Unaccompanied Alien Children—Legal
Issues: Answers to Frequently Asked
Questions
Kate M. Manuel
Legislative Attorney
Michael John Garcia
Legislative Attorney
June 27July 18, 2014
Congressional Research Service
7-5700
www.crs.gov
R43623
Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions
Summary
Recent reports about the increasing number of alien minors apprehended at the U.S. border
without a parent or legal guardian have prompted numerous questions about so-called
unaccompanied alien children (UACs). Some of these questions pertain to the numbers of
children involved, their reasons for coming to the United States, and current and potential
responses of the federal government and other entities to their arrival. Other questions concern
the interpretation and interplay of various federal statutes and regulations, administrative and
judicial decisions, and settlement agreements pertaining to alien minors. This report addresses the
latter questions, providing general and relatively brief answers to 14 frequently asked questions
regarding UACs.
Some of the questions and answers in the report provide basic definitions and background
information relevant to discussions of UACs, such as the legal definition of unaccompanied alien
child; the difference between being a UAC and having Special Immigrant Juvenile (SIJ) status;
the terms and enforcement of the Flores settlement agreement; and why UACs encountered at a
port of entry—as some recent arrivals have been—are not turned away on the grounds that they
are inadmissible. Other questions and answers explore which federal agencies have primary
responsibility for maintaining custody of alien children without immigration status; removal
proceedings against such children; the release of alien minors from federal custody; the “best
interest of the child” standard; and whether UACs could obtain asylum due to gang violence in
their home countries. Yet other questions and answers address whether UACs have a right to
counsel at the government’s expense; their ability under the Vienna Convention on Consular
Relations to have consular officials of their home country notified of their detention; and whether
UACs are eligible for inclusion in the Obama Administration’s Deferred Action for Childhood
Arrivals (DACA) initiative.
A separate report, CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa
Seghetti, Alison Siskin, and Ruth Ellen Wasem, addresses the recent surge in the number of
UACs encountered at the U.S. border with Mexico, as well as how UACs who are apprehended
by immigration officials are processed and treated. Other CRS reports discuss the circumstances
in other countries that some see as contributing to UACs’ unauthorized migration to the United
States. These include CRS Report RL34112, Gangs in Central America, by Clare Ribando
Seelke; CRS Report R41731, Central America Regional Security Initiative: Background and
Policy Issues for Congress, by Peter J. Meyer and Clare Ribando Seelke; CRS Report R43616, El
Salvador: Background and U.S. Relations, by Clare Ribando Seelke; CRS Report R42580,
Guatemala: Political, Security, and Socio-Economic Conditions and U.S. Relations, by Maureen
Taft-Morales; and CRS Report RL34027, Honduras: Background and U.S. Relations, by Peter J.
Meyer.
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Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions
Contents
Definitions and Background ............................................................................................................ 1
What is an unaccompanied alien child? .................................................................................... 1
What is the difference between being a UAC and having Special Immigrant Juvenile
(SIJ) status? ............................................................................................................................ 2
What is the Flores Settlement Agreement? ............................................................................... 3
Why aren’t UACs encountered at ports of entry turned away as inadmissible? ....................... 5
Custody, Control, and Enforcement ................................................................................................. 6
Which federal agencies have primary responsibility for maintaining custody of alien
children without immigration status? ..................................................................................... 6
May children without immigration status be placed in removal proceedings? ......................... 8
Are children without immigration status eligible for relief from removal? ............................ 10
May children without immigration status be released from DHS or HHS custody? ............... 12
What is the “best interest of the child” standard, and how does it apply to
immigration detention and removal decisions? .................................................................... 14
Can UACs obtain asylum due to gang violence in their home countries? .............................. 15
How would considering UACs for admission as refugees—instead of asylum—
change things? ...................................................................................................................... 17
Rights, Privileges, and Benefits ..................................................................................................... 1819
Do UACs have a right to counsel at the government’s expense in removal
proceedings? ......................................................................................................................... 1819
Does Section 292 of the INA bar the federal government from paying for counsel for
UAC? .................................................................................................................................... 1921
Are there legal requirements concerning consular notification and access when an
alien child is taken into federal custody? ............................................................................. 2021
Are UACs eligible for Deferred Action for Childhood Arrivals?............................................ 2123
Contacts
Author Contact Information........................................................................................................... 2224
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Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions
R
ecent reports about the increasing number of alien minors apprehended at the U.S.
border without a parent or legal guardian have prompted numerous questions about socalled unaccompanied alien children (UACs).1 Some of these questions pertain to the
numbers of children involved, their reasons for coming to the United States, and
current and potential responses of the federal government and other entities to their
arrival. Other questions concern the interpretation and interplay of various federal statutes and
regulations, administrative and judicial decisions, and settlement agreements pertaining to alien
minors.
This report addresses the latter questions, providing general and relatively brief answers to 14
frequently asked questions regarding UACs. The report begins with questions and answers that
give basic definitions and background information pertaining to UACs, including how federal law
defines unaccompanied alien child and the difference between being a UAC and having Special
Immigrant Juvenile (SIJ) status. It then turns to questions and answers pertaining to custody,
control, and enforcement of immigration laws as to UACs, such as federal agencies’
responsibilities in maintaining custody of UACs, and UACs’ eligibility for relief from removal. It
concludes with questions and answers regarding UACs’ rights, privileges, and benefits while in
the United States, including whether UACs have a right to counsel at the government’s expense in
removal proceedings and whether UACs are eligible for inclusion in the Obama Administration’s
Deferred Action for Childhood Arrivals (DACA) initiative. The report will be updated as
warranted by events.
A separate report, CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa
Seghetti, Alison Siskin, and Ruth Ellen Wasem, addresses the recent surge in the number of
UACs encountered at the U.S. border with Mexico, as well as how UACs who are apprehended
by immigration officials are processed and treated. Other CRS reports discuss the circumstances
in other countries that are seen as contributing to UAC’s unauthorized migration to the United
States. These include CRS Report RL34112, Gangs in Central America, by Clare Ribando
Seelke; CRS Report R41731, Central America Regional Security Initiative: Background and
Policy Issues for Congress, by Peter J. Meyer and Clare Ribando Seelke; CRS Report R43616, El
Salvador: Background and U.S. Relations, by Clare Ribando Seelke; CRS Report R42580,
Guatemala: Political, Security, and Socio-Economic Conditions and U.S. Relations, by Maureen
Taft-Morales; and CRS Report RL34027, Honduras: Background and U.S. Relations, by Peter J.
Meyer.
Definitions and Background
What is an unaccompanied alien child?
Pursuant to Section 462 of the Homeland Security Act of 2002, as amended, an unaccompanied
alien child, is defined as a person who is
1
See, e.g., Julia Preston, Migrants Flow in South Texas, as Do Rumors, N.Y. TIMES, June 16, 2014, available at
http://www.nytimes.com/2014/06/17/us/migrants-flow-in-south-texas-as-do-rumors.html?emc=edit_th_20140617&nl=
todaysheadlines&nlid=5753597&_r=1 (reporting that 47,000 UACs have been apprehended along the southern border
since October 2013, and the number may double by the end of FY2014); Mario Trujillo, White House Scrambles to
Keep Up with Child Immigrant Surge, THE HILL, June 20, 2014, available at http://thehill.com/homenews/
administration/210093-white-house-scrambles-to-keep-up-with-child-immigrant-surge.
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•
under the age of 18;
•
lacks lawful immigration status; and
•
either (1) has no parent or legal guardian in the United States or (2) has no parent
or legal guardian in the country who is available to provide care and physical
custody of the child.2
Accordingly, not every minor without lawful immigration status is a UAC. Notably, if a child and
parent (or other closely related adult) without lawful immigration status are apprehended by
immigration authorities and detained together while awaiting removal, the child is not considered
a UAC.3 Moreover, the fact that a child is initially a UAC does not mean that he/she will remain
within the scope of this definition thereafter (e.g., the child is reunited with a parent, or turns 18).
What is the difference between being a UAC and having Special
Immigrant Juvenile (SIJ) status?
Some—but not necessarily all—UACs may be eligible for Special Immigrant Juvenile (SIJ)
status. As previously noted (see “What is an unaccompanied alien child?”), the term
unaccompanied alien child is broadly defined to include aliens under the age of 18 who have no
parent or legal guardian in the United States, or whose parent or legal guardian is unavailable to
provide care and physical custody. Eligibility for SIJ status under Section 101(a)(27)(J) of the
Immigration and Nationality Act (INA) and its implementing regulations is also limited to aliens
who are young (under 21 years of age) and essentially lack the care or custody of their parents or
legal guardians.4
However, eligibility for SIJ status is further restricted in that a state juvenile court must have
determined that the alien is dependent upon the court and eligible for long-term foster care
because “family reunification is no longer a viable option” due to abuse, neglect, abandonment,
or “a similar basis found under State law.”5 The alien must also have been the subject of
administrative or judicial proceedings authorized or recognized by the juvenile court in which it is
determined that it would not be “in the alien’s best interest to be returned to the alien’s or parent’s
previous country of nationality or ... last habitual residence.”6 Provided these conditions are met,
2
P.L. 107-296, §462, 116 Stat. 2202-2205 (Nov. 25, 2002) (codified, as amended, at 6 U.S.C. §279).
See generally Cortez-Vasquez v. Holder, 440 Fed. App’x 295, 298 (5th Cir. 2011) (alien minor “accompanied by his
adult sister” not a UAC); Bunikyte v. Chertoff, No. A-07-CA-164-SS, No. A-07-CA-165-SS, No. A-07-CA-166-SS,
2007 U.S. Dist. LEXIS 26166, at *14-*15 (W.D. Tex., Apr. 9, 2007) (parents generally deemed responsible for the care
of minor children when parents are detained with minor children).
4
See Immigration Act of 1990, P.L. 101-649, §153, 104 Stat. 5005-5006 (Nov. 29, 1990) (codified, as amended, at
INA §101(a)(27)(J), 8 U.S.C. §1101(a)(27)(J)); 8 C.F.R. §204.11(c). Currently, the age limit pertains to the date on
which the application for SIJ status is filed, not that when it is granted. See generally 8 U.S.C. §1232(d)(6). Under an
earlier version of this rule, some aliens “aged out” while their petitions for SIJ status were pending.
5
INA §101(a)(27)(J)(i), 8 U.S.C. §1101(a)(27)(J)(i); 8 C.F.R. §204.11(a) (definition of eligible for long-term foster
care) & (c)(3)-(4) (eligibility criteria). The INA is codified in Title 8 of the United States Code, and references to it in
this report also include references to the corresponding sections of Title 8. However, Title 8 also includes provisions
that are not part of the INA. Citations to such provisions will have no corresponding citation to the INA.
