June 25, 2014: Statement submitted to the Committee on the Judiciary of the U.S. House of Representatives:

Since 2011, the Women's Refugee Commission has been closely monitoring the increasing number of refugee children coming to the United States to seek protection. As we predicted, without major changes in U.S. aid or foreign policy to the Central American region, the danger to children and families with young children would only increase and more and more vulnerable populations would need to flee their homes.

Beginning in October 2011, the United States has experienced a dramatic rise in unaccompanied alien children (UACs), particularly from the countries of El Salvador, Guatemala and Honduras. The number of unaccompanied children apprehended by U.S. Customs and Border Protection (CBP) jumped from 17,775 in FY2011 to 41,890 in FY2013.^[5] For the fiscal year 2014, beginning October 1, 2013 up through May 31, 2014, CBP has already apprehended 47,017 unaccompanied children just in the Southwest Border sectors alone.^[6] Particularly concerning is that the children making the difficult and treacherous migration journey are now younger than in years past (many under 13), and a higher percentage are girls, many of whom arrive pregnant as a result of sexual violence.^[7]

Why they are coming:

There has been a great deal of research into the root causes of this surge of unaccompanied children fleeing the region.  In 2012 we interviewed 161 children to find out why they were coming.  In our interviews, the children reported to us that they were predominately being pushed from their homes due to rising violence and insecurity in their home countries.  Moreover, almost every single child we spoke with reported having a good understanding of the dangers of trying to migrate through Mexico and into the United States without authorization.  They knew of the risks of kidnapping, rape, and even death.  The children we spoke with told us they felt like they would die if they stayed in their home country, and although they might die during the journey, they at least would have a chance. 

In 2013, the U.S. Conference of Catholic Bishops traveled to Central America to interview children who had tried to migrate to the United States.  Their report reaffirmed our findings that violence in the three countries of El Salvador, Guatemala and Honduras was the overriding factor leading to the migration of these children.^[8] One mother they spoke with told them that she knew her son might die on his journey to the U.S. but she preferred that he die trying to find safety, then on her doorstep.  

Most recently, in 2014, United Nations High Commissioner for Refugees (UNHCR) interviewed over 400 children who had left their homes countries.  Most children – even those who had a parent or family member with whom they wished to reunite – cited domestic abuse within the home, gang and cartel violence, deprivation of basic survival necessities, and labor and sex trafficking as the reasons for their migration.^[9]  Most significantly, UNHCR found that the majority of the children made statements indicating that they may be in need of international protection.

There have been numerous reports and claims by government authorities that many of these children or the family members who may try to help them migrate are being encouraged to undertake the dangerous journey by false promises from smugglers or inaccurate media reporting on U.S. policies that do not exist or that cannot benefit them.  But it is impossible for us to dispute the root causes that make these children desperate to leave their home countries and seek a safe haven.  No child or parent would agree to pay a dangerous smuggler to take a young child on such a harrowing journey if they did not feel it was the only option.  No promise of a tenuous and temporary status in the United States, such as administrative closure or Deferred Action for Children Arrivals (DACA), would encourage someone to risk their lives, or risk the lives of their child. It is the underlying severe conditions in Mexico and these Central American nations that is forcing this migration pattern, not the lure of intangible reform.

Furthermore, the facts do not support that rumors or U.S. policy with respect to these populations is what is encouraging the migration.  Nicaragua is the poorest country in the region.  At the same time Nicaragua, like El Salvador, Honduras and Guatemala, has a history of migration to the United States, resulting in many Nicaraguan children having family members in the United States.  Yet, we have not seen any increase in the number of Nicaraguan children arriving at the Southern border. The difference is that Nicaragua, as one of the safest countries in the region, is not experiencing the violence that is driving children from its three neighbors.    

