J. F.M., et al v. Loretta Lynch, et al

Filing

FILED OPINION (ANDREW J. KLEINFELD, M. MARGARET MCKEOWN and MILAN D. SMITH, JR.) AFFIRMED as to the statutory claim; REVERSED as to the constitutional claim. The parties shall each bear their own costs on appeal. Opinion by Judge McKeown; Concurrence by Judge McKeown; Concurrence by Judge Kleinfeld. FILED AND ENTERED JUDGMENT. [10129075] [15-35738, 15-35739]

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Remarks by Attorney General Eric Holder at the Hispanic National
Bar Association 39th Annual Convention

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Washington, DC, United States ~ Friday, September 12, 2014

Remarks as Prepared for Delivery
Buenas tardes. Muchas gracias por sus emotivas palabras y su calurosa bienvenida.

16

, 20
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It’s a privilege to help welcome the Hispanic National Bar Association to our nation’s ptemb for
capital
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your 39 th Annual Convention. And it’s a great pleasure, as always, to berchisuch distinguished
in ved
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5738
company.
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I’d like to thank President [Miguel Alexander] Pozo and the entire HNBA leadership team – along
M. v
J. F.
with your Honorary ConventioncChair, Ricardo Anzaldua; President [Fernando] Rivero, of the
ed in
it
Hispanic Bar Association of the District of Columbia; and all of this organization’s members – for
everything you’ve done to bring us together this week. I’d also like to congratulate the award
recipients who are being honored for their leadership over the course of this Latina Commission
Awards Luncheon. And I want to recognize the law students, attorneys, and judges who make up
this remarkable organization – and who have taken time away from their busy schedules and full
dockets to take part in this important annual convention.
We come together today in a moment of great consequence – with critical challenges stretching
before us. Six decades after Hernandez v. Texas extended the Constitution’s guarantee of equal
protection to people of all races and backgrounds – and half a century since the passage of the Civil
Rights Act finally codified American equality into American law – there’s no question that our
nation has taken a range of extraordinary, once-unimaginable steps forward. Yet recent headlines
remind us that these advances have not put the issue of equal justice to rest.
On the contrary: from America’s heartland to our southwest border, the events that have captured
attention and sparked debate over the course of this summer illustrate that the fight for equality,
opportunity, and justice is not yet over. These issues have not yet been relegated to the pages of
history. And although this is a struggle that predates our Republic, it poses challenges as
contemporary as any others we currently face.
For over four decades, the HNBA has stood at the forefront of national efforts to confront these
challenges – by working to increase diversity on the bench and bar. By helping to educate the
leaders of tomorrow. By empowering members of America’s Latino communities. And by fostering
new opportunities for legal professionals of Hispanic heritage – and particularly Latinas in the law

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– so we can grow their ranks and ensure that their voices are heard from the chambers of our
courts to the halls of Congress.

For me – and for my colleagues at every level of today’s Department of Justice – this work is also a
personal and professional priority. More than ten years ago, during my service as Deputy Attorney
General, I worked hard to strengthen the Justice Department’s internal efforts to build a diverse
and effective workforce. When I returned to the Department as Attorney General, in 2009, I
significantly expanded this work – because it not only improves our ability to draw on the skills
and talents of everyone ; it also makes the Justice Department both more credible and more
effective. In fact, since I understand this convention includes a job fair, I can’t pass up the chance
to urge all of the young and aspiring attorneys in this crowd to consider a career in public service –
and coming to work for me.
Beyond the institution itself, my colleagues and I also are striving to bolster the legal profession at
large – by opening its doors to women and men from every race, background, ethnicity, and walk
of life. According to the Pew Research Center, the Hispanic population in the United States
currently exceeds 53 million people. It has increased almost sixfold since around the time the
HNBA was founded. It’s doubled since the year 2000. Yet statistics show that, of the approximately
1.2 million attorneys working in the U.S. today, fewer than 50,000 – that’s less than four percent –
identify as Hispanic.
Although women and people of color have made up an increasing percentage of both licensed
lawyers and law students in recent years, the law continues to lag far behind many other
professions. So we need to do everything in our power to ensure that the coming decades witness
an uptick in the number of people of color, women, people with disabilities – and new immigrants
6
– who find productive avenues into the legal field and the American workforce as a whole. And 4, 201
ber 1
once they have fair opportunities to compete for these jobs, we need to close the “pay ptem – and
Se gap”
d on simply their
make sure every worker is compensated according to their skills and experience, not
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gender or gender identity.
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As the HNBA has made clear throughout itsM. v. L all of us – both collectively and as individuals
history,
J. F.
– have more work to do: to tear cited in
down persistent barriers, to combat discrimination, and to uphold
the civil rights to which every person is entitled. In our comprehensive work to advance equality,
we need to look far beyond law school campuses and workplaces. We need to keep building upon
the exemplary record of civil rights enforcement that the Justice Department has established over
the last five and a half years. We need to keep striving – through programs such as President
Obama’s “My Brother’s Keeper” initiative – to address persistent opportunity gaps and ensure that
all people can reach their full potential. And we need to summon our collective experience as legal
professionals – and our shared commitment as a nation – to tackle the urgent challenges faced by
millions of people every day: from America’s immigrant communities to our military bases; from
our places of worship to our financial markets; and from our voting booths to our border areas –
where, as you know, a critical situation is unfolding as we speak.
Among the most pressing of our domestic challenges is the problem of unaccompanied young
people traveling to the United States and entering the country illegally. I know this is an issue with
which we are all too familiar, and which has provoked intense discussion throughout the summer –
both within, and far beyond, the United States. In fact, earlier this week, I traveled to Mexico City
to hold meetings with my counterparts from Mexico, Guatemala, El Salvador, and Honduras. And
this was among the major items on our agenda.
As the chief law enforcement officials for each of the nations we serve, my colleagues and I agreed
to create a high-level working group, staffed by representatives from each of our offices, to develop
an integrated strategy to deal with this situation. This working group will hold its first meeting in
the coming weeks. And they will help us formulate a coordinated plan of action.
But another potential solution to this problem is obvious: fixing our broken immigration system.

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The Senate, on a bipartisan basis, has already passed a bill that would go a long way to doing just
that. The issue is compelling, the solution is present and the need to reaffirm our commitment to
remaining a nation of immigrants is critical. This is who we are as an exceptional nation. If we are
to remain true to our heritage, we must fix our immigration system, bring people out of the
shadows and establish a path to citizenship. There are a variety of ways in which much of this can
be done and in the face of House inaction this Administration will proceed. It will do so lawfully
and in a manner that is consistent with our values. We will, as Americans always have, seek to
make our Union more perfect.

In the meantime – within America’s borders – the increasing numbers of unaccompanied children
appearing in our immigration courts present an urgent challenge: how to conduct immigration
proceedings in an efficient manner while any claims for relief are presented as clearly as possible.
One way to address that challenge is to facilitate access to legal representation for these children.
Though these children may not have a Constitutional right to a lawyer, we have policy reasons and
a moral obligation to insure the presence of counsel. And that’s why the Justice Department began
planning a legal aid program well before the recent surge of unaccompanied children.
Last July, President Obama announced the creation of a task force to expand national service,
calling on federal agencies to meet that goal by creating volunteer opportunities that are aligned
with agency priorities. The Justice Department’s response to that call was clear. By partnering with
the Corporation for National and Community Service to design and implement a new legal aid
program, the Department is protecting vulnerable populations while improving our operations and
strengthening the delivery of Department services in their communities.
The first phase of this new program – known as “justice AmeriCorps” – was announced in June. It
6
will provide legal aid to children who make the long and often dangerous journey to the U.S. 14, 201
r
beby
em
without a parent or legal guardian. And this week, we are taking the next step in thisework –
S pt
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announcing approximately $1.8 million in grant awards to legal aid organizations
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cities around the country.
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These grants will enable recipients to enrollM. v. L
approximately 100 lawyers and paralegals as justice
J. F.
AmeriCorps members, who – after d in
e extensive training in December – will begin to represent these
cit
children in our immigration courts in early 2015. The justice AmeriCorps members will also help to
identify children who have been victims of human trafficking or abuse – and, as appropriate, will
refer them to support services and authorities responsible for investigating and prosecuting those
who perpetrate such crimes.
This initiative reaffirms our allegiance to the values that have always shaped our pursuit of justice.
It will bolster the efficacy and efficiency of our immigration courts, empower new generations of
aspiring attorneys and paralegals to serve their country, and provide important legal aid to some of
the most vulnerable individuals who interact with our immigration system. Most importantly, it
will bring our system closer to our highest ideals – because the way we treat those in need, and
particularly young people who may be fleeing from abuse, persecution, and violence, goes to the
core of who we are as a nation.
Fortunately, thanks to the work that’s underway; the leadership of President Obama and other
Administration officials; and the tireless efforts of nonpartisan groups like the Hispanic National
Bar Association, it’s clear that we stand together this week – in defiance of gridlock and the narrow
politics of the moment – truly “Unidos en Washington.” We stand together in our assertion that
civil rights are human rights – and they must be extended to all. We stand together in our demand
that equal work should be performed for equal pay – and our daughters deserve the same
opportunities as our sons. And we stand together in our conviction that it is both the right – and
the responsibility – of every American to forge his or her own future; to build on the progress
we’ve seen in recent decades; and to extend the promise of our great country until it includes every
single person who dares, and dreams, to call this nation their home.

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As we carry this work into the future, I want you to know how proud I am to count you as
colleagues and partners. Always remember that positive change is not inevitable. It is a function of
hard work and resilience. I am confident that - together - we will make our great nation even more
great, more just. I look forward to everything we will achieve together in the months and years
ahead. And I thank you, once again, for all that you do.
Topic:
Access to Justice

Access to Justice
Office of the Attorney General

Speaker:
Speeches of Attorney General Eric H. Holder, Jr.

Updated April 28, 2016

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Unaccompanied Alien Children: An Overview
William A. Kandel
Analyst in Immigration Policy
May 11, 2016

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Congressional Research Service
7-5700
www.crs.gov
R43599

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Unaccompanied Alien Children: An Overview

Summary
In FY2014, the number of unaccompanied alien children (UAC, unaccompanied children) that
were apprehended at the Southwest border while attempting to enter the United States without
authorization reached a peak, straining the system put in place over the past decade to handle
such cases. Prior to FY2014, UAC apprehensions were steadily increasing. For example, in
FY2011, the Border Patrol apprehended 16,067 unaccompanied children at the Southwest border,
whereas in FY2014 more than 68,500 unaccompanied children were apprehended. In FY2015,
UAC apprehensions declined 42% to 39,970. In the first six months of FY2016 they stood at
27,754, a figure almost comparable to the same period for FY2014.
UAC are defined in statute as children who lack lawful immigration status in the United States,
who are under the age of 18, and who either are without a parent or legal guardian in the United
States or without a parent or legal guardian in the United States who is available to provide care
and physical custody. Two statutes and a legal settlement directly affect U.S. policy for the
treatment and administrative processing of UAC: the Trafficking Victims Protection
Reauthorization Act of 2008 (P.L. 110-457); the Homeland Security Act of 2002 (P.L. 107-296);
and the Flores Settlement Agreement of 1997.
Agencies in the Department of Homeland Security (DHS) and the Department of Health and
Human Services (HHS) share responsibility for the processing, treatment, and placement of UAC.
DHS’s Customs and Border Protection (CBP) apprehends and detains unaccompanied children
16
arrested at the border. DHS’s Immigration and Customs Enforcement (ICE)1handles custody
4, 20
ber the country, and
transfer and repatriation responsibilities, apprehends UAC in the interior of
em
Sept
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represents the government in removal proceedings. HHS’seOffice of Refugee Resettlement
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coordinates and implements the care and placement of unaccompanied children in appropriate
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Foreign nationals from .El .Salvador, Guatemala, Honduras, and Mexico accounted for almost all
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ed in
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UAC cases in recent years, especially in FY2014. In FY2009, Mexico accounted for 82% of the
19,688 UAC apprehensions at the Southwest border, while the other three Central American
countries accounted for 17%. In FY2014, the proportions had almost reversed, with Mexican
nationals comprising 23% of UAC apprehensions and the three Central American countries
comprising 77%. For the first six months of FY2016, Mexican nationals made up 21% of total
UAC apprehensions.

To address the crisis at its peak in 2014, the Administration developed a working group to
coordinate the efforts of federal agencies involved. It also opened additional shelters and holding
facilities to accommodate the large number of UAC apprehended at the border. In June 2014, the
Administration announced plans to provide funding to the affected Central American countries
for a variety of programs and security-related initiatives in order to mitigate the flow of
unaccompanied migrant children. In July, the Administration requested, and Congress debated but
did not approve, $3.7 billion in FY2014 supplemental appropriations to address the crisis.
For FY2015, Congress appropriated nearly $1.6 billion for the Refugee and Entrant Assistance
Programs in ORR, most of which was directed toward the UAC program (P.L. 113-235). For
DHS agencies, Congress appropriated $3.4 billion for detection, enforcement, and removal
operations, including for the transport of unaccompanied children for CBP. The Department of
Homeland Security Appropriations Act, FY2015 (P.L. 114-4) also allowed the Secretary of
Homeland Security to reprogram funds within CBP and ICE and transfer such funds into the two
agencies’ “Salaries and Expenses” accounts for the care and transportation of unaccompanied
children. The act also allowed for several DHS grants awarded to states along the Southwest

Congressional Research Service

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Unaccompanied Alien Children: An Overview

border to be used by recipients for costs or reimbursement of costs related to providing
humanitarian relief to unaccompanied children. Congress continued to provide base funding at
comparable levels for FY2016, but did not appropriate funds for contingency funding that was
requested by the Administration to address potential surges in UAC flows.
In the 114th Congress, two bills (H.R. 1153 and H.R. 1149) related to UAC have seen activity.
Both would change current UAC policy, including amending the UAC definition, altering the
treatment for unaccompanied children from contiguous countries, and changing the processing for
unaccompanied children who claim asylum, among other provisions. Several bills were
introduced but have seen no legislative activity, including H.R. 191/S. 129, H.R. 1700, H.R.
2491, and S. 44.
CRS has published additional reports on this topic. For a discussion of select factors that may
have contributed to the recent surge in UAC migrating to the United States, see CRS Report
R43628, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration,
coordinated by William A. Kandel. For a report on answers to frequently asked questions, see
CRS Report R43623, Unaccompanied Alien Children—Legal Issues: Answers to Frequently
Asked Questions, by Kate M. Manuel and Michael John Garcia. For information on country
conditions, security conditions, and U.S. policy in Central America, see CRS Report R43702,
Unaccompanied Children from Central America: Foreign Policy Considerations, coordinated by
Peter J. Meyer.
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Unaccompanied Alien Children: An Overview

Contents
Background ..................................................................................................................................... 1
Scope of the Issue............................................................................................................................ 2
Current Policy.................................................................................................................................. 3
Processing and Treatment of Apprehended UAC............................................................................ 4
Customs and Border Protection ................................................................................................ 5
Immigration and Customs Enforcement ................................................................................... 6
Office of Refugee Resettlement ................................................................................................ 8
U.S. Citizenship and Immigration Services ............................................................................ 10
The Executive Office for Immigration Review........................................................................11
Administrative and Congressional Action..................................................................................... 12
Administrative Action ............................................................................................................. 12
Congressional Action .............................................................................................................. 14
Appropriations .................................................................................................................. 14
Legislation ........................................................................................................................ 16
Policy Challenges .......................................................................................................................... 17

Figures

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Figure 1. UAC Apprehensions at the Southwest Border by Countrypof Origin, FY2008Se
d on
hive
FY2016......................................................................................................................................... 2
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1 to
Figure 2. UACs Apprehended and Referred 5-3ORR Custody, FY2008 - FY2016*....................... 9
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Author Contact Information .......................................................................................................... 18
Acknowledgments ......................................................................................................................... 18

Congressional Research Service

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Unaccompanied Alien Children: An Overview

Background
After several years of increases, the number of unaccompanied alien1 children (UAC)
apprehended at the Southwest border by the Department of Homeland Security’s (DHS’s)
Customs and Border Protection (CBP) peaked at 68,541 in FY2014. During a June 2014 hearing,
some Members of Congress as well as the Administration characterized the issue as a
humanitarian crisis.2
In recent years, most unaccompanied children have originated from three Central American
countries—Guatemala, Honduras, and El Salvador—and Mexico. The reasons why they migrate
to the United States are often multifaceted and difficult to measure analytically. The
Congressional Research Service (CRS) has analyzed several out-migration-related factors, such
as violent crime rates, economic conditions, rates of poverty, and the presence of transnational
gangs.3 CRS also has analyzed in-migration-related factors, such as the search for economic
opportunity, the desire to reunite with family members, and U.S. immigration policies.
Critics of the Obama Administration assert that the sizable increase in UAC flows in recent years
results from a perception of relaxed U.S. immigration policies toward children.4 They also cite a
2008 law5 that treats UAC from contiguous countries differently than those from noncontiguous
countries (see “Customs and Border Protection” below).
Unaccompanied alien children are defined in statute as children who: lack lawful immigration
status in the United States;6 are under the age of 18; and are without a parent or legal guardian in
16
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the United States or without a parent or legal guardian in the United Statesr who is available to
be 1
m
U.S. ports
provide care and physical custody.7 They most often arrive aton Septe of entry or are
d
hi Less frequently, they are apprehended
apprehended along the southwestern border with Mexico.ve
8 arc
3573juveniles and unaccompanied.8 Although most
in the interior of the country and determined5to be
o. 1
are age 14 or older, apprehensionsnof , N under age 13 have increased.9
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1
Alien, a technical term appearing throughout the Immigration and Nationality Act (INA), refers to a foreign national
who is not a citizen or national of the United States.
2
Senate Judiciary Committee hearing on Oversight of the Department of Homeland Security, June 11, 2014
(hereinafter referred to as Senate Oversight Hearing).
3
See CRS Report R43628, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration,
coordinated by William A. Kandel.
4
These critics often cite the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744),
passed by the Senate in 2013, which would allow certain unlawfully present aliens to adjust to a lawful immigration
status; and the administrative policy entitled Deferred Action for Childhood Arrivals (DACA), which grants certain
aliens who arrived in the United States as children prior to a certain period some protection from removal for at least
two years. For an example of these arguments, see U.S. Congress, Senate Committee on the Judiciary, Oversight of the
Department of Homeland Security, 113th Cong., 2nd sess., June 11, 2014. For a discussion of S. 744, see CRS Report
R43099, Comprehensive Immigration Reform in the 113th Congress: Short Summary of Senate-Passed S. 744, by Ruth
Ellen Wasem. For a discussion of DACA, see CRS Report RL33863, Unauthorized Alien Students: Issues and
“DREAM Act” Legislation, by Andorra Bruno.
5
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457).
6
The child may have entered the country illegally or been admitted legally but overstayed his or her duration of
admittance (i.e., a visa overstay.)
7
6 U.S.C. §279(g)(2). Although these children may have a parent or guardian who lives in the United States, they are
classified as unaccompanied if the parent or guardian cannot provide immediate care.
8
A juvenile is classified as unaccompanied if neither a parent nor a legal guardian is with the juvenile alien at the time
of apprehension, or within a geographical proximity to quickly provide care for the juvenile. 8 CFR §236.3(b)(1).
9
White House, DHS and HHS, “Press Call Regarding the Establishment of the Inter-Agency Unified Coordination
(continued...)