6
INA §101(a)(27)(J)(ii), 8 U.S.C. §1101(a)(27)(A)(ii); 8 C.F.R. §204.11(c)(6).
3
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and the alien continues to be dependent upon the juvenile court and eligible for long-term foster
care,7 the alien may petition the Department of Homeland Security (DHS) for SIJ status.8
SIJ status, in itself, gives aliens a legal basis to remain in the United States and adjust their status
to that of lawful permanent resident aliens (LPRs), which, in turn, would eventually enable them
to apply for U.S. citizenship. Specifically, Section 245 of the INA provides that aliens granted SIJ
status are deemed to have been paroled—a term discussed in greater detail below at “Why aren’t
UACs encountered at ports of entry turned away as inadmissible?”—into the United States and
may apply for LPR status.9 Being classified as a UAC, in contrast, does not, in itself, furnish any
legal basis to remain in the United States or to adjust to LPR status, although an individual UAC
could potentially be able to do so on other grounds discussed below. See “Are children without
immigration status eligible for relief from removal?” and “Can UACs obtain asylum due to gang
violence in their home countries?”.
What is the Flores Settlement Agreement?
The Flores settlement agreement (also known as the Flores agreement or Flores settlement) is a
1997 agreement resolving a long-running challenge to certain practices of the then-Immigration
and Naturalization Service (INS) as to the detention of UACs.10 The Flores litigation began in
1984, when INS’s Western Regional Office adopted a policy that generally barred the release of
detained minors to anyone other than a parent or lawful guardian except in “unusual and
extraordinary cases.”11 This policy was challenged in a class action lawsuit brought on behalf of
detained unaccompanied minors. Following several lower court decisions, the litigation reached
the Supreme Court, which rejected a facial challenge to the constitutionality of this policy in its
1993 decision in Flores v. Reno. In so doing, a majority of the Court expressly rejected the
7
8 C.F.R. §204.11(c)(5) (requiring that the declaration of dependency on the court and eligibility for long-term foster
care not have been vacated, terminated, or otherwise ended). A further constraint upon the granting of SIJ status is that
the Department of Health and Human Services (HHS) must specifically consent to a juvenile court’s jurisdiction to
determine the “custody status or placement” of an alien in HHS custody. See INA §101(a)(27)(J)(iii)(I), 8 U.S.C.
§1101(a)(27)(A)(iii)(I). In the past, questions were raised about federal agencies’ practices in handling juveniles’
requests for consent to juvenile court jurisdiction. See, e.g., Perez-Olano v. Gonzalez, 2008 U.S. Dist. LEXIS 85675, at
*46-*52 (C.D. Cal., Jan. 8, 2008) (invalidating, on statutory interpretation grounds, U.S. Immigration and Customs
Enforcement’s (ICE’s) practice of requiring its specific consent to all SIJ-predicate orders); Perez-Olano v. Holder,
Case No. CV 05-3604, Settlement Agreement (C.D. Cal., May 4, 2010) (copy on file with the authors) (generally
requiring federal officials to expedite requests for consent to juvenile court jurisdiction). Such concerns may have been
allayed as a result of the litigation and settlement agreement noted here.
8
See 8 C.F.R. §204.11(d). Aliens whose petitions are denied have the right to appeal. Id. at §204.11(e).
9
INA §245(g) & (h)(1), 8 U.S.C. §1255(g) & (h)(1) (SIJs deemed to have been paroled); INA §245(h)(2), 8 U.S.C.
§1255(h)(2) (applications for LPR status). Certain grounds of inadmissibility are or may be waived for aliens granted
SIJ status. See infra note 98. Natural or prior adoptive parents of aliens provided SIJ status may not be accorded any
right, privilege or status, by virtue of such parentage, under the INA, although other close natural or prior adoptive
relatives (e.g., siblings) are not similarly barred from seeking certain rights, privileges or status by virtue of their
relationship to an alien with SIJ status. INA §101(a)(27)(J)(iii)(II), 8 U.S.C. §1101(a)(27)(J)(iii)(II).
10
See generally Flores v. Reno, Case No. CV 85-4544-RJK(Px), Stipulated Settlement Agreement (C.D. Cal., 1997)
(copy on file with the authors). In a number of places, the settlement agreement refers to “unaccompanied minors.”
However, the plaintiff class is defined as “[a]ll minors who are detained in the legal custody of the INS,” and at least
one court has expressly construed the agreement to apply to minors who are detained with their parents. See Bunikyte,
2007 U.S. Dist. LEXIS 26166, at *8. The agreement also refers to the Immigration and Naturalization Service (INS),
but has been found to be binding upon its successor agencies (such as DHS). Bunikyte, 2007 U.S. Dist. LEXIS 26166,
at *50. See also infra at note 33.
11
See Reno v. Flores, 507 U.S. 292, 295-296 (1993).
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argument that UACs who have no available parent or guardian have a “fundamental right” to be
placed in the custody of a willing and able private custodian, instead of government custody.12
However, notwithstanding the Court’s decision, the Flores litigation continued, in part, over the
conditions in which UACs were detained, and the parties ultimately concluded that settlement
was “in their best interests and best serves the interests of justice.”13
The Flores agreement articulates a number of broad principles and policies applicable to the
detention of alien minors, some of which are also reflected in subsequent legislation or
regulations. See “Which federal agencies have primary responsibility for maintaining custody of
alien children without immigration status?” and “May children without immigration status be
released from DHS or HHS custody?”. Among other things, the agreement establishes that alien
minors in federal custody will be treated with “dignity, respect and special concern for their
particular vulnerability as minors.”14 It also establishes procedures for the temporary placement of
alien minors following their arrest, which include “expeditiously process[ing]” the minor,
providing the minor with a notice of rights, and generally segregating UACs from unrelated
adults.15 In addition, it sets forth a “general policy” favoring the release of UACs “without
unnecessary delay” to their parents, legal guardians, adult relatives, certain other adults or entities
designated by the parent or guardian, licensed programs willing to accept legal custody, or under
certain conditions, another entity or adult individual, in this order of preference.16
What the Flores agreement may require as to any specific alien is less clear, in part, because the
agreement incorporates a number of exceptions to its requirements. For example, the agreement
specifically contemplates that the “general policy favoring release” would not preclude the
continued detention of individual minors in order to secure their timely appearance before
immigration authorities or the immigration court, or to ensure the safety of the minor or other
persons.17 In addition, courts have imposed certain limitations upon the agreement’s
enforceability.18 In particular, the agreement has been found to be enforceable only through
actions seeking compliance with its terms,19 not through actions seeking monetary damages for
alleged violations of its terms. In particular, at least one court has expressly rejected the argument
that the Flores agreement “create[s] a due process entitlement (a protected property or liberty
interest) because the terms and conditions of the agreement currently serve as interim federal
12
Id. at 301-303.
See Stipulated Settlement Agreement, supra note 10, at 3.
14
Id. at ¶ 11.
15
Id. at ¶ 12.A.
16
Id. at ¶¶ 14-15.
17
Id. at ¶ 11. Similarly, the agreement grants federal officials greater latitude in the event of an “emergency” or “influx
of minors into the United States.” Id. at ¶ 12.A. However, in light of subsequently enacted legislation (see “Which
federal agencies have primary responsibility for maintaining custody of alien children without immigration status?”),
this exception seems most likely to be relevant to accompanied minors. The agreement defines an emergency as “any
act or event that prevents the placement of minors pursuant to Paragraph 19 [i.e., with licensed facilities]” within the
three- to five-day time frame contemplated by the agreement, and an influx as occurring whenever federal officials have
in their custody more than 130 minors eligible for placement in a licensed program. See id. at ¶ 12.B.
18
See, e.g., Fabian v. Dunn, No. SA-08-cv-269-XR, 2009 U.S. Dist. LEXIS 26552 (W.D. Tex., Aug. 14, 2009);
Walding v. United States, No. SA-08-CA-124-XR, 2009 U.S. Dist. LEXIS 26546 (W.D. Tex. Mar. 31, 2009).
19
Walding, 2009 U.S. Dist. LEXIS 26546, at *74-*75.
13
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regulations, and the language of the agreement is mandatory with regard to the services and
protections to be provided to unaccompanied minors.”20
Also, where legislation enacted subsequent to the Flores agreement provides for alternate
treatment of UACs, that legislation governs instead of the agreement.21
The Flores agreement was entered into in 1997, and was initially set to terminate (except for the
requirement that minors generally be housed in licensed facilities) at the earlier of (1) five years
after its final approval by the court, or (2) three years after the court determines that federal
officials are in substantial compliance with the agreement.22 However, a 2001 stipulation and
order extended its term until “45 days after the federal government promulgates final regulations
implementing the Agreement.”23 No such regulations have been promulgated to date.
Why aren’t UACs encountered at ports of entry turned away as
inadmissible?
UACs encountered at ports of entry—as some in the recent surge have been—are generally
inadmissible under Section 212(a)(7) of the INA.24 This section generally bars the admission to
the United States of
any immigrant [who] at the time of application for admission ... is not in possession of a
valid unexpired immigrant visa, reentry permit, border crossing identification card, or other
valid entry document required by this Act, and a valid unexpired passport, or other suitable
travel document, or document of identity and nationality if such document is required under
the regulations issued by the [Secretary of Homeland Security].25
However, admission is not the same as entry for purposes of the INA. Admission is defined as the
“lawful entry into the United States after inspection and authorization by an immigration
officer.”26 Entry, in contrast, is generally seen to encompass any “coming of an alien into the
20
Id. at *56.
For example, the Flores agreement makes provisions for the government to have additional time to transfer alien
minors from the facility of their immediate post-arrest placement to a licensed facility in the event of an “emergency”
or “influx of minors”. See Stipulated Settlement Agreement, supra note 10, at ¶ 12a. However, the William Wilberforce
Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 (P.L. 110-457), as amended, does not include
similar provisions.
22
See Stipulated Settlement Agreement, supra note 10, at ¶ 40.
23
See Flores v. Reno, Case No. CV 85-4544-RJK(Px), Stipulation Extending the Settlement Agreement and for Other
Purposes, and Order Thereon (C.D. Cal., Dec. 7, 2001) (copy on file with the authors).
