Seeking Asylum Alone. United States

111 Pages·2006·2.79 MB·English

Unaccompanied
and Separated
Children and
Refugee Protection
in the U.S.
seeking asylum
alone
united states
Jacqueline Bhabha and Susan Schmidt
A REPORT FUNDED BY THE JOHN D. AND CATHERINE T. MACARTHUR FOUNDATION | JUNE 2006
seeking asylum
alone
contents
5 Chapter 1 171 Chapter 12
Kafka’s Kids: Introduction Outcome and Consequences
13 Chapter 2 175 Chapter 13
Which Children Seek Asylum Alone? Policy and Practice Recommendations
29 Chapter 3 184 Appendix One
The National Legal Framework Selected U.S. Government
Responses to Statistical Requests
51 Chapter 4
Other Forms of Protection 187 Appendix Two
Available to Children Under Statistics on Unaccompanied
U.S. Immigration Law and Separated Children
67 Chapter 5 198 Appendix Three
Identification and Initial Action Additional Legal Remedies
for Children
81 Chapter 6
Interim Care: Whose 204 Appendix Four
Responsibility are Unaccompanied Interviews Conducted
and Separated Children?
210 Appendix Five
101 Chapter 7 Key to Acronyms
Representation
212 Bibliography united states
109 Chapter 8
Special Considerations in
© 2006 President and Fellows of Harvard College
Children’s Asylum Claims:
Making the Claim The co-authors of this report invite liberal use of the
information provided in it for educational purposes,
139 Chapter 9 requiring only that the reproduced material clearly
First Instance Determinations: state: Reproduced from Jacqueline Bhabha and Susan
The Affirmative Asylum Process Schmidt, Seeking Asylum Alone: Unaccompanied Jacqueline Bhabha and Susan Schmidt
and Separated Children and Refugee Protection in the
147 Chapter 10 U.S. Cambridge, MA: University Committee on Human
Rights Studies, Harvard University, June 2006.
Second Instance Determination:
Defensive Process
Printed in the United States of America
159 Chapter 11
Judicial Review
A REPORT FUNDED BY THE JOHN D. AND CATHERINE T. MACARTHUR FOUNDATION | JUNE 2006
A Jacqueline Bhabhahas worked on issues relating to Service.In that position,she coordinated foster care S E E K I N G A S Y L U M A L O N E
B
O migration and refugee protection since ,first as a services for unaccompanied refugee minors,family
U
practitioner in the U.K.and more recently as a researcher, reunion services for children in the custody ofthe U.S.
T
writer and teacher in the U.S.She is the Jeremiah Immigration and Naturalization Service,and national
T
H
Smith Jr.lecturer in law at Harvard Law School,the technical assistance on refugee child welfare through
E
executive director ofthe Harvard University Committee the Bridging Refugee Youth and Children’s Services
A
U on Human Rights Studies and an adjunct lecturer on project (www.BRYCS.org).
T
H public policy at the Kennedy School ofGovernment. She is author ofseveral BRYCSreports,including:
O
From to ,she directed the Human Rights Separated Refugee Children in the United States: Chal-
R
S Program at the University ofChicago.Prior to , lenges and Opportunities; Raising Children in a New
she was a practicing human rights lawyer in London, Country: A Toolkit for Working with Newcomer Parents;
and at the European Court ofHuman Rights in Stras- and Liberian Refugees: Cultural Considerations for
Acknowledgements
bourg.She received a first class honors degree and Social Service Providers.She was an expert contributor
an M.Sc from Oxford University,and a J.D.from the on refugee children for the UNHCRpublication,
College ofLaw in London. Refugee Resettlement: An International Handbook to
Her writing on issues ofmigration and asylum in Guide Reception and Integration,and is co-author of
Europe and the U.S.include a co-authored book,Women’s the LIRSpublication,Working with Refugee Children:
Movement: Women Under Immigration,Nationality Issues ofCulture,Law and Development.
and Refugee Law(),an edited volume,Asylum Law In addition,she has worked with educational This report was enabled by a research grant from the John D.and Catherine T.MacArthur Foundation.It is part
And Practice in Europe and North America ()and programs for immigrants and children ofmigrant farm of a larger study comparing policies and practices toward children seeking asylum alone in the U.S.,the United
many articles including “Get Back to Where You Once workers.She holds a Master ofScience in Social Work Kingdom and Australia. The Seeking Asylum Alone project is coordinated by Professors Jacqueline Bhabha of
Belonged: Identity,Citizenship and Exclusion in Europe” degree from Columbia University and a Master of Harvard University and Mary Crock ofthe University ofSydney.
(),“Inconsistent State Intervention and Separated Theological Studies degree from Boston University.