The U.S. detention and treatment of unaccompanied children:

The United States has been a global leader in the way it has received and processed unaccompanied children seeking protection.  Since 2002, in accordance with international protection standards, the U.S. government has employed alternative models of detention for most children arriving on our shores who are waiting for adjudication of their immigration court processes.  As noted in our 2008 report, Halfway Home, we believe the government’s movement to more child appropriate custody models was an important advancement in the rights of these children and an effective way to enforce our immigration laws.  Although not a perfect system, ORR shelters and programs have strived to ensure the government considers the best interest of the child in detention, placement, and reunification decisions for the time a child is in deportation proceedings.

In recent months, the government’s intricate system of shelters, foster homes and secure detention facilities has been overwhelmed by the numbers of children in need.  In response, the government has modified its procedures to meet the goal of appropriate detention and care of these children.  Despite its best intentions, ORR has been unable to keep up with the demand on its resources.  As a result we have seen children warehoused in border facilities that were never intended to hold children for any length of time until more appropriate arrangements can be made.  We have seen our Customs and Border Protection agents, who have no special training on how to work with traumatized children, working overtime to screen and care for these children instead of carrying out other pressing law enforcement duties.

In our research, we have interviewed hundreds of children who have reported mistreatment, abuse or neglect at the hands of U.S. government officials during their detention. The most striking thing about these interviews is that despite unacceptable treatment, these children almost always remind us that they are still thankful to be in a country where they might have a future. Most recently, in June 2014, a group of civil, immigrant, and human rights organizations filed an administrative complaint on behalf of 116 children who had reported abuse and mistreatment while in CBP custody.[10] The complaint includes reports that children were shackled, subjected to inhumane detention conditions, had inadequate access to medical care, and were verbally, sexually, and physically abused. Additionally, a recent FOIA by the Houston Chronicle identified more than 100 incidents of sexual abuse of children in ORR shelters that were never referred for further criminal investigation.  The numerous reports and complaints of abuse of children in immigration custody highlight a need to address the oversight of places of detention where children are held.

The United States must remember that severe detention conditions have never been a deterrent against unauthorized migration anywhere in the world.  Holding children in border patrol stations for up to two weeks and denying them adequate nutrition or recreation only serves to harm them, not dissuade more from coming.  Harsh detention or deportation proceedings will not stop this migration flow, it will only violate long-standing U.S. protections afforded to children and other vulnerable migrants and greatly diminish America’s status as a humanitarian leader. 

U.S. detention and treatment of migrant and asylum seeking families:

Not all children arriving at the border are unaccompanied. Children also come to the United States with their parents. Since 2012, the number of families arriving at the southern border of the United States has increased significantly.  They are fleeing the same violence driving the unaccompanied children.

The vast majority of families arriving at the border are made up of women with very young children. Almost all are asylum seekers fleeing violence, including gang violence, organized crime and domestic violence. Just like unaccompanied children, the majority of families come from Honduras, Guatemala, and El Salvador. The journey for these families, just like that for unaccompanied children, is extremely perilous. The Women’s Refugee Commission has interviewed hundreds of women in detention, and the women we have spoken to universally tell us that they were well aware of the risks before fleeing their homes.  No mother makes that trip with her young children or baby unless she feels she has no other choice.

In 2001, as part of the overall increase in immigration enforcement and in an effort to deter family migration, the U.S. began detaining families, first at a converted nursing home in Leesport, PA and later at a prison in Taylor, Texas. In 2009, Immigration and Customs Enforcement (ICE) stopped using that prison – the by then notorious T. Don Hutto facility – to detain families after a firestorm of opposition^[11] and a lawsuit that was filed by the ACLU and University of Texas. When the Women’s Refugee Commission visited Hutto, we found conditions that were wholly inappropriate for children and families and in violation of the Flores Settlement Agreement governing the immigration detention and custody of children.