24
See 8 U.S.C. §1182(a)(7)(A)(i). Individual UACs could potentially also be inadmissible on other grounds. See
generally INA §212, 8 U.S.C. §1182 (establishing health-, crime-, and security-related grounds of inadmissibility). See
also INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A) (defining admission). Aliens encountered between ports of entry
raise somewhat different issues. Some UACs may also be unlawfully present within the interior of the United States
when encountered by immigration officers.
25
INA §212(a)(7)(A)(i), 8 U.S.C. §1182(a)(7)(A)(i). Under the INA, aliens are presumed to be immigrants unless they
fall into designated categories (e.g., ambassadors, temporary visitors for business or pleasure). INA §101(a)(15), 8
U.S.C. §1101(a)(15). There are two exceptions to this general rule. One exception—permitting the waiver of the
Section 212(a)(7) grounds of inadmissibility for aliens who are in possession of immigrant visas that, unbeknownst to
them, are invalid—is generally inapplicable where UACs are concerned. INA §212(k), 8 U.S.C. §1182(k). The other
exception permits the admission of aliens “as specifically provided in this Act.” INA §212(a), 8 U.S.C. §1182.
26
INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A).
21
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United States,”27 and may be permitted, pursuant to other provisions of federal law, in
circumstances where admission is not legally permissible.
In the case of UACs, Section 235 of the William Wilberforce Trafficking Victims Protection
Reauthorization Act (TVPRA) of 2008, as amended, could be said to implicitly authorize UACs
to enter the United States.28 Section 235 distinguishes between UACs from “contiguous
countries”—namely, Canada and Mexico—and UACs from other countries. UACs from
contiguous countries found at a land border or port of entry who are determined to be
inadmissible (e.g., for lack of proper documentation) may be permitted to withdraw their
application for admission and be returned to their home country, subject to certain conditions.29
UACs from other countries, in contrast, are not subject to such treatment, but are instead required
to be transferred to the custody of the Secretary of Health and Human Services within 72 hours of
being determined to be UACs,30 as discussed below (see “Which federal agencies have primary
responsibility for maintaining custody of alien children without immigration status?”).
Other provisions of law could also be construed to permit UACs to enter the United States. Key
among these provisions is Section 212(d)(5)(A) of the INA, which permits the Secretary of
Homeland Security to parole—or permit the physical entry of aliens into the United States
without being admitted—on a “case-by-case basis for urgent humanitarian reasons or significant
public benefit.”31 Among other things, parole under Section 212(d)(5)(A) is used to permit aliens
seeking asylum to enter the United States. See “Can UACs obtain asylum due to gang violence in
their home countries?”.32
Custody, Control, and Enforcement
Which federal agencies have primary responsibility for
maintaining custody of alien children without immigration status?
The primary federal agencies responsible for maintaining custody over alien children without
immigration status are DHS and the Department of Health and Human Services (HHS). Many
UACs encountered by DHS in the course of its immigration enforcement activities are required to
be transferred to HHS custody. However, not all UACs encountered by DHS are required to be
transferred to HHS. Notably, HHS does not play a role in detaining certain arriving UACs from
27
Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996,
Section 101(a)(13) of the INA defined entry in this way. Even after this definition of entry was stricken in 1996, similar
constructions of the term have still been applied in other contexts. See, e.g., Matter of Rosas-Ramirez, 22 I. & N. Dec.
616 (1999) (discussing whether adjustment of status while within the United States constitutes an “admission” for
purposes of Section 237(a)(2)(A)(iii) of the INA, and noting that admission is defined, in part, in terms of “entry”).
28
P.L. 110-457, §235, 122 Stat. 5074 (Dec. 23, 2008) (codified, as amended, at 8 U.S.C. §1232).
29
8 U.S.C. §1232(a)(2)(A).
30
8 U.S.C. §1232(a)(3) & (b)(3). These provisions have also been taken to mean that UACs must generally be retained
in federal custody for at least for a brief time, instead of being released immediately to families or community groups.
31
See 8 U.S.C. §1182(d)(5)(A). See also INA §101(a)(13)(B), 8 U.S.C. §1101(a)(13)(B) (aliens paroled under Section
212(d)(5) “shall not be considered to have been admitted”).
32
Section 208 of the INA specifically permits arriving aliens to apply for asylum, “irrespective of [their] status.” INA
§208(a)(1), 8 U.S.C. §1158(a)(1).
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contiguous countries (i.e., Canada and Mexico) who have agreed to be voluntarily repatriated to
their home countries. Moreover, DHS maintains responsibility over accompanied alien children
who are detained pending removal.
DHS is the primary agency responsible for enforcing the nation’s immigration laws, including by
apprehending aliens who attempt to enter the United States without legal authorization, and
detecting aliens within the country whose unauthorized presence or commission of a status
violation makes them removable.33 In particular, alien children traveling across a land border or a
port of entry may be encountered by immigration enforcement officers within DHS34—primarily
those within U.S. Customs and Border Protection (CBP).35 If such children are suspected of
attempting to enter or have entered the United States without legal authorization, they may be
taken into custody and thereafter removed or otherwise repatriated in accordance with applicable
federal immigration statutes and regulations.
Section 462 of the Homeland Security Act of 2002 generally transferred responsibility for the
care of UACs (but not accompanied alien children) from immigration enforcement authorities to
HHS’s Office of Refugee Resettlement (ORR).36 Once such children are transferred to its custody,
ORR is responsible for “coordinating and implementing the care and placement” of the
children,37 including by placing UACs in state-licensed care facilities and foster care.38 However,
the transfer of a UAC from DHS custody to ORR does not preclude DHS from removing the
alien from the United States.39 If a UAC in ORR custody is ultimately ordered removed, DHS
may briefly take physical custody of the UAC in order to effectuate his or her removal.40
Not every UAC encountered by DHS is required to be transferred to the custody of HHS’s
ORR.41 If a UAC from Canada or Mexico is apprehended at a land border or a U.S. port of entry
and deemed inadmissible under federal immigration laws, the UAC may be offered the
opportunity to be voluntarily returned to his or her home country in lieu of being placed in
immigration removal proceedings (a process distinct from “voluntary departure,” discussed infra,
33
For many decades, the INS within the Department of Justice (DOJ) was delegated responsibility for immigration
enforcement activities. Following the establishment of DHS pursuant to the Homeland Security Act of 2002 (P.L. 107296), the INS was abolished and its enforcement functions were transferred to DHS. See 6 U.S.C. §§251, 291.
34
Interior immigration enforcement activities, including apprehending and effectuating the removal of aliens within the
United States who are believed to be present in violation of federal immigration laws, are primarily the responsibility of
ICE within DHS.
35
In particular, CBP’s Office of Field Operations is primarily responsible for border security matters at ports of entry,
while U.S. land borders between ports of entry are monitored by agents from CBP’s Office of Border Patrol.
36
6 U.S.C. §279.
37
6 U.S.C §279(b)(1)(A). See also 8 U.S.C. §1232(b), (d).
38
See, e.g., Dep’t of Health & Human Servs., Office of Refugee Resettlement, About Unaccompanied Children’s
Services, available at http://www.acf.hhs.gov/programs/orr/programs/ucs/about (last accessed: June 26, 2014). See also
Bunikyte, 2007 U.S. Dist. LEXIS 26166, at *25-*27 (finding that a state’s granting a licensing exception to a facility
does not discharge the government’s obligation under the Flores settlement agreement to house detained minors in
licensed facilities, and noting the steps that the Berks Family Residential Center took to obtain licensing, given that it
did not fit within the existing taxonomy of state licensees).
39
See 8 U.S.C. §1232(a)(5)(D) (placement of UACs in removal proceedings).
40
See 8 C.F.R. §241.3(a) (aliens ordered removed shall be taken into DHS custody pursuant to a warrant of removal).
41
An arriving alien may, in limited circumstances, also be released from DHS custody and paroled into the United
States under INA §212(d)(5), if parole is justified by “urgent humanitarian reasons” or “significant public benefit.” See
8 C.F.R. §212.5(b) (concerning parole of arriving juvenile aliens).
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“May children without immigration status be placed in removal proceedings?”).42 If the UAC
agrees to repatriation, he/she may generally remain in DHS custody for the brief period until
being repatriated.43
By statute,44 a determination must be made within 48 hours that an alien child is eligible for
voluntary return on account of being a UAC from Canada or Mexico. If a determination cannot
be made within this period, or the child does not meet the criteria for repatriation, DHS must
immediately transfer the child to ORR custody.
More generally, other than in exceptional circumstances, any child in the custody of DHS or
another federal agency must be transferred to the custody of ORR within 72 hours of the agency
having made the determination that he/she is a UAC.45
May children without immigration status be placed in removal
proceedings?
Children without immigration status may be placed in removal proceedings.46 However, federal
law requires that UACs (but not other alien children identified for removal) be placed in specific
types of proceedings if federal immigration authorities seek to remove them from the United
States. Moreover, as discussed earlier (“Which federal agencies have primary responsibility for
maintaining custody of alien children without immigration status?”), arriving UACs from Canada
and Mexico may be voluntarily returned to their home countries in lieu of being placed in
removal proceedings, if certain criteria are met.
Federal statute establishes specific requirements concerning the removal of UACs (but not
accompanied children). Many aliens arriving in the United States who are deemed inadmissible
by an immigration officer may be immediately ordered removed, through a streamlined process
known as expedited removal, which entails a determination of inadmissibility by immigration
officials, rather than an immigration judge.47 However, arriving UACs are exempted from this
process.48 In general, if DHS seeks to remove a UAC from the United States, regardless of
whether the UAC is arriving or encountered in the United States, it must place the child in
removal proceedings before an immigration judge (sometimes referred to as formal removal
proceedings).49 UACs placed in formal removal proceedings are also required to be provided
42
8 U.S.C. §1232(a)(2).
See 8 C.F.R. §235.4 (DHS custody over aliens who withdraw their application for admission).
44
8 U.S.C. §1232(a)(4). As previously noted, the Flores agreement would generally govern on specific questions not
otherwise addressed in statute, and as to populations not covered by the statute (i.e., accompanied alien children).
45
8 U.S.C. §1232(b)(3). The Flores agreement also generally requires that UACs be transferred from “placement” with
DHS following initial arrest to temporary placement in a licensed program (pending release or the conclusion of
immigration proceedings) within 72 hours. See Stipulated Settlement Agreement, supra note 10, at ¶¶ 12a, 19.
46
Indeed, plaintiffs in at least one case have alleged that the INA requires that any alien unlawfully present in the
United States be placed in removal proceedings. A federal district court initially found for the plaintiffs in this case. See
Crane v. Napolitano, 920 F. Supp. 2d 724, 740-741 (N.D. Tex. 2013). However, the court subsequently found that it
lacked jurisdiction. Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31, 2013) (copy on file with the authors).
