environment for six months.
  I have one last story to share with you today. Placed on a boat bound 
for the United States by her very own parents, a 15-year-old girl fled 
China's rigid family planning laws. Under these laws she was denied 
citizenship, education, and medical care. She came to this country 
alone and desperate. And what did our immigration system do when they 
found her? They held her in a juvenile jail in Portland, Oregon. She 
was held for eight months and was detained for an additional four 
months after being granted political asylum. At her asylum hearing, the 
young girl could not wipe away the tears from her face because her 
hands were chained to her waist. According to her lawyer, ``her only 
crime was that her parents had put her on a boat so she could get a 
better life over here.''
  For years children's rights and human rights organizations have 
implored Congress to improve the way our immigration system handles 
unaccompanied minors--just like the ones whose stories I have just 
told. I believe my bill would do just that.
  We cannot continue to allow children, who come to our country, often

[[Page S9384]]

traumatized and guilty of no crime, to be held in jails and treated 
like criminals. We cannot continue to allow children, scared and 
helpless, to be thrown into a system they do not understand without 
sufficient legal aid and a guardian to look after their best interests. 
We must adhere to the principles of our justice system. What kind of 
message do we send when we deprive children who come to our country 
seeking refuge of their basic rights and protections?
  As a nation that holds our democratic ideals and constitutional 
rights paramount, how then can we continue to avert our attention from 
repeated violations of some of the most basic human rights against 
children who have no voice in the immigration system? We should be 
outraged that children who come to the U.S. alone, many against their 
will, are subjected to such inhumane, excessive conditions.
  I am proud to have the support of the United States Catholic 
Conference and the Women's Commission on Refugee Women and Children, 
with whom I have worked closely to develop this legislation.
  Although we are nearing the end of the session, I want to highlight 
this issue now so that we can begin to think about the importance of 
protecting the rights of children in immigration custody and work 
towards passing this legislation in the next Congress.
                                 ______