As documented in our 2007 report on family detention, “Locking Up Family Values: The Detention of Immigrant Families,” young children at Hutto were clothed in prison jumpsuits and had catatonic expressions on their faces. Mothers were brought to tears by the simple question, “How are you?” Families slept in freezing cold prison cells, next to toilets without a privacy curtain to separate the sleeping and hygiene areas. The families were confined to their cells for up to twelve hours a day. Children received only one hour of education a day, and were only allowed to go outside for short periods of time—on the days guards were in the mood. Pregnant women were denied adequate access to medical care and did not have enough food to eat.

Perhaps most disturbing was the fundamental breakdown in family structure that detention created. Guards would threaten parents that if they didn’t keep their children in line, the family would be separated. Parents turned to strict discipline to make sure their children behaved – leading children to react with anger at their parents and eroding trust that their parents were able to take care of them.

It would have been prohibitively costly and all but impossible for ICE to retrofit the facility to make it suitable for children. The government’s only realistic option for complying with the terms of the Hutto Settlement was to close the facility for families. In doing so, DHS acknowledged that it is extremely difficult and costly to detain families in a manner that is appropriate for children and complies with U.S. and international law. Contrary to concerns at the time, family arrivals did not increase after this shift in policy. The increase in arrivals did not begin until three years later when conditions of violence in Central America became more pronounced.

Following the closure of Hutto to families, ICE continued to detain families at the Berks Family Residential Facility in Leesport, Pennsylvania. This facility, which has been renovated to meet the unique needs of this population, has the capacity to house 96 individuals. In addition, ICE uses a variety of alternatives to detention for families, including supervised release, bond and parole. Both the Berks facility and the use of Alternatives to Detention meet the terms of the Flores Settlement Agreement, which sets out national policy for the detention, release and treatment of all children who are in the custody of DHS. Flores requires DHS to place children in the least restrictive setting appropriate to the children’s needs pending the outcome of their immigration removal case.

All families who are apprehended by Customs and Border Protection (CBP) or ICE receive Notices to Appear. Those who are not in custody, including those who are in Alternatives to Detention, are required to check in with ICE regularly, and to appear in immigration court. Despite reports of rumors that families who arrive in the U.S. are given a free pass (or a “permiso”) to enter and stay, every family who is apprehended is required to appear in immigration court and is formally placed in removal proceedings.

Alternatives to detention have been shown to be 96% effective in ensuring appearance in immigration proceedings. They are also significantly less expensive than detention, and far more appropriate for families with children. Families should be accorded special consideration befitting their unique vulnerabilities and circumstances.  We are deeply concerned by the government’s recent announcement that it will drastically expand the detention of families and will expedite the processing of asylum cases.  These policies endanger the well-being of children and families and present a risk that families with legitimate claims to asylum and other forms of protection will be summarily returned to countries where their lives are at risk. As history demonstrates, the detention of families and the denial of their basic human rights is inhumane, costly, and harmful to the well-being of children. 

Recommendations

The United States has long been a global leader in the promotion of human rights and the provision of protection for those fleeing persecution.  Not only have we led by example in the past, we also hold others accountable to receive refugees in times of crisis.  Now is the time to reaffirm and stand by our principles.  The solution to this humanitarian crisis will require a comprehensive and coordinated effort by the U.S. government, foreign governments, and international and domestic non-governmental organizations.  While this is being implemented, the United States must not compromise its long-standing commitment to humanitarian principles, including the protection of refugees and child welfare, in the hope of finding a quick solution.

We have the tools we need.  The answer is not to turn on our backs on those arriving. Rather we must address root causes to prevent vulnerable populations from having to make the difficult decision to flee their homes and at the same time treat migrants humanely and support our infrastructure to process cases through our immigration court efficiently and fairly so that those who need protection receive it.

Foreign Assistance:

• Address root causes of this migration flow by investing in development, justice and accountability programs in the three countries from which the majority of children and families are coming.
• Conduct repatriations in a safe manner and support reintegration programming so that children and families are not just thrust back into the same dangerous situations that forced them to flee in the first place.
• Partner with countries in the region to crack down on traffickers and smugglers who are preying upon migrants and bringing many of the children and families across the border.
• Provide support to governments in the region who are also receiving migrants in order to strengthen and implement internationally compliant protection systems.