47
INA §235(b), 8 U.S.C. §1225(b).
48
8 U.S.C. §1232(a)(5)(D) (requiring placement of UACs in formal removal proceedings, except when they are
arriving from Canada or Mexico and have agreed to be voluntarily returned).
49
Id.; INA §240, 8 U.S.C. §1229a. These proceedings are adversarial in nature and are conducted before an
(continued...)
43
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access to counsel, to the extent practicable and consistent with statutory restrictions on the
provision of counsel at the government’s expense in immigration proceedings.50 A UAC is also
eligible for voluntary departure under Section 240B of the INA in lieu of undergoing removal
proceedings, at no cost to the child.51
Special rules govern the handling of arriving UACs from Canada and Mexico. In general, arriving
aliens are considered “applicants for admission” into the United States for immigration
purposes.52 As previously discussed (see “Which federal agencies have primary responsibility for
maintaining custody of alien children without immigration status?”), arriving UACs who are
nationals or habitual residents of Canada and Mexico may be voluntarily returned to their home
countries in lieu of being placed in removal proceedings, if they consent to the withdrawal of
their application for admission.53 “Voluntary return” following a withdrawal of an application of
admission is a distinct alternative to “voluntary departure” under Section 240B of the INA.54
The availability of voluntary return to an arriving UAC from Canada or Mexico is contingent
upon immigration authorities determining that the child (1) was not a victim of a “severe form of
trafficking” or at risk of being trafficked if repatriated;55 (2) does not have a fear of repatriation
on account of a “credible fear” of persecution; and (3) is able to make an independent decision to
agree to repatriation in lieu of being placed in removal proceedings.56
Arriving UACs from Canada or Mexico who do not satisfy these criteria, or who do not agree to
withdraw their application for admission, may be treated in the same manner as other UACs,
including being placed in formal removal proceedings before an immigration judge.57
(...continued)
immigration judge within the DOJ’s Executive Office of Immigration Review (EOIR). An alien placed in such
proceedings may, among other things, examine evidence and contest the government’s case against his/her
removability, present evidence on his/her own behalf, cross-examine witnesses, and be represented by counsel
(generally) at no expense to the government. Id. Decisions by an immigration judge may be appealed to EOIR’s Board
of Immigration Appeals (BIA)—the highest administrative tribunal responsible for interpreting and applying
immigration law—and, in many cases, to a federal court.
50
8 U.S.C. §1232(a)(5)(D) & (c)(5). The INA provides, however, that aliens placed in removal proceedings have a
privilege of being represented by counsel at no expense to the government. INA §292, 8 U.S.C. §1362. See “Do UACs
have a right to counsel at the government’s expense in removal proceedings?”.
51
8 U.S.C. §1232(a)(4). An alien granted voluntary departure must typically pay the costs associated with departing the
United States. INA §240B(a)(1), 8 U.S.C. §1229C(a)(1).
52
INA §235(a)(1), 8 U.S.C. §1225(a)(1). DHS regulations generally define an arriving alien as “an applicant for
admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the
United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the
United States.... ” 8 C.F.R. §1.2.
53
8 U.S.C. §1232(a)(2).
54
Among other things, an arriving alien who is permitted to withdraw his/her application for admission must generally
depart immediately from the United States, while an alien granted voluntary departure is often permitted to remain in
the country for a specified period. Compare INA §235(a)(4), 8 U.S.C. §1225(a)(4) (providing that an alien permitted to
withdraw his/her application will “depart immediately”) with INA §240B(a)(2) & (b)(2), 8 U.S.C. §1229C(a)(2) &
(b)(2) (specifying time period when alien may be permitted to voluntarily depart). A violation of a voluntary departure
order may result in civil monetary penalties and other consequences not applicable to persons who immediately depart
following the withdrawal of an application of admission. See INA §240B(d), 8 U.S.C. §1229C(d).
55
Severe form of trafficking is defined to cover both sex and labor trafficking. See 22 U.S.C. §7102(9).
56
8 U.S.C. §1232(a)(2).
57
Id.
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Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions
Are children without immigration status eligible for relief from
removal?
In certain instances, aliens whose entry or continued presence in the United States is otherwise
not permitted under federal immigration law may be eligible for relief from removal.58 If such
relief is granted, an otherwise removable alien may be permitted to remain in the United States
and, depending upon the form of relief granted, adjust to LPR status.
There is no statute or treaty-based form of relief available for alien children based solely upon
their juvenile status. However, some children without immigration status may obtain relief from
removal depending upon their individual circumstances, including whether they are victims of
trafficking, would face persecution on a protected ground if returned to their home country, or are
subject to abuse or abandonment by their parents. The most relevant forms of relief from removal
are discussed below.
Asylum. Any alien—regardless of age59—may be eligible for asylum if the alien is unable or
unwilling to return to his/her home country due to a well-founded fear of persecution on account
of race, religion, nationality, political opinion, or membership in a particular social group.60 An
alien granted asylum may be eligible to work in the United States and adjust to LPR status.61 In
general, an alien can either apply for asylum “affirmatively” with U.S. Citizenship and
Immigration Services (USCIS) within DHS or “defensively” in the context of removal
proceedings before an immigration judge. However, Section 208 of the INA mandates that
asylum officers within USCIS have initial jurisdiction over any asylum claim made by a UAC
even if the UAC is in removal proceedings.62 In addition, other provisions of federal law make it
easier for UACs to be granted asylum on account of persecution.63 For further discussion, see also
“Can UACs obtain asylum due to gang violence in their home countries?”.
SIJ Status. As previously noted (see “What is the difference between being a UAC and having
Special Immigrant Juvenile (SIJ) status?”), some alien children without lawful status may be
58
UACs also enjoy another type of protection as to removal, in that immigration judges may not accept admissions of
removability from unrepresented UACs. See 8 C.F.R. §1240.10(c) (“The immigration judge shall not accept an
admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not
accompanied by an attorney or legal representative, a near relative, legal guardian, or friend.”). This bar does not,
however, extend to admissions to factual allegations, because minors under the age of 16 are “not presumed incapable
of understanding the context of the allegations and determining whether they are true.” Matter of Amaya-Castro, 21 I.
& N. Dec. 583 (BIA 1996). See also Gonzales-Reyes v. Holder, 313 Fed. App’x 690, 696-697 (5th Cir. 2009).
59
See, e.g., Gonzalez v. Reno, 212 F.3d 1338, 1348, 1351 (11th Cir. 2000) (no per se bar to a six-year-old filing an
application for asylum, since Section 208(a) of the INA states that “[a]ny alien ... may apply”, although an application
on behalf of such a young child that is opposed by his/her parent may be viewed as a nullity).
60
INA §208(b)(1)(A), 8 U.S.C. §1158(b)(1)(A)(permitting the granting of asylum to eligible aliens who fall within the
definition of refugee found at INA §101(a)(42), 8 U.S.C. §1101(a)(42)).
61
INA §§208(c), 209(b); 8 U.S.C. §§1158(c), 1159(b).
62
INA §208(b)(3)(C), 8 U.S.C. §1158(b)(3)(C). If the UAC’s asylum application is denied, he/she may be placed in
removal proceedings (in which the child may challenge the basis for the denial of the application).
63
Specifically, unlike other asylum applicants, UACs may be eligible for asylum even if they could be removed,
pursuant to a bilateral or multilateral agreement, to a third country where they would not face persecution and would
have access to procedures by which to obtain asylum or equivalent temporary protection in that country. Additionally,
UACs’ asylum applications are not subject to the time bar that normally requires aliens to apply for asylum within one
year of arriving in the United States. INA §208(a)(2)(E), 8 U.S.C. §1158(a)(2)(E), as added by Section 235(d)(7)(A) of
the TVPRA (P.L. 110-457).
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eligible for SIJ status, and, on the basis of this status, become LPRs.64 Eligibility for SIJ status is
limited to juveniles who, among other things, (1) have been declared by a state court to be a
dependent on the court, or have been legally placed by the court with a state or an appointed
private entity; (2) are unable to reunite with one or more parents on account of abuse,
abandonment, or neglect; and (3) have been determined not to have his/her best interest served by
being returned to his/her native country or country of last habitual residence.65 The availability of
an immigrant visa for aliens who obtain SIJ status is subject to the numerical cap on the
allocation of immigrant visas for “special immigrants” (a category that includes several types of
aliens in addition to those with SIJ status).66
Nonimmigrant Visa for Victims of Trafficking and Other Crimes. Alien children without
immigration status could also be eligible for nonimmigrant visas allowing them to temporarily
remain in the country (and potentially adjust to LPR status) if they are the victims of trafficking
or certain other crimes. The INA provides that an alien may be granted a nonimmigrant visa
(commonly referred to as a “T visa”) if he or she is a victim of a severe form of trafficking, and
satisfies at least one other specified requirement, such as being under the age of 18.67 A T visa
generally allows an alien to live in the United States for up to four years (subject to extension in
limited cases), and the alien may apply for adjustment to LPR status after three years.68 Up to
5,000 T visas may be issued per year.69
A separate nonimmigrant visa (commonly referred to as a “U visa”) is available for aliens who (1)
have suffered substantial physical or mental abuse on account of being victims of specified
criminal activities;70 (2) possess information regarding the criminal activity; and (3) have been or
are likely to be helpful in a law enforcement investigation or prosecution of such activity.71 A U
visa may remain valid for up to four years (subject to extension in limited circumstances), and the
visa-holder may apply for adjustment to LPR status after three years.72 Up to 10,000 U visas may
be issued per year.73
64
See INA §§101(a)(27)(J), 203(b)(4), & 245(h); 8 U.S.C. §§101(a)(27)(J), 1153(b)(4), & 1255(h).
INA §101(a)(27)(J), 8 U.S.C.§1101(a)(27)(J). There are other preconditions for SIJ status. See generally “What is the
difference between being a UAC and having Special Immigrant Juvenile (SIJ) status?”.
66
See INA §203(b)(4), 8 U.S.C. §1253(b)(4) (providing for the allocation of immigration visas to “special
immigrants,” other than certain subcategories subject to separate requirements, is “a number not to exceed 7.1 percent
of such worldwide level” of immigration visas for “employment-based immigrants” under INA §203(b)).
67
INA §101(a)(15)(T), 8 U.S.C. §1101(a)(15)(T) (other potential qualifying factors include cooperating with a relevant
law enforcement investigation or prosecution of acts of trafficking, or being unable to cooperate with such efforts on
account of physical or psychological trauma). But see United States v. Resuleo-Flores, No. CR 11-0686 51, 2012 U.S.
