To this end, UNHCR and USCCB are working with government authorities to provide training to law enforcement and protection officers on identifying and screening vulnerable children.
As an example of this lack of protection, USCCB found one children’s shelter dedicated to caring for migrant children who may attempt an asylum claim in the Southern Mexico region, in Tapachula.
Another shelter in Mexico City, run by the Mexican government’s division of child welfare [Desarrollo Integral de la Familia (DIF)] houses children who have won asylum but cannot be released until they are 18.
Children who request asylum usually remain in detention for months, with little help to navigate the legal system. Once a child wins asylum, the only placement option available is the DIF child shelter in Mexico City until age 18, as there is no foster care system in place for these children. Shelter care is not intended to be a long-term placement for children, and often leaves children vulnerable to exploitation. Because of the challenges in gaining asylum in Mexico and the absence of an effective child welfare system, children often choose deportation back home so they can try to migrate again.
Countries of origin lack the capacity to protect children adequately. USCCB found that Guatemala, Honduras, and El Salvador lack the capacity to protect children in their law enforcement, child and social welfare, and educational systems. As mentioned, organized criminal networks and other criminal elements are active in many communities and schools, and the government is unable to curb their influence because of corruption, lack of political will, or lack of resources. Law enforcement personnel, low-paid and low-skilled, are compromised by these criminal elements. Child welfare services are virtually non-existent, as are foster-care and family reunification and reintegration services.
A significant number of migrants, particularly youth, have valid child protection claims. While the popular perception of many in the United States is that migrants come here for economic reasons, USCCB found that a growing number are fleeing violence in their homelands. UNHCR recently found 58% of the unaccompanied children it interviewed from Central America and Mexico had some sort of international protection claim.21 A similar study in 2006 found only 13% of these children had a protection claim. Children who exhibit international protection concerns may be eligible to remain in the United States legally in some form of recognized legal status, such as Special Immigrant Juvenile Status, as an asylee, or with T or U visas.
V. U.S. Response to the Humanitarian Crisis
Mr. Chairman, we support the Administration’s immediate response to this crisis, which created an inter-agency response led by the Federal Emergency Management Agency (FEMA). We offer the following recommendations to ensure that children are cared for throughout the legal process:
a. For the children, the faithful adherence to the best interest of the child standard is necessary in all decision-making. The best interest of the child principle is an internationally recognized child-welfare standard used in the U.S. child welfare system. It refers to a process of determining services, care arrangements, caregivers, and placements best suited to meet a child’s short-term and long-term needs and ensure safety permanency, and well-being. When applied in the United States special importance is given to family integrity, health, safety, protection of the child, and timely placement. This means that all procedures, protocols, and mechanisms developed are child-friendly, trauma-informed, and administered by child welfare professionals; that children are screened and assessed for their immediate humanitarian protection needs and their long-term international protection needs; that during the pursuit of long-term solutions for the children they are placed in the least-restrictive settings (i.e. community-based); that all children are connected with social and legal services to address their immediate needs; that long-term and durable solutions are pursued that are in the children’s best interests; and that where repatriation is the best alternative available that safe repatriation and reintegration be conducted in collaboration and coordination with the children’s home governments, NGOs, and other implementing partners.
Consistent with US child welfare norms, children should be placed in smaller community-based programs such as specialized foster care, group or small shelter programs which allow children to reside in family settings in communities. Large facilities are contrary to child welfare principles and the TVPRA, increase the risk of institutionalization, child maltreatment and losing track of children’s individual needs.
b. For the United States government, a mutually supportive, interagency response is necessary to ensure we are leveraging the expertise and resources of the agencies that bear responsibility for addressing all aspects of the challenge. As mentioned, Mr. Chairman, we are encouraged by the decision of the Administration to involve all relevant agencies of the government in responding to this crisis. This should include HHS/ORR and also the Administration for Children and Families’ domestic child welfare division; the Department of State’s (DOS) Agency for International Development, Bureau of Population, Refugees, and Migration, and Western Hemispheric Affairs; the Executive Office for Immigration Review of DOJ; and Citizenship and Immigration Services, Immigration Customs Enforcement, and DHS/CBP. The inter-agency work on the issue should incorporate clear leadership responsibilities and effective collaboration mechanisms to ensure the optimum results both in the United States and throughout the region.
c. Children should be properly screened and placed in the least restrictive setting, preferably with family or an appropriate sponsor. Children should be immediately screened, ideally by a child welfare specialist, as to whether 1) they are victims of human trafficking; and 2) whether they have special needs and require specific care, such as trafficking victims, children under 12, pregnant girls, and persons with disabilities. Where possible, children should be reunified with their family members during the course of their legal proceedings.
