NIJC Shows Children Are Not Being Held in “Child-Appropriate” Facilities by Homeland Security

Human Rights Initiative is disappointed to learn that the Department of Homeland Security (DHS) has regularly been placing children in adult detention facilities. The National Immigrant Justice Center (NIJC) recently reported that DHS had detained more than 1300 children in adult detention facilities between 2008 and 2012, and nearly 1,000 of those children were detained in these facilities for over a week. The total number of children in adult facilities for that time period is likely significantly higher than NIJC’s data indicates because this information is based on records released by DHS for just 30 of the 250 total detention centers. DHS released the information after NIJC filed a Freedom of Information Act (FOIA) request in 2010 to access information about children being held in DHS custody.  NIJC had to file a lawsuit to obtain the FOIA results and it was after a settlement agreement that DHS released the records.

When a child is detained for immigration purposes, DHS is required to first determine if the child is “unaccompanied,” and if the child is found to be “unaccompanied,” then the child is transferred to the Office of Refugee Resettlement (ORR) for shelter and care. An unaccompanied minor is an individual under the age of 18 who was not apprehended by DHS with an adult or who does not have a relative within close geographic proximity who could assume care for him or her. If the child is found to be “accompanied,” then the child remains in DHS custody. DHS is obligated to place children in a “child-appropriate” facility, for which the adult detention facilities identified in the settlement do not qualify.

The potential for isolation in an adult detention facility is a very significant concern for immigration advocates, as many of the children apprehended by DHS are asylum seekers, survivors of trafficking, or escaping violent situations in their home countries, and thus might qualify for immigration relief if informed of their legal options. Detaining juveniles in adult facilities increases the likelihood that many are not given needed access to legal counsel. In particular, Human Rights Initiative is concerned about DHS’s detention policy because many of the improperly detained juveniles may potentially qualify for special immigrant juvenile status if assisted by an attorney. Special Immigrant Juvenile Status (SIJS) is awarded to foreign children who are located in the United States, have been abused, abandoned or neglected by one or both of their parents and for whom it is not in their best interests to be returned to their home countries. HRI regularly assists children who have been released to family and friends in the Dallas Forth Worth area in applying for SIJS status.

The detention of children in adult custody violates a prior settlement agreement in Flores v. Reno, which requires that juveniles be held in the “least restrictive setting appropriate for their age and special needs” and the juvenile be released from “custody without unnecessary delay” to a family member, relative or organization that can care for the child. Federal law requires that an unaccompanied child be transferred to ORR’s custody with 72 of being detained in an adult facility, but the law is less clear about how long individuals found to be “accompanied” may remain in adult detention facilities. The data indicates that regardless of the regulations, children were being held in adult detention for extended periods of time, a major concern given the current lack of oversight for the well being and protection of children in the adult facilities.

After reviewing the data, NIJC and other organizations are calling upon to DHS to stop detaining children in adult detention facilities and comply with the regulations under the Flores Settlement. NIJC is calling on Congress to provide appointed counsel to all children in immigration proceedings and for DHS to provide publicly accessible reports for the number of children and length of time in DHS custody. Finally, NIJC is calling on Congress to change regulation 279(g)(2) to require transfer of all children, accompanied and unaccompanied, to ORR custody immediately, rather than having DHS retain jurisdiction over those found to be “accompanied.”

For more information please read the NIJC’s press release. 

By Katie Klein, Legal Intern, Penn State Law, Class of 2014. 

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