Dist. LEXIS 30201, at *27 (N.D. Cal., Mar. 7, 2012) (alien under the age of 16 who recanted her charges to the police
could nonetheless be found to have cooperated with law enforcement given her initial reporting of the crime, especially
as her guardians discouraged her from further cooperation).
68
INA §214(o), 8 U.S.C. §1184(o); INA §245(l), 8 U.S.C. §1255(l).
69
INA §214(o), 8 U.S.C. §1184(o).
70
Covered criminal activities include, inter alia, domestic violence, rape, trafficking, kidnapping, involuntary
servitude, and felonious assault. INA §101(a)(15)(U)(iii), 8 U.S.C. §1101(a)(15)(U)(iii).
71
INA §101(a)(15)(U), 8 U.S.C. §1101(a)(15)(U). When the alien is a child under the age of 16, the eligibility
requirements concerning law enforcement assistance may be performed by a parent, guardian, or next friend. Id.
72
INA §214(p), 8 U.S.C. §1184(p).
73
INA §245(m), 8 U.S.C. §1255(m).
65
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Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions
May children without immigration status be released from DHS or
HHS custody?
DHS and HHS maintain custody over children without immigration status for different purposes.
In the case of DHS, the primary purpose is to secure the child’s presence at removal proceedings
and during the execution of a final order of removal.74 The purpose of HHS obtaining custody
over UACs is generally not focused upon immigration enforcement, but instead to provide UACs
with temporary shelter care and protect them from trafficking and other forms of exploitation.75
As a general matter, individual aliens placed in removal proceedings by DHS are potentially
subject to detention, but may also be released on bond or parole—which here refers to release
from custody, not entry into the United States—unless they fall under a category subject to
mandatory detention.76 DHS regulations and the Flores settlement agreement provide criteria for
when juveniles in removal proceedings may be released from custody. The Flores settlement
agreement establishes a “general policy” favoring the release of children from detention.77
However, both the agreement and DHS regulations recognize that release is not required when
DHS determines that the juvenile’s continued detention is necessary to ensure his/her safety or the
safety of others, or is required to secure the juvenile’s presence at immigration removal
proceedings.78 DHS regulations provide that a juvenile may be released, in order of preference, to
a parent, legal guardian, or other adult relative (brother, sister, aunt, uncle, or grandparent) who is
not presently in DHS detention, another adult individual or entity who is designated by a parent
or guardian in DHS custody and who agrees to care for the juvenile and ensure his/her presence at
removal proceedings; or (in unusual and compelling circumstances) another adult individual or
entity designated by DHS who agrees to care for the child and ensure his/her presence at removal
proceedings.79 Additionally, in cases where a juvenile is detained by DHS along with a parent,
legal guardian, or adult family member, DHS may on a case-by-case basis opt to release the
juvenile and accompanying adult from detention simultaneously.80
As noted earlier (see “Which federal agencies have primary responsibility for maintaining
custody of alien children without immigration status?”), federal statute designates HHS’s ORR
with responsibility for the care and custody of UACs, other than certain arriving UACs from
Canada and Mexico who have been immediately and voluntarily returned to their home
countries.81 When functions formerly handled by immigration authorities concerning UACs were
74
If DHS opts not to pursue immigration enforcement proceedings against an alien, the alien must be released from its
custody.
75
See 6 U.S.C. §279(b) (describing general functions with respect to UACs); 8 U.S.C. §1232(c) (requiring the
establishment of policies and programs to protect UACs from trafficking and other harmful activities).
76
INA §236(a), 8 U.S.C. §1226(a). The granting of parole (in the sense of release from custody) to aliens detained by
immigration authorities pending a decision on their removal is understood to be distinct from the parole of arriving
aliens into the United States under INA §212(d)(5) on account of urgent humanitarian reasons or a significant public
benefit. See Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010). See also 8 C.F.R. §212.5 (standards for parole
of aliens into United States pursuant to INA §212(d)(5)).
77
Stipulated Settlement Agreement, supra note 10, at ¶ 11.
78
Id.; 8 C.F.R. §236.3(b).
79
8 C.F.R. §236.3(b).
80
Id. But see Bunikyte, 2007 U.S. Dist. LEXIS 26166, at *49-*53 (rejecting the argument that the Flores agreement
required that detained parents be released so that their children could be released with them).
81
6 U.S.C. §279; 8 U.S.C. §1232.
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transferred to HHS via the Homeland Security Act of 2002, HHS also became subject to the terms
of the Flores settlement agreement.82 Section 235 of the TVPRA provided further guidance
concerning HHS standards for the care and control of UACs within the agency’s custody.83
Following the transfer of a UAC to the custody of HHS’s ORR, the UAC is generally released
shortly thereafter to the physical custody of an ORR-contracted care facility.84 The type of facility
(e.g., shelter care, secure care, or foster care) may depend upon the particular needs of the UAC,
the UAC’s age, and whether the UAC poses a flight risk or a danger to himself/herself or others.85
UACs remain in the legal custody of the federal government even though they may be temporary
placed in the physical custody of a licensed care provider.86 UACs could potentially remain in
such facilities pending culmination of removal proceedings against them (at which point they
may be removed from the United States); until they turn 18 (at which point they may be turned
over to DHS custody, provided that DHS has initiated removal proceedings against them);87 or
until such times as ORR finds a parent, legal guardian, or other entity who may take custody of
the UAC, in accordance with the terms of the Flores settlement agreement.88
The Secretary of HHS must consent to the jurisdiction of a juvenile court before the court may
declare a child in HHS custody to be a dependent of the court or before the court may legally
commit or place the juvenile in the custody of a state agency or a court-appointed person or
entity.89 As previously noted, such action by a state court is necessary before a juvenile can be
granted SIJ status.90
82
6 U.S.C. §552(a) (concerning continued recognition of “completed administrative actions”, including agreements,
made by agencies whose functions were transferred to other departments pursuant to the Homeland Security Act).
83
8 U.S.C. §1232.
84
Stipulated Settlement Agreement, supra note 10, at ¶ 14. Paragraph 28.A of the Flores agreement requires the
government to monitor contractors’ performance to ensure that the terms of the agreement are met. See, e.g., Walding
v. United States, 955 F. Supp. 2d 759, 781 (W.D. Tex. 2013). For a more detailed description of ORR’s responsibility
for UACs, see CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison Siskin,
and Ruth Ellen Wasem; Olga Byrne & Elise Miller, Vera Institute of Justice, The Flow of Unaccompanied Children
Through the Immigration System, at 8-21 (March 2012), available at http://www.vera.org/sites/default/files/resources/
downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf.
85
See CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison Siskin, and Ruth
Ellen Wasem; Byrne and Miller, supra note 84, at 19. See also 8 U.S.C. §1232(c)(2) (generally requiring HHS to place
UACs within its custody in “the least restrictive setting that is in the best interest of the child”).
86
See Dep’t of Health & Human Services, Office of Refugee Resettlement, Notice of Grant Opportunity for Residential
Services for Unaccompanied Children, at 2 (2014), available at http://www.acf.hhs.gov/grants/open/foa/files/HHS2014-ACF-ORR-ZU-0608_0.pdf (“UAC are in the legal custody of the Federal Government throughout their stay in
ORR care but will be in the physical custody of the residential care provider.”).
87
8 U.S.C. §1232(c)(2)(B). DHS is required to consider placing such persons “in the least restrictive setting available
after taking into account the alien’s danger to self, danger to the community, and risk of flight,” and transferred persons
are made eligible to participate in alternative to detention programs. Id.
88
See Stipulated Settlement Agreement, supra note 10, at ¶¶ 12.A & 14.
89
INA §101(a)(27)(J)(iii)(I), 8 U.S.C.§1101(a)(27)(J)(iii)(I).
90
See supra at “What is the difference between being a UAC and having Special Immigrant Juvenile (SIJ) status?”.
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What is the “best interest of the child” standard, and how does it
apply to immigration detention and removal decisions?
As the term suggests, the “best interest of the child” standard prioritizes an affected child’s
interests in the context of adjudication or other decision-making processes. The standard is
typically employed by courts or administrative bodies considering issues implicating a child’s
welfare, including child custody and placement decisions.91 There is no uniform consensus as to
the particular factors that should be considered (or the weight given to each of these factors) when
applying the “best interest of the child standard,” and application of the standard can vary
depending upon the context.92
The “best interest of the child” standard generally does not provide legal guidance as to whether
or not a child is subject to removal.93 A 2007 guidance document issued by the DOJ’s Executive
Office of Immigration Review (EOIR) concerning immigration court cases involving UACs notes
the following:
Issues of law—questions of admissibility, eligibility for relief, etc.—are governed by the
Immigration and Nationality Act and the regulations. The concept of “best interest of the
child” does not negate the statute or the regulatory delegation of the Attorney General’s
authority, and cannot provide a basis for providing relief not sanctioned by law.94
The “best interest of the child” standard may, however, inform the conduct of immigration
removal proceedings,95 even if the standard is not relevant to a determination of whether the child
is removable. A child’s interests are also relevant to other determinations by immigration
authorities, including when or whether to release a child without immigration status from
detention during the course of removal proceedings (though consideration of this interest is not
dispositive, and it may be overcome by competing government interests, including ensuring the
91
See generally Dept. of Health & Human Services, Children’s Bureau, Determining the Best Interests of the Child
(last updated Nov. 2012) [hereinafter “HHS Overview of State Statutes”], available at https://www.childwelfare.gov/
systemwide/laws_policies/statutes/best_interest.pdf (providing overview of standard, its application, and various state
statutes implementing the standard); Lynne Marie Kohm, Tracing the Foundations of the Best Interests of the Child
Standard in American Jurisprudence, 10 J.L. & FAM. STUD. 376 (2008) (discussing origins and development of
standard).
92
See generally HHS Overview of State Statues, supra note 91 (identifying and discussing state laws providing
guidance for application of “best interest of the child” standard); Kohm, supra note 91 (discussing judicial discretion in
assessing and interpreting what serves a child’s best interest).
93
In 2002, a federal district court held that INA provisions concerning alien removal and relief from removal should be
construed in a manner consistent with international agreements and customary international law, including “principles
of customary international law that the best interests of the child must be considered where possible.” Beharry v. Reno,
183 F. Supp. 2d 584 (E.D. N.Y. 2002). This ruling was subsequently vacated on jurisdictional grounds, 329 F.3d 51 (2d
Cir. 2003). The BIA has held that customary international law does not afford an alien a remedy from removal above
and beyond those forms of relief established by the INA, and that, even assuming arguendo that customary law could
provide a basis for such relief, immigration judges have not been delegated authority to make such determinations by
the Attorney General. See Matter of A–E–M–, 21 I. & N. Dec. 1157 (BIA 1998).
