Unaccompanied Immigrant and Refugee Minors
August 11, 2005
Background Statistics Each year, over 80,000 unaccompanied alien children seek entry to the United States, but only a fraction of those children remain in the country. The rest are deported, typically within 72 hours.1 From January 1 to July 31, 2005, 5,547 unaccompanied alien children entered custody of the Office of Refugee Resettlement (ORR) and in 2004, 6,200 children entered federal custody.2 In FY 2004, the largest countries of origin included Honduras (30%), El Salvador (26%), Guatemala (20%), Mexico (10%), Brazil (3%), and China (2%).3 The median age of these youth is sixteen.4 Many children are detained by the U.S. Immigration and Customs Enforcement (ICE) when they attempt to enter a port of entry or cross the border.5 A small portion of unaccompanied children are discovered within the interior of the country after the death of a parent or guardian, when they encounter child abuse or neglect, or when they attempt to work or are arrested. 6 Federal Policy The Homeland Security Act of 2002 (PL 107-296, Section 462) consolidated several agencies to create the U.S. Department of Homeland Security and abolished or reassigned the duties of several entities including the Immigration and Naturalization Service (INS). The INS’ interior enforcement responsibilities including prosecutor of unaccompanied minors were entrusted to ICE, while ORR received the responsibility of protecting these unaccompanied minors (including refugee and non-refugee youth). Responsibility for these minors was split between ICE and ORR due to the belief that a tension had existed between the INS’ duties to act as both prosecutor and protector of these children and that such responsibilities should be divided in the future. 7 ICE Role and Legal Status For the children apprehended at an airport or one of the borders and in ICE custody, two legal options exist: apply to remain in the U.S. or seek an order of voluntary departure without incurring a future penalty. Based on their circumstances, minors wishing to remain in the U.S. either apply for asylum or for a visa. To meet the Immigration and Nationality Act definition of a refugee, the child must prove fear of persecution on the basis of race, religion, nationality, or membership in a social/political group, and that the source of the persecution is the government or a group the government cannot or does not control. For many children, especially those from Central and South America, meeting asylum criteria is nearly impossible because economic hardship and not persecution led to their migration.8 An option for some of these children is to apply for a Special Immigrant Juvenile Visa, enabling them to eventually obtain permanent legal residence and naturalize after five years if they can prove “abuse, neglect, or abandonment,” demonstrate need for a foster care placement in the U.S., and show that a return to their home countries is not in their best interest.9 While waiting for a hearing before an immigration judge, unaccompanied children are housed in federally-funded care as determined by ORR. These children can be held in a variety of places including foster care, group homes, transitional housing, mental health centers, detention facilities, juvenile and adult jails, and locked hotel rooms. 10 ORR attempts to reunify these children with relatives and most leave federal custody with in 45 days, though they might not yet have had their hearings.11 Of the 6,200 minors in ORR placement in FY 2004, the five states with the most placements included Texas (58.5%), Arizona (15.7%), California (7.5%), Illinois (5%), and Florida (4%).12 ORR and Access to Benefits The ORR’s Department of Unaccompanied Children’s Services operates programs for both refugee and non-refugee youth.13 Though both groups of children are eligible for some services, the classification of refugee entitles a child to more services. While temporarily in federal custody and awaiting a hearing, refugee and non-refugee youth receive housing, food, education, and health care that is federally-funded. They are not eligible for state-provided services in the states where they are housed. Refugee minors are eligible for enrollment in the Unaccompanied Refugee Minors (URM) program. 14 Over 12,000 children have participated in this program since 1980. 15 The Lutheran Immigration Refugee Services and the United States Catholic Conference are the two largest voluntary organizations that assist with the ORR program and placement of minors throughout the U.S.16 The URM program provides a variety of federally-funded benefits. The URM program received FY 2005 funding of $54 million and provides services including education, health care, socialization, mental health, family reunification, legal, and case management services, funding for foster care placements and assessments of family placements, and coordination with pro bono legal representation and appropriate guardian ad litem (legal advocate) services.17 States that participate in the URM Program include Arizona, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Dakota, Pennsylvania, Virginia, and Washington (the District of Columbia also participates). 18 The federal government reimburses states for 100% of the cost of child welfare services (up to age 20-21, depending on emancipation ages in the state) for qualifying unaccompanied refugee minors. 19 Recent Federal Legislation After the Homeland Security legislation passed in 2002, concerns continued to emerge about the lack of legal representation and conditions of detainment for unaccompanied minors. Criticism spurred the introduction of several pieces of federal legislation. - Senate Resolution 414. Introduced in the 108th Congress by Senator Cornyn (R-TX), the resolution encouraged states to adopt legislation to combat human trafficking and slavery and for state and local law enforcement to undergo education and training to identify human trafficking victims. It had four bi-partisan co-sponsors and passed the Senate unanimously.
- Unaccompanied Alien Child Protection Act of 2005 (S. 119/H.B. 1172). In May 2005, Senator Feinstein (D-CA) introduced S. 119 which creates protections for alien children with no parent or legal guardian in the U.S. in terms of their custody, release, family reunification, and detention. It also ensures that appropriate guardian ad litems (legal advocates) are appointed and exempts refugee children from some asylum restrictions. The bill has 22 Senate co-sponsors and twelve House co-sponsors.
- Trafficking Victims Protection and Reauthorization Act of 2005 (H.R. 972). Representative C. Smith (R-NJ) introduced a bill that would provide child trafficking victims with appropriate legal advocates and attorneys. The bill has 69 co-sponsors.