Congressional Research Service

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Unaccompanied Alien Children: An Overview

This report opens with an analysis of recent UAC apprehension data. It then discusses current
policy on the treatment, care, and custody of the population and describes the responsibilities of
each federal agency involved with the population. The report then discusses both administrative
and congressional actions to deal with the UAC surge in FY2014 and action since then to address
possible future surges.

Scope of the Issue
Since FY2011, UAC apprehensions have increased each year through FY2014: from 16,067 in
FY2011 to 24,481 in FY2012 to 38,759 in FY2013 and 68,541 in FY2014 (Figure 1). At the
close of FY2014, the Border Patrol had apprehended more UAC than in any of the previous six
years and close to four times as many UAC as in FY2011. In FY2015, apprehensions numbered
39,970, a 42% drop from FY2014 apprehensions.10 In the first six months of FY2016,
apprehensions numbered 27,754, a figure almost comparable to the first six months of FY2014.11
Figure 1. UAC Apprehensions at the Southwest Border by Country of Origin,
FY2008-FY2016

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Sources: For FY2008-FY2013: U.S. Department of Homeland Security, United States Border Patrol, Juvenile and
Adult Apprehensions—Fiscal Year 2013. For FY2014-FY2016, Customs and Border Protection, “Southwest Border
Unaccompanied Alien Children,” http://www.cbp.gov/newsroom/stats/southwest-border-unaccompaniedchildren.
Notes: FY2016 figures represent six months, from October 1, 2015, through March 31, 2016.

(...continued)
Group on Unaccompanied Alien Children,” press release, June 3, 2014.
10
Customs and Border Protection, “Southwest Border Unaccompanied Alien Children,” http://www.cbp.gov/
newsroom/stats/southwest-border-unaccompanied-children.
11
To compare, 28,579 unaccompanied children were apprehended at the Southwest border during the first six months
of FY2014 and 15,616 during the first six months of FY2015.

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Unaccompanied Alien Children: An Overview

Nationals of Guatemala, Honduras, El Salvador, and Mexico account for the majority of
unaccompanied alien children apprehended at the Mexico-U.S. border (Figure 1). Flows of UAC
from Mexico rose substantially in FY2009 and have remained relatively steady. In contrast, UAC
from Guatemala, Honduras, and El Salvador increased sizably starting in FY2011. In FY2009,
Mexican UAC accounted for 82% of 19,668 UAC apprehensions, while the other three Central
American countries accounted for 17%. By September 30, 2014, those proportions had almost
reversed, with Mexican UAC comprising 23% of the 68,541 UAC apprehensions and UAC from
the three Central American countries comprising 75%.12 In FY2015 and the first six months of
FY2016, the percentages of unaccompanied children originating from Mexico were 28% and
21%, respectively.
The majority of UAC apprehensions have occurred within the Rio Grande and Tucson border
sectors (59% and 13%, respectively, in the first six months of FY2016).13 The proportions of
UAC who were female or who were under the age of 13 also increased in FY2014.
Apprehensions of family units (unaccompanied children with a related adult) increased from
14,855 in FY2013 to 68,445 in FY2014 before declining to 39,838 in FY2015. In the first six
months of FY2016, family unit apprehensions totaled 32,117.14 Of these apprehended family
units, almost 90% originated from Guatemala, El Salvador, and Honduras.

Current Policy
Two laws and a settlement, discussed below, most directly affect U.S. policy for the treatment and
16
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administrative processing of UAC: the Flores Settlement Agreement of 1997; the Homeland
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Security Act of 2002; and the Trafficking Victims Protection Reauthorization Act of 2008.
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During the 1980s, allegations of UAC mistreatment by the former Immigration and
5738
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resulted in the Flores Settlement Agreement (Flores Agreement) in 1997.16 The Flores Agreement
M. v
J. F.
established a nationwide policy for the detention, treatment, and release of UAC and recognized
ed in
cit
the particular vulnerability of UAC as minors while detained without a parent or legal guardian
present.17 It required that immigration officials detaining minors provide (1) food and drinking
water; (2) medical assistance in emergencies; (3) toilets and sinks; (4) adequate temperature
control and ventilation; (5) adequate supervision to protect minors from others; and (6) separation

12

The surge in the number of children migrating to the United States mirrors a similar increase among adults. From
FY2011 through FY2015, the number of Border Patrol apprehensions of third-country nationals increased almost
threefold from 54,098 to 148,995. Over the same period, those apprehended from Mexico decreased from 286,154 to
188,122. United States Border Patrol, Total Illegal Alien Apprehensions by Fiscal Year, FY2000-FY2015, accessed by
CRS on April 26, 2016 at http://www.cbp.gov/sites/default/files/documents/BP%20Total%20Apps%2C%20
Mexico%2C%20OTM%20FY2000-FY2015.pdf.
13
Customs and Border Protection, “Southwest Border Unaccompanied Alien Children,” http://www.cbp.gov/
newsroom/stats/southwest-border-unaccompanied-children/fy-2016.
14
As a basis for comparison, CBP apprehended 19,830 family units at the Southwest border during the first six months
of FY2014 and 13,911 during the first six months of FY2015.
15
The Homeland Security Act of 2002 dissolved the Immigration and Naturalization Service (INS) and its functions
were split in the Departments of Homeland Security, Justice, and Health and Human Services.
16
Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997). Many
of the agreement’s terms have been codified at 8 CFR §§236.3, 1236.3.
17
See DHS Office of Inspector General, CBP’s Handling of Unaccompanied Alien Children, OIG-10-117,
Washington, DC, September 2010.

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from unrelated adults whenever possible. For several years following the Flores Agreement,
criticism continued over whether the INS had fully implemented the drafted regulations.18
Five years later, the Homeland Security Act of 2002 (HSA; P.L. 107-296) divided responsibilities
for the processing and treatment of UAC between the newly created Department of Homeland
Security (DHS) and the Department of Health and Human Services’ (HHS’s) Office of Refugee
Resettlement (ORR). To DHS, the law assigned responsibility for the apprehension, transfer, and
repatriation of UAC. To HHS, the law assigned responsibility for coordinating and implementing
the care and placement of UAC in appropriate custody; reunifying UAC with their parents abroad
if appropriate; maintaining and publishing a list of legal services available to UAC; and collecting
statistical information on UAC, among other responsibilities.19 The HSA also established a
statutory definition of UAC as unauthorized minors not accompanied by a parent or legal
guardian. Despite these developments, criticism continued that the Flores Agreement had not
been fully implemented.
In response to ongoing concerns that UAC apprehended by the Border Patrol were not being
adequately screened for reasons they should not be returned to their home country, Congress
passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA, P.L. 110-457). The TVPRA directed the Secretary of DHS, in conjunction with other
federal agencies, to develop policies and procedures to ensure that UAC in the United States are
safely repatriated to their country of nationality or of last habitual residence. The section set forth
special rules for UAC from contiguous countries (i.e., Mexico and Canada), allowing such
children, under certain circumstances, to return to Mexico or Canada without additional penalties,
6
, 201
and directing the Secretary of State to negotiate agreements with Mexicoer 14Canada to manage
b and
em
Sept
the repatriation process. The TVPRA mandated that unaccompanied alien children from countries
d on
hive
other than Mexico or Canada—along with UAC fromrthose countries who are apprehended away
8ac
3573
from the border—are to be transferred toothe 15care and custody of HHS and placed in formal
N .
removal proceedings. The TVPRA ch,
ynrequired that children from contiguous countries be screened
. v. L
within 48 hours of beingF.M
n J. apprehended to determine whether they should be returned to their
i
cited
country or transferred to HHS and placed in removal proceedings.

Processing and Treatment of Apprehended UAC
Several DHS agencies handle the apprehension, processing, and repatriation of UAC, while HHS
handles the care and custody of UAC. The Executive Office for Immigration Review (EOIR) in
the U.S. Department of Justice conducts immigration removal proceedings.
DHS’s Customs and Border Protection (CBP) apprehends, processes, and detains the majority of
UAC arrested along U.S. borders. DHS’s Immigration and Customs Enforcement (ICE)
physically transports UAC from CBP to HHS’s Office of Refugee Resettlement (HHS-ORR)
custody. HHS-ORR is responsible for detaining and sheltering UAC who are from noncontiguous
countries and those from contiguous countries (i.e., Canada and Mexico) who may be victims of
trafficking or have an asylum claim, while they await an immigration hearing. DHS’s U.S.
Citizenship and Immigration Services (USCIS) is responsible for the initial adjudication of
asylum applications filed by UAC. DOJ’s EOIR conducts immigration proceedings that
18

See U.S. Department of Justice, Office of the Inspector General, Unaccompanied Juveniles in INS Custody,
Executive Summary, Report no. I-2001-009, September 28, 2001.
19
ORR assumed care of UAC on March 1, 2003, and created the Division of Unaccompanied Children’s Services
(DUCS) for addressing the requirements of this population. P.L. 107-296, Section 462.

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determine whether UAC may be allowed to remain in the United States or must be deported to
their home countries. ICE is responsible for returning UAC who are ordered removed from the
United States to their home countries. The following sections discuss the role of each of these
federal agencies in more detail.

Customs and Border Protection
The Office of Border Patrol (OBP)20 and the Office of Field Operations (OFO)21 are responsible
for apprehending and processing UAC that come through a port of entry (POE) or are found at or
near the border.22 UAC that are apprehended between POEs are transported to Border Patrol
stations, and if they are apprehended at POEs, they are escorted to CBP secondary screening
areas. In both cases, when CBP confirms a juvenile has entered the country illegally and
unaccompanied, he or she is classified as a UAC and processed for immigration violations, and
the appropriate consulate is notified that the juvenile is being detained by DHS.
The Border Patrol apprehends the majority of UAC at or near the border. They also process
UAC.23 With the exception of Mexican and Canadian UAC who meet the criteria discussed
below, the Border Patrol has to turn UAC over to ICE for transport to HHS-ORR within 72 hours
of determining that the children are UAC.24 Until 2008, the Border Patrol, as a matter of practice,
returned Mexican UAC to Mexico. Under this practice, Mexican UAC were removed through the
nearest POE and turned over to a Mexican official within 24 hours and during daylight.
As mentioned, the TVPRA required the Secretary of Homeland Security, in conjunction with the
2016
Secretary of State, the Attorney General, and the Secretary of Health ander 14, Services, to
b Human
em
develop policies and procedures to ensure that UAC are safelyn Sept
repatriated to their country of
do
nationality or last habitual residence. Of particular 8 archive
significance, the TVPRA required CBP to
3
follow certain criteria for UAC who are o. 15-357 or habitual residents from a contiguous country
nationals
,N
(i.e., Canada and Mexico).25 In. thesehcases, CBP personnel must screen each UAC within 48
Lync
M. v
hours of apprehensionJ. Fdetermine the following:
to .
in
cited

the UAC has not been a victim of a severe form of trafficking in persons and
there is no credible evidence that the minor is at risk should the minor be
returned to his/her country of nationality or last habitual residence;
the UAC does not have a possible claim to asylum; and
the UAC is able to make an independent decision to voluntarily return to his/her
country of nationality or last habitual residence.26
20
OBP includes the Border Patrol. OBP and the Border Patrol are used interchangeably throughout this section. OBP is
responsible for immigration and customs enforcement between ports of entry.
21
The OFO oversees CBP officers who inspect travelers and goods at ports of entry.
22
When OBP and OFO are both referenced together in this section, “CBP” is used.
23
The processing of UAC includes gathering biographic information such as their name and age as well as their
citizenship and whether they are unaccompanied. Border Patrol agents also collect biometrics on UAC and query
relevant immigration, terrorist, and criminal databases.
24
The 72-hour time period was established in statute by the TVPRA.
25
8 U.S.C. §§1101 et seq. Although the screening provision only applies to UAC from contiguous countries, in March
2009 DHS issued a policy that, in essence, made the screening provisions applicable to all UAC. Testimony of Office
of Immigration and Border Security Acting Deputy Assistant Secretary Kelly Ryan, in U.S. Congress, Senate
Committee on the Judiciary, Trafficking Victims Protection Reauthorization Act: Renewing the Commitment to Victims
of Human Trafficking, 112th Cong.,1st sess., September 13, 2011.
26
P.L. 110-457, §235(a)(2)(A).

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If CBP personnel determine the minor to be inadmissible under the Immigration and Nationality
Act, they can permit the minor to withdraw his/her application for admission27 and the minor can
voluntarily return to his/her country of nationality or last habitual residence.
The TVPRA contains specific safeguards for the treatment of UAC while in the care and custody
of CBP, and it provides guidance for CBP personnel on returning a minor to his/her country of
nationality or last habitual residence. It also requires the Secretary of State to negotiate
agreements with contiguous countries for the repatriation of their UAC. The agreements serve to
protect children from trafficking and, at minimum, must include provisions that (1) ensure the
handoff of the minor children to an appropriate government official; (2) prohibit returning UAC
outside of “reasonable business hours”; and (3) require border personnel of the contiguous
countries to be trained in the terms of the agreements.
As mentioned, UAC apprehended by the Border Patrol are brought to a Border Patrol facility,
where they are processed. In 2008, the agency issued a memorandum entitled “Hold Rooms and
Short Term Custody.”28 Since the issuance of this policy, non-governmental organizations
(NGOs) have criticized the Border Patrol for failing to fully uphold provisions in current law and
the Flores Agreement.29 Indeed, the DHS Office of Inspector General (OIG) issued a report in
2010 concluding that while CBP was in general compliance with the Flores Agreement, it needed
to improve its handling of UAC.30
The 2010 OIG report, however, did not address whether CBP was in compliance with the
TVPRA. As highlighted above, the TVPRA requires CBP personnel to screen UAC from
contiguous countries for severe forms of trafficking in persons and for fear 14,persecution if they
of 2016
ber one NGO that
are returned to their country of nationality or last habitual residence.tem least
At
Sep
that
conducted a two-year study on UAC31 asserted in its report d on CBP does not adequately do this
hive
8 arc
nor has established related training for their Border Patrol agents.32
3573
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Immigration andFCustoms Enforcement
in J.
cited

ICE is responsible for physically transferring UAC from CBP to HHS-ORR custody. ICE also
may apprehend UAC in the U.S. interior during immigration enforcement actions. In addition,
ICE represents the government in removal procedures before EOIR. Unaccompanied alien
27

Under the INA, apprehension at the border constitutes an application for admission to the United States. In this case,
the UAC is permitted to return immediately to Mexico or Canada, and does not face administrative or other penalties.
INA §235(a)(4); 8 U.S.C. §1225(a)(4).
28
UAC are held in “hold rooms” at Border Patrol stations. The 2008 memorandum, which is publicly available but
redacted, outlines agency policy on the care and treatment of individuals in CBP care and custody. See U.S. Customs
and Border Patrol, Memorandum on “Hold Rooms and Short Term Custody,” June 2, 2008, http://foiarr.cbp.gov/
streamingWord.asp?i=378.
29
See for example, Children at the Border: The Screening, Protection and Repatriation of Unaccompanied Mexican
Minors, by Betsy Cavendish and Maru Cortazar, Appleseed, Washington DC, 2011 (hereinafter referred to as Children
at the Border).
30
Department of Homeland Security, Office of Inspector General, CBP’s Handling of Unaccompanied Alien Children,
OIG-10-117, Washington, DC, September 2010.
31
Children at the Border.
32
Relatedly, the 2010 OIG study was unable to determine whether CBP personnel had sufficient training to comply
with the provisions in the Flores Agreement. Notably, the Appleseed study (Children at the Border) included site visits
to ten Border Patrol facilities as well as site visits to locales in Mexico and interviews with government officials in both
countries and minors in custody and who have been repatriated. Whether this limited site visit sample is sufficiently
varied to be adequately generalizable to all Border Patrol facilities on the U.S.-Mexico border is unclear.