Child Asylum Seekers (),“Internationalist Gate- Research for this report involved the work ofnumerous Professors German Pliego and Robert Raymond ofthe
people.Research interviews for the U.S.report were con- University ofSt.Thomas (St.Paul,Minnesota) generously
keepers? The tension between asylum advocacy and
human rights”() and “The Citizenship Deficit: WITH CONTRIBUTIONS BY ducted by Katherine Desormeau (Boston,Massachusetts); donated their time and expertise to run statistical compu-
Celeste Froehlich (Phoenix,Arizona and El Paso,Texas); tations on data provided by the Asylum Office Headquarters
On Being a Citizen Child”(). Lisa Frydman is a staffattorney at Legal Services for
Lisa Frydman (Los Angeles,California);and Susan Schmidt ofthe U.S.Citizenship and Immigration Services,Depart-
She is currently working on issues oftransnational Children (LSC)in San Francisco,where she represents
(Houston,Texas,Miami,Florida,Washington,D.C.,and all ment ofHomeland Security.
child migration,trafficking,adoption and citizenship. minors in dependency,guardianships,education,and
others.) Joanne Kelsey and Wendy Young ofthe Women’s We are indebted to the children who shared their stories
She teaches international human rights and refugee immigration proceedings.Much ofher current prac-
Commission for Refugee Women and Children conducted with us for this project.We are particularly grateful that
law and serves on the board ofthe U.S.section ofInter- tice involves representing unaccompanied immigrant
the interviews with children in various stages ofthe immi- they trusted us with their stories despite their frequent
national Social Services and the Journal ofRefugee children detained by the Department ofHomeland
gration process.Susan Schmidt collected and organized negative experiences ofadult intervention.We are also
Studies. Security.Prior to her work at LSC,Ms.Frydman was
most ofthe data and wrote the majority ofthe report,with grateful to the numerous government employees,legal
an Equal Justice Works fellow at the Florida Immi-
the assistance and supervision ofProfessor Jacqueline representatives,immigration advocates,academics and
Susan Schmidt has worked on issues related to refugee grant Advocacy Center (FIAC),where she represented Bhabha;Lisa Frydman wrote sections .–.and appen- social service providers who gave generously oftheir time,
and immigrant children since .She currently works unaccompanied immigrant children in immigration dix on the various other legal alternatives for children. experience and recommendations to make this report the
as a consultant carrying out research,writing and policy proceedings.She has trained judges,attorneys,and law
Nicola Brandt,Nina Catalano,Katherine Desormeau,and substantial product that it is.We sensed from the vast
analysis on the special needs ofrefugee children. students on representation and relieffor unaccompa- Eileen Palmunen provided helpful editorial assistance. majority ofthose interviewed a desire to improve the
Previously,she worked as the director for children’s nied immigrant children.She received her J.D.from Susan Frick oversaw and coordinated the publication current system so that children could be better served
services with the Lutheran Immigration and Refugee the University ofCalifornia at Berkeley in . process with meticulous diligence. and protected by the U.S.asylum system.
2 3
C H A P T E R 1
Kafka’s Kids: Introduction
José fled gang violence in El Salvador and sought asylum alone in the U.S.at the

age of . He made a terrifying journey which ended in detention, fear, and
uncertainty. This is part of his story:
“I left El Salvador because I was frightened by gangs find cover. We were in Phoenix, Arizona. There were
S
E threatening to kill me for refusing to join them. My trucks from Immigration waiting for us.
T
A
T brother paid for us to take a bus from El Salvador My first impression when I ran into the officials
S
D to Guatemala, and then we walked and hitchhiked was that they thought I had robbed a bank or was
E
T to Mexico...I waited in the small town near the a criminal. They yelled at me not to move and that
I
N
U Mexican border for a truck to take me further, but it made me very nervous. We were questioned individ-
| never came. So, we walked through the mountains ually. The INSofficials asked us our name, age and
E
N and at night we stopped and stayed at homes along country of origin. I answered that I was from Mexico
O
AL the way. We were put into vehicles that transport because that is what the coyotes trained me to say.

M goods.... At the U.S.–Mexico border there were I even knew how to answer questions about which
U
L 180 people hidden inside buildings. We waited for parts of Mexico...and where I had attended school.
Y
S
A 36 hours and all we had was two apples and an They didn’t believe me when I said that I was a minor.

G orange among us. Eventually, a guide put us on a They said that I was lying. After I was questioned,
N
I
K truck in the middle of the night and we proceeded I was put into a truck and taken back to the border.
E
E into the desert. Then I was told to get out and No one asked if I was afraid to return to Mexico.