- End Demand for Sex Trafficking Act of 2005 (S. 937). Senator Cornyn introduced S. 937, a bill that would provide grants to states to establish law enforcement systems to prosecute sex traffickers and serve victims, ask federal agencies and the Attorney General to collect data on the extent of sex trafficking in the U.S. and provide services to victims, criminalize sex tours, and increase penalties for sex traffickers. Senator Specter (R-PA) is the bill’s co-sponsor.
Implications for States Though the federal government formulates immigration law, state governments have an interest in policies that affect undocumented, unaccompanied children. Policies affecting local enforcement of civil immigration law are increasingly important to states. Aside from the cases in which children are apprehended at ports of entry, local enforcement officials are important points of contact for many undocumented, unaccompanied children, as such officials might be the first to discover a child’s status after he or she has been living inside the U.S. Other issues of importance to states are the benefits and services that unaccompanied minors and unaccompanied refugee children receive. Though all undocumented minors in ORR custody initially receive federally-funded services,20 minors who are awarded Special Immigrant Juvenile status that cannot be placed with a relative or other legal guardian are placed into state or privately-run foster care. This poses a fiscal challenge to states, as many of these children have special needs due to abuse incurred. Also, because unaccompanied minor children, attend local schools, areas with large populations of these youth will absorb the costs of overcoming language and other educational barriers. Resources - The Office of Refugee Resettlement’s website, http://www.acf.dhhs.gov/programs/orr/, contains information about trafficking programs and assistance to minors.
- The National Center for Refugee and Immigrant Children was established in December 2004 by the American Immigration Lawyers Association and the U.S. Committee for Refugees and Immigrants to provide referrals to pro bono immigration attorneys for unaccompanied children.21 Visit its website at: http://www.refugees.org/article.aspx?id=1260&subm=75&area=Participate.
Prepared by: Lindsay Littlefield, State-Federal Relations Fellow Immigrant Policy Project – www.ncsl.org/programs/immig National Conference of State Legislatures
Notes 1 Danielle Knight, “Waiting in limbo, their childhood lost,” U.S. News & World Report 136, no. 9 (March 15, 2004): pp. 72-5, Academic Search Premier. 2 U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR). Information request. Information received on August 5, 2005.Christopher Nugent, “Protecting Unaccompanied Immigrant and Refugee Children in the United States,” Human Rights Magazine, (Winter 2005): http://www.abanet.org/irr/hr/winter05/immigrant.html.Miriam Rozen, “Minor Refugees a Major Concern; Jenkens, Fulbright Sign on To Help Unaccompanied Minors Who Are in the U.S. Illegally,” Texas Lawyer 20, no. 13 (May 30, 2005): 1, http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=652&topicId=18492&docId=l:284706813&start=1.Zack Pelta-Heller, “Traumatic Emigrations,” AlterNet, (March 30, 2005):http://alternet.org/story/21629/. 3 ORR. Information request. 4. Ibid. 5 Nugent, “Protecting Unaccompanied Immigrant and Refugee Children in the United States.” 6 Interview with Office of Refugee Resettlement, Interview with National Center for Refugee and Immigrant Children on August 11, 2005, and Interview with Immigrant Legal Resource Center on August 11, 2005. 7 Carolyn J. Seugling, “Toward a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in the United States,” Vanderbilt Journal of Transnational Law 37, (May 2004), Lexis-Nexis Academic Universe, http://immigrantchildren.org/Articles/law_review_articles/Document.2004-07-21.6763731823. U.S. Citizenship and Immigration Services. “INS to DHS. Where is it now?” http://uscis.gov/graphics/othergov.roadmap.htm. 8 Guthrie and Rubio, “Immigration Law and Unaccompanied Minors.” 9 Center for Human Rights and Constitutional Law, “Special Immigrant Juvenile Status,” October 20, 2004, http://immigrantchildren.org/SIJS/ and Micaela Guthrie and Angelica Rubio, “Immigration Law and Unaccompanied Minors: an Imperfect Fit,” Texas Lawyer 20, no. 3 (March 22, 2004): 22, Lexis-Nexis Academic Universe. U.S. Citizenship and Immigration Services. “Interoffice Memorandum.” May 27, 2004. p. 1. http://uscis.gov/graphics/lawsregs/handbook/SIJ_Memo_052704.pdf. 10 Center for Human Rights and Constitutional Law, “Special Immigrant Juvenile Status.” 11 Two interviews with Office of Refugee Resettlement. 12 U.S. Department of Health and Human Services, Office of Refugee Resettlement. Information request. Information received on August 5, 2005. 13 Seugling, “ Toward a Comprehensive Response to Transnational Migration of Unaccompanied Minors in the United States.” 14 U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement, “The Unaccompanied Refugee Minors Program,” http://www2.acf.dhhs.gov/programs/orr/programs/urm.htm. 15 HHS, “The Unaccompanied Refugee Minors Program.” 16 Ibid. 17 Nugent, “Protecting Unaccompanied Immigrant and Refugee Children in the United States.” 18 U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement, “States Participating in the Unaccompanied Refugee Minor [URM] Program,” http://www2.acf.dhhs.gov/programs/orr/programs/urm.htm. 19 Pennsylvania Department of Public Welfare, “Supplemental Handbook, Refugee Assistance Program,” (June 13, 2003), http://www.dpw.state.pa.us/oimpolicymanuals/manuals/bop/supp/730/730-01.htm. 20 U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement, “Unaccompanied Alien Children,” “http://www.acf.dhhs.gov/programs/orr/programs/uac.htm. 21 U.S. Committee for Refugees and Immigrants, “The National Center for Refugee and Immigrant Children,” http://www.refugees.org/article.aspx?id=1260&subm=75&area=Participate. |