Who is responsible for oversight of children in immigration detention?
The unsanitary and crowded conditions in Customs and Border Protection (CBP) facilities near the border, coupled with the recent deaths of children detained by immigration has brought the regulation of immigration detention for children to the forefront of public dialogue. These reports are reminiscent of the conditions in which children like Jenny Flores were detained by Immigration and Nationality Services (INS), the predecessor to the Department of Homeland Security (DHS) in the 1980’s: makeshift facilities at an abandoned hotel surrounded by chain link fence and concertina wire where unaccompanied children were kept with adults, subjected to strip searches and no access to recreation or education. Now, DHS has published final regulations making it easier for them to scale back on protections for children detained with their parents.
Thanks to a lawsuit filed by Ms. Flores, and the resulting Flores Settlement Agreement combined with a series of enforcement lawsuits and Congressional action, we now have a series of protective laws designed to prevent the conditions of the 1980’s from becoming the norm again. The Flores Settlement Agreement sets the following standards for the detention, release, and treatment of minors in immigration custody:
- Apprehension: Immigration officials must provide every child notice of their rights, including the right to a bond determination and to be detained separate from adults with access to toilets and sinks, drinking water and food, medical assistance in emergencies, adequate temperature control and ventilation, adequate supervision, and contact with family members that were arrested with the minor.
- Least restrictive setting: Immigration officials must detain a child in a setting appropriate to the minor’s age and special needs balanced with the government’s interests to ensure the minor’s timely appearance in immigration courts and to protect the minor’s well-being.
- Custody: The child must be transferred to a facility licensed by state standards for housing and care of dependent children, and in some instances may be transferred to a secure or medium secure facility if the child has delinquency or criminal convictions, is an escape risk, or is disruptive.
- Policy Favoring Release: If detention is not required to secure timely appearance or for the minor or other’s safety, the government shall release the minor to a parent, legal guardian, adult relative, individual designated by the parent or legal guardian, a licensed program, or other adult where family reunification is not possible.
- Enforcement of Agreement: The agreement remains in effect until the court determines that INS is in substantial compliance with the agreement. Counsel for the plaintiffs still represent every child detained by immigration officials, and may visit facilities to interview children. If you are interested in volunteering to make site visits, you can learn more here: https://www.reunify.org/
The Flores Settlement Agreement remains in effect and subject to enforcement. In 2003, the government agreed to continue to abide by the agreement until regulations were published. When the settlement agreement was signed, there was only one category of INS detention. However, the federal judge who oversees the case has held that the child welfare standards agreed to in the Flores Settlement Agreement, including state licensing, apply to any child in any immigration detention facility whether it is a CBP facility, an Immigration and Customs Enforcement (ICE) family detention center, or an influx or standard facility operated by the Office of Refugee Resettlement (ORR).
In 2002, when INS was restructured, Congress transferred the care and custody of certain immigrant children to ORR. Congress created a new category of children- “unaccompanied [alien] children” or “UC” who are younger than 18, in the United States without immigration status or a parent or legal guardian available to care for them. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) codified additional protections for unaccompanied children including the right to have their case heard by an immigration judge and to be transferred from CBP custody within 72 hours. Unfortunately, Congress also codified an exception for unaccompanied children from contiguous countries (i.e. Mexico) who must go through additional screening. As the Young Center for Immigrant Children’s rights has recently reported, this screening results in “an extraordinarily high percentage of unaccompanied Mexican children” being sent back across the border.
What kinds of ORR facilities are UC detained in?
Unaccompanied children, whether they arrive at a port of entry or between ports of entry, are typically apprehended by U.S. Customs and Border Protection (CBP). Once identified as an unaccompanied child (UC), all government agencies, including CBP must contact the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) within 48 hours to report the apprehension or discovery of UC or to report any claim or suspicion that a person in custody is under 18. See 8 U.S.C. 1232(b)(2). The federal agency must transfer the UC to the custody of ORR within 72 hours. Id. Children who are separated from a parent on the border, or from another adult caregiver, may also be identified as an UC and transferred to ORR.