S
4 5
Chapter 1 | Introduction
The trucks just unloaded us [on the Mexico side] to the immigration office where they took our ren being funneled through an adversarial system
and drove off. After the first day and a half...I got fingerprints and photos. We spent part of the night that violates their human rights and ignores their
Separated children are those separated
back into the truck and tried again. We came across in a small room. best interests.It also shows that there are moves to from both parents,or from their previous
an immigration truck and the driver of our truck Then suddenly three of us were being taken change this,to draft policies that address the problem, legal or customary primary caregiver,but not
became frightened and yelled for all of us to run. some place, but no one told us what was going on. and to rectify some ofthe system’s egregious child necessarily from other relatives.These may,
Since we were out of view, we were able to sneak When we got to the Globe [detention facility] we protection failures.This report aims to document therefore,include children accompanied by
back into the truck. I didn’t want to return to the were given clothes and cookies. Then, one by one, available information on children seeking asylum other adult family members.
border because it was so frightening. I realized we were told to take off our clothes and get into alone in the U.S.,to highlight the lacunae and to
Unaccompanied children (also called
that immigration was rounding everyone up, so I a shower. We were never told what was going on. make recommendations for reform.
unaccompanied minors) are children who
hid behind a small plant. There was a snake near At one point they told me to close my eyes, and
have been separated from both parents and
me and I couldn’t move for three hours. I think they dropped anti-lice powder on me. I was
other relatives and are not being cared for by
1.1 The Biggest Void in
Eventually with three friends from the truck confused. I didn’t know what was going on. an adult who,by law or custom,is responsible
I was stopped by immigration again. They asked Then I was enclosed in a small room...I could Immigration Law for doing so.(See paragraph .below).7
the same questions that the immigration officials see faces of other young people in their own cells.
C
had asked us before. The problem is that my friends We had a place to sleep, a cell, very hot, it had a hildren were forgotten when national
initially said that they were from Mexico, but then toilet. My heart started to race in the room. I was immigration legislation was drafted. The in the original law.6The pending “Unaccompanied
changed and said they were from El Salvador. worried. I didn’t know what was going to happen void in U.S. immigration law remains Alien Child Protection Act,”which sets out to enhance
I repeated that I was from Mexico...we were taken to me. I couldn’t make out anything around me.”1 stark. The court system, which interprets and representation and restrict detention ofchildren,rec-
applies immigration law, subjects children to the tifying other flaws within the system,is another example
same proceedings and evidentiary standards as ofadd-on legislation intended to correct longstanding
adults. Children are thrust into a system that was oversights.8At the time ofthis writing,unaccompa-
Children seeking asylum alone todayin the U.S. foreboding for the children involved. designed for adults, often without legal counsel nied and separated children applying for asylum in
are trapped in a complex and inconsistent system The past decade has seen increased attention to or the emotional support of families to help them the U.S.still have no right to state funded counsel.
that is detrimental to their needs.Ostensibly designed the needs ofchildren who cross borders alone seeking manage. In the words of a former immigration Yet,according to a study conducted by Georgetown
to protect those fleeing persecution,current policies refuge.It is now recognized that migrant children judge, “children are the biggest void in all of University based on data collected by the Department
frequently have the opposite effect.They subject who are unaccompanied (that is,entirely alone) or immigration law.”4 ofJustice,legal representation increases the likelihood
S
E children to traumatic procedures that are often terri- separated from their families (that is,in the company ofapplicants getting asylum at all ages.Specifically,
T
TA fying and unjust.In The Trial,a fictional commentary ofnon-parental adults,be they relatives or strangers) The widely publicized case ofMalik Jarno—the asylees with legal representation are six times as likely
S
on th century bureaucracy,Franz Kafka describes face an increased risk ofmilitary recruitment,sexual mentally disabled Guinean boy who came to the U.S. to be granted asylum as those without an attorney.9
D
TE an unremarkable man who becomes ensnared in a violence,gross deprivation,exploitation and abuse.3 at the age of,and was detained for two years and Nor are there statutory limits on the length oftime
I
N legal process that is surreal,senseless,and sinister. Some children,like José who is quoted above,flee eleven months alongside violent offenders in adult unaccompanied and separated children can be deprived
U
| His experience ofbeing subjected to inexplicable but from child-specific threats such as forced gang prisons—is not unique.5In fact,the U.S.Immigration oftheir liberty pending adjudication oftheir asylum
E
N relentless legal proceedings for a crime he did not membership and gang violence.Others flee threats Court’s first child-specific set ofguidelines,which are claim,despite the known traumatic and long term
O
L understand has been immortalized by the adjective based on religious or political persecution.The discretionary rather than binding,was issued only as effects ofdetention on children.10
A
M “Kafkaesque”,defined as “marked by surreal distortion number ofchildren arriving in the U.S.is significant. recently as September .Other well-meaning efforts It is not only procedural aspects ofimmigration
U
L and often a sense ofimpending danger.”2 The Department ofHomeland Security (DHS) at reform have also been ad hoc “add-ons”rather law that ignore children’s special needs.The applica-
Y