94
Dep’t of Justice, Exec. Office of Immigration Review, Office of the Chief Immigration Judge, Operating Policies and
Procedures Memorandum 7-01, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, at
4 (2007), available at http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf.
95
Id. (“[T]his concept is a factor that relates to the immigration judge’s discretion in taking steps to ensure that a ‘childappropriate’ hearing environment is established, allowing a child to discuss freely the elements and details of his or her
claim.”).
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child’s presence at removal hearings).96 As noted above (see “What is the difference between
being a UAC and having Special Immigrant Juvenile (SIJ) status?”), in determining an alien
child’s eligibility for SIJ status, immigration authorities must consider whether it would be in the
child’s best interest not to be repatriated to his/her home country.97 However, other criteria must
also be satisfied for a child to be deemed eligible for SIJ status.98
On the other hand, the “best interest of the child” standard is statutorily required to be considered
by ORR in certain decisions involving UACs placed in its custody. In 2008, Congress mandated
that UACs placed in ORR custody “be promptly placed in the least restrictive setting that is in the
best interest of the child.”99
Can UACs obtain asylum due to gang violence in their home
countries?
Some UACs could potentially be found to be eligible for asylum as a result of gang-related
violence in their home countries, although the existence of such violence is not, in itself, a basis
for asylum.100 Rather, eligibility for asylum is determined on a case-by-case basis, with the
individual alien applying for asylum having the burden of establishing that he/she is unable or
unwilling to return to his/her home country because of persecution, or a well-founded fear of
persecution, on account of race, religion, nationality, political opinion, or membership in a
particular social group.101 Persecution is not defined by either the INA or its implementing
regulations, but has been construed to mean “the infliction of suffering or harm upon those who
differ (in race, religion or political opinion) in a way regarded as offensive. ... [It is] an extreme
concept that does not include every sort of treatment our society regards as offensive.”102
96
See 8 C.F.R. §236.3 (DHS standards for releasing juveniles in removal proceedings from custody); Stipulated
Settlement Agreement, supra note 10, at ¶¶ 14, 19, & Exhibit 1 (specifying conditions at the locations where children
are held by immigration authorities, identifying a “general policy” favoring the release of children from custody, but
providing that children are not required to be released when authorities believe that detention is necessary to secure the
child’s presence at removal proceedings or ensure the child’s release does not pose a danger to the child or others).
97
INA §101(a)(27)(J), 8 U.S.C. §1101(a)(27)(J).
98
Id. (also requiring that an SIJ applicant (1) has been declared by a state court to be a dependent of the court, or to
have been legally placed by the court with a state or an appointed private entity; and (2) is unable to reunite with one or
more parents on account of abuse, abandonment, or neglect). Moreover, some grounds of inadmissibility may bar an
alien with SIJ status from adjusting to LPR status. See INA §245(h), 8 U.S.C. §1255(h) (exempting SIJs from being
ineligible for adjustment of status on certain inadmissibility grounds, and permitting immigration authorities to waive
other inadmissibility grounds).
99
8 U.S.C. §1232(c)(2)(A). The requirement that children be placed in the “least restrictive setting” mirrors language
found in the Flores settlement agreement. See, e.g., Settlement Agreement, supra note 10, at ¶ 23.
100
Compare INA §101(a)(42), 8 U.S.C. §1101(a)(42) (“For purpose of determinations under this Act, a person who has
been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or
refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to
have been persecuted on account of political opinion.”).
101
See generally INA §208(b)(1)(B)(i), 8 U.S.C. §1158(b)(1)(B)(i). Certain aliens arriving at the U.S. border or a port
of entry are required to show a “credible fear” of persecution in order to avoid removal or return to their home country.
See INA §235(a)(2) & (b)(1)(B)(ii), 8 U.S.C. §1225(a)(2) & (b)(1)(B)(ii) (stowaways and certain arriving aliens,
respectively); 8 U.S.C. §1232(a)(2)(A) (UACs from contiguous countries). However, with the exception of UACs from
contiguous countries, credible fear generally does not factor into the asylum process since UACs are subject to formal
removal proceedings under Section 240 of the INA, not expedited removal under Section 235. See 8 U.S.C.
§1232(a)(5)(D)(i).
102
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). See also Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991)
(continued...)
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Generalized violence or lawlessness may be distinguished from persecution,103 as may be harms
that are not seen as arising from the actions of the government or entities whom the government
cannot or will not control.104 Any persecution must also be “on account of” a protected ground
(i.e., race, religion, etc.), a phrase which has been taken to mean that the protected ground serves
as “at least one central reason for the persecution.”105
Those seeking asylum based on gang-related violence have often asserted persecution on account
of membership in a particular social group or, less commonly, political opinion (i.e., an actual or
imputed political opinion that they are opposed to the gangs).106 The relevant social group has
been defined in various ways—including (1) those who oppose (or are taking “concrete” or
“active” steps to oppose) the gangs’ activities;107 (2) those who resist attempts to recruit them to
the gang;108 (3) former gang members who have renounced their membership;109 (3) witnesses
who have testified against the gangs,110 and (4) families that have been affected by gang
violence111—and with various degrees of success. In a number of cases, administrative and
judicial tribunals have declined to recognize the proposed social group because it is amorphous,
and the individuals making up the group would not be perceived as a group by the society in
question.112 However, such determinations generally reflect the tribunals’ view of the evidence
that the alien offered regarding social perceptions in his/her home society,113 not per se rules as to
(...continued)
(“‘Persecution’ means, in immigration law, punishment for political, religious, or other reasons that our country does
not recognize as legitimate.”); H.R. REP. NO. 95-1452, at 5, as reprinted in 1978 U.S.C.C.A.N. 4700, 4704 (“Generally
[the] case law has described persecution as the infliction of suffering or harm under government sanction, upon persons
who differ in a way regarded as offense (e.g., race, religion, political opinion, etc.), in a manner condemned by
civilized governments.”).
103
See, e.g., Jutus v. Holder, 723 F.3d 105 (1st Cir. 2013) (application denied where alien noted only “widespread
societal violence and inadequate police and judicial protection” in Guatemala); Escobar v. Holder, 698 F.3d 36, 39 (1st
Cir. 2012) (“[B]eing a target for thieves on account of perceived wealth ... is merely a condition of living where crime
is rampant and poorly controlled.”).
104
Compare Fuentes-Chavarria, No. 13-9503, 2014 U.S. App. LEXIS 6956, at *11 (10th Cir., Apr. 15, 2014) (evidence
did not establish that the feared harms would occur “on behalf of the government or with the government’s willful
blindness”) with Karki v. Holder, 715 F.3d 792, 807 (10th Cir. 2013) (in light of circumstances, government’s failure to
prevent or prosecute acts of a political party was sufficient to show the government would likely acquiesce).
105
Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). A “central reason,” in turn, has been described as
one that is more than “incidental, tangential, superficial, or subordinate to another reason for harm.” Quineros-Mendoza
v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting Matter of J-B-N-, 24 I. & N. Dec. 208, 214 (BIA 2007)).
106
See, e.g., Castillo Sanchez v. U.S. Attorney General, 523 Fed. App’x 682 (11th Cir. 2013).
107
See, e.g., Pirir-Boc v. Holder, No. 09-73671, 2014 U.S. App. LEXIS 8577 (9th Cir., May 7, 2014).
108
See, e.g., Flores Munoz v. Holder, No. 13-60601, 2014 U.S. App. LEXIS 8974 (5th Cir., May 14, 2014); Matter of
S-E-G-, 24 I. & N. Dec. 579 (2008).
109
See, e.g., Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009).
110
See, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
111
See, e.g., Perez-Perez v. Holder, No. 13-1711, 2014 U.S. App. LEXIS 8786 (4th Cir., May 9, 2014).
112
Compare Ulloa Santos v. Attorney General, 552 Fed. App’x 197 (3d Cir. 2014) (“[T]he group appears to have been
defined principally, if not exclusively, for purposes of this asylum case.”) (internal citation and quotations omitted)
with Olmos Borja v. Holder, 550 Fed. App’x 517, 519 (9th Cir. 2013) (finding the alien eligible for asylum).
113
See, e.g., Flores Munoz, 2014 U.S. App. LEXIS 8974, at *2 (“Though [the applicant] testified that members of a
drug gang who killed her husband sought to recruit her to sell drugs for them and that she feared for her life because
she turned down their requests, the evidence that she put forward does not compel the conclusion that Honduran society
would view those who resist membership in drug gangs as a particular, visible group.”); Matter of W-G-R-, 26 I. & N.
Dec. 208, 222 (2014) (“scant evidence” produced by the applicant seen as insufficient). Significantly, in February
2014, the BIA rephrased the test for the cognizability of alleged social groups from one focused on “social visibility” to
(continued...)
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what constitutes a particular social group.114 In other cases, individual aliens’ claims regarding
their treatment at the hands of their alleged persecutors are not seen as credible, for example,
because of inconsistencies in their stories.115 Some aliens may also be statutorily barred from
receiving asylum under the INA, although such bars seem unlikely to affect UACs who are not
former gang members.116
UACs are treated the same as other aliens in terms of applications for asylum, with two notable
exceptions, previously noted (see “Are children without immigration status eligible for relief
from removal?”). First, all applications for asylum involving UACs must be heard by USCIS,
regardless of whether the application involves an alien currently in removal proceedings. Claims
involving aliens in proceedings—widely known as “defensive applications”—are otherwise heard
exclusively by immigration judges, with only claims by aliens not in removal proceedings (i.e.,
“affirmative applications”) being heard by USCIS.117 However, Section 208 of the INA and its
implementing regulations require that both defensive and affirmative applications by UACs be
heard by USCIS.118 Second, an alien’s minority status could constitute an “extraordinary
circumstance” that would permit an application for asylum to be filed more than one year after
the alien’s arrival in the United States.119 Claims filed more than one year after arrival are
otherwise barred absent the existence of “changed circumstances that materially affect the
applicant’s eligibility for asylum.”120
How would considering UACs for admission as refugees—instead
of asylum—change things?