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children who are not subject to TVPRA’s special repatriation procedures for some children from
Mexico or Canada (i.e., voluntary departure) may be placed in standard removal proceedings
pursuant to INA Section 240. The TVPRA specifies that in standard removal proceedings, UAC
are eligible for voluntary departure under INA Section 240B at no cost to the child.
ICE is also responsible for the physical removal of all foreign nationals, including UAC who have
final orders of removal or who have elected voluntary departure while in removal proceedings. To
safeguard the welfare of all UAC, ICE has established policies for repatriating UAC, including
returning UAC only during daylight hours;
recording transfers by ensuring that receiving government officials or designees
sign for custody;
returning UAC through a port designated for repatriation;
providing UAC the opportunity to communicate with a consular official prior to
departure for the home country; and
preserving the unity of families during removal.33
ICE notifies the country of every foreign national being removed from the United States.34
Implementing a removal order depends on whether the U.S. government can secure travel
documents for the alien being removed from the country in question.35 As such, the United States
depends on the willingness of foreign governments to accept the return of their nationals. Each
country sets its own documentary requirements for repatriation of their nationals.366While some
1
4, 2
allow ICE to use a valid passport to remove an alien (if the alien possesses one),0others require
ber 1
ICE to obtain a travel document specifically for the repatriation.37eptem
S According to one report, the
d on
process of obtaining travel documents can become problematic, because countries often change
hive
arc
5738
their documentary requirements or raise objections to a juvenile’s return.38
15-3
.
o

h, N

Once the foreign country has v. Lync travel documents, ICE arranges the UAC’s transport. If the
issued
F.M.
return involves flying,JICE personnel accompany the UAC to his or her home country. ICE uses
n .
i
cited
commercial airlines for most UAC removals. ICE provides two escort officers for each UAC.39
Mexican UAC are repatriated in accordance with Local Repatriation Agreements (LRA), which
require that ICE notify the Mexican Consulate for each UAC repatriated. Additional specific
requirements apply to each LRA (e.g., specific hours of repatriation).40

33

Email from ICE Congressional Relations, May 16, 2014.
ICE uses a country clearance to notify a foreign country, through a U.S. Embassy abroad, that a foreign national is
being repatriated. In addition, when ICE personnel escort the alien during his or her repatriation, the country clearance
process notifies the U.S. Ambassador abroad that U.S. government employees will be travelling to the country.
35
Conversation with Doug Henkel, Associate Director, ICE Removal and Management Division, February 20, 2012.
36
Depending on the country and depending on where the UAC is housed, the consular officers will conduct in-person
or phone interviews. Olga Byrne and Elise Miller, The Flow of Unaccompanied Children Through the Immigration
System, Vera Institute of Justice, Washington, DC, March 2012, p. 27 (hereinafter referred to as The Flow of
Unaccompanied Children).
37
Annex 9 of the Civil Aviation Convention requires that countries issue travel documents, but the convention lacks an
enforcement mechanism.
38
The Flow of Unaccompanied Children, p. 27.
39
An additional officer is added for each group that exceeds five UAC. The gender of the officers corresponds to the
gender of the children repatriated. Email from ICE Congressional Relations, May 16, 2014.
40
Ibid.
34

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Office of Refugee Resettlement
The Unaccompanied Alien Children Program in ORR/HHS provides for the custody and care of
unaccompanied alien minors who have been apprehended by ICE or CBP or referred by other
federal agencies. The TVPRA directed that HHS ensure that UAC “be promptly placed in the
least restrictive setting that is in the best interest of the child.”41 The HSA requires that ORR
develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the
interests of the child are considered in decisions and actions relating to the care and custody of a
UAC, and oversee the infrastructure and personnel of UAC residential facilities, among other
responsibilities.42 ORR also screens each UAC to determine if the child has been a victim of a
severe form of trafficking in persons, if there is credible evidence that the child would be at risk if
he or she were returned to his/her country of nationality or last habitual residence, and if the child
has a possible claim to asylum.43
ORR arranges to house the child either in one of its shelters or in foster care; or the UAC program
reunites the child with a family member. According to ORR, the majority of the youth are cared
for initially through a network of state-licensed, ORR-funded care providers that offer classroom
education, mental and medical health services, case management, and socialization and recreation.
ORR oversees different types of shelters to accommodate unaccompanied children with different
circumstances, including nonsecure shelter care, secure care, and transitional foster care
facilities.44 A juvenile may be held in a secure facility only if he or she is charged with criminal or
delinquent actions, threatens or commits violence, displays unacceptably disruptive conduct in a
shelter, presents an escape risk, is in danger and is detained for his/her own 14, 2016 is part of an
safety, or
er
45
emergency or influx of minors that results in insufficient bed spacepat mb
te nonsecure facilities.
Se
n

ed o

hiv
The same care providers also facilitate the release3ofaUAC to family members or other sponsors
8 rc
46
357
5who are able to care for them. The Flores1Agreement outlines the following preference ranking
No.
for sponsor types: (1) a parent,. (2)na h,
y c legal guardian, (3) an adult relative, (4) an adult individual or
.v L
entity designated byin J. child’s parent or legal guardian, (5) a licensed program willing to accept
the F.M
d
c (6)
legal custody, orite an adult or entity approved by ORR.47

In making these placement determinations, ORR conducts a background investigation to ensure
the identity of the adult assuming legal guardianship for the UAC and that the adult does not have
a record of abusive behavior. ORR may consult with the consulate of the UAC’s country of origin
as well as interview the UAC to ensure he or she also agrees with the proposed placement. If such
background checks reveal evidence of actual or potential abuse or trafficking, ORR may require a
41

§§235(a)-235(d) of TVPRA; 8 U.S.C. §1232(b)(2).
Section 235(c) of the TVPRA and Section 462(b) of the Homeland Security Act of 2002 (HSA, P.L. 107-296)
describe conditions for the care and placement of UAC in federal custody.
43
As noted previously, all UAC are initially screened by CBP for trafficking victimization or risk as well as possible
claims to asylum, regardless of country of origin.
44
Shelter care refers to a minimally restrictive level of care, for most UAC without special needs. Secure care facilities
are generally reserved for children with behavioral issues, a history of violent offenses, or who pose a threat to
themselves or others. Transitional foster care, which involves placement with families, is prioritized for children under
age 13, sibling groups with one child younger than 13, pregnant and parenting teens, and children with special needs,
including mental health needs. CRS briefing on unaccompanied children with HHS-ORR, May 5, 2014.
45
Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997), Exhibit 2.
46
Administration for Children and Families, Office of Refugee Resettlement, Unaccompanied Alien Children Program,
U.S. Department of Health and Human Services, Fact Sheet, January 2016, (hereinafter referred to as ORR UAC Fact
Sheet, January 2016.)
47
Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997), p. 10.
42

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home study as an additional precaution.48 In addition, the parent or guardian is required to
complete a Parent Reunification Packet to attest that they agree to take responsibility for the UAC
and provide him/her with proper care.49
Figure 2 shows both annual UAC apprehensions and annual referrals of unaccompanied children
to HHS-ORR since FY2008. As expected, a positive relationship exists between the two measures;
but in recent years, as children from non-contiguous countries have dominated the share of all
UAC apprehensions, the correspondence between apprehensions and referrals has increased. In
FY2009, when unaccompanied children from the three Northern Triangle countries comprised
17% of all UAC apprehensions, the proportion of children referred to HHS-ORR was 34% of total
apprehensions. In the first six months of FY2016, when unaccompanied children from those
countries dominated the flow with 78% of all UAC apprehensions, that same proportion was 94%.
Figure 2. UACs Apprehended and Referred to ORR Custody, FY2008-FY2016*

16

4, 20

d on

38

-357

cited

Sep

ch

. Lyn

.v
. F.M

. 15
, No

ive
arch

er 1
temb

in J

Source: Apprehensions: See sources for Figure 1 above; Referrals: FY2008-FY2015: HHS-ORR, Fiscal Year
2017, Administration for Children and Families, Justification of Estimates for Appropriations Committees, p. 243;
FY2016: CRS presentation of unpublished data from the HHS Office of Refugee Resettlement.
Notes: Figures for FY2016 include only the first six months, one half of a fiscal year.

ORR reports that most children served are reunified with family members.50 Between FY2008
and FY2010, the length of stay in ORR care averaged 61 days and total time in custody ranged
48

A home study is an in-depth investigation of the potential sponsor’s ability to ensure the child’s safety and wellbeing and involves background checks of both the sponsor and any adult household members, one or more home visits,
a face-to-face interview with the sponsor and potentially with other household members, and post-release services.
Pursuant to the TVPRA of 2008, home studies are required for certain UAC considered especially vulnerable.
49
Office of Refugee Resettlement, Unaccompanied Children’s Services, ORR/DCS Family Reunification Packet for
Sponsors (English/Español), http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrensservices#Family%20Reunification%20Packet%20for%20Sponsors, accessed by CRS on April 27, 2016.
50
In FY2014, 96% of discharged UAC were released to a sponsoring family member. Of this group 58% were parents
or legal guardians, 29% were other relatives, and 9% were non-relatives. The remaining 4% of UAC were discharged
(continued...)

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from less than 1 day to 710 days.51 ORR reported that children spent about 34 days on average in
the program as of January 2016.52 Removal proceedings continue even when UAC are placed
with parents or other relatives.53 As noted above, not all UAC are referred to ORR; for instance,
many UAC from contiguous countries voluntarily return home.
The sizable increases in UAC referrals since FY2008 have challenged ORR to meet the demand
for its services while maintaining related child welfare protocols and administrative standards.54
These challenges reached a crescendo in January 2016 when a Senate investigation indicated that
in FY2014, some UAC who had originally been placed with distant relatives and parentallyapproved guardians ended up being forced to work in oppressive conditions on an Ohio farm.55
The report outlined a range of what it characterized as serious deficiencies related to the safe
placement of children with distant relatives and unrelated adults as well as post-placement
follow-up. During the Senate Homeland Security Committee hearing that followed, HHS officials
acknowledged limitations of their screening and post-placement follow-up procedures for such
sponsors. They also reiterated the legal basis for the termination of UAC custody and HHS
liability once custody of the unaccompanied minor was handed over to the sponsor.56

U.S. Citizenship and Immigration Services
As mentioned, U.S. Citizenship and Immigration Services (USCIS) is responsible for the initial
adjudication of asylum applications filed by UAC.57 If either CBP or ICE finds that the child is a
UAC and transfers him/her to ORR custody, USCIS generally will take jurisdiction over any
16
asylum application, even where evidence shows that the child reunited with1a ,parent or legal
4 20
berinitial jurisdiction over
guardian after CBP or ICE made the UAC determination. USCIS eptem
also has
S
asylum applications filed by UAC with pending claims hived on
in immigration court, with cases on
rc
appeal before the Board of Immigration Appeals, 38 a
-357 or with petitions under review with federal
. 15

, No

M.

J. F.

nch
v. Ly

in
(...continued)
cited
for other reasons, such as a transfer to DHS due to aging-out of UAC status. Source: unpublished data provided to CRS
by Office of Legislative Affairs, Administration for Children and Families, Office of Refugee Resettlement, U.S.
Department of Health and Human Services, March 20, 2015.
51
The Flow of Unaccompanied Children, p. 17.
52
ORR UAC Fact Sheet, January 2016. An earlier May 2014 version of this fact sheet cited an average of 35 days.
53
Some communities and states have objected to unaccompanied children being located in their jurisdictions (either in
shelters or in family placements) as well as the lack of notification by HHS-ORR. For more information, see U.S.
Congress, House Committee on the Judiciary, Subcommittee on Immigration and Border Security, Impact on Local
Communities of the Release of Unaccompanied Alien Minors and the Need for Consultation and Notification, 113th
Cong., 2nd sess., December 10, 2014.
54
A recent report by the Government Accountability Office (GAO) raised concerns about ORR’s lack of a planning
process for its capacity needs, inconsistent monitoring of service provision by its nonprofit grantee organizations that
provide shelter services, limited contact with children following their placement, and administrative recording of postplacement follow-up procedures. See U.S. Government Accountability Office, Unaccompanied Children: HHS Can
Take Futher Actions to Monitor Their Care, GAO-16-180, February 2016.
55
United States Senate, Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on
Investigations, Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office of
Refugee Resettlement, January 28, 2016.
56
U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on
Investigations, Adequacy of the Department of Health and Human Services’ Efforts to Protect Unaccompanied Alien
Children From Human Trafficking, 114th Cong., 2nd sess., January 28, 2016.
57
For information on UAC and asylum, see CRS Report R43664, Asylum Policies for Unaccompanied Children
Compared with Expedited Removal Policies for Unauthorized Adults: In Brief, by Ruth Ellen Wasem.

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courts as of enactment of the TVPRA (December 23, 2008). UAC must appear at any hearings
scheduled in immigration court, even after petitioning for asylum with USCIS.

The Executive Office for Immigration Review
The Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice is
responsible for adjudicating immigration cases and conducting removal proceedings. Generally,
during an immigration removal proceeding, the foreign national and the U.S. government present
testimony so that the immigration judge can make a determination on whether the foreign
national is removable or qualifies for some type of relief from removal (i.e., the alien is permitted
to remain in the United States either permanently or temporarily). The TVPRA requires that HHS
ensure, to the greatest extent possible, that UAC have access to legal counsel, and it also permits
HHS to appoint independent child advocates for child trafficking victims and other vulnerable
unaccompanied alien children.
EOIR has specific policies for conducting removal hearings of UAC to ensure that UAC
understand the nature of the proceedings, can effectively present evidence about their cases, and
have appropriate assistance. The policy guidelines discuss possible adjustments to create “an
atmosphere in which the child is better able to present a claim and to participate more fully in the
proceedings.” Under these guidelines, immigration judges should:
establish special dockets for UAC that are separated from the general population;
allow child-friendly courtroom modifications (e.g., judges not wearing2016
robes,
4,
ber 1 seat rather
allowing the child to have a toy, permitting the child to testifym
from a
epte
than the witness stand, allowing more breaks during the S
d on proceedings);
hive
8 arc
provide courtroom orientations to familiarize the child with the court;
3573
15No.
explain the proceedingsLatnthe, outset;
y ch
.
.M. v
prepare the childFto testify;
n J.
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cited
employ child-sensitive questioning; and,
strongly encourage the use of pro bono legal representation if the child is not
represented.
On July 9, 2014, in response to the UAC surge, EOIR issued new guidelines that prioritized
unaccompanied children and non-detained families above other cases in the immigration courts
and on the same level as detained aliens.58 On July 18, 2014, EOIR initiated a new case recording
system that coincided with its announcement of its revised adjudication priorities.59 The new
system allows EOIR to track legal outcomes of UAC with greater precision.60
58
Immigration and children’s advocacy groups have criticized these policies for rushing the adjudication process. See
for example, Wendy Feliz, “Immigration Courts Are Ordering Unrepresented Children Deported,” Immigration Impact,
March 10, 2015; and Walter Ewing, “Why More Immigration Judges Are Needed,” Immigration Impact, May 11,
2015. See also U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration and Border Security,
Oversight of the Executive Office for Immigration Review, statement of Ranking Member Zoe Lofgren, 114th Cong., 1st
sess., December 3, 2015, pp. 34-35.
59
The four priority categories are: (1) unaccompanied child; (2) adults with a child or children detained; (3) adults with
a child or children released on alternatives to detention; and (4) recently detained border crossers. See statement of Juan
P. Osuna, Director of Executive Office of Immigration Review, U.S. Department of Justice, The President’s
Emergency Supplemental Request for Unaccompanied Children and Related Matters, in U.S. Congress, Senate
Committee on Appropriations, hearings, 113th Cong., 2nd sess., July 10, 2014.
60
Prior to this system, EOIR tracked only the number of juveniles it processed and could not distinguish between UAC
(continued...)