S The U.S.approach to children seeking immi- arrested ,children last year.Following arrest than a comprehensive restructuring.The “Child Status tion ofthe refugee definition to children,discussed
A
G gration protections is indeed Kafkaesque—surreal they pass into the bewildering inner workings ofthe Protection Act”of,for example,was passed to in more detail later in this report,has also been deeply
N
I in its application ofadult procedures to some of immigration and asylum system.Our study shows protect children from losing age-based benefits as a flawed.To qualify for protection as a refugee,all
K
E
E society’s most vulnerable children,and full of that there is a void in U.S.law,which results in child- result ofbureaucratic delays,correcting an omission asylum seekers,including children,have the burden
S
6 7
Chapter 1 | Introduction
ofproving they meet the legal definition.They must As a result no one has been willing to own the problem, area for –days,visited various facilities and offices
establish that they were persecuted in the past or have or to take full responsibility for addressing it.Yet involved with unaccompanied and separated chil-
a “well-founded fear offuture persecution on account given the complexity ofthe immigration system,the dren and conducted interviews with employees
ofrace,religion,nationality,membership in a social multiplicity ofavenues by which children come into ofrelevant governmental and non-governmental
group,or political opinion.”11But unaccompanied and it,and the scale (both geographic and demographic) agencies.A cluster ofinterviews was also conducted
separated children have had difficulty bringing them- ofthe problem,a coherent and coordinated response in Washington,D.C.focusing on employees offed-
selves within this protective regime.12Child-specific is essential.This report sets out to provide the eral government agencies making policy decisions
forms ofpersecution,such as gang violence and evidentiary and policy basis for such a response. affecting child asylum seekers,as well as immigra-
domestic abuse have been dismissed.Even those with tion advocates working on policy and practice issues
strong claims based on grounds similar to those arising related to children in immigration proceedings.
in adult cases,have found their claims ignored.13 1.2 Methodology Clustered interviews were conducted in person,
This void in immigration and refugee law is A complete table of interview subjects is included typically in the work place ofthe person being
T
remarkable when contrasted with other areas ofU.S. his report is based on both quantitative and as Appendix 4. Those interviewed include: interviewed.
law,such as criminal and family law,which do ensure qualitative research.Quantitative data for In addition to clustered interviews,researchers
special treatment for minors.But it is all the more the years through was solicited ■ federal government employees working at the utilized targeted interviews with individuals selected
national headquarters level
egregious given the particular vulnerability ofthe from federal government agencies coming into for their job relevance or experience with child asylum
children affected and the gravity ofwhat is at stake. contact with unaccompanied and separated children. ■ current or former federal government seekers.Targeted interviews were conducted either in
As a UN report confirms: Written responses were received from agencies. employees working in local government offices person or over the telephone,with some interview
Statistics were received from six agencies.Three sepa- follow-up by phone or electronic correspondence.
Given the fundamental role played by the family ■ state government employees
rate Freedom ofInformation Act (FOIA)inquiries Four researchers conducted the interviews using a
in the protection, physical care and emotional to the Department ofHomeland Security are still out- ■ legal representatives or immigration advocates semi-structured questionnaire with both closed and
well-being of its members, separation from families standing,the earliest dating back as far as May .15 with non-profit organizations open questions.A core questionnaire was developed
is particularly devastating for refugee children.14
The qualitative data was acquired through for all interviews.This was then modified slightly by
■ employees ofnon-governmental organizations,
a combination ofclustered interviews (centered on category ofinterview subject:asylum officers,immigra-
Moreover,they are not just separated from family representing academic,mental health and social
a particular city or region) and targeted interviews tion judges,other government employees,legal
but from everything familiar:home,language, service institutions
(with specially selected individuals) carried out representatives,academics,and shelter care providers.
food,culture.Yet child asylum seekers whose claims
ES between March and November of,for a total ■ interviews with children and youth currently or In broad terms,the questions covered in an interview
T are denied face the same penalties as adults,includ-
A ofinterviews with relevant governmental and formerly involved in immigration proceedings included experience with the population,training,
T ing indefinite detention or even deportation to the
S
non-governmental representatives.In addition,the special issues and accommodations in dealing with
D countries they have fled,where they may be persecuted
ITE or killed or face the dangers that precipitated Women’s Commission for Refugee Women and Interview subjects were selected based on the unaccompanied and separated children,procedures,
N Children conducted interviews with child asylum following criteria: the role ofinterpreters,legal representatives and
U the quest for refuge in the first place.
| seekers between February ofand May of. guardians,inter-agency collaborations,physical and
E Our research reveals that little data exists on the ■ level ofauthority or influence on policy decisions
N Interviews were voluntary,and there was no mental health and confinement concerns,speed of
O impact ofthe U.S.immigration and asylum system affecting child asylum seekers
L financial remuneration for participation.Clustered proceedings,decision making in asylum cases,and
A on children.
M interviews were conducted in Los Angeles,Califor- ■ level ofexperience working on policy issues policy and practice concerns or recommendations.
