Has a child client disclosed to you that, while they were in U.S. Customs and Border Protection (CBP) custody and before they entered the Office of Refugee Resettlement (ORR) shelters, they experienced a loss of their personal property or a violation of their personal rights? If you have been in that or a similar situation and a client told you of an incident where their rights were violated while they were in a Department of Homeland Security (DHS) detention facility, you may be able to request assistance from the Office of the Immigration Detention Ombudsman (OIDO).
Learn More About Children’s Rights
First, it is important to understand what immigrant children go through from the time they reach U.S. borders to when they go to ORR shelters. To get a better understanding, consult the ABA CILA Fact Sheet: Unaccompanied Children at the Border to learn more about CBP’s role in processing unaccompanied children before children enter ORR custody. You can also learn more by reading the “Primer: Immigration Enforcement Mechanisms at the U.S. Border” developed by the American Bar Association’s Commission on Immigration.
Additionally, children have rights while they are detained. To learn more about these issues, review CILA’s blog post, “Frequently Asked Questions: Who Regulates the Detention of Children Facing Deportation?” A key source of children’s rights in immigration detention stems from the Flores Settlement Agreement (Agreement). A federal district court in California approved the Agreement in 1997. The Agreement came about after children were experiencing poor conditions in detention, and it was put in place to improve treatment of minors in detention. The Agreement sets forth a “nationwide policy for the detention, release, and treatment of minors” in immigration custody, and it applies to both unaccompanied children and accompanied children (para. 9). Some key aspects of the Agreement include that detained minors should be treated with “dignity, respect, and special concern for their particular vulnerability as minors . . .” and they should be placed “in the least restrictive setting . . .” (para. 11). Additionally, a minor in custody should be “expeditiously process[ed],” and facilities must be “safe and sanitary” (para. 12.A). There are several very specific statements made relating to detention conditions, such as providing “access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is need of emergency services, adequate temperature control and ventilation . . .” (para. 12.A.).
CBP issued the “National Standards on Transport, Escort, Detention, and Search” (TEDS) in 2015. The document sets out agency-wide, nationwide policy for standards for CBP detention conditions.
It is important to know about children’s rights in detention and other detention standards, so you can fully assess whether those rights were maintained and protected or violated. In addition to the resources included here, CILA’s resource, “Helpful Resources in Representing Unaccompanied Children,” provides practitioners with a starting point for research in children’s immigration cases, including sources of law and policy that impact children’s rights in detention and in their case progression.
What is OIDO?
OIDO was established by Congress in 2019 as an independent, neutral oversight office within DHS. OIDO is not part of CBP or U.S. Immigration and Customs Enforcement (ICE). According to OIDO, they will: “assist individuals with complaints about the potential violation of immigration detention standards or misconduct by DHS (or contract) personnel; provide independent oversight of immigration detention facilities, including conducting announced and unannounced inspections, and reviewing contract terms for immigration detention facilities and services; and serve as an independent office to review and resolve problems stemming from the same.”
To meet these objectives, OIDO has case managers at many CBP and ICE facilities around the country where detainees can make complaints directly to the case managers in person. Case managers wear uniforms with OIDO’s logo and the hummingbird symbol to try and be more easily identifiable. A picture of the uniform can be seen on OIDO’s website. OIDO’s website also contains a map demonstrating the different states and facilities where case managers are regularly present. Even if case managers are not present at a particular facility, they can be if a known issue is raised. Complaints can be raised directly to case managers while the individual is detained or afterwards.
Example issues that OIDO can address include “allegations of: misconduct, excessive force, violation of an individual detainee’s rights, and/or violations of law, standards of professional conduct, contract terms, or policy related to immigration detention.” The allegations must be regarding experiences that occurred while individuals were in CBP or ICE detention and because of actions by DHS staff or contractors. To further illustrate the types of complaints that go to the office, OIDO’s “2021 Annual Report” issued in April 2022 includes categories of the types of complaints they had received as quality of life/living conditions, medical issues, abuse and assault, legal access, property, disability accommodations, and special considerations for children and families.
Conclusion
We hope that this blog post helps provide some information regarding children’s rights, screening for potential violations of those rights, and how to help maintain accountability and to protect those rights. If you want to learn more information about OIDO’s role and what they do, contact OIDO_Outreach@hq.dhs.gov.
This is not legal advice. This resource is for informational purposes only and should not substitute your own research and analysis.