The primary difference between refugees and asylees is the alien’s location at the time he/she
applies for such status. Eligibility for both refugee status and asylum depends upon the alien
qualifying as a refugee,121 as that term is defined by Section 101(a)(42) of the INA:
(...continued)
one focused on “social distinction”. See Matter of W-G-R-, 26 I. & N. Dec. 208 (2014); Matter of M-E-V-G-, 26 I. &
N. Dec. 227 (2014). It remains to be seen how this change may affect applications for asylum, including on gangrelated grounds, although some commentators have suggested that the new standard, if upheld by the federal courts of
appeals, could make it more difficult for asylum applicants to prove their cases. See, e.g., Pirir-Boc, 2014 U.S. App.
LEXIS 8577, at *22 (noting that the meaning of the term particular social group is “in flux, and it is premature to
determine precisely how the rule [articulated in the BIA’s recent decisions] will be implemented”); Ashley Huebner &
Lisa Koop, New BIA Decisions Undermine U.S. Obligations to Protect Asylum Seekers, Nat’l Immigrant Justice
Center, Feb. 18, 2014, available at http://www.immigrantjustice.org/litigation/blog/new-bia-decisions-undermine-usobligations-protect-asylum-seekers.
114
See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. at 251 (emphasizing that there is no “blanket rejection of all factual
scenarios involving gangs,” and that “[s]ocial group determinations are made on a case-by-case basis”).
115
Compare Boraj v. Holder, No. 12-4631, 2014 U.S. App. LEXIS 5013, at *4-*5 (2d Cir., Mar. 18, 2014) (applicant
viewed as credible by the immigration judge) with Abrego-Centeno v. Attorney General, 552 Fed. App’x 130 (3d Cir.
2014) (applicant not seen as credible because he gave conflicting testimony).
116
See, e.g., INA §208(b)(2)(A)(iii) (aliens as to whom there are “serious reasons” to believe that they committed a
“serious nonpolitical crime” outside the United States prior to their arrival are generally ineligible for asylum).
117
See 8 C.F.R. §208.2(b).
118
See INA §208(b)(3)(C), 8 U.S.C. §1158(b)(3)(C); 8 C.F.R. §208.2(a).
119
See, e.g., Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir. 2008); 8 C.F.R. §1208.4(a)(5)(ii).
120
INA §208(a)(2)(B) & (D), 8 U.S.C. §1158(a)(2)(B) & (D).
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121
See INA §207(c)(1), 8 U.S.C. §1157(c)(1) (refugee status); INA §208(b)(1)(A), 8 U.S.C. §1158(b)(1)(A) (asylum).
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The term “refugee” means (A) any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is outside any country in which
such person last habitually resided, and who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, that country 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, or (B) in such special
circumstances as the President after appropriate consultation ... may specify, any person who
is within the country of such person’s nationality or, in the case of a person having no
nationality, within the country in which such person is habitually residing, and who is
persecuted or who has a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.122
However, refugee status may only be granted to aliens who apply for such status while they are
outside the United States,123 while asylum may only be granted to aliens who apply for such
status at the U.S. border or inside the United States.124 As a practical matter, considering children
or other persons from Central American countries for refugee status—as opposed to asylum—as
some have proposed would thus mean that these individuals would not need to travel through
Mexico (and potentially other countries) to the United States.125 Indeed, if the President were to
so specify (after “appropriate consultation”), they could be considered for refugee status while
remaining within their home countries.126 Legally, though, individuals would have to meet the
same requirements discussed previously (see “Can UACs obtain asylum due to gang violence in
their home countries?”) in terms of showing that they have suffered past persecution, or have a
well-founded fear of future persecution on account of a statutorily protected ground (i.e., race,
religion). Fear of generalized violence or lawlessness would not necessarily suffice.127
There are, however, a couple of other notable distinctions between refugee status and asylum.
One is that refugees are subject to the broader criminal grounds of inadmissibility (although with
waivers available for many grounds for humanitarian, family unity, and public interest purposes),
while asylees are ineligible for asylum after entry if they have been convicted of an aggravated
felony.128 Another is that applicants for refugee status must be sponsored by a “responsible person
122
INA §101(a)(42), 8 U.S.C. §1101(a)(42).
See INA §207, 8 U.S.C. §1157 (refugees outside United States).
124
See INA §208(a)(1), 8 U.S.C. §1158(a)(1) (aliens “physically present in the United States” or “arriving in the United
States (whether or not at a designated port of arrival)”).
125
See, e.g., Richard Cowan, Calls in U.S. Congress for Refugee Status for Central American Kids, Reuters, June 27,
2014, available at http://www.reuters.com/article/2014/06/27/us-usa-immigration-childrenidUSKBN0F229L20140627.
126
See INA §101(a)(42), 8 U.S.C. §1101(a)(42) (defining refugees, in part, based on their being outside their country of
nationality, barring “special circumstances”). The INA further defines appropriate consultation to mean “discussions in
person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary
of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to
project the extent of possible participation of the United States therein, to discuss the reasons for believing that the
proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in
the national interest, and to provide such members with [prescribed] information” (e.g., the number and allocation of
the refugees to be admitted; an analysis of conditions within the countries from which they came). INA §207(e), 8
U.S.C. §1157(e).
127
See supra notes 103-104 and accompanying text.
128
Compare INA §207(c)(3) (refugee status), 8 U.S.C. §1157(c)(3) (“The provisions of paragraphs (4), (5), and (7)(A)
of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this
subsection, and the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or
subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest.”) with INA §208(b)(2)(A)(ii) & (B)(i) (asylum), 8 U.S.C.
(continued...)
123
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or organization,” who guarantees the applicant’s transportation from his or her present abode to
his or her place of resettlement in the United States.129 There is also generally a limit on the
maximum number of refugees admitted to the United States each year,130 and applicants who are
accepted are typically placed on “waiting lists,” from which “refugees or groups of refugees may
be selected ... in a manner that will best support the policies and interests of the United States.”131
Neither sponsorship nor placement on a waiting list occurs with asylees. It is also worth noting
that aliens seeking asylum may appeal the denial of their application, while “[t]here is no appeal”
from a denial of an application for refugee status (although an alien could potentially apply for
refugee status again).132
Derivative status may be generally granted to the spouses and minor children of those granted
both refugee status and asylum.133 Parents are not eligible for such derivative status. Both
refugees and asylees may also become LPRs after one year.134
Rights, Privileges, and Benefits
Do UACs have a right to counsel at the government’s expense in
removal proceedings?
Two separate provisions of federal law address UACs’ access to legal counsel. One provision—
Section 235 of the TVPRA, as amended—generally requires the Secretary of HHS to “ensure”
that UACs in HHS or DHS custody “have counsel to represent them in legal proceedings or
matters and protect them from mistreatment, exploitation, and trafficking.”121135 The other
provision—Section 462 of the Homeland Security Act, as amended—requires the Director of the
ORR at HHS to develop a plan to “ensure that qualified and independent legal counsel is timely
appointed to represent the interests of each child.”122
(...continued)
§1158(b)(2)(A)(ii) & (B)(i) (“Paragraph (1) [authorizing the granting of asylum] shall not apply to an alien if [it is
determined that the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a
danger to the community of the United States ... For purposes of clause (ii) of subparagraph (A), an alien who has been
convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.”).
129
8 C.F.R. §207.2(c).
130
See generally INA §207(a)(2), 8 U.S.C. §1157(a)(2) (“Except as provided in subsection (b) of this section, the
number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such
number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is
justified by humanitarian concerns or is otherwise in the national interest.”). However, the “subsection (b)” referred to
here permits the President to set a number for refugees to be admitted to the United States during a succeeding period
of up to one year in response to an “emergency refugee situation” after determining, following “appropriate
consultation”, that (1) an unforeseen refugee situation exists; (2) the admission of certain refugees in response to such
situation is “justified by grave humanitarian concerns or ... otherwise in the national interest”; and (3) the admission of
these refugees cannot be accomplished under the pre-existing “quota”.
131
8 C.F.R. §207.5.
132
8 C.F.R. §207.3(b).
133
8 C.F.R. §207.7(a) (eligible derivatives of refugees); 8 C.F.R. §208.21(a) (spouses and children of asylees).
134
INA §209(a) & (b), 8 U.S.C. §1159(a) & (b). As a technical matter, refugees are required to apply for such status,
while with asylees, application is optional.
135
P.L. 110-457, §235, 122 Stat. 5074 (Dec. 23, 2008) (codified, as amended, at 8 U.S.C. §1232(c)(5)).
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appointed to represent the interests of each child.”136 However, because both provisions describe
such access as being “consistent with” Section 292 of the INA and other provisions of federal
law, they have not been construed as requiring the appointment of counsel at the government’s
expense since these provisions require that any such counsel be “at no expense to the
Government.”123137
In several cases, UACs and their advocates have challenged Section 292 and the government’s
corresponding failure to provide counsel to UACs in removal proceedings, including on the
grounds that it violates the Due Process Clause of the U.S. Constitution.124138 These challenges
sometimes note that children in other types of civil proceedings have been found to have a
categorical right to counsel at the government’s expense, regardless of their individual
circumstances. They often also note that the consequences of potential removal for aliens are
comparable to the consequences of these other proceedings.125139 Courts have, to date, rejected these
arguments, declining to recognize a categorical right to counsel at the government’s expense for
UACs or other aliens. However, at least four federal courts of appeal126appeal140 have opined that the Due
Process Clause could potentially require the appointment of counsel on a case-by-case basis for
individual aliens who are incapable of representing themselves due to “age, ignorance, or mental
capacity.”127141 Section 504 of the Rehabilitation Act has also been construed in such a way that it
121
P.L. 110-457, §235, 122 Stat. 5074 (Dec. 23, 2008) (codified, as amended, at 8 U.S.C. §1232(c)(5)).
could result in the appointment of counsel at the government’s expense for unrepresented
immigration detainees with “serious mental disorders or conditions that may render them
mentally incompetent to represent themselves in immigration proceedings.”142 Certain UACs
could potentially be encompassed by the protections of Section 504.
136
P.L. 107-296, §462, 116 Stat. 2202 (Nov. 25, 2002) (codified, as amended, at 6 U.S.C. §279(b)(1)(A)).
123
8 U.S.C. §1362. See also INA §208(d)(4), 8 U.S.C. §1158(d)(4) (requiring that applicants for asylum be advised of
the “privilege” of being represented by counsel and given a list of persons who can provide pro bono representation);
INA §238(b)(4)(B), 8 U.S.C. §1228(b)(4)(B) (providing that aliens convicted of aggravated felonies who are subject to
expedited removal under Section 238 of the INA shall “have the privilege of being represented (at no expense to the
government) by such counsel ... as the alien shall choose”); INA §240(a)(1)(E), 8 U.S.C. §1229a(a)(1)(E) (aliens
placed in formal removal proceedings are to be given written notice that they may be represented by counsel); INA
§240(b)(4)(A), 8 U.S.C. §1229a(b)(4)(A) (aliens in removal proceedings have right to counsel at no expense to the
government).