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CRS reviewed 17 months of these EOIR data covering July 18, 2014, through December 29,
2015.61 Of the 49,965 UAC who were given Notices to Appear (NTA) by DHS, 41,792 had been
scheduled to appear for their first hearing. Of those scheduled, 14,750 were adjourned, and 6,240
had changes of venues or were transferred. Of the remaining 20,802 initial cases that EOIR
classified as completed, 9,695 (47%) resulted in removal decisions. Of these removal decisions,
8,510 (88%) were rendered in absentia, meaning that the UAC had not shown up to the hearing.
Of the other completed initial cases that did not result in a decision, 4,390 were terminated,62 660
resulted in voluntary departure, 5,944 were administratively closed,63 and 73 resulted in other
administrative outcomes. In 40 cases, children received some form of immigration relief. The
most usual forms of immigration relief for UAC include asylum, special immigrant juvenile
status for abused, neglected, or abandoned children who are declared dependent by state juvenile
courts 64 and “T nonimmigrant status” for victims of trafficking.65

Administrative and Congressional Action
The Administration and Congress have both taken action since 2014 to respond to the UAC surge.
The Administration: developed a working group to coordinate the efforts of the various agencies
involved in responding to the issue; temporarily opened additional shelters and holding facilities
to accommodate the large number of UAC apprehended at the border; initiated programs to
address root causes of child migration in Central America; and requested funding from Congress
to deal with the crisis. In turn, Congress considered supplemental appropriations for FY2014 and
16
increased funding for UAC-related activities in HHS/ORR and DHS appropriations for
4, 20
ber 1
m
subsequent fiscal years.
epte
ived

Administrative Action

on S

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ynch

rch
38 a

L
In response to the UAC surge, .the Administration announced in June 2014 that it had developed a
M. v
J. F.
n Group comprised of representatives from key agencies and headed by
Unified Coordination
i
cited
Federal Emergency Management Agency (FEMA) Administrator Craig Fugate.66 The FEMA
administrator’s role was to “lead and coordinate Federal response efforts to ensure that Federal
agency authorities and the resources granted to the departments and agencies under Federal law
(...continued)
and other minors.
61
Executive Office for Immigration Review, Unaccompanied Children Priority Code Adjudication, July 18, 2014December 29, 2015, unpublished data provided to CRS, January 11, 2016.
62
A case termination refers to a decision by an immigration judge to dismiss the case related to a particular charging
document. The charging document for UAC is the Notice to Appear. If a case is terminated in this situation, the child is
not subject to removal related to the dismissed charging document. If DHS choses to pursue the case, it must issue a
new charging document.
63
An administrative closing refers to a temporary removal of a case from an immigration judge’s calendar or docket. If
DHS choses to pursue the case, the case may ultimately be placed back on the judge’s calendar or docket.
64
For more information, see CRS Report R43703, Special Immigrant Juveniles: In Brief, by Ruth Ellen Wasem.
65
For more information, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress, by
Alison Siskin and Liana W. Rosen.
66
Department of Homeland Security, “Statement by Secretary Johnson on Increased Influx of Unaccompanied
Immigrant Children at the Border,” press release, June 2, 2014, http://www.dhs.gov/news/2014/06/02/statementsecretary-johnson-increased-influx-unaccompanied-immigrant-children-border; and Alejandro Mayorkas, Deputy
Secretary of the Department of Homeland Security, “Press Call Regarding the Establishment of the Inter-Agency
Unified Coordination Group on Unaccompanied Alien Children,” press release, June 3, 2014.

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… are unified in providing humanitarian relief to the affected children, including housing, care,
medical treatment, and transportation.”67
From the outset, CBP maintained primary responsibility for border security operations at and
between ports of entry and, working with ICE, provided for the care of unaccompanied children
in temporary DHS custody.68 DHS coordinated with the Departments of Health and Human
Services, State, and Defense, as well as the General Services Administration and other agencies,
to ensure a coordinated and prompt response within the United States in the short term, and in the
longer term to work with migrant-sending countries to undertake reforms to address the causes
behind the recent flows.69 In June 2014, DHS initiated a program to work with the Central
American countries on a public education campaign to dissuade UAC from attempting to migrate
illegally to the United States.70
To manage the influx of UAC, HHS/ORR used group homes operated by nonprofit organizations
with experience providing UAC-oriented services (e.g., medical attention, education). HHS also
coordinated with the Department of Defense (DOD), which temporarily made facilities available
for UAC housing at Lackland Air Force Base in San Antonio, Texas, and at Naval Base Ventura
County in Oxnard, California. Arrangements at both sites ended August 2014.71
To address the legal needs of large numbers of children entering the immigration court system,
the Corporation for National and Community Service (CNCS), which administers AmeriCorps,72
partnered with EOIR to create “Justice AmeriCorps,” a grant program that enrolled approximately
100 lawyers and paralegals as AmeriCorps members to provide UAC with legal representation
016
during removal proceedings.73
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Sept
DOJ’s Office of Legal Access Programs established the Legal Orientation Program for
d on
e
Custodians of Unaccompanied Children (LOPC),38 archiv of which are “to improve the
the goals
357 immigration court hearings, and to protect
appearance rates of non-detained children. at5their
1 , No
children from mistreatment, exploitation, and trafficking by increasing access to legal and other
ynch
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services.” In FY2014 theFLOPC served over 12,000 custodians for children released from ORR
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LOPC
custody.74 The cite operates a national call center that provides scheduling assistance and basic

67

The White House, Office of the Press Secretary, “Presidential Memorandum – Response to the Influx of
Unaccompanied Alien Children Across the Southwest Border” press release, June 2, 2014.
68
As one of its missions, ICE works to dismantle organizations that smuggle UAC into the United States.
69
Department of Homeland Security, “Statement by Secretary Johnson on Increased Influx of Unaccompanied
Immigrant Children at the Border,” press release, June 2, 2014, http://www.dhs.gov/news/2014/06/02/statementsecretary-johnson-increased-influx-unaccompanied-immigrant-children-border.
70
Alejandro Mayorkas, Deputy Secretary of the Department of Homeland Security, “Press Call Regarding the
Establishment of the Inter-Agency Unified Coordination Group on Unaccompanied Alien Children,” press release,
June 3, 2014.
71
Leslie Berestein Rojas, “Emergency Shelter for Unaccompanied Migrant Kids Opening in Ventura County,” 89.3
KPCC, Southern California Public Radio, June 5, 2014, http://www.scpr.org/blogs/multiamerican/2014/06/05/16777/
emergency-shelter-for-unaccompanied-migrant-kids-o/.
72
For more information on the CNCS and AmeriCorps, see CRS Report RL33931, The Corporation for National and
Community Service: Overview of Programs and Funding, by Abigail R. Overbay and Benjamin Collins.
73
Department of Justice and the Corporation for National and Community Service, “Justice Department and CNCS
Announce New Partnership to Enhance Immigration Courts and Provide Critical Legal Assistance to Unaccompanied
Minors,” press release, June 6, 2014, http://www.nationalservice.gov/newsroom/press-releases/2014/justicedepartment-and-cncs-announce-new-partnership-enhance.
74
FY2014 information is the most recent available as of April 29, 2016. See United States Department of Justice,
Administrative Review and Appeals, FY 2017 Performance Budget Congressional Budget Submission, p.4.

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legal information to UAC custodians.75Additional Administration initiatives include partnering
with Central American governments to combat gang violence, strengthen citizen security, spur
economic development, and support the reintegration and repatriation of returned citizens.76 The
Administration also initiated a collaborative information campaign with Central American
governments to inform would-be migrants on a variety of issues.77

Congressional Action
As the UAC crisis unfolded in 2014, congressional attention initially focused on whether the
various agencies responding to it had adequate funding. As the crisis began to wane,
congressional attention shifted to mechanisms to prevent such a surge from reoccurring.

Appropriations
In the President’s original FY2015 budget that was released in March 2014 for the agencies
directly responsible for the UAC population (i.e., within HHS/ORR and DHS budgets), the
Administration did not request funding increases to help address the UAC surge. However, on
May 30, 2014, the Office of Management and Budget updated its cost projections for dealing
with the growing UAC population and requested $2.28 billion for FY2015 for ORR’s UAC
program and $166 million for DHS for CBP overtime, contract services for care and support of
UAC, and transportation costs.78
On July 8, 2014, the Administration requested $3.7 billion in emergency appropriations, almost
16
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all of which was directly related to addressing the UAC surge, including er 1 million for CBP,
b $433
ptem
$1.1 billion for ICE, $1.8 billion for HHS, $64 million for ed oDepartment of Justice (DOJ), and
the n Se
iv
$300 million for the Department of State.79 On July 23, h
8 arc 2014, Senator Mikulski introduced the
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Emergency Supplemental Act, 2014 (S. 2648), which would have funded HHS’s Administration
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yncand Entrant Assistance Program for $1.2 billion, CBP and the
for Children and Families’ Refugee
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Office of Air and MarineFfor $320.5 million and $22.1 million, respectively, and ICE for $762.8
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million for transportation and enforcement and removal costs. S. 2648 would have appropriated
$124.5 million to DOJ for court activities related to UAC processing, and the Department of
State’s and the U.S. Agency for International Development’s (USAID’s) unaccompanied alienrelated activities would have received $300 million, the same amount the Administration
requested. Congress did not pass S. 2648.
In December 2014, the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113235) provided nearly $1.6 billion for Refugee and Entrant Assistance Programs for FY2015, with
the expectation that most these funds would be directed toward the UAC program.80 In addition,
75

Ibid, pp. 3-4.
White House, Office of the Press Secretary, “Fact Sheet: Unaccompanied Children from Central America,”
http://www.whitehouse.gov/the-press-office/2014/06/20/fact-sheet-unaccompanied-children-central-america.
77
Ibid.
78
Executive Office of the President, Office of Management and Budget, Memorandum to Representative Nita Lowey,
May 30, 2014.
79
The White House, “Fact Sheet: Emergency Supplemental Request to Address the Increase in Child and Adult
Migration from Central America in the Rio Grande Valley Areas of the Southwest Border,” press release, July 8, 2014.
80
In addition to the UAC program, the Refugee and Entrant Assistance Program administers the following programs:
Transitional/Cash and Medical Services, Victims of Trafficking, Social Services, Victims of Torture, Preventive
Health, and Targeted Assistance. For additional information, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy.
76

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P.L. 113-235 included a new provision allowing HHS to augment appropriations for the Refugee
and Entrant Assistance account by up to 10% through transfers from other discretionary HHS
funds.81
In March 2015, the Department of Homeland Security Appropriations Act, 2015 (P.L. 114-4)
provided $3.4 billion to ICE for detection, enforcement, and removal operations, including for the
transport of unaccompanied children for CBP. The act required that DHS estimate FY2015 UAC
apprehensions and the number of necessary agent or officer hours and related costs. It also
provided for some budgetary flexibility through the optional reprogramming of funds.82
In its FY2016 budget, the Administration requested contingency funding as well as base funding
for several agencies in the event of another surge of unaccompanied children. For HHS, the
Administration requested $948 million for base funding (the same as FY2015) and $19 million
for contingency funding for ORR’s Unaccompanied Children Program (within the Refugee and
Entrant Assistance Program).83 Congress met the base funding request but appropriated no monies
for contingency funding.
For DHS, the Administration requested $203.2 million in base funding and $24.4 million in
contingency funding for CBP to be used for costs associated with the apprehension and care of
unaccompanied children.84 The Administration requested $2.6 million in contingency funding for
ICE to be used for transportation costs associated with UAC apprehensions if such apprehensions
exceeded those in FY2015.85 Neither the Senate86 nor the House87 appropriated monies for such
funds in FY2016. For DOJ, the Administration requested an additional $50 million (two-year
016
funding) for EOIR to process UAC.88
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For FY2017, the Administration has requested $1,321 million n Sept
ofor ORR’s Refugee and Entrant
ved
Assistance Program that includes $1,226 million in base ifunding and contingency funding which,
arch
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if triggered by larger than expected caseloads,3would start at $95 million and could expand up to
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Administration requested $13.2 million for ICE’s Transportation
$400 million.89 For DHS, the v. Lynch,
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81
This paragraph was excerpted from CRS Report R43967, Labor, Health and Human Services, and Education:
FY2015 Appropriations.
82
Section 571 of the act permits the Secretary to reprogram funds within CBP and ICE and transfer such funds into the
two agencies’ “Salaries and Expenses” accounts for the care and transportation of UAC. Section 572 of the act allows
for State Homeland Security Program and Urban Area Security Initiative grants that are awarded to states along the
Southwest border to be used by recipients for costs or reimbursement of costs for providing humanitarian relief to
unaccompanied children.
83
Department of Health and Human Services, Administration for Children and Families, Fiscal Year 2016,
Justification of Estimates for Appropriations Committees, p. 21.
84
The total CBP contingency request was for $134.5 million for costs associated with the apprehension and care of up
to 104,000 UAC. Based on the anticipated low probability of such a high number of UAC apprehensions, the FY2016
budget scored the requested increase at $24.4 million.
85
Base funding for ICE to transport UAC was not separated out from other transportation activities within the budget.
The total ICE contingency request was for $27.6 million for costs associated with transportation of up to 104,000 UAC.
Based on the anticipated low probability of such a high number of UAC requiring such transportation, the FY2016
budget scored the requested increase at $2.6 million.
86
S. 1619, S.Rept. 114-68.
87
H.R. 3128, H.Rept. 114-215.
88
See U.S. Department of Homeland Security, FY2016 Congressional Budget Justification, U.S. Department of
Justice, Administrative Review and Appeals, Executive Office for Immigration Review (EOIR), FY2016
Congressional Budget Justification; Department of Health and Human Services, Administration for Children and
Families, Fiscal Year 2016, Justification of Estimates for Appropriations Committees.
89
Department of Health and Human Services, Administration for Children and Families, Fiscal Year 2017,
(continued...)

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and Removal Program, including $3 million in contingency funding; and $217.4 million for CBP,
including $5.4 million in contingency funding.

Legislation
Several pieces of legislation addressing the UAC situation have been introduced in the current
Congress; two have seen legislative activity. On March 18, 2015, the House Judiciary Committee
marked up the “Asylum Reform and Border Protection Act of 2015” (H.R. 1153); and on March
4, 2015, the House Subcommittee on Immigration and Border Security marked up the Protection
of Children Act of 2015 (H.R. 1149).

The Asylum Reform and Border Protection Act of 2015 (H.R. 1153)
The Asylum Reform and Border Protection Act of 2005 (H.R. 1153) would make several changes
to current UAC policy. Among them, H.R. 1153 would amend the definition of UAC.90 The
current UAC definition requires that in order for a minor to be deemed unaccompanied, he or she
must have no parent or legal guardian available to provide care and physical custody to the minor.
H.R. 1153 would amend the language to require as well that no siblings, aunts, uncles,
grandparents, or cousins over age 18 are available to provide such care and physical custody. The
act would also provide that the term unaccompanied alien child would cease if any person in the
aforementioned category is found in the United States and is available to provide care and
physical custody to the minor.
2016

H.R. 1153 would amend asylum provisions by treating unaccompanied ber 14, who may be
children
em
seeking asylum in another country similar to other (adult) asylum ept
n S seekers. The so-called Safe
do
Third Country provision requires aliens seeking asylumhtoe
rc iv make such a claim in the first country
38 a
in which they arrive. Under current law, o. 15-3are not subject to the Safe Third Country
UAC 57
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requirement. H.R. 1153 also would c
yn require, under most circumstances, UAC to file their asylum
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claim within one year J. F.M
after arriving in the United States. Under the bill, USCIS would no longer
in
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be given initialcjurisdiction over UAC asylum petitions.
H.R. 1153 would require agencies to notify HHS within seven days of the apprehension or
discovery of unaccompanied children instead of within 48 hours as under current law. It also
would require the transfer of custody of unaccompanied children to HHS no later than 30 days
after determining that the minor is a UAC, instead of no later than 72 hours as under current law.

The Protection of Children Act of 2015 (H.R. 1149)
The Protection of Children Act of 2015 (H.R. 1149) would amend current law91 by requiring
unaccompanied children from noncontiguous countries to be returned immediately to their
country of origin if they are deemed not to be a victim of or at risk of being a victim of
trafficking, or they do not have a fear of returning. Under current law, this immediate repatriation
requirement only applies to unaccompanied children from contiguous countries. The act also

(...continued)
Justification of Estimates for Appropriations Committee, p. 240.
90
6 U.S.C. (g)(2)
91
8 U.S.C. 1232.

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would amend current law by removing language that requires unaccompanied children to
independently decide if they want to withdraw their application for admission.92
H.R. 1149 would amend current law to require the Secretary of State to negotiate repatriation
agreements between the United States and any foreign country the Secretary deems appropriate.
Under current law, the Secretary is able to negotiate such agreements only with contiguous
countries.
H.R. 1149 sets forth a time period for unaccompanied children who do not meet the screening
requirements93 to be placed in removal proceedings. It also differentiates between UAC who did
not meet the screening requirements and those that did meet such requirements, mandating the
former to be transferred to HHS no later than 30 days after failing to meet such requirements. The
bill does not specify a time period for the transfer of UAC who met the screening requirements.
Like H.R. 1153, H.R. 1149 would no longer give USCIS initial jurisdiction over the asylum
petitions of unaccompanied children.
H.R. 1149 would require HHS to provide DHS with identifying information of the individual
with whom the unaccompanied children will be placed. For unaccompanied children who were
apprehended on or after June 12, 2012, and before the enactment of the act, H.R. 1149 would
require HHS to provide such information to DHS within 90 days of the act’s enactment.
In addition, H.R. 1149 would require DHS to investigate any unknown immigration status of the
individuals with whom unaccompanied children are placed. If the individual is unlawfully present
in the country, the act would require DHS to initiate removal proceedings.
016
r 14,

2

H.R. 1149 would also amend current law to clarify that unaccompanied be
em children “should have
Sept
access to counsel” to the greatest extent practicable,” butived on the government’s expense.
not at
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In response to the d
cite UAC surge in the spring and summer of 2014, the Administration announced
initiatives to unify efforts among federal agencies with UAC responsibilities and to address the
situation with programs geared toward unaccompanied children from several Central American
countries. Additionally, Congress increased funding for the HHS program responsible for the care
of unaccompanied children, and permitted the Secretary of DHS to transfer funds from within a
specific CBP and ICE account for the care and transportation of unaccompanied children, among
other actions taken. Since FY2014, the Administration has continued to request additional
funding for programs geared toward unaccompanied children, and Congress has appropriated for
some but not all such requests.
The most recent apprehension data for FY2016 suggest that the flow of unaccompanied children
to the United States has not abated, although it was over 40% lower in FY2015 than in FY2014.
Once in the United States, the number of unaccompanied children who will ultimately qualify for
asylum or other forms of immigration relief that may allow them to remain in the United States
92

By withdrawing his or her application for admission, the alien would not be subject to enforcement action.
Under current law, contiguous-country unaccompanied children must be screened for whether they have been victims
of a severe form of trafficking in persons and there is no credible evidence that the minor is at risk should the minor be
returned to his/her country of nationality or last habitual residence; a possible claim to asylum; and whether they can
independently decide to voluntarily return to his/her country of nationality or last habitual residence. P.L. 110-457,
§235(a)(2)(A).
93

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remains unclear. Many unaccompanied children have family members in the United States, many
of whom may not be legally present. Such circumstances raise challenging policy questions that
may pit what is in the “best interests of the child” against what is permissible under the
Immigration and Nationality Act and other relevant laws.