Since October 1, 2018, about 69,000 UC have been apprehended by CBP at the Southwest Border, about 61,000 UC have been referred to ORR, and about 55,000 UC have been released to sponsors in the US. There are around 170 ORR facilities around that country that fall into one of several different categories. About 1/5 of the ORR facilities are in Texas and Texas receives the highest number of UC released to sponsors of any state (about 7000 in the same time period as the numbers above). The Flores agreement contemplates that generally these facilities will be non-secure “as required under state law.” The type of facility is determined by information collected from the referring agency such as Border Patrol, including location of potential sponsor, demographics of the child, any special needs including language needs, and whether the child is a danger to themselves, the community, or an escape risk. ORR contracts with state licensed care providers around the country, such as Lutheran Immigrant and Refugee Services, BCFS, Yolo County Juvenile Detention Center, Southwest Key, Heartland Human Care Services, and Bethany Christian Services, to operate shelters, foster care or group homes, staff-secure, secure, and residential treatment centers. There is no restriction on for profit companies bidding for the contracts to operate the shelters. Secure facilities may only house a child when the child poses a danger to self or others, or has been charged with committing a criminal offense. The placement at a secure facility must be reviewed monthly at a minimum. In 2017, a federal judge ruled that any minor re-apprehended after previously being released from ORR based on allegations of gang affiliation must be provided a hearing before an immigration judge within seven days of re-apprehension, in the jurisdiction where the minor was apprehended or lives. Saravia v. Sessions, 280 F. Supp. 3d 1168, 1206 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018).
If you are trying to locate a child within ORR care, there is a hotline run by ORR that individuals can call: https://www.acf.hhs.gov/orr/resource/orr-national-call-center.
What are the standards of care for UC in ORR facilities?
Congress charged ORR to oversee the care and custody of UC including detention in the least restrictive setting, centering on the best interest of the child. See 8 U.S.C. 1232(c). The only guidelines over the conditions of the custody of UC offered by Congress are:
1) Consult with juvenile justice professionals, USCIS, and CBP to ensure children come to their immigration court proceedings, are protected from traffickers and smugglers, and do not pose a danger to themselves or others. 8 U.S.C. 279(b)(2).
2) Place UC in the least restrictive setting considering danger to self, danger to the community, and risk of flight. 8 U.S.C. 1232(c)
3) Ensure that qualified and independent legal counsel is timely appointed to represent the interests of each such child. 8 U.S.C. 279(b)(1)(A).
ORR publishes its own policy guide which it can change without prior notice. The Flores Settlement Agreement outlined above still governs the standards of care for children in ORR custody. In addition to state licensing and local health and fire codes, ORR requires care providers comply with a list of services including basic needs, an individualized needs assessment, medical care and vaccinations, individual and group counseling, access to educational services, recreation and access to legal services. Despite this policy, ORR recently announced that it would cut funding for recreation, education and legal services, until it received emergency funding which it did in June 2019. A recent report by the Office of the Inspector General (OIG) recommended that ORR to address the mental health needs of UC who have experienced trauma before arriving at the shelter.
ORR requires staff at ORR facilities to report any allegations of abuse or neglect within the shelter to the state licensing agency, child protective services, and local law enforcement as well as to ORR within four hours. Reports of abuse by either staff or fellow UC have been reported at various facilities over the years. In 2018, the federal judge overseeing the Flores agreement ordered ORR to move immigrant children out of the Shiloh Treatment Center and into less restrictive housing unless a licensed psychologist or psychiatrist determines that a child “poses a risk of harm to self or others.” Additionally, the Court ordered ORR to stop administering psychotropic drugs without consent or order as required by Texas licensing requirements. The D.C. Court of Appeals recently ruled that ORR cannot deny access to a pre-viability abortion for pregnant UC. J.D. v. Azar, 925 F.3d 1291, 1326 (D.C. Cir. 2019).
Proposed HHS regulations on the apprehension, processing, care, and custody of minors and UC were published on September 7, 2018 for which more than 100,000 individuals and organizations provided comment. The HHS regulations provide the minimum standards that would apply to state licensed facilities but propose to lower the standard of care for secure facilities. On August 21, 2019, DHS announced the publication of final rules related to Flores including regulations to guide ORR. On August 26, 2019, several states sued the federal government challenging the implementation of the regulations. For updates on the status of the regulations, visit: https://youthlaw.org/policy/protecting-due-process-rights-children-federal-immigration-custody/.
What is an ORR influx facility and how are the standards different?
The Flores settlement agreement allowed for an exception to the deadline to transfer a minor to a licensed facility in the event of an emergency or influx of minors. At the time of the agreement, an influx was defined as more than 130 minors. ORR has expanded that definition by determining that an influx facility will be opened when there is “an increase in the number of UC that exceeds the standard capabilities of responsible Federal departments and agencies to process and transport them timely and/or to shelter them with existing resources.” ORR policy further authorizes the agency to place UC in facilities that are not licensed or on federal land not subject to state licensing. Since enacting this policy, ORR has opened influx facilities in Fort Bliss, Tornillo, Lackland Airforce Base, Fort Sill, Holloman Air Force Base, Carrizo Springs, and most recently Homestead, Florida which has been open since March 2018. In 2019, Flores counsel filed a motion to enforce the agreement by releasing UC from the Homestead influx facility within 20 days because it is not state licensed. As of the date of this post, ORR has released or transferred all UC from Homestead and other influx facilities. The current ORR Director, Jonathan Hayes, testified to Congress in July 2019 that ORR is currently expanding its capacity for state licensed facilities to 20,000 beds by the end of 2020 in order to avoid opening influx facilities in the future. However, ORR currently continues to keep space available in influx facilities.