Potential sponsors who can care for the child throughout the child’s immigration proceedings should be identified and adequately screened. Children should not be released, pending fingerprint and background checks of their sponsors. HHS and other agencies should monitor, report, and respond to violations against children. As required under the law, expedited removal should not be used against unaccompanied children.
d. Families should be kept together, preferably in a community setting, and provided full due process rights. Families who are part of this migration flow, mainly women with young children, should not be detained in a restrictive setting. Alternatives to detention for these families should be explored, including with faith-based communities. Such models have been implemented in the past, with great success and at reasonable costs. The needs of mothers and children are best met in such a community setting, where their specialized needs can be met. USCCB stands ready to help in providing alternatives to detention for vulnerable families.
Moreover, subjecting these families to expedited removal procedures, as intended by the Administration, could undercut their due process rights. Many would be unable to obtain an attorney and, because of their trauma and the setting of the immigration proceedings, would be unable to adequately articulate their fear of return.
e. Post-release reception assistance should be expanded to meet the rising need. We urge increased post-release services which address family preservation, child safety, community integration, access to counsel and continued participation in immigration proceedings. The lack of sufficient funding for assistance post-release increases the likelihood of family breakdown, makes it more difficult for children to access public education and community services, and decreases the likelihood that the children will show up for their immigration proceedings.
With the release from custody happening on a shorter time frame—now less than 30 days—and with up to 90% of UACs being released from ORR custody to communities, UAC resources need to be prioritized into community-based reception services which are located where families live.
ORR could leverage the infrastructure and expertise of the U.S. resettlement agencies by providing all of the children community-based, reception services. Reception services should be required for all UAC to assist the family with navigating the complex educational, social service, and legal systems.
f. Pastoral care and services should be provided to children. Mr. Chairman, these vulnerable children should have access to pastoral services, including visitation by religious, including priests, minister, and other faith leaders. To date, requests for visitation to the border patrol stations and shelters for this purpose has been denied by the Border Patrol and ICE.
In light of the humanitarian crisis and in the best interest of the children who are at risk, USCCB offers the following policy recommendations:
A. The United States should strengthen protections for children from Central America. Unaccompanied minors who arrive in the United States possess legal rights which should be honored. Often children are scared and are unable to articulate their fears and do not understand what rights they have under U.S. law. Moreover, children who come into the care of the U.S. government should be treated humanely and with appropriate child protections. We recommend the following:
1. Robust funding should be appropriated to ensure the care of these children and families fleeing violence in their home countries. We are heartened that the U.S. Senate has added $1.9 billion for the Fiscal Year 2015 budget to care for these vulnerable populations. Any funding should be administered in a manner that respects the religious liberty and conscience rights of organizations providing this care.
We recommend that:
· Congress appropriate $2.28 billion for Fiscal Year 2015 for care of unaccompanied children, consistent with the Administration’s request.
· Congress increase funding in the FY 2015 HHS budget for unaccompanied refugee minors programs to $100 million, as some of these children should qualify for Unaccompanied Refugee Minor (URM) benefits;
· Congress appropriate $100 million for DHS to care for families who have crossed into the United States during the duration of their legal proceedings, including alternative to detention programs, housing and other basic necessities.
· Congress should appropriate funding in the DOJ budget to provide legal representation for unaccompanied children who cannot secure representation through pro-bono networks.
2. Congress should mandate and fund family reunification and legal orientation programs for all youth to help children integrate into their communities, reunify with their families, and pursue immigration relief. Often, increased funding to the Office of Refugee Resettlement (ORR), which is responsible for the custody and care of UAC, is directed at improving conditions in the temporary shelters in which unaccompanied children reside while waiting for release to their families. However, under normal conditions the time youth spend in shelter is less than 45 days, at which point 90 percent are released to their families.
There exists little funding for services once children are released, increasing the likelihood for family breakdown, the inability of children to enroll in school and access community resources, and the likelihood that the child will not show up to their immigration hearings. Funding should be directed at increasing the number of home studies provided to UAC prior to their release from custody to assess any potential risks of the placement, including the protective capacity of the sponsor to ensure the safe reunification of the child. Post-release services should be required for all UAC to assist the family with navigating the complex educational, social service, and legal systems.
With appropriate follow up and monitoring by child welfare professionals, it is more likely that children will not abscond and will appear at their immigration proceedings.
Finally, funding should be increased for the Department of Justice’s Legal Orientation Program for Custodians (LOPC) which was developed to “inform the children’s custodians of their responsibilities in ensuring the child's appearance at all immigration proceedings, as well as protecting the child from mistreatment, exploitation, and trafficking,” as provided under the Trafficking Victims Protection Reauthorization Act of 2008.
3. The best interest of the child should be applied in legal proceedings involving UACs, including creating child-appropriate asylum procedures and unaccompanied child immigration court dockets. Currently, decisions about the welfare of UAC are made separately from the existing U.S. child welfare infrastructure, meaning that court decisions on the welfare of UAC are based on their eligibility for immigration relief alone rather than involving a comprehensive assessment of the best interest of the child.