Author Contact Information
William A. Kandel
Analyst in Immigration Policy
[e-mail], 7-4703

Acknowledgments
This report was originally authored by Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem.

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U.S.

U.S. Setting Up Emergency Shelter in
Texas as Youths Cross Border Alone
By JULIA PRESTON

MAY 16, 2014

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With border authorities in South Texas overwhelmed by a surge Sep
on of young
ived
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illegal migrants traveling by themselves, the Department of
38
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o. 15 set up an emergency
Security declared a crisis this week and nch, N to
moved
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M. v base in San Antonio, officials said
F.
shelter for the youths at an Air. Force
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cited
Friday.

After seeing children packed in a Border Patrol station in McAllen, Tex.,
during a visit last Sunday, Homeland Security Secretary Jeh Johnson on
Monday declared “a level-four condition of readiness” in the Rio Grande
Valley. The alert was an official recognition that federal agencies overseeing
borders, immigration enforcement and child welfare had been outstripped
by a sudden increase in unaccompanied minors in recent weeks.
On Sunday, Department of Health and Human Services officials will open a
shelter for up to 1,000 minors at Lackland Air Force Base in Texas,
authorities said, and will begin transferring youths there by land and air.
The level-four alert is the highest for agencies handling children crossing the
border illegally, and allows Homeland Security officials to call on emergency
resources from other agencies, officials said.
In an interview on Friday, Mr. Johnson said the influx of unaccompanied
youths had “zoomed to the top of my agenda” after his encounters at the
McAllen Border Patrol station with small children, one of whom was 3.

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A child from Honduras was among the youths from Central America being processed at the Border Patrol station in
Brownsville, Tex., in March. Todd Heisler/The New York Times

The children are coming primarily from El Salvador, Guatemala and
Honduras, making the perilous journey north through Mexico to Texas
without parents or close adult relatives. Last weekend alone, more than
1,000 unaccompanied youths were being held at overflowing border stations
in South Texas, officials said.
The flow of child migrants has been building since 2011, when 4,059
unaccompanied youths were apprehended by border agents. Last year more
than 21,000 minors were caught, and Border Patrol officials had said they
were expecting more than 60,000 this year. But that projection has already
been exceeded.
By law, unaccompanied children caught crossing illegally from countries
other than Mexico are treated differently from other migrants. After being

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apprehended by the Border Patrol, they must be turned over within 72 hours
to a refugee resettlement office that is part of the Health Department.
Health officials must try to find relatives or other adults in the United States
who can care for them while their immigration cases move through the
courts, a search that can take several weeks or more.
The Health Department maintains shelters for the youths, most run by
private contractors, in the border region. Health officials had begun several
months ago to add beds in the shelters anticipating a seasonal increase. But
the plans proved insufficient to handle a drastic increase of youths in recent
weeks, a senior administration official said.

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ci Images
Jeh Johnson Alex Wong/Gettyted

Mr. Johnson said Pentagon officials agreed this week to lend the space at
Lackland, where health officials will run a shelter for up to four months. The
base was also used as a temporary shelter for unaccompanied migrant
youths in 2012. It became the focus of controversy when Gov. Rick Perry of
Texas objected, accusing President Obama of encouraging illegal migration
by sheltering the young people there.
Mr. Johnson said the young migrants became a more “vivid” issue for him
after he persuaded his wife to spend Mother’s Day with him at the station in
McAllen. He said he asked a 12-year-old girl where her mother was. She
responded tearfully that she did not have a mother, and was hoping to find
her father, who was living somewhere in the United States, Mr. Johnson
said.
Mr. Johnson said he had spoken on Monday with the ambassadors from
Mexico and the three Central American countries to seek their cooperation,

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 30 of 69
and had begun a publicity campaign to dissuade youths from embarking for
the United States.
“We have to discourage parents from sending or sending for their children
to cross the Southwest border because of the risks involved,” Mr. Johnson
said. “A South Texas processing center is no place for a child.”
Officials said many youths are fleeing gang violence at home, while some are
seeking to reunite with parents in the United States. A majority of
unaccompanied minors are not eligible to remain legally in the United
States and are eventually returned home.

A version of this article appears in print on May 17, 2014, on page A15 of the New York edition with the
headline: U.S. Setting Up Emergency Shelter in Texas as Youths Cross Border Alone.
Order Reprints | Today's Paper | Subscribe

RELATED COVERAGE

In the White House, Debating How Far to Go
in Easing Deportations MAY 16, 2014

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ABOUT NEW YORK

A 12-Year-Old’s Trek of Despair Ends in a
Noose at the Border APRIL 19, 2014

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NUMBERS, FACTS AND TRENDS SHAPING YOUR WORLD

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MAY 4, 2016

U.S. border apprehensions of families and
unaccompanied children jump dramatically
BY JENS MANUEL KROGSTAD

10 COMMENTS

Apprehensions of children and their families at the U.S.-Mexico border since October 2015 have
2016

14unaccompanied children,
more than doubled from a year ago and now outnumber apprehensionsrof ,
mbe

and Border Protection data.
in
cited

o.

ch, N

yn
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e

Sept

h

8 arc

573
15-3

on
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M

J. F.

comparison, apprehensions of unaccompanied children totaled 27,754 over the same period. The
number of family apprehensions is more than double that of the previous year. The number of
apprehensions of unaccompanied children shot up by 78%.

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 33 of 69

The apprehension of more families than unaccompanied children is a reversal from summer 2014,
when thousands of children

in Central America 6
01 and migrated north to
,2

er 14

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emb
Sept

apprehensions of children and their families, compared hive 28,579 apprehensions of
8 arc with

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unaccompanied children.

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It remains to be seen whether apprehensions of unaccompanied children or families will surge this
and unaccompanied children apprehensions spiked in December 2015, and in January 2016 the
Department of Homeland Security launched immigration raids targeting families. Since then,
monthly border apprehensions have dropped below 2014 levels. For example, March 2016
apprehensions of children and their families (4,452) and unaccompanied children (4,240) are lower
than in March 2014, when authorities apprehended 5,752 children and their families and 7,176
unaccompanied children.

Mexico stepped up deportations of Central
American children and the U.S. government launched public information campaigns in Central
American countries to discourage children from making the trip north. The U.S. also sped up the
processing of immigration court cases, but a large backlog in cases still exists.
The surge in family apprehensions at

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 34 of 69
the U.S.-Mexico border in 2016 is
driven by migrants from El Salvador,
Guatemala and Honduras, who
together make up 90% of these
The number of family apprehensions
from these Central American countries

time period in 2015. Meanwhile,
among Mexicans, family
apprehensions decreased by 25% over
the same period.

When looking at where unaccompanied children are from, there have been substantially more
apprehensions among those from Guatemala (9,383) and El Salvador (7,914) than Honduras (4,224)
6
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unaccompanied minors apprehended.

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America this summer.cFori example, the Department of Health and Human Services has requested

additional contingency funding from Congress to shelter apprehended children. In addition, the
governor of Texas extended the deployment of the state’s National Guard at the border with Mexico
in December, which coincided with a spike that month in border apprehensions.

Border Protection’s Rio Grande sector, located along the southernmost tip of Texas and bounded by
Mexico and the Gulf of Mexico. (The sector accounted for a similar share of apprehensions during

refer to the number of apprehensions and not the number of unique individuals apprehended.
TOPICS: HISPANIC/LATINO DEMOGRAPHICS, IMMIGRATION, IMMIGRATION TRENDS, LATIN AMERICA,
MIGRATION, UNAUTHORIZED IMMIGRATION

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http://pewrsr.ch/1Y8t70o

Jens Manuel Krogstad is a writer/editor focusing on Hispanics, immigration and

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 35 of 69
demographics at Pew Research Center.
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10 Comments
Anonymous •

4 months ago

People south of the U.S. Border are stopped because they are Indians indigenous
to the Americas.
16

4, 20

Anonymous •

4 months ago

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yn
centers in southern Texas away from San Antonio in isolated land y buildings. Who
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are the stock holders?
cited

Anonymous •

4 months ago

These people are refugees. What don’t you explain why families and children are
crossing the border. They are not illegal immigrants but that’s how we treat them.

Anonymous •

4 months ago

law.

For

example, the law does NOT recognize people escaping hard economic
conditions as refugees. Nor, does it recognize people running away from
crime. People who have participated in organized crime, for instance by
paying a human smuggling operation, are ineligible based on poor character.
The US govt. tried to set “refugee collection centers” in 2014 in the Central
American capitals, but nobody showed up! That’s because the phenomenon is
run by organized crime gangs….they intimidate customers by issuing death

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 36 of 69

threats….they make $5K per smuggled person, the equivalent to the life
savings of the average Central American family. Pres. Obama and Secy.
Johnson and Sen. Sessions are trying to defeat the cruel business plan of the
gangs, but liberals in the US who lack street smarts are unwilling to look at
the big picture.

Anonymous •

4 months ago

For all the folks wanting to build that wall, how much in taxes are you willing to
pay in your taxes. An engineer is estimated it will require $17,000.000.000. $17B
is approximately the cost of NASA. And that doesn’t take into consideration the
Northern Border. The border between the US and Canada is the longest contiguous
border in the world and it has zero fences.

Anonymous •

4 months ago

Is there a problem of millions of Canadians pouring across the border from
Canada that would necessitate a wall being built on the northern border?
16

4, 20

Anonymous •

4 months ago 8
73

Anonymous •

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4 months ago

-35
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Hardly…can’tLthink
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maybe not as much as with Mexico but there is a large number

Anonymous •

4 months ago

Is there any good guess as to the total number of people who aren’t caught when
crossing the U.S. border and where they go?

Anonymous •

4 months ago

I’d wager its at least 200% more than the ones the Border Patrol apprehend
and rapidly getting larger! Time to build THAT wall!!

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Apprehensions of Mexican migrants at U.S. p
Se borders reach neard on
hive
arc
historic low
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HISPANIC

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June 3, 2015
A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings
Present a Critical Need for Legal Representation
The American Bar Association (ABA) is gravely concerned about the lack of legal representation on
behalf of unaccompanied children in removal proceedings. The “humanitarian crisis” at the border
confronting the nation last summer has developed into a nationwide due process crisis in our country’s
immigration court system, a system that is already significantly overburdened and under-resourced.
These children, many of whom entered the United States during the unprecedented “surge” in 2014, are
now facing adversarial removal proceedings opposed by experienced government attorneys, with only
about 32% represented by counsel. 1 It is highly unlikely that an unrepresented child will prevail in
immigration court, even if he or she has a bona fide claim for protection. A recent study found that
represented children have a 73% success rate in immigration court, as compared to only 15% of
unrepresented children. 2 Furthermore, studies show that children who are represented have a much
6
, 201
higher appearance rate in immigration court, 92.5%, versus 27.5% for unrepresented children. 3
er 14
b

ptem

Se
d on

Starting last summer, the Executive Office for Immigration hive
Review (EOIR) began to prioritize the cases of
8 arc
3573 period. As a result, EOIR has expedited the
children who entered the United States during1the surge
. 5, No
ynch
initial hearings after they reunify v. L sponsors, leaving very little time for the children and their families
with
.M.
to get oriented and findin J. F before appearing in court. 4 This “perfect storm” has resulted in a total
counsel
cited
of over 7,706 removal orders placed against unaccompanied children between October 2013 and
January 2015. 5 Until the government recognizes the need for universal representation and allocates
sufficient funding to make it a reality, it is up to the legal community to respond. The ABA has worked
on these issues for several years and continues to take action to address the current crisis through its
Commission on Immigration (Commission) and Working Group on Unaccompanied Minor Immigrants
(Working Group). The Working Group has set up a website for this purpose at www.ambar.org/ican.
Attorneys willing to volunteer to represent unaccompanied children can enroll directly at this website by

1

See, Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration
Court, Nov. 25, 2014, available here.
2
Id.
3
See, American Immigration Council, Taking Attendance: New Data Finds Majority of Children Appear in
Immigration Court, July 2014, available here.
4
Brian M. O’Leary, Chief Immigration Judge, Executive Office for Immigration Review, Docketing Practices Relating
to Unaccompanied Children Cases and Adult with Children Released on Alternatives to Detention Cases in Light of
the New Priorities, Mar. 24, 2015 available here.
5
Kate Linthicum, 7,000 Immigrant Children Ordered Deported Without Going to Court, L.A. Times, Mar. 6, 2015,
available here.

1

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signing up at the “Volunteer Now” link. Those who enroll will be matched with a legal service provider
in their area who will do their best to match the volunteer with a child in need of representation.
1. Background:
Who is an Unaccompanied Alien Child (UAC)?
The Homeland Security Act of 2002 transferred the responsibility for care and custody of
“unaccompanied alien children” from the enforcement-oriented (former) Immigration and
Naturalization Service (INS) to the welfare-based U.S. Department of Health and Human Services, Office
of Refugee Resettlement (DHHS, ORR). An “unaccompanied alien child” is defined as someone who has
(A) no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) who
has no parent or legal guardian in the United States; or, no parent or legal guardian in the United States
available to provide care and physical custody.” 6 This major reform was applauded by national
advocates who had long criticized the government for placing children in the care and custody of the
same agency responsible for prosecuting their deportation cases and executing deportation orders.
Current Situation with Unaccompanied Children at the Border
While the number of children entering the United States at the southwest border has declined
6
considerably since last summer, the overall number remains significant and twice 201 number that
4, the
ber 1
m
entered the country in 2011. From October 2014 through April 2015, pte
Se 18,919 unaccompanied children
d on
ive
have been processed at the border, a 48% decline from archsame time last year. 7 During the height of
8 the
3573
. 15the surge in June 2014, over 10,000 unaccompanied children entered the United States in one month.
, No
ynch
v. L
The Obama Administration responded with a multi-faceted approach to stopping this steady stream
F.M.
n J.
i
with cross-agency coordination, additional enforcement resources, expedited child and family dockets in
cited
immigration court and intensive diplomacy efforts and concerted deterrent strategies in Mexico and
Central America, strategies that resulted in making it more difficult for children to reach the United
States. 8
The Department of Homeland Security (DHS), a successor to the former INS, reported that 68,541
unaccompanied children were processed by CBP in the United States between October 1, 2013 and
September 30, 2014, as compared to 38,759 in Fiscal Year (FY) 2013, a 77% increase. 9 Only two years
earlier, in FY 2011, CBP apprehended a total of 15,701 children, the vast majority of whom came from
Mexico. 10 Prior to FY 2012, an average of 7,000 to 8,000 unaccompanied children were detained and

6

6 U.S.C. § 279(g).
See U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children, available here.
8
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: The Tensions Between Protection and
Prevention, Migration Policy Institute, April 2015, available here.
9
See U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children, available here.
10
See id.
7

2

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held in ORR shelters annually. 11 There has clearly been a marked increase over the past three years, and
especially over the early summer months of 2014. Statistics from FY 2014 show these children are
mostly from El Salvador (24%), Guatemala (25%), Honduras (28%) and Mexico (23%) and range in age
from infants to 17 years. 12 Historically, the majority of these children have been between the ages of 15
and 17 and about three quarters of them have been boys; more recently, however, the number of
younger children and girls has risen steadily. Statistics show that the recent drop in numbers reflect a
decrease in children entering the country from El Salvador and Honduras, while children from Mexico
and Guatemala continue to enter at the same rates as during the surge. 13
Once children are apprehended by Border Patrol agents they are transported to a CBP processing
station and held for hours or days in cells during processing. The Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) requires that CBP determine whether these children are
unaccompanied within 48 hours and if deemed to be unaccompanied, transferred to ORR custody within
72 hours. In practice, especially during the height of the surge in 2014, the children were often held
much longer, up to 15 days, or more, in multiple holding facilities. CBP communicates with ORR to
identify a short-term placement for the children. Once a placement is confirmed, officers from
Immigration and Customs Enforcement (ICE) transport the children from CBP stations to the ORR
shelters. At the shelters the children are finally able to shower, rest, eat hot food, make phone calls and
receive medical care, counseling, education and legal services. Legal service providers meet with the
6
, 201
children and provide a “Know Your Rights” presentation and perform individual 4
ber 1 screenings within days
m
epte
on S
of their arrival to the shelter. The screenings are used to makedreferrals to pro bono attorneys for
ive
arch
children who are identified as eligible for legal relief. 38
357
5.1

, No

nch
v. Ly

The TVPRA requires that children from non-contiguous countries be placed in removal proceedings
F.M.
in J.
edJudge and provides that they have the right to apply for legal relief and receive
before an Immigration
cit
counsel “to the greatest extent practicable.” Children from contiguous countries (Mexico and Canada)
can be immediately returned to their countries after a cursory screening by a uniformed Border Patrol
agent. There have been proposals in Congress to extend this provision to children from non-contiguous
countries, a proposal which is of great concern to the ABA and violates long-standing ABA policy to the
contrary. 14 A confidential report from the United Nations High Commissioner for Refugees (UNHCR),
leaked to the media, found these Border Patrol screenings to be woefully inadequate and concluded
that they fail to protect Mexican children. 15 Furthermore, the UNHCR concluded that Border Patrol
agents should not be charged with screening children for risks of trafficking, persecution or
11

See U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee
Resettlement, Unaccompanied Alien Children Program, May 2014, available here.
12
See U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children, available here.
13
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: the Tensions Between Protection and
Prevention, Migration Policy Institute, April 2015, p. 3, available here.
14
See Standards For the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied
Alien Children In the United States, Section VIII, A, Adjudication of Claims of Children, American Bar Association
Comm. on Immigration, Aug. 2004, available here.
15
Vox, The Process Congress Wants to Use for Child Migrants is a Disaster, July 15, 2014, available here.