What are the standards for release and reunification with a sponsor?
Similarly, Congress has charged ORR with overseeing the reunification with family and release of UC from ORR custody. Congress mandates that ORR not release children on their own recognizance. 8 U.S.C. 279(b)(2). Rather, ORR must ensure that any proposed sponsor of a UC is capable of providing for the child’s physical and mental well-being. 8 U.S.C. 1232(c)(3). Congress mandates home studies in some instances and in all cases ORR must confirm the identity of the custodian and relationship to the child, if any, as well as make “an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” ORR publishes its own policy guide which it can change without prior notice, and much of which is incorporated into the proposed regulations. ORR employs Family Field Specialists (FFS) to identify appropriate sponsors for UC in ORR care using their system of categorizing children based on their relationship to their sponsor. In April 2018, HHS entered into a Memorandum of Understanding to share sponsor information with DHS. The policy was challenged in a lawsuit in late 2018 and has subsequently been scaled back after 330 potential sponsors were arrested created a chilling effect and spiking the length of time that UC spent in ORR care.
A UC has a right to a bond hearing under the Flores Settlement Agreement to seek a redetermination of their placement by an immigration judge. In 2018, a federal court granted a preliminary injunction ending a policy requiring then ORR director Scott Lloyd to personally review and approve the release of any detained immigrant child who is or has ever been in a heightened supervision placement while in ORR custody. See L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 609 (S.D.N.Y. 2018). The proposed regulations change this process by providing an administrative hearing on the risk of danger or flight.
ORR may only oversee UC until the age of 18. For that reason, Congress mandated procedures for ORR’s policy requires the agency to coordinate with DHS to transfer a UC to adult ICE custody on their 18th birthday. Under the TVPRA, DHS must consider placement in the “least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” In a lawsuit filed in 2018, a federal judge enjoined ICE from automatically transferring two UC to ICE detention rather than considering the least restrictive setting, including alternatives to detention such as placement with an individual or an organizational sponsor, or in a supervised group home. Ramirez v. U.S. Immigration & Customs Enf’t, 310 F. Supp. 3d 7, 32 (D.D.C. 2018). As of the date of this writing, a class action had been certified but there has not yet been any injunction ordered that would apply beyond the individual plaintiffs in this case. For updates, follow the case here: https://www.immigrantjustice.org/court_cases/garcia-ramirez-et-al-v-ice-et-al.
Congress also mandated ORR to develop certain procedures for determining a minor’s age which must include multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the UC. ORR’s age determination policy includes a review of government documents, testimony of the UC and others, as well as medical (dental assessments). The Innocence Project issued a report in 2018 condemning the reliance of forensic odontology reports to determine the age of UC, and the Deportation Research Clinic at Northwestern University recently released preliminary research findings showing that ORR officials are “misrepresenting the facts and policies in their age assessments.”
What standards exist for Border Patrol Facilities?
Customs and Border Protection (CBP) facilities are the first detention stop for undocumented immigrants who present at a port of entry or who are apprehended near the border between ports of entry. While the detainment is designed to be short, many important interviews with legal repercussions occur in CBP facilities despite the lack of access to attorneys or mental health professionals trained in working with traumatized and child populations. In August 2019, the 9th Circuit Court of Appeals affirmed that the Flores Settlement agreement applies to children detained in border patrol facilities such as the one in Clint, Texas where reports of conditions for both children and adults have shocked the conscious of many Americans. These reports echoed similar reports made in other facilities in the Rio Grande Valley in 2013.
What standards exist for ICE family detention facilities?
ICE began detaining families together as early at 2008 at detailed in this New Yorker article profiling a family detained at the Hutto Detention Center in Taylor, Texas without regard for the Flores Settlement Agreement. In 2015, the court overseeing the Flores Settlement Agreement affirmed that the standards of detention apply to accompanied children who are detained with their parents, including the requirement for the facility to be licensed by the state. The DHS regulations published in August 2019 create an exception to the licensure requirement for those states who do not have a licensing system for family detention centers by creating a federal licensing scheme for these facilities. More on the history of family detention and the new regulations can be found here: https://www.americanimmigrationcouncil.org/tags/family-detention.
This legal update is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. If you are a lawyer who represents unaccompanied children in Texas and have a question about your case, please reach out to us for technical assistance: https://www.cilacademy.org/request-assistance/