U
L Government record-keeping is virtually non-existent, nia;Miami,Florida;and Phoenix,Arizona;regions regarding child asylum seekers It is worth noting that some interviews did not
Y
S official attention to the problem is ad hoc, and there with a significant number ofunaccompanied and occur despite requests by project staff.The initial
A ■ level ofdirect experience with child asylum seekers
G is no senior administrative individual or entity separated children in the community or in facilities research plan included interviews with immigration
N
KI charged with overall responsibility for unaccompa- funded by the federal government.When conduct- ■ geographic location in the U.S.,representing a judges who hear children’s asylum cases on a regular
E
E nied and separated children within the system. ing interviews,researchers traveled to a particular diversity ofnational and local practice experience basis.The Office ofthe ChiefImmigration Judge
S
8 9
Chapter 1 | Introduction
(OCIJ)ofthe Executive Office for Immigration Review conduct a cluster ofinterviews in the area,was also oped instead a synthesized template with expert U.S.Immigration and Naturalization Service.
(EOIR)responded to this request with an initial unsuccessful.After an initially cordial response by recommendations for how the current system should Human Rights Watch (April ).Available at
counter-offer that EOIRwould survey all immigration the appropriate ICE/Miami public relations office, be filled in,changed and improved.The report contains http://www.hrw.org/reports//uscrcks/.
judges and submit to the project a summary ofjudges’ no further reply was received to a written interview a series ofpractical recommendations for improving  U.S.Congress,House ofRepresentatives,Child
responses.However,this offer was later rescinded.As request.When the researcher arrived in person at the the situation ofunaccompanied and separated child- Status Prevention Act,th Cong.nd sess.,.
a result,researchers were only able to communicate Juvenile Coordinator’s office at the Krome Detention ren seeking asylum in the U.S.,in the hope that those Available at http://uscis.gov/graphics/PL–.pdf.
with two current and two former immigration judges. Center,following other meetings with government concerned with children’s rights will consider,debate  Inter-agency Guiding Principles on Unaccompanied
For the current immigration judges,one formal personnel at the same complex,the Juvenile Coordi- and implement them.The protection ofchildren
and Separated Children,Geneva,Switzerland:
interview was completed in Phoenix,Arizona,while nator replied that he had been instructed by superiors seeking asylum alone depends on this. International Committee ofthe Red Cross..
these negotiations between the OCIJand the Seeking not to speak with the researcher and to stay out of
 Hendricks,Tyche.“Feinstein bill would protect
Asylum Alone project were in process,and one the hallways so as not to run into her.In stark contrast
foreign kids in U.S.custody.”The San Francisco
Endnotes
informal conversation was held with an immigration to this lack ofresponsiveness by ICE/DHS,the Asylum Chronicle.January .
judge during the observation ofa “children’s docket” Office (also part ofDHS) at both the national and
 Interview with José,from El Salvador who was  Jacobs,Jonathan and Schoenholtz,Andrew.“The
at the Immigration Court ofthe Krome Detention local levels responded with interest and cooperation,
denied asylum by a judge and appealed the deci- State ofAsylum Representation:Ideas for Change.”
Center in Miami,Florida.In the cases ofthe former as did the Office ofRefugee Resettlement (part ofthe
sion.Interview by Joanne Kelsey,interpreted by Georgetown Immigration L.J.().
judges,attorneys representing children in immigration Department ofHealth and Human Services).
proceedings provided contact information for a retired The original research goal was to create a statistical Andrea Pantor.November .  Physicians for Human Rights.From Persecution
immigration judge from San Francisco,California portrait ofunaccompanied and separated children in  The American Heritage Dictionary ofthe to Prison: The Health Consequences ofDetention
English Language,th ed.,s.v.“Kafkaesque.” for Asylum Seekers.Boston and New York City
and a former immigration judge from Houston,Texas, the U.S.,and to interpret this in light ofthe practical
(June ).
both jurisdictions where unaccompanied and separated experience and policy recommendations ofexperts  Cohen,Ilene and Goodwin-Gill,Guy S.Child
children are,or have been,held in federally-funded working with this population.The research revealed Soldiers,The Role ofChildren in Armed Conflicts,  Immigration and Nationality Act.U.S.C.§
shelter care or secure detention facilities. that the U.S.asylum system represents a paradoxical A Study on Behalfofthe Henry Dunant Insti- (a) ()(A).