3

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voluntariness of return. 16 According to the report, Border Patrol agents simply don’t know what to look
for to determine if a child is being victimized or what to do if he or she is being victimized. 17
Historically, about 85% of unaccompanied children have been reunified with approved sponsors within
an average of 35 days. 18 When the number of child migrants and refugees began to surge at the
southwest border, accelerated reunification in as little as 7 days without access to traditional legal
screenings began occurring. Children are released to sponsors within the United States. Some sponsors
are the parents of these children and others are extended family members or family friends. These
children are in removal proceedings and the government contends they have no right to appointed
counsel or guardians ad litem. They are reunifying in cities and states all over the United States.
According to a recent report from ORR analyzing data from January through July 2014, the top six states
for reunification include New York, Texas, California, Florida, Maryland and Virginia. 19 Looking more
closely at this information by county, it is appears that the top six cities for reunification include
Baltimore, Dallas, Houston, Miami, Los Angeles and New York. 20
Once the children are reunified, there is no one agency coordinating their legal representation although
a few non-profit groups run dedicated pro bono projects in some of the major cities. For example, Kids
in Need of Defense (KIND), has offices in eight major cities including Baltimore, Washington DC, Boston,
Houston, Seattle, Los Angeles, New York and Newark. 21 The Office of Refugee Resettlement recently
16
awarded two additional non-profit agencies, the U.S. Committee for Refugees 14, 2the U.S. Conference
and 0
ber
m
of Catholic Bishops, with grants of over $2 million each for post-releasete
Sep legal services serving reunified
d on
22 ive
children in removal proceedings throughout the country.rchAdditionally, in June 2014, the Department
8a
3573
.1 of Justice and the Corporation for National and 5
, No Community Service announced “justice AmeriCorps” a
ynch
grant program intended to .enrollv. L lawyers and paralegals throughout the country to provide
M. 100
J F.
ed in vulnerable children in removal proceedings who meet certain criteria. 23 At a
additional legal services to
cit
February 2015 meeting between government officials, law firms and legal advocacy groups, the Deputy
Director of the Executive Office for Immigration Review, shared statistics reflecting immigration courts
with the highest number of UAC “surge” cases in the nation. The information revealed New York City as
the court with the largest number of pending UAC “surge” cases, over 2,000, with Baltimore, Arlington,
Miami, Houston and Los Angeles, following closely behind. 24 Again, only about one-third of these

16

Id.
Id.
18
See U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee
Resettlement, Unaccompanied Alien Children Program, Fact Sheet, May 2014, available here.
19
Unaccompanied Children Released to Sponsors by State, Office of Refugee Resettlement, available here.
20
Unaccompanied Children Released to Sponsors by County, Office of Refugee Resettlement, available here.
21
See KIND’s website here.
22
See announcement here.
23
See, Department of Justice press release here.
24
White House meeting on February 3, 2015, information provided by EOIR Deputy Director Ana Kocur, courts
with the largest UAC “surge” dockets, pending cases, both represented and unrepresented: New York City (over
2,000); Baltimore & Arlington (over 1,500); Miami, Houston and Los Angeles (over 1,400); Charlotte, New Orleans,
17

4

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children are represented by counsel. In July 2014, several groups headed by the American Civil Liberties
Union Foundation of Southern California came together to file a nationwide lawsuit challenging the lack
of government appointed counsel on behalf of children in removal proceedings. 25 The lawsuit is
currently pending. Legal representation and access to and by counsel are paramount issues of concern
for the American Bar Association.
In response to the “surge” last summer, the Administration became determined to stem the flow of
unaccompanied children and families entering the country from Central America and responded with a
multi-pronged approach which includes expediting the processing of these children and families through
the system; dedicating additional enforcement and detention resources; coordinating among all
relevant federal agencies and engaging with foreign governments to discourage and deter illegal
immigration to the United States. 26 American officials have been encouraging the Mexican and
Guatemalan authorities to interdict youth and return them swiftly to their countries of origin. These
efforts have apparently had a significant impact, since the number of unaccompanied children entering
the United States at the Southwest border dropped sharply last year from a high of 10,622 in June to
2,424 in September. 27
Current Situation of Detained Families at the Border
Beginning last year, the Administration also vastly changed the manner it treats4, 20increasing numbers
the 16
28 ber 1
of families entering the United States, specifically women with children.em
DHS reported that between
Sept
d on family units of mainly women with
October 1, 2013, and September 30, 2014, CBP apprehended e
rchiv 68,445
38 a
357a 361% increase. 29 During fiscal year 2015, this
at least one child as compared to 14,855 in FY 15. 2013,
, No
ynch 30% compared to FY 2014. DHS reports that from October 1,
number has also dropped significantly, by
v. L
F.M.
n J.
2014 through Marchted i 2015, a total of 13,911 individuals in family groups entered the U.S. in
31,
ci
comparison to 19,830 during the same period in FY 2014. Until last summer, these families would
generally be placed in removal proceedings, released on their own recognizance and directed to appear
in immigration court at a future date. In an effort to deter additional migration of family groups, in late
June 2014, the government opened a new family detention facility at a federal law enforcement training
center in Artesia, New Mexico, situated in a very remote and difficult-to-access area of the state, with
the closest lawyers who could represent the detainees more than a three-hour drive away. Due in part

Newark, Memphis, San Francisco (over 600); Boston and Orlando (over 500); Dallas (over 400); Atlanta and Chicago
(over 300); Cleveland, Omaha, San Antonio, Philadelphia and Kansas City (over 200).
25
See ACLU press release here.
26
Written testimony of FEMA Administrator Craig Fugate, CBP Commissioner Gil Kerlikowske, and ICE Principal
Deputy Assistant Secretary Thomas Winkowski for a Senate Committee on Homeland Security and Governmental
Affairs hearing titled “Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in
Apprehensions at the Southern Border,” July 9, 2014, available here.
27
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: The Tensions Between Protection and
Prevention, Migration Policy Institute, Executive Summary, April 2015, available here.
28
Julia Preston, As U.S. Speeds the Path to Deportation, Distress Fills New Family Detention Centers, N.Y. Times,
Aug. 5, 2014, available here.
29
See U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children, available here.

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to major problems with conditions at this facility, it was closed in December of 2014 and the mothers
and children were transferred to detention centers in South Texas.
In August 2014, ICE opened an additional family detention facility in Karnes City, Texas, and plane loads
of women and children have been deported to Central America from family detention facilities with
little or no due process. In December 2014, another family detention facility was opened in Dilley,
Texas, 70 miles southwest of San Antonio, Texas, with plans to reach 2,400 beds in the near future. This
would increase the number of newly-created beds for families to over 3,500 and require the
deployment of additional Asylum Officers and Immigration Judges. Hearings at these facilities are held
by videoconference presided over by judges in courtrooms who may be many hundreds of miles and
several time zones away. The government may be represented by counsel located in alternative
locations. The ABA expressly opposes video-conference hearings involving children and strenuously
opposes denial of access to counsel and deprivation of due process rights. 30 The Karnes facility and the
Dilley facility are both operated by private contractors, the GEO Group, Inc. and Corrections Corporation
of America, respectively. The ABA President recently wrote a letter to DHS Secretary Jeh Johnson
expressing concern over the recent expansion of immigration detention, including the detention of
women and children seeking asylum. 31
DHS initially insisted on continued mandatory detention even after the families were found to have
16
established a “credible fear” of return to their home countries, a determination4, 20
indicating a significant
ber 1
m
possibility of qualifying for asylum or withholding of removal and n Septe
permitting them to proceed with
do
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seeking relief before the immigration court. 32 The government persists in its contention that there is no
8 arc
3573
. 15right to counsel at either the “credible fear”ointerview or at a hearing before the immigration judge to
,N
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review a negative “credible. fear” v. L
M. finding. It also persists in its position that there is no right to
J F.
d in
eany stage of the immigration removal process. 33 For several months the
appointed counsel cit
at
government also strenuously opposed release on bond/parole making arguments that these women and
children posed indirect national security risks by focusing enforcement resources away from more direct
threats at the border. The government also resorted to a “no bond” policy as a deterrent effect to other
potential migrant families. The ACLU Immigrant Rights Project and others filed a lawsuit challenging
these practices on behalf of detained women and children who had passed a “credible fear” interview.
On February 20, 2015, a U.S. District Court in the District of Columbia granted a preliminary injunction
against the government for denying bond based on deterrence arguments in RILR v. Johnson. Since the
issuance of this order, ICE has begun to issue bonds, generally set at $7,500 to $10,000, amounts the
families often cannot pay.
Reasons for the Recent Exodus
30

Standards For the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied
Alien Children In the United States, Section VIII (B)(2)(b), Adjudication of Claims of Children, ABA Comm. on
Immigration, Aug. 2004, available here.
31
ABA letter from President William Hubbard to DHS Secretary Jeh Johnson dated March 26, 2015, available here.
32
8 U.S.C. § 1225(b)(1).
33
8 U.S.C. § 1229(b)(3).

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The vast majority of the children who arrived in the 2014 surge came from three countries: El Salvador,
Honduras and Guatemala, a region in Central America known as the “Northern Triangle.” In contrast, the
number of children entering from Nicaragua is minimal and the number from Mexico has remained
relatively constant over the past several years. Why have so many children left the Northern Triangle
countries of Central America and for what reasons? The answers are complicated and varied; although
there is no doubt that the extraordinarily high incidence of violence from gangs and international
criminal organizations is a major factor. 34 Sonia Nazario, an award-winning journalist who has
researched and written extensively on the conditions that spur Central American children to travel to
the United States, wrote an Op-ed piece published in the New York Times claiming that violence, not
poverty, is the main reason for the recent exodus of children. 35 When comparing the numbers of
children arriving annually by nationality, it is clear that the decrease in numbers in FY 2015 is made up
almost exclusively in a drop in arrivals of children from El Salvador and Honduras, but not Guatemala or
Mexico. 36 This is an interesting observation that most likely has more to do with effective prevention,
interdiction and deportation efforts in Central America and Mexico than any improvement in county
conditions in El Salvador and Honduras.
Since 1989 the ABA has operated a pro bono project on the Texas/Mexico border called ProBAR, the
South Texas Pro Bono Asylum Representation Project. ProBAR provides legal information and pro bono
representation to indigent, detained adults and unaccompanied children in the Rio 016
Grande Valley of
2
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lower South Texas. Many of the children represented by ProBAR describe having
ber
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threatened and recruited by gangs or drug cartels and orderedd o participate with these groups under
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38 a
the threat of death. Others have been extorted5and7ordered to pay large sums of money or they or their
5
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h, Young girls are claimed as “girlfriends” by gang members and
family members will be harmed or killed.
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told they will be killed ifin J. Fdon’t surrender. Children describe how gang members wait for them
they .M
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outside of their schools in order to recruit new members and/or charge regular “fees.” Entire
neighborhoods are controlled by rival gangs and innocent families and small business owners must pay a
“war tax” or “rent” to the controlling gang. The authorities either cannot or will not control the gang
violence and so the gangs have effectively gained control over large parts of these countries, especially
poor, urban areas. While large numbers of children are targeted personally for gang violence, even
those who have not been targeted fear they will be targeted in the future. Other children represented
by ProBAR describe being victims of domestic violence, trafficking, exploitation and neglect. Some
children leave their countries with the expectation of supporting their parents and siblings living in
abject poverty back home; families may even mortgage the only home or piece of land they have to
borrow the money for the child’s trip. Currently, there are very few safety nets for vulnerable children
in Central America and traveling to the United States is perceived as one of the only ways to escape
danger, poverty and violence.

34

Frances Robles, Fleeing Gangs, Children Head to U.S. Border, N.Y. Times, July 9, 2014, available here:
Sonia Nazario, Op-Ed., A Refugee Crisis, Not an Immigration Crisis, N.Y. Times, July 11, 2014, available here.
36
Migration Policy Institute webinar March 31, 2015, …..
35

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These Central American countries all were impacted by civil wars in the 1980s and 1990s and continue
to be plagued with insecurity, impunity, devastated economies and a weak and corrupt law enforcement
system. Honduras has one of the highest murder rates in the world, 90 murders per 100,000 residents,
as compared to 5 murders per 100,000 residents in the United States and 15 per 100,000 residents in
Chicago. 37 Honduras’s second largest city, San Pedro Sula, where many unaccompanied children come
from, has been dubbed the “world’s murder capital” at 173 murders per 100,000 residents. 38
Meanwhile, in El Salvador, the two-year gang truce fell apart in 2014 and in March 2015 there were 481
reported homicides, more than 15 per day, positioning El Salvador to surpass Honduras as the deadliest
peace-time country in the world. 39 Furthermore, economic conditions are dismal and the average salary
for a professional is about $150 a month. As a result of these conditions and natural disasters including
Hurricane Mitch in 1998 and an earthquake in El Salvador in 2001, many adults including parents fled for
the United States seeking safety, protection and employment and have remained in the U.S. for 5, 10, or
15 years and more, working and sending money back home while their children are left behind, being
raised by aging grandparents and other extended family members.
The failure of comprehensive immigration reform is another factor that has led to increased migration of
children. Many Central American parents who came to the United States five, ten or fifteen years ago
continue to live in the United States without legal status. The failed effort at immigration reform has
caused some parents to lose hope that they will ever be able to travel back to their016
countries legally and
14, 2
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out of desperation some have paid smugglers thousands of dollars to bringbtheir children to the United
ptem
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States. Sometimes elderly caregivers in the home country can d o longer
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38 a
or have passed away. Children without adequate 57 supervision are often targets for gangs and drug
adult
15-3
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h,is time to leave on their own, determined to join their parents
cartels. In other cases, children decidecit
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and U.S.-born siblings inin J United States.
the
cited

The fact that it has become easier and quicker to reunify with family members is another factor that
relates to the increase in numbers. Human smuggling is a lucrative business and smugglers are quick to
recognize the patterns in detention and reunification policies and use them to their advantage. They
portray “release on recognizance” or “reunification” as a “permiso,” or “permit” to enter the United
States, although the “reunification” process is only a temporary authorization to allow children to
remain in the United States during the pendency of their removal proceedings. The children have no
right to work and no automatic right to any permanent status. Children, like adults, who fail to appear
for their removal proceedings will receive an in absentia removal order and eventually ICE will process
their removal.
Access to Counsel and Due Process Concerns

37

Danny Vinik, Honduras’s Murder Rate is Six Times Worse Than Chicago’s. How Can We Send Children Back to
That? New Republic, July 10, 2014, available here.
38
Id.
39
Marcos Aleman and Alberto Arce, Homicides in El Salvador Reach Record as Gang Violence Grows, Yahoo.com,
April 9, 2015, available here.

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While there are limited options for people to remain legally in the United States when they enter
without authorization, it is widely understood that an individual is much more likely to prevail in
immigration court if he or she is represented. 40 A recent study focusing on the success rates of children
in removal proceedings demonstrated that 73% of represented children were granted the right to
remain in the United States as compared to 15% of unrepresented children. 41 On the other hand, the
Immigration Court system is so severely backlogged and under-resourced that it often takes years to
complete a single case. Immigration Judges can carry a 2000+ annual case docket. Congress has
continually funded increased enforcement efforts but has failed to increase resources needed to
adequately adjudicate these cases in a timely and efficient manner. Currently, the adjudication system
receives a paltry 2% of the resources dedicated to the national immigration enforcement budget.
Recently, as an additional effort to prioritize the processing of children’s cases, the Executive Office for
Immigration Review began to expedite the cases of unaccompanied children who were released from
detention and reunified beginning in May 2014. These “rocket dockets” require children’s cases to be
set for an initial master calendar hearing within 21 days of release from detention. These expedited
proceedings raise significant due process concerns and have resulted in confusion for the children and
their families and problems related to proper notice and lack of access to counsel in immigration court. 42
While the initial master calendar hearings are required to be expedited, the Chief Immigration Judge
recently clarified that the Immigration Judges are free to use their discretion to allow 6
adjournments in
01
43
14, 2
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subsequent hearings as necessary.
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Legal Relief: Refugee or Immigrant?

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Sep

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There has been much debate in .theLync about whether these individuals are refugees or simply
v. media
F.M
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migrants. A refugeetedsomeone who is outside of his or her country of nationality and is unable or
is i
ci
unwilling to return because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion. 44 An immigrant
generally migrates for economic, family or other reasons. This distinction makes a difference because
someone who meets the definition of refugee qualifies to be granted asylum, but besides asylum, there
is very limited legal relief for migrants who enter the country without authorization.

40

See New York Immigrant Representation Study, Accessing Justice the Availability and Adequacy of Counsel in
Immigration Proceedings, Dec. 2011, available here.
41
See, Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration
Court, Nov. 25, 2014, available here.
42
John Fritze, Immigration Court Speeds Review of Cases Involving Children, The Baltimore Sun, August 20, 2014,
available here.
43
See, Brian M. O’Leary, Chief Immigration Judge, Executive Office for Immigration Review, Docketing Practices
Relating to Unaccompanied Children Cases and Adult with Children Released on Alternatives to Detention Cases in
Light of the New Priorities, Mar. 24, 2015 available here
44
8 U.S.C. § 1101(a)(42)(A).