Emergency Shelters and Detention:

• Ensure that detention facilities used for immigration compliance purposes are only used as a last resort and for the shortest time possible.  Any detention facilities used to house adults with children must be equipped to handle the unique needs of this population and must comply with the Flores Settlement Agreement, the Family Residential Standards, and relevant terms of the Hutto Settlement Agreement.
• Expand the use of cost-effective alternatives to detention, including community support programs, for families and other adult migrants.  Alternatives to detention, such as community support programs, electronic monitoring and ankle bracelets, have been proven to be 96% effective in ensuring that people appear for their immigration hearings and comply with court orders.
• Ensure that no one is exploited or abused in custody. CBP should immediately create public, enforceable standards for its short term hold facilities; PREA and all relevant custody standards and protections must be fully implemented in ALL DHS and HHS custodial situations; DHS and HHS should allow civil society to regularly and thoroughly monitor conditions in their facilities, including emergency and short term facilities.
• Ensure that all persons in immigration custody are given information about their rights, the U.S. immigration system, opportunities for relief, and the complaint process. For unaccompanied children, such orientation should be provided in a language and manner that is meaningful and age-appropriate to the child, and can be understood.
• Ensure that Know Your Rights presentations or Legal Orientation Presentation Programs (LOP) are available in all facilities housing child, families or adults, including short-term and emergency facilities.
• HHS must provide resources to adult sponsors of all released children so that they are aware of their obligations and can ensure that children comply with immigration court requirements. Some children may have relief under current immigration law and others may be returned to their home country after full proceedings that respect due process.
• HHS should expand post relief services to ensure that children who are released to families or sponsors are safe and appear in immigration proceedings. Like alternatives to detention, post relief services are more cost effective and more humane than detention, and serve to ensure compliance with court proceedings.

Immigration Courts and Protection Mechanisms:

• Provide sufficient funds and support to effectively resource immigration courts and asylum officers to eliminate the backlog and process cases effectively, efficiently and fairly.  Adequate funding and training should be in place so that all children and their parents receive screening for international protection concerns.
• Afford everyone seeking refuge in this country full protection under U.S. and international law. There should be no exceptions for any child, family, or refugee seeking protection. Ensure due process and a meaningful opportunity to access protection mechanisms. Screenings must take into account the traumatic experiences of those fleeing. In many cases, people fleeing rape, abuse, and other violence are too traumatized to recount intimate details, particularly if they are still in detention. Expedited screenings must not become a tool to repatriate people back to dangerous situations.
• Maintain and improve upon the protections currently extended to children, families and other migrants seeking asylum seekers and other forms of protection to ensure that migrants with legitimate claims are not returned to violence and abuse. The U.S.’s threshold for protection is already in many ways less welcoming and protective than international standards. The U.S. must ensure that any new attempts to expedite removals do not further erode these protections. This crisis provides an opportunity to strengthen our overall protection regime, not only for unaccompanied children and families, but for everyone who comes to our country seeking protection. 
• Support and expand the provision of legal assistance for children, including both appointed counsel and the facilitation of pro bono representation through the private sector. The provision of attorneys for these children will make the system more efficient and effective, and ensure that more children comply with proceedings. Children with attorneys are more likely to appear for their court dates than children without as they have help understanding the system and learning what relief they may or may not be eligible for. Child advocate or guardian ad litem programs are also critically important for the most vulnerable children.
• Adequate consideration and resources should be given to facilitate the representation of children and adults in immigration court through support of pro-bono representation programs.

Reform our immigration laws

• Pass comprehensive immigration reform that puts migrants in the U.S on a pathway to citizenship and reduces backlogs and waiting times in the family visa process that encourages unlawful migration.
• Include in any reform package a mechanism by which parents who are eligible for a legalization program can bring their children to join them in a safe, lawful, and timely manner