Researchers also attempted,without success,to blend ofexcess and deficiency.An overwhelmingly tute,Clarendon Press,Oxford.;Gallagher,  Bien,Rachel.“Nothing to Declare but Their
Michael.Soldier Boy Bad: Child Soldiers,Culture
conduct interviews with staffofImmigration and large number ofagencies and actors are involved Childhood:Reforming U.S.Asylum Law to Protect
and Bars to Asylum.International Journal of
Customs Enforcement (ICE)ofDHSand the Office with processing,prosecuting,and caring for separated the Rights ofChildren.”Journal ofLaw and Policy
ofthe Principal Legal Advisor for ICE/DHS(the and unaccompanied children.To understand how Refugee Law vol.,no..;Bhabha,Jacqueline. ():–.See also Nogosek,K.“It Takes
ES national office overseeing ICEtrial attorneys,who these children are treated in the U.S.,one must under- “Seeking Asylum Alone:Treatment ofSeparated a World to Raise a Child:A Legal and Public Policy
T and Trafficked Children in Need ofRefugee
TA represent the federal government’s interests in stand the bureaucratic structures,procedures,staffing, Protection”,() International Migration.. Analysis ofAmerican Asylum Legal Standards
S and Their Impact on Unaccompanied Minor
immigration proceedings).Requests to interview the and information management systems at work in
ED  Interview with Joseph Vail,former Immigration Asylees.”Hamline Law Review().
T prior INSJuvenile Coordinator (still employed by myriad complicated federal systems.Despite,or
NI ICEand having authority over juvenile matters perhaps because of,the large number ofgovernment Judge,Executive Office for Immigration Review  For an analysis ofsome such cases see Bhabha,
U (EOIR),Houston,Texas;currently Professor,
| remaining with ICEafter the dissolution ofthe INS actors involved with children in the asylum system, Jacqueline.“Inconsistent State Intervention and
E University ofHouston Law School.Interview by Separated Child Asylum-Seekers.”European
ON and assumption offormer-INSduties by ICE/DHS), there is a general deficiency ofinformation about Susan Schmidt.Houston,Texas.March . Journal ofMigration and Law–.()..
L made directly to the Juvenile Coordinator,were met them.The plight ofchild asylum seekers,from an
M A with responses that the request was still pending with institutional standpoint,has simply been overlooked.  See also Amnesty International.“Why am I  United Nations High Commissioner for
U Here?”: Unaccompanied Children in Immigration
L superiors.Requests to superiors and to the ICEpublic In contrast to the paucity ofdata from govern- Refugees,Refugee Children Coordination Unit.
Y Detention.Amnesty International USA (June
G AS rmelaadtieo innss toefafidc,ea wnedr eth urneea nsuswcher FeOd.IAFOrIeAqureeqstuse asrtes wsteilrle manedn yt iseolduerdce ms,athney icnotnersvtriuewctsi vwe irtehc eoxmpmeretsn wdaetrieo nrisc.h ).Available at http://www.amnestyusa.org SAuctmivmitiaersy i nU pdat–e ofM.aUcNheHl CStRu:diyi. Follow-up
N /refugee/usa_children_summary.html.See also
KI outstanding.A request to interview an ICEJuvenile Rather than the statistical picture annotated by expert Human Rights Watch.Slipping through the  See Appendix for a more detailed description
E
E Coordinator in Miami,Florida,during a visit to comment that we had expected to offer,we have devel- Cracks: Unaccompanied Children Detained by the offederal government inquiries and responses.
S
10 11
C H A P T E R 2
Which Children
Seek Asylum Alone?
2.1 Children’s Migration in Recent History
In their seminal work on unaccompanied children, Ressler, Boothby and
Steinbock make the obvious point that wars,famines and natural disasters have
almost always resulted in children being separated from their families.
S
E
T
TA UNICEFestimates that,by the end of1994,more than Congo,Ethiopia,Guinea,Iran,and Pakistan among
S
100,000 children had been separated from their countries with large unaccompanied and separated
D
E
T families in Rwanda alone. children populations.2Six years later,Iraq,the Darfur
I
N The same organization cooperated with the United region ofSudan,and Afghanistan would have to be
U
| Nations High Commission for Refugees (UNHCR)to added to this list.
E
N register more than ,unaccompanied children in Separated and unaccompanied children have long
O
L and from the former Yugoslavia through its Operation been a feature ofrefugee flows in the developing world.
A
M ReUnite.1 Not surprisingly,the greatest concentration Children who have been displaced by war often lack
U
L ofunaccompanied and separated children are to the funds to travel long distances;instead,many end
Y
S be found in developing countries that have either up traveling to neighboring countries,finding their
A

G experienced natural or human-made disasters or that way with other refugees who are moving on foot.The
N
I border such a country.A study carried out in  increasing extent to which civilians are the targets of
K
E
E listed Algeria,Armenia,the Democratic Republic of violence in intra-State armed conflict has undoubtedly
S
12 13
Chapter 2 | Which Children Seek Asylum Alone?