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The UNHCR, in a recent report, found that 58% of the children interviewed in a 2013 study raised actual
or potential legal protection concerns. 45 This signifies that more than half of the children have personal
situations of danger, abuse or neglect that may make them eligible to apply for asylum or another form
of relief such as the Special Immigrant Juvenile visa. This does not mean that 58% of the children will
ultimately win legal relief. The United States does not always interpret its asylum laws as broadly as
recommended by the UNHCR. It is difficult to win an asylum case, especially in the adversarial
Immigration Court system (unaccompanied children have the right to apply for asylum before the
Asylum Office in a non-adversarial process). Many of the gang cases are ultimately denied by
Immigration Judges and Courts of Appeal, finding that they do not meet the legal standard for asylum.
Again, in order to qualify for asylum an applicant must show that he or she suffered past persecution or
has a well-founded fear of future persecution based on race, religion, nationality, political opinion or
social group. 46 If someone presents a fear that is not based on one of these five protected grounds, it
will be denied, even if credible. That is often what happens with many of the gang-based cases; they are
found credible, but the judges hold that the fear is not based on one of the five protected grounds.
Some advocates have called for the granting of Temporary Protected Status (TPS) for Central Americans
who are in the United States without authorization. TPS is a status designated by the executive branch
to authorize a temporary stay in the United States due to ongoing armed conflict, a natural disaster or
other extraordinary conditions that temporarily prevent foreign nationals from returning safely. 47 This
6
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would be one way to relieve the courts of having to adjudicate the majority er 14
b of these cases and give
m
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people the opportunity to support themselves while they remain n S United States. Other advocates
d oin the
hive
8 arc
have argued for the creation of legal vehicles including humanitarian visas that would allow imperiled
3573
. 15, No
children with family in the United Stateshto travel legally to the United States. 48
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ed in

F.M.

v.

2. ABA Response: Past and Present
cit
Establishment of ABA Working Group on Unaccompanied Minor Immigrants
In response to the increasingly compelling humanitarian situation occurring at the southwest border, in
July 2014, the Commission on Immigration organized a tour for its members and ABA leadership to the
Lackland Air Force Base in San Antonio, Texas, where 1,200 children were being held and processed for
reunification. 49 ABA President William Hubbard and Past-President James R. Silkenat joined Commission
Chair Christina Fiflis, Commission Director Meredith Linsky and thirteen others to visit this emergency
facility as well as several traditional children’s shelters and the San Antonio Immigration Court.
Subsequently, in August 2014, President William Hubbard established a Working Group on
Unaccompanied Minor Immigrants to address the urgent crisis presented by these children and to

45

See United Nations High Commissioner for Refugees, Children on the Run, Mar. 2014, available here.
8 U.S.C. § 1158(b)(1).
47
8 U.S. C. § 1254a(b)(1).
48
Donald Kerwin, Why the Central American Child Migrants Need Full Adjudication of Their Protection Claims, The
Huffington Post, July 19, 2014, available here.
49
As of August 2014, this facility is no longer being used to detain unaccompanied children.
46

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mobilize the full resources, talent and experience of ABA members to meet this challenge. The Working
Group is comprised of ABA members representing a broad cross-section of ABA sections, divisions,
committees and commissions who are working to address this crisis. The Working Group is tasked with
developing and implementing an immediate response to the need for trained lawyers to take on these
immigration cases on a pro bono basis, as well as developing a collaborative and effective plan for how
the ABA can contribute to coordination of the efforts among the various entities already committed to
this issue and developing new service opportunities and resources as needed.
ABA Background on Serving Immigrants and Asylum-Seekers on the Texas Border
In 1989, the ABA, in collaboration with the State Bar of Texas (SBOT) and the American Immigration
Lawyers Association (AILA), created ProBAR, the South Texas Pro Bono Asylum Representation Project,
in Harlingen, Texas. This effort arose out of a response to a similar crisis when there were over 5,000
Central American adults and families detained in South Texas fleeing from war-torn nations in Central
America and seeking safety and protection in the United States. At that time, the ABA, SBOT and AILA
joined forces in order to recruit and train pro bono lawyers to represent detained Central American
asylum-seekers in South Texas. Initially, the project was comprised of just one attorney and a volunteer
paralegal. Today, ProBAR has almost 40 staff members in two offices in Harlingen that focus on
providing “Know Your Rights” presentations, legal screening services and pro bono representation to
2 16
adults and unaccompanied children in detention throughout the Rio GrandeeValley.0
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In 2014, ProBAR served 10,403 detained unaccompanied rchildren and 1,981 detained adults. In 2011,
hive
8ac
3573 Rio Grande Valley and each child was detained
there were 369 beds for unaccompanied children in the
. 15, No
ynch are over 1,600 beds in South Texas, and children rotate in and
an average of 45 to 60 days. Today L
. there
M. v
J. F.
n to 30 days. ProBAR is charged with providing “Know Your Rights”
out an average of every i7
cited
presentations to detained children and adults, individual screenings and pro bono representation and
referrals for those with identifiable relief. Approximately 90% of the children will be reunified with
family or friends in the United States pending their hearings, but they must return to immigration court
and defend against a removal order. They travel all over the United States in order to reunify and
according to the government, have no right to appointed counsel in the immigration court process. If
they don’t return to immigration court when scheduled, they will receive an in absentia removal order.
ABA Project Serving Immigrants and Asylum-Seekers on the California Border
In 2008, the ABA created the Immigrant Justice Project (IJP), a pro bono project located in San Diego,
California. The mission of the IJP is to promote due process and access to justice at all levels of the
immigration and appellate court system, through the provision of high-quality pro bono legal services
for those in immigration proceedings in San Diego. The IJP serves both detained and non-detained
individuals, and recruits, trains and mentors volunteer attorneys and law students to represent
individual clients. IJP does not focus specifically on unaccompanied children, but does specialize in
representing detainees with diminished mental capacity, asylum-seekers and others.
ProBAR “Know Your Rights” and Screening Video

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The Commission, through the ProBAR project, has produced multiple training videos for attorneys and
paralegals who are serving unaccompanied children in the initial detention setting. Currently there are
approximately 100 shelters and foster care programs around the country with a total capacity of 7,284
beds where ORR holds children who are being processed for reunification. ProBAR staff members have
years of experience providing specialized “Know Your Rights” presentations and screening services to
detained children. In 2014, ProBAR staff filmed four videos related to working with Central American
children. These videos are currently available at the Commission on Immigration website. 50
ABA Advocacy Efforts
Additionally, the ABA is engaged in advocacy efforts with the Administration and Congress. The ABA has
adopted numerous policies that address unaccompanied alien children.
In 2001, the ABA adopted a policy that urges: 1) government appointed counsel for unaccompanied
children at all stages of immigration processes and proceedings: 2) creation within the Department of
Justice of an office with child welfare expertise that would have an oversight role and ensure that
children’s interests are respected at all times; 3) that children in immigration custody who cannot be
released to family or other sponsors should be housed in family-like settings, and not detained in
facilities with or for juvenile offenders.
6

, 201

In 2004, the ABA adopted the Standards for the Custody, Placement and mber 14
Care; Legal Representation; and
pte
n Se
Adjudication of Unaccompanied Alien Children in the UnitedvStates. These Standards were developed
ed o
rchi
38 aand cover myriad issues related to specific
by the Commission on Immigration’s predecessor3entity
- 57
o. 15
h, N
rights of child respondents, representation of children, and the standards for the custody, placement
ync
. v. L
and care of unaccompanied F.M children, rights of children in custody and adjudication of child claims.
. alien
in J
cited

On June 25th, 2014, Past President Silkenat submitted a statement to the Judiciary Committee of the
U.S. House of Representatives regarding the surge of unaccompanied children.
On March 26, 2015, President William Hubbard sent a letter to DHS Secretary Jeh Johnson expressing
concern about expansion of immigration detention, including detention of women and children seeking
protection as refugees.
GPSolo/KIND Pro Bono Training Sessions
A significant effort to support legal representation of unaccompanied minors was commenced in June,
2011 when the ABA Board of Governors authorized GPSolo Division to partner with Kids in Need of
Defense (KIND), a private non-profit that helps provide competent and compassionate legal counsel to
unaccompanied minors in the US immigration system. The ABA-KIND partnership has developed over
the years, with the ABA providing training venues, on-line resource materials and a pool of volunteers,
and KIND matching up trained volunteers with cases, mentors and guidance.

50

The training videos are available here.

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Since starting in 2011, the ABA-KIND partnership has trained lawyers in numerous cities, during standalone meetings conducted by ABA GPSolo, Tort Trial and Insurance Practice Section and Business Law
Section. The ABA-KIND partnership website is hosted by GPSolo but is open to all and includes a free
(open access) 2-hour CLE accredited webinar and 6 x ½ hour podcasts, along with written training
materials: http://www.americanbar.org/groups/gpsolo/initiatives/kind.html. That site also has a short
information video about KIND and a direct link to volunteer with KIND to take on a case. This
partnership and more information from KIND is described in Laura Farber’s January 2012 article for
GPSolo Magazine,
see:http://www.americanbar.org/publications/gp_solo/2012/january_february/chairs_corner_helping_
kids_need_defense.html
3. How to Help Now
For ABA members and others who want to help now, there are a number of options:
Volunteer to Represent an Unaccompanied Child through the ABA Immigrant Child Assistance
Network
If you would like to help by representing a child who is currently in removal proceedings, you can enroll
at the ABA website at: www.ambar.org/ican. Attorneys who register will be matched with a legal
6
, 201
service provider in their geographical area to be paired with a child client. ber 14 videos and other
Training
em
Sept
resources are available at this site and at the ABA partner siteewww.UACresources.org.
d on
iv
h

8 arc

573
15-3

Volunteer with or Donate to ProBAR inh, No.
Harlingen, Texas or the IJP in San Diego, California

nc
v. Ly
F.M.
.hiring additional attorneys and paralegals for temporary and permanent
ProBAR is in the processin J
of
cited

assignments. If you or someone you know might be interested in a position, contact Kimi Jackson or
Meghan Johnson listed below. At this time, ProBAR’s Children’s Project can only accept volunteers who
are proficient in Spanish, can commit to staying at least one month and are available to help screen and
represent children at one of the 15 shelters in the area. To contact ProBAR you may e-mail the Director,
Kimi Jackson at [e-mail] or the Manager of the Children’s Project, Meghan Johnson
at [e-mail]. For more information visit ProBAR’s Children’s project website
link: www.ambar.org/probarchildren.
If you do not meet the criteria to volunteer, you may still support this work by making a contribution to
ProBAR or the IJP through the ABA’s Fund for Justice and Education at the following link:
https://donate.americanbar.org/immigration
Attend Trainings on Representing Unaccompanied Minors Presented Throughout the Country
For a list of upcoming live trainings see the “Training” link at the Unaccompanied Children Resource
Center website here. You can watch a six-part training entitled “The ABCs of Representing
Unaccompanied Children in Removal Proceedings” at the Commission website here.

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Volunteer to Represent Detained Families with the CARA Family Detention Pro Bono Project in San
Antonio, Texas
Four organizations have recently come together to develop a pro bono program to provide
representation to families detained by ICE in South Texas at the Dilley and Karnes family residential
centers. These organizations include the Catholic Legal Immigration Network, American Immigration
Council, Refugee and Immigrant Center for Education and Legal Services and American Immigration
Lawyers Association. The project asks volunteers to commit to a week-long stay from Sunday through
Friday. They are currently seeking volunteer attorneys through September 2015. For more information
on this program click here.
Donate Toward Social Service Efforts
If you would like to donate toward serving those who have been released you can review the following
websites of agencies that are providing support to newly arrived Central Americans in the Rio Grande
Valley, the area where ProBAR is located.
La Posada Providencia, a shelter run by the Sisters of Divine Providence:
http://lppshelter.org/
The Sacred Heart Church in McAllen is serving released families:
http://sacredheartchurch-mcallen.org/immigrant-assistance/

d on

Share Your Ideas

38

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temb

Sep

ch
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M. v Group are interested in working collaboratively with ABA entities and
The Commission and the Working
F.
in J.
cited

other stakeholders. Please feel free to contact us with your ideas and plans to address this compelling
situation.
For more information, contact:
Christina Fiflis, Chair, ABA Commission on Immigration, [e-mail]
Meredith Linsky, Director, ABA Commission on Immigration, [e-mail],
202-662-1006.
Mary Ryan and Christina Fiflis, Co-Chairs, Working Group on Unaccompanied Minor Immigrants,
[e-mail]; [e-mail].

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N.Y. / REGION

Immigration Crisis Shifts From Border
to Courts
By LIZ ROBBINS

AUG. 23, 2015

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F.
Brayan, 16, at the Central American Refugee Center in Hempstead, N.Y. Brayan fled El Salvador and entered the United States
in J.
cited
last year. Andrew Renneisen for The New York Times
SEE MY OPTIONS

As low as 99¢ for 4
weeks.

Wearing Vans shoes and rubber-band bracelets, hair gel and shy smiles, the
brothers Brayan and José looked like typical teenagers.
But the story they told of their turbulent past year revealed just how far from
typical they have traveled.
In separate trips, the boys said, they left El Salvador to avoid being recruited
by violent gangs and trekked across two countries. They were caught by
United States Border Patrol agents in Texas in 2014 and sent to different
detention centers for several weeks before being reunited in Elmont, N.Y.,
with their father, Arturo. They had not seen him in 10 years.
“That’s why I brought them one at a time,” Arturo said in Spanish at the
Long Island offices of the boys’ immigration lawyer, “because if something
happened to one, at least I would have the other.” The family requested that
its last name not be used because of its legal status.

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Like thousands of other children who fled the violence gripping several
Central American countries, Brayan, now 16, and José, 15, arrived safely in
the United States only to spend the next 13 months navigating the justice
system to prove they have a right to stay.
They have missed many days of school to appear in federal immigration
court and state family court, have helped their father complete a pile of
paperwork taller than they are and have contended with bureaucratic
requirements that seemed endless.
Last summer, President Obama declared a crisis along the border with
Mexico in response to the tens of thousands of unaccompanied children
coming into the country. Detention centers in Texas overflowed, prompting
the federal Department of Homeland Security to open emergency shelters.
Political tempers boiled over — Rick Perry, who was the governor of Texas,
ordered 1,000 National Guard troops to defend the border. The Obama
administration created a priority juvenile docket in immigration courts to
speed up deportation proceedings.
One year later, the number of children arriving at the border has sharply
2016
decreased, in part because Mexico has been returning children to their ber 14,
home
em
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countries before they can reach the United States.
d on
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But the crisis has not ended. It has simply ,shifted. It is playing out in
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courtrooms crowded with d in J. F.defendants but lacking lawyers and judges
young
cite
to handle the sheer volume of cases. Thousands of children without lawyers
have been issued deportation orders, some because they never showed up in
court.
“The situation last summer was characterized as part of the overall
immigration system being broken, and it’s taken us down the wrong policy
path,” said Wendy Young, the president of Kids in Need of Defense, a
national legal advocacy group. “This is not an immigration crisis; it’s a
refugee crisis.”
About 84,000 children were apprehended at the Southwest border during
the 2014 fiscal year and the first six months of the 2015 fiscal year,
according to the Border Patrol. Of the 79,088 removal cases initiated by the
government, 15,207 children had been ordered deported as of June,
according to the Migration Policy Institute, a nonpartisan research group in
Washington.
While a small percentage of children have been granted asylum, most are
seeking relief from deportation by applying for special immigrant juvenile

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status, federal officials said. And yet, rather than their claims being
expedited, 69 percent of the children on the priority docket still have cases
pending, statistics show.
The burden is far more difficult for children if they do not have a lawyer — a
right not granted to defendants in immigration courts — especially because
of the accelerated time frame the government established for their cases.
After being released to a sponsor, usually a relative, they are on the clock:
They are required to make their first court appearance within 21 days of the
court’s receiving their case to contest their deportation.
New York Advantage
By all accounts, there are legal advantages for child immigrants in New York
City that do not exist in other parts of the country where they settled in large
numbers, including Los Angeles, South Florida and the Houston area. Last
summer, nonprofit agencies and pro bono lawyers formed a coalition at the
federal court in Lower Manhattan, backed by $1.9 million in financing from
the City Council and private philanthropy, to help those without lawyers.
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Elicia, 17, with her mother in the Bronx. Elicia was scheduled to be deported last year, but a lawyer won her special juvenile
cited
status. James Estrin/The New York Times

Although the Council said the coalition took on 648 cases of the 1,600
children screened at 26 Federal Plaza, not all were from the five boroughs
and only those children in New York City were eligible for free assistance.
Even then, only those who were most likely to win relief could be helped.
“We may have it a little under control in New York City,” said Jojo Annobil,
director of immigration for Legal Aid, “but it’s not under control in Long
Island,” where, along with Westchester County and the lower Hudson
Valley, large numbers of the children have also settled.
It is a disparity that underscores the contentious divide over what to do
about the country’s 11 million undocumented immigrants.
Federal officials defended their approach. Gillian Christensen, a
spokeswoman for United States Immigration and Customs Enforcement,
said the agency’s lawyers work “with advocates for the children, to ensure

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that these cases are processed in as expeditious and fair a manner as
possible.”
But Mark Krikorian, the executive director of the Center for Immigration
Studies, a Washington research institute that supports tighter controls on
immigration, said the process for asylum or special immigration status
served as a “rationale for family reunification” and is inherently flawed.
“It’s not that it should be more convoluted; it’s that the standards should be
higher,” Mr. Krikorian said. “You’ve got family court judges deciding U.S.
immigration policy.”
Winding Path in Courts
On a recent day on the 14th floor of 26 Federal Plaza, lawyers bustled
around with files, holding hushed and rushed conversations in Spanish with
their clients. Inside the courtrooms, the judges presided like school
principals; they praised some children for their good grades and implored
those without lawyers to seek help on the 12th floor.
More than a dozen of the teenagers who came to New York City and Long
16
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Island recounted their hardships — adjusting to living with estrangedm
e
Sept
d on
parents, learning English, taking tests. They asked not archive their full
to have
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names published because of their undocumented status.
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Of the two main paths toted in J
ci winning relief from deportation, asylum is the
most straightforward, but also the most difficult to obtain. Children must
persuade a federal asylum officer that they face life-threatening persecution
based on race, religion, nationality or membership in a political or social
group.
Because those cases are difficult to prove, many children instead seek relief
under special immigrant juvenile status, provided they can show they were
abused, neglected or abandoned by one or both parents.
The process requires going through three entities for approval: federal
immigration court, state family court and the federal citizenship agency.
“It means that no one entity in the process can crack the whip or control the
flow,” said Lenni Benson, a professor and director of the Safe Passage
Project at New York Law School, which mentors volunteer lawyers working
on youth immigration cases.
Complex Journey

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Brayan and José’s case shows just how complex the journey can be.
They must prove to the family court that they cannot return to El Salvador
because one parent abandoned them there. The court must also approve of
their guardian — even if, as in the case of Brayan and José, the guardian is
their father.
Their father, Arturo, must try to get consent to be the guardian from the
boys’ mothers — who he said each abandoned her son in El Salvador.
Different lawyers are handling different parts of the case. David Williams,
31, an immigration lawyer from the Central American Refugee Center, a
nonprofit legal provider in Hempstead, N.Y., is preparing their case for
federal court. He acted as a liaison for Janet Millman, who represented the
brothers in family court in Nassau County and was appointed by the state’s
Attorneys for Children panel, which provides legal services for children in
family courts.