added to the numbers ofchildren who lose their A second objective ofthese programs was the in the cost ofair travel,and the increasing mobility to collect data on this population only began in the
homes and families in the midst ofwar.3 resettlement ofalready unaccompanied or separated ofboth people and information around the world.7 late s and early s.9It is consequently difficult
In the developed world,in contrast,the majority children from countries other than their own,to All these factors have contributed to making separated to say how manymore children are traveling to seek
ofseparated and unaccompanied children have histor- which they had fled.Since World War II,unaccompa- and unaccompanied child asylum seekers a truly asylum on their own now than in years past.10What
ically arrived in the context ofofficial resettlement nied or separated child refugees have been resettled global—and not just regional—phenomenon. is clear is that,today,separated and unaccompanied
programs.With its extended land border adjoining by the U.S.from countries offirst asylum in several Separated and unaccompanied children,who are by children constitute a small but significant percentage
Mexico—a bridge for migration from an entire, crises,in particular Hungarian unaccompanied definition traveling without their primary caregivers ofall asylum-seeker flows.Beginning in ,UNHCR
developing world continent—the U.S.has long children in –,and Indochinese children in and who lack the resources,contacts,and abilities on began collecting annual statistics on separated and
experienced the migration ofunaccompanied and and from onwards.In fact,one ofthe most which adult migrants can rely in the course oftheir unaccompanied child asylum seekers in developed
separated children.Since World War II,the U.S. significant reasons for the enactment ofthe Refugee journey,often become the clients or the prey in the countries.It currently has figures from European
has admitted thousands ofsuch children from Act was the admission ofover ,Indochinese global underground economy ofhuman smuggling countries (these being the only governments that make
crisis areas and refugee camps.Until ,when the refugees between and .5 and trafficking.Thus,in the U.S.,children are comparable data available).11Although incomplete,
Refugee Act was enacted,the admission ofthese A third objective was the facilitation ofinter- steadily arriving both as refugees fleeing wars and these figures—last updated in —suggest that
children into the U.S.was facilitated through ad-hoc country adoption by Americans.An example ofthis persecution,and as trafficking victims brought into between and % ofall asylum applications received
and situation-specific programs.4 Three overriding was the above mentioned Operation Babylift,which the country for exploitative purposes.This report in these countries each year are from children seeking
objectives are apparent in these pre-programs. began as an effort by private adoption agencies,with argues that children in both categories may qualify asylum on their own.12
The first objective was the evacuation ofchildren the cooperation ofthe U.S.government,to remove for asylum or other forms oflegal protection. Due to problems with comparability and data
directly from areas ofdanger or persecution.Exam- children who were already being processed for adop- availability,UNHCRdoes not collect data on unaccom-
ples ofsuch programs are the U.S.’s evacuation in tion from South Vietnam.Americans also adopted panied and separated children for the U.S.
of,British children,the evacuation of many Korean children after the Korean War.In 2.2 The Scale of Movement Today
over ,Cuban children in –,as well as contrast to the above programs,the Refugee Act of In fact, there is no comprehensive set of govern-
the evacuation of,Vietnamese children established a permanent mechanism for their Historically,separated and unaccompanied ment statistics on how many children enter the
to the U.S.through Operation Babylift. admission.In general U.S.policies have worked best children arriving in developed countries U.S. alone every year. Since the Immigration Court
for pre-screened children from overseas,whereas under planned resettlement programs (like (EOIR)does not track birth dates, there is no annual
onshore child asylum applicants have,with some the ones described above) did not pose a special data on how many children go through Immigration
limited exceptions described in later chapters ofthis dilemma for policymakers.Easily subsumed into the Court proceedings.
S
E report,had to fit into a system designed for adults larger category ofpre-screened refugees with whom
T
A and ill-suited to their needs. they traveled,their reception and treatment in their There are,however,a number ofaccess points in the
T
S
In fact,in the last few decades,significant numbers new countries were dictated by the terms ofthe immigration system where the authorities come in
D
TE ofseparated and unaccompanied children have found resettlement programs under which they came.8 contact with separated and unaccompanied children,
I
N their way to the U.S.as asylum seekers,traveling The phenomenon ofchildren traveling to seek and where partial information can be found.
U
| outside the context ofany planned resettlement asylum outsidesuch programs—either on their The first access points are the reception and
E
N schemes.War and instability in Central and Latin own or in the company oftraffickers,smugglers, interception agencies.One such agency is the U.S.
O
L America and in the Caribbean have sent waves of or other non-parental companions—received little Coast Guard,whose officials patrol U.S.waters
A
M refugees to the southern border ofthe U.S.Children attention until quite recently,despite their unique and interdict boats ofwould-be asylum seekers.