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From left, José, Brayan and Arturo in their lawyer’s office in Hempstead, N.Y. Andrew Renneisen for The New York Times

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 60 of 69
Mr. Williams and Ms. Millman tried to notify both mothers of their son’s
hearings. Neither woman responded from her last known address.
The judge then requested that they put advertisements in newspapers in the
United States and in El Salvador, and provide copies of the papers. Still,
there was no word from either mother.
Arturo, 44, also had to list every address he has had for the last 28 years so
New York State, according to immigration lawyers, can investigate whether
he has ever lived with a sex offender.
Although Arturo is an undocumented immigrant, the family court required
that he be fingerprinted, along with other members of the household. And
when one member moved, the entire household was required to be
fingerprinted again.
“It’s confusing,” Arturo said, “and there are times that I’ve had to redo
paperwork.”
016

Finally, when the lawyers had submitted all of the documentation to theer 14, 2
b
ptem
n Se
court and the family appeared in July, the judge postponed ed o decision
her
rchiv
38 a
because she had an unusually full caseload. 15-357
o.

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Too Few Lawyers

in
cited

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M

J. F.

Arturo, a car washer, was lucky to get a lawyer at the Central American
Refugee Center. Had he arrived weeks later, the organization would have
turned the family away because all four of the group’s immigration lawyers
had hit their maximum number of 40 cases.
“I don’t want to sound coldhearted,” said Patrick Young, the program
director of the organization, “but we can’t handle it.”
Atlas: DIY, a community-based group serving immigrant children in
Brooklyn, stopped taking clients three months ago. To make the most of her
resources, the one lawyer on staff, Rebecca McBride, 30, must turn away
children whose cases she deems too hard to win because they do not qualify
for relief.
She took the case of Elicia, a 17-year-old from Honduras, soon after she was
ordered deported in absentia last October.
“For me, it was all over,” Elicia said in Spanish. “I didn’t know if they were
going to get me at home or at school.”

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When she arrived in July 2014, Elicia did not go to her immigration
hearings because friends warned her she could be deported just by showing
up in court. But Ms. McBride reopened the case and argued for Elicia to get
special juvenile status because her father had neglected and abandoned her.
With three days to spare, the judge terminated Elicia’s deportation order.
For more than a year, Brayan and José lived in a similar limbo. It was still
better than living in El Salvador.
“These two kids couldn’t go to school, ” Ms. Millman said. “They didn’t know
whether they were going to be dead the next day. Their life was worth not a
whole lot. They came because they want to live.”
Last week, a family court judge in Nassau County granted a special findings
order, determining that both boys were eligible to receive special immigrant
juvenile status.
But they are not in the clear. They still must submit an application for the
status to the United States Citizenship and Immigration Services, which, if
approved, would entitle them to permanent residency. On Sept. 9, an
16
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immigration court judge in Manhattan will rule on whether to cancel m
e their
Sept
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deportation orders.
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“It is still a case that is not 100 percentywon,” Arturo said. “We still have to
.L n
M. v
F.
give it a little more effort.”d in J.
cite

Correction: August 25, 2015
An article on Monday about cases involving young immigrants and how
they have overwhelmed the court system misstated, in some copies, the
current status of two brothers who traveled from El Salvador to the United
States in 2014. A Nassau County family court judge found that the facts
were in order for the brothers, Brayan and José, to receive special
immigrant juvenile status, but their application must be approved by the
United States Citizenship and Immigration Services. The judge did not
grant them special immigrant status.

David Gonzalez and Isvett Verde contributed reporting.
A version of this article appears in print on August 24, 2015, on page A13 of the New York edition with the
headline: Immigration Crisis Shifts From Border to Courts. Order Reprints | Today's Paper | Subscribe

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FOR IMMEDIATE RELEASE

Friday, September 12, 2014

Justice Department and CNCS Announce $1.8 Million in Grants
to Enhance Immigration Court Proceedings and Provide Legal
2016
Assistance to Unaccompanied Children
r 14,

be
ptem
n Se (CNCS),
The Department of Justice and the Corporation for National and Community d o
e Service
rchiv
38 a $1.8 million in grants to
which administers AmeriCorps national service programs, has -357
awarded
o. 15
increase the effective and efficient adjudication of immigration proceedings involving certain
h, N
ync
. v. L
children who have crossed the U.S. border without a parent or legal guardian. The grants will be
. F.M
in J
disbursed through justice AmeriCorps and will enable legal aid organizations to enroll
cited
approximately 100 lawyers and paralegals to represent children in immigration proceedings. The
justice AmeriCorps members will also help to identify children who have been victims of human
trafficking or abuse and, as appropriate, refer them to support services and authorities responsible
for investigating and prosecuting the perpetrators of such crimes.

“The increasing numbers of unaccompanied children appearing in our immigration courts present
an urgent challenge: how best to conduct immigration proceedings more efficiently while
maintaining our commitment to following the procedures required by law and protecting the rights
of these children.” said Attorney General Eric Holder. “We are addressing that challenge by using
these funds to facilitate access to legal representation for some of the most vulnerable of these
children. By increasing the number of represented children, we will enhance the resources
available to both the children and the courts to better serve the administration of justice in all
cases.”

“Young immigrant children often enter the U.S. after a long and dangerous journey,” said CNCS
CEO Wendy Spencer. “This funding will enable organizations to engage AmeriCorps members in
providing critical support for these children, many of whom are escaping abuse, persecution, or
violence. As a result of this partnership, AmeriCorps will play a role in improving the effective and
efficient adjudication of these very difficult cases.”

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Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-2, Page 64 of 69
The grants were awarded to Equal Justice Works, Casa Cornelia Law Center, Catholic Legal
Services of Miami, Legal Services of South Central Michigan, the Massachusetts Immigrant and
Refugee Advocacy Coalition, the New York Immigration Coalition, and the University of Nevada
Las Vegas. Their programs will serve children in immigration court locations in Atlanta,
Baltimore, Boston, Charlotte, Chicago, Cleveland, Dallas, Denver, Detroit, El Paso, Las Vegas,
Miami, New York, Phoenix, San Antonio, San Diego and Seattle after justice AmeriCorps members
attend a national training program later this year. The training will include immigration laws and
regulations applicable to unaccompanied children; immigration proceedings practice and
procedure; ethics for professionals working with children and youths; and trauma-informed and
culturally-appropriate models of interacting with unaccompanied children.

“After more than a year of planning, we are pleased to see justice AmeriCorps taking flight,” said
Associate Attorney General Tony West, who oversaw the development and implementation of the
program for the Department of Justice. “The justice AmeriCorps program will address several
important goals: enhancing the efficacy and efficiency of our immigration courts; protecting
vulnerable populations; and increasing national service.”

“With the awarding of these grants, the Executive Office for Immigration Review (EOIR) will see
an increase in the representation of children in immigration court proceedings,” said EOIR Deputy
Director Ana M. Kocur. “This public-private partnership is the realization of creative government 16
, 20
thinking to increase efficiencies in the immigration courts.”
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For more information about the justice AmeriCorpsnprogram please visit:
ch, N
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http://www.nationalservice.gov/programs/americorps.
J. F.
ed in
cit

The justice AmeriCorps program is a strategic partnership between the Department of Justice and
the Corporation for National and Community Service to provide legal aid to vulnerable
populations. This particular program responds to Congress’ direction to the Executive Office for
Immigration Review “to better serve vulnerable populations such as children and improve court
efficiency through pilot efforts aimed at improving legal representation.”

EOIR is an agency within the Department of Justice. Under delegated authority from the Attorney
General, immigration judges and the Board of Immigration Appeals interpret and adjudicate
immigration cases according to U.S. immigration laws. EOIR’s immigration judges conduct
administrative court proceedings in immigration courts located throughout the nation. They
determine whether foreign-born individuals—whom the Department of Homeland Security
charges with violating immigration law—should be ordered removed from the United States or
should be granted relief from removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR’s Office
of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases.
EOIR is committed to ensuring fairness in all of the cases it adjudicates.

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The Corporation for National and Community Service is a federal agency that engages more than
five million Americans in service through its AmeriCorps, Senior Corps, Social Innovation Fund
and other programs, and leads the president's national call to service initiative United We Serve.
For more information, visit: www.nationalservice.gov.
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Updated April 28, 2016

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Executive Office for Immigration Review
FOR IMMEDIATE RELEASE

Wednesday, October 22, 2014

EOIR’s Office Of Legal Access Programs
16
4, 20
ber 1
The Executive Office for Immigration Review’s (EOIR) Office oftem
Legal
Sep
Access Programs (OLAP), formerly known as the Legald on
Orientation and Pro
ive
arch
Bono Program, was established in April -35738 improve access to legal
2000 to
. 15
Nincrease representation rates for foreigninformation and counseling and ,to o
ynch
v. L
born individuals appearing before the immigration courts and Board of
F.M.
n J.
i
ImmigrationdAppeals (BIA). OLAP is responsible for administering the
cite
Legal Orientation Program, the Legal Orientation Program for Custodians of
Unaccompanied Alien Children, and the BIA Pro Bono Project. OLAP also
coordinates EOIR’s Committee on Pro Bono, the Model Hearing Program,
and other initiatives which improve access to legal services for individuals
appearing before EOIR’s tribunals.
Legal Orientation Program
Since 2003, EOIR has carried out the LOP to improve judicial efficiency in
the immigration courts, and to assist detained individuals and others
involved in detained removal proceedings to make timely and informed
decisions. Under the LOP, EOIR contracts with non-profit organizations to
provide group and individual orientations, self-help workshops, and pro
bono referral services for detained individuals in removal proceedings. LOP
is operational mainly at detention sites, but it also serves certain sites with
non-detained individuals and certain family detention centers.
Independent analysis has shown that the LOP has positive effects on the
immigration court process: detained individuals make better informed and
more timely decisions and are more likely to obtain representation; and
cases are completed faster, resulting in fewer court hearings, less time spent
in detention and cost savings.

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Legal Orientation Program for Custodians of Unaccompanied
Alien Children
The Trafficking Victims Protection Reauthorization Act of 2009 tasked
EOIR and the Department of Health and Human Services' Office of Refugee
Resettlement to offer legal orientation presentations to the adult custodians
of unaccompanied alien children in EOIR removal proceedings. The goals of
the legal orientations include seeking to protect children from
mistreatment, exploitation and trafficking, as well as increasing the
appearance rates of these children in immigration court. In 2010, EOIR
launched the LOPC to meet these goals and to help increase pro bono
representation rates of unaccompanied alien children in immigration
proceedings.
EOIR has contracted with non-profit partners to carry out the LOPC at 14
sites nationwide. The LOPC providers offer services similar to those
provided under the LOP: general group orientations, individual
orientations, self-help workshops, and assistance with pro bono referrals.
Additionally, LOPC providers are able to assist with school enrollment and
make referrals to social services to help ensure the well-being of the child.
OLAP issues guidance to LOPC providers designed to assist them in
6
identifying victims of mistreatment, exploitation, and trafficking; protecting01
4, 2
ber 1
the victims from further harm; and connecting the victims to eptem social
S needed
d on
services.
hive
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15-3
In addition, since 2013, the LOPCNo. operated the LOPC National Call
ch, has
. Lyn
Center to assist in making appointments for custodians at one of the LOPC
M. v
J. F.
provider cited in and to provide telephonic assistance to custodians who
locations,
live outside the geographic areas in which LOPC is currently available. This
telephonic assistance includes legal orientations on the immigration court
process, as well as guidance in filing basic court forms, such as the change of
address and motion to change venue.
BIA Pro Bono Project
In 2001, EOIR and non-profit agencies developed the BIA Pro Bono Project
(the "Project"). Individuals in removal proceedings are generally not
entitled to publicly-funded legal assistance and, as a result, many appear
before the immigration courts and BIA without counsel. Agencies that
provide legal services to immigrants can face many obstacles in identifying,
locating and communicating with unrepresented individuals in time to write
and file an appeal brief. The Project helps overcome such obstacles. Through
the Project, OLAP assists in identifying certain cases based upon predetermined criteria. Once cases are identified and reviewed, their
summaries are then distributed by a non-profit agency to pro bono
representatives throughout the United States. Volunteers who accept a case
under the Project receive a copy of the file, as well as additional time to file
the appeal brief.
A ten-year review of the BIA Pro Bono Project, completed in February 2014,
demonstrated that the Project found counsel willing to accept the case for

LEADERSHIP

Juan P. Osuna
Director, Executive Office
for Immigration Review
CONTACT

Office of
Communications and
Legislative Affairs
703-305-0289
CASE STATUS

Automated
Case Information
Hotline
240-314-1500 or 1-800898-7180
Case status information
available 24/7
BIA CLERK'S OFFICE

Filing Information
703-605-1007
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RECORDS

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87% of cases screened between 2002 and 2011. Additionally, those who
were represented through the Project were more likely to have briefs filed
with their appeals than pro se respondents. Most significantly, an analysis of
the appeals before the Board between 2002 and 2011 showed those who
were represented through the Project were more likely to obtain a favorable
outcome in their cases than those who do not receive representation. This
was particularly the case for individuals who were detained. Since the
beginning of the Project, over 1,000 individuals have been represented by
pro bono counsel.
Model Hearing Program
The Model Hearing Program is an educational program developed to
improve the quality of advocacy before the court, as well as to increase levels
of pro bono representation. Model hearings consist of small-scale "mock"
trial training sessions held in immigration court and presented by
immigration judges. The training sessions, carried out in cooperation with
partnering bar associations and/or pro bono agencies, provide practical and
relevant "hands-on" immigration court training to small groups of
attorneys/law students with an emphasis on practice, procedure and
advocacy skills. Participants receive training materials, may obtain
Continuing Legal Education credit from the partnering organization, and
commit to a minimal level of pro bono representation. Since June 2001,
more than 60 model hearing training sessions have been held in
immigration courts nationwide. The Model Hearing Program Training , 2016
14
Manual contains detailed information on the content and structure berthis
m of
epte
S
program, as well as samples of past training sessions. ed on
iv
arch
38
-357
o. 15
Other Initiatives
ch, N
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. F.
Drawing citeinformational pamphlets developed by non-profit partners,
on d in J
throughout the nation's detention facilities, OLAP makes available 11 selfhelp guides. These guides, posted in English and Spanish, cover the most
common forms of relief, as well as information about bond and an overview
of immigration proceedings. The guides are generally accessible to detainees
in the facility libraries and are available on the OLAP website as well.
Additional resources:
American Bar Association Know Your Rights video
LOP Cost Saving Analysis report

- EOIR The Executive Office for Immigration Review (EOIR) is an agency within
the Department of Justice. Under delegated authority from the Attorney
General, immigration judges and the Board of Immigration Appeals
interpret and adjudicate immigration cases according to United States
immigration laws. EOIR’s immigration judges conduct administrative
court proceedings in immigration courts located throughout the nation.
They determine whether foreign-born individuals—whom the Department
of Homeland Security charges with violating immigration law—should be

FOIA Service Center
703-605-1297

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ordered removed from the United States or should be granted relief from
removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by
immigration judges. EOIR’s Office of the Chief Administrative Hearing
Officer adjudicates immigration-related employment cases. EOIR is
committed to ensuring fairness in all of the cases it adjudicates.
Executive Office for Immigration Review
Updated February 13, 2015

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