LU have also arrived seeking asylum from much further and extreme vulnerability. In ,the Coast Guard interdicted ,would-
Y
S away.This is a result ofseveral factors:the change in The U.S.authorities have still not recognized be asylum-seekers (ofall ages) at sea.13This number
A

G the nature ofmodern warfare,with the increasing this as a serious oversight.There is very little longitu- includes both adults and children.IfUNHCR’s
N
I rate ofcivilian casualties,6instability within refugee dinal data available on separated and unaccompanied findings for European countries can be extrapo-
K
E
E camps in developing countries,the significant drop child asylum seekers.A concerted international effort lated and applied to the U.S.—that is,ifwe can
S
14 15
Chapter 2 | Which Children Seek Asylum Alone?
assume that unaccompanied and separated child while their asylum eligibility is determined or while
asylum seekers constitute between % and % of the government puts them through removal proceed-
any given asylum-seeker population in the industrial- ings.Detention is therefore another point ofaccess
ized world—then we can estimate that the U.S.Coast to data.The U.S.Office ofRefugee Resettlement
Guard intercepted and returned about unaccom- (ORR),which is charged with the care and custody
panied children in .14 ofunaccompanied alien children in removal
The Customs and Border Protection (whose proceedings,19reported that it had between 
officials are stationed at airports and points ofentry) and unaccompanied and separated children
and Border Patrol (a subsection ofthe CBPwhose in care at any one time during fiscal year .
officers are stationed along the land borders of A total of,unaccompanied and separated
Mexico and Canada between official points ofentry) children were referred to ORRduring that year.20
are both important reception agencies.The children All ofthese children who are detected by the
these officials meet are often physically located on various interception and reception agencies must
U.S.territory,but are not considered legally “present.” make their claims for asylum or withholding of
Some ofthose who lack valid visas will be turned deportation before the Executive Office for Immigra-
away immediately before ever being admitted to the tion Review (also referred to as the Immigration
country.15Neither Customs and Border Protection Court or EOIR).21However,because the Court does
nor the Border Patrol provided requested statistics not record the ages and birthdates ofthe petitioners
on children,but what patchy evidence is available who come before it,it has no data on how many “Fega,”—an eight-year-old girl from Nigeria held for fifteen A final cohort ofunaccompanied and separated
suggests that quite large numbers ofunaccompanied children pass through its system each year.22 Nor months in a Miami shelter—attends a Senate hearing on children comes to the U.S.through the refugee resettle-
the Unaccompanied Alien Child Protection Act with her aunt
children are intercepted while attempting to enter does the Immigration Court maintain comprehensive ment program,having been pre-screened and approved
and an attorney from INS/Homeland Security.
the U.S.via the southern border.A DHSOffice of data on how many children are ultimately granted overseas.In ,the U.S.Refugee Program ofthe
Inspector General report notes that CBPapprehended asylum by immigration judges,or are awarded with- ofthe unaccompanied and separated child population U.S.State Department resettled refugee cases
,juveniles in fiscal year ,ofwhich , holding ofdeportation in court. in the U.S.who had entered or attempted to enter headed by children.30 A separate specialized program
were from Mexico and ,were “Other-Than- There is only slightly more information the country withoutvalid documents,and who had is in place for Cuban and Haitian entrants (those
Mexican (OTM).”Ofthis total figure,,were available regarding other forms ofprotection for been apprehended by government officials.Other who reach the U.S.mainland),which resettled 
S
E immediately returned (usually to Mexico,very rarely non-national children:principally,T-Visas23and children,however,enter the asylum channel by unaccompanied children from those countries in
T
TA to Canada) leaving ,children who presumably Special Immigrant Juvenile Status (SIJS).24 Between presenting themselves to the authorities.These fiscal year .31
S were placed into Immigration Court proceedings.16 fiscal years and ,children were certified children include those who are living in the U.S.on
D
TE This number includes both accompanied and as victims oftrafficking25(with six ofthese children valid visas,as well as those who entered the country Adding together the numbers mentioned above,
I
N unaccompanied children,since CBPdoes not track certified in ),26and eligible for the T-Visa.27The clandestinely or whose visas have expired,but who while imperfect, we can estimate that during
U
| unaccompanied children separately.17 numbers ofchildren who filed and were granted have still not been detected by immigration officials. 2003, well over 8,000 children sought refuge
E
N Other children,instead ofbeing turned away at SIJSare unknown,but the Yearbook ofImmigration These children are allowed to make their claims not alone in the U.S., excluding the large number of
O
L the border,will come into contact with government Statistics states that in ,a total ofjuvenile defensively,through the Immigration Court,but Mexican children picked up and returned across
A
M officials once they have already entered the U.S.This court dependents were granted permanent residency affirmatively,through the Asylum Office.Unlike the border by the CBP.32
U
L is either because they managed to cross the border (presumably because they had been granted SIJS).28 most other government agencies we contacted,the
Y
S without being detected,or because they entered the Even ifit were available,any data collected by Asylum Office doescollect data on unaccompanied It is difficult to make any extrapolations based on
A
G country on a valid visa that has since expired,and the Coast Guard,Customs and Border Protection, and separated children.It stated that out of, these disparate figures,except the generic observation
N
I are later discovered.Once apprehended,these Border Patrol,the Office ofRefugee Resettlement,and total onshore asylum applications in ,were that the number ofchildren coming to the U.S.on
K
E
E children are usually18detained in federal custody the Immigration Court would only capture that part submitted by children as the principal applicants.29 their own each year is far from insignificant.
S
16 17