124138
See, e.g., Gonzalez Machado v. Ashcroft, Order Granting Motion to Dismiss, No. CS-01-0066-FVS (E.D. Wash.
June 18, 2002) (copy on file with the authors); Perez-Funez v. District Director, 619 F. Supp. 656 (C.D. Cal. 1985).
125139
For further discussion of the other types of civil proceedings in which children have been found to have a
categorical right to counsel at government expense, and the ways in which such proceedings may be distinguishable
from removal proceedings, see generally CRS Report R43613, Aliens’ Right to Counsel in Removal Proceedings: In
Brief, by Kate M. Manuel, at notes 60-64 and accompanying text.
126140
See Aguilera-Enriquez v. INS, 516 F.2d 565, 569 n.3 (6th Cir. 1975); Michelson v. INS, 897 F.2d 465, 468 (10th Cir.
1990); Ruiz v. INS, 787 F.2d 1294, 1297 n.3 (9th Cir. 1996); Barthold v. INS, 517 F.2d 689, 690-691 (5th Cir. 1975).
127141
Cf. Wade v. Mayo, 334 U.S. 672, 683-684 (1948) (“There are some individuals who, by reason of age, ignorance, or
(continued...)
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could result in the appointment of counsel at the government’s expense for unrepresented
immigration detainees with mental capacity, are incapable of representing themselves in a prosecution of a relatively simple nature. ... Where such
incapacity is present, the refusal to appoint counsel is a denial of due process of law.”).
142
Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal. 2010). In response to the district court’s decision in
Franco-Gonzales, DOJ and DHS adopted a “nationwide policy” regarding unrepresented immigration detainees with
“serious mental disorders or conditions that may render them
mentally incompetent to represent themselves in
immigration proceedings.”128 Certain UACs
could potentially be encompassed by the protections of Section 504. Among other things, this policy calls for procedures that would make “qualified
representatives”—a term which includes, but is not limited to licensed attorneys—available to such individuals at the
government’s expense or on a pro bono basis. Dep’t of Justice, Press Release, Department of Justice and the
Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious
Mental Disorders or Conditions, Apr. 22, 2013, available at http://www.justice.gov/eoir/press/2013/
SafeguardsUnrepresentedImmigrationDetainees.html.
137
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Does Section 292 of the INA bar the federal government from
paying for counsel for UAC?
The federal government’s recent announcement that it will award $2 million in grants to enroll
“about 100 lawyers and paralegals” to represent children in immigration proceedings129proceedings143 has
prompted questions about whether doing so is barred by Section 292 of the INA. As previously
noted (see “Do UACs have a right to counsel at the government’s expense in removal
proceedings?”), Section 292 generally governs aliens’ right to counsel, and provides that,
In any removal proceedings before an immigration judge and in any appeal proceedings
before the Attorney General from any such removal proceedings, the person concerned shall
have the privilege of being represented (at no expense to the Government) by such counsel ...
as he shall choose.130144
Some have previously suggested that this provision, by itself or in conjunction with 5 U.S.C.
§3106—which generally bars agencies from “employ[ing] an attorney or counsel for the conduct
of litigation in which the United States ... is a party”—precludes the government from providing
or otherwise paying for aliens’ counsel in removal proceedings.131145 Those making this argument
seemingly construe the language about aliens’ “privilege” to have counsel at their own expense to
mean that the government may not pay for counsel for them. However, this interpretation does
not appear to have been adopted by any court, and other interpretations could be advanced. In
particular, an argument could be made that these provisions only restrict aliens’ ability to claim an
(...continued)
mental capacity, are incapable of representing themselves in a prosecution of a relatively simple nature. ... Where such
incapacity is present, the refusal to appoint counsel is a denial of due process of law.”).
128
Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal. 2010). In response to the district court’s decision in
Franco-Gonzales, DOJ and DHS adopted a “nationwide policy” regarding unrepresented immigration detainees with
“serious mental disorders or conditions that may render them mentally incompetent to represent themselves in
immigration proceedings.” Among other things, this policy calls for procedures that would make “qualified
representatives”—a term which includes, but is not limited to licensed attorneys—available to such individuals at the
government’s expense or on a pro bono basis. Dep’t of Justice, Press Release, Department of Justice and the
Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious
Mental Disorders or Conditions, Apr. 22, 2013, available at http://www.justice.gov/eoir/press/2013/
SafeguardsUnrepresentedImmigrationDetainees.html.
129
entitlement to counsel at the government’s expense, and do not preclude the government from
paying for aliens’ counsel pursuant to other provisions of law or at its discretion.146
Are there legal requirements concerning consular notification and
access when an alien child is taken into federal custody?
Along with the vast majority of countries, the United States is a party to the Vienna Convention
on Consular Relations (VCCR), a multilateral agreement codifying consular practices originally
governed by customary practice and bilateral agreements.147 Pursuant to Article 36 of the VCCR,
143
See, e.g., Kirk Semple, Youths Facing Deportation To Be Given Legal Counsel, N.Y. TIMES, June 6, 2014, available
at http://www.nytimes.com/2014/06/07/us/us-to-provide-lawyers-for-children-facing-deportation.html?_r=0.
130144
See 8 U.S.C. §1362.
131145
See, e.g., Escobar Ruiz v. INS, 787 F.2d 1294 (9th Cir. 1986) (rejecting the argument that Section 292 of the INA
bars the payment of attorney fees, pursuant to the Equal Access to Justice Act (EAJA), to prevailing plaintiffs);
Aguilera-Enriquez, 516 F.2d at 568 (noting that the immigration judge in this case had found that Section 292 of the
INA barred the provision of appointed counsel for the plaintiff); Funding of a Pilot Project for the Representation of
Aliens in Immigration Proceedings, memorandum from David A. Martin, General Counsel, INS, to T. Alexander
Aleinikoff, Executive Associate Commissioner, INS, Dec. 21, 1995 (reading INA §292, in conjunction with 5 U.S.C.
§3106, as barring the appointment of counsel for aliens in removal proceedings) (copy on file with the authors).
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entitlement to counsel at the government’s expense, and do not preclude the government from
paying for aliens’ counsel pursuant to other provisions of law or at its discretion.132
Are there legal requirements concerning consular notification and
access when an alien child is taken into federal custody?
Along with the vast majority of countries, the United States is a party to the Vienna Convention
on Consular Relations (VCCR), a multilateral agreement codifying consular practices originally
governed by customary practice and bilateral agreements.133 Pursuant to Article 36 of the VCCR,
146
See Views Concerning Whether It Is Legally Permissible to Use Discretionary Funding for Representation of Aliens
in Immigration Proceedings, memorandum from David A. Martin, Principal Deputy General Counsel, Department of
Homeland Security, to Thomas J. Perrelli, Associate Attorney General, Department of Justice, Dec. 10, 2010 (copy on
file with the authors). General principles of appropriations law could, however, potentially impose certain limitations
on federal agencies’ funding of counsel for aliens since appropriations may only be used for the purposes for which
they were made. See generally 31 U.S.C. §1301(a) (“Appropriations shall be applied only to the objects for which the
appropriations were made except as otherwise provided by law.”).
147
Vienna Convention on Consular Relations, done April 24, 1963, 21 U.S.T. 77 [hereinafter “VCCR”].
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when a national of a State party (i.e., country) is arrested or otherwise detained in another State
party, appropriate authorities within the arresting State must inform the person arrested “without
delay” of the ability to have his/her consulate notified. The VCCR does not require the arresting
State to notify the appropriate consular officials in every instance; rather, it requires the arresting
State to notify the foreign national in its custody that he/she has the option of having his/her
consulate notified. A foreign consular officer also is provided the right to communicate and be
provided access to a detained national, including the ability to visit the national in the detention
facility and arrange legal representation.134148 DHS regulations require that “[e]very detained alien
shall be notified that he or she may communicate with the consular or diplomatic officers of the
country of his or her nationality in the United States.”135149
The United States also has bilateral agreements with a number of countries that require consular
notification in the event that one of the parties arrests a national of the other party.136150 Most UACs
encountered by CBP along the U.S.-Mexico border are from countries (including Mexico) that are
parties to the VCCR but do not have separate agreements requiring mandatory consular
notification.137151 The VCCR identifies consular functions as including “safeguarding ... the interests
of minors and other persons lacking full capacity who are nationals of the sending State,
particularly where any guardianship or trusteeship is required with respect to such persons.”138152
Some have argued that, consistent with the VCCR’s recognition of this function, consular officers
should be notified whenever a UAC or other alien child is taken into custody by immigration
132
See Views Concerning Whether It Is Legally Permissible to Use Discretionary Funding for Representation of Aliens
in Immigration Proceedings, memorandum from David A. Martin, Principal Deputy General Counsel, Department of
Homeland Security, to Thomas J. Perrelli, Associate Attorney General, Department of Justice, Dec. 10, 2010 (copy on
file with the authors). General principles of appropriations law could, however, potentially impose certain limitations
on federal agencies’ funding of counsel for aliens since appropriations may only be used for the purposes for which
they were made. See generally 31 U.S.C. §1301(a) (“Appropriations shall be applied only to the objects for which the
appropriations were made except as otherwise provided by law.”).
133
Vienna Convention on Consular Relations, done April 24, 1963, 21 U.S.T. 77 [hereinafter “VCCR”].
134
Id., at art. 36.
135
authorities,153 but current DHS regulations provide for mandatory consular notification only when
a bilateral agreement expressly requires it.154
The United States may also enter into both legally binding and nonlegal arrangements with
foreign countries concerning the repatriation of their nationals. In recent years, DHS and local
ICE or CBP field offices have entered (nonlegal)155 arrangements concerning the repatriation of
Mexican nationals, including UACs. These arrangements typically call for notification of
Mexican consular officials and other Mexican authorities when a UAC is to be repatriated, and
provide for repatriation to occur during daylight hours.156
148
Id., at art. 36.
8 C.F.R. §236.1(e). Countries with mandatory consular notification agreements are notified of the detention of one
of their nationals even if the arrested aliens do not wish to have their consulate notified. Id.
136150
See State Dep’t, Bureau of Consular Affairs, Countries and Jurisdictions with Mandatory Notifications, available at
http://travel.state.gov/content/travel/english/consularnotification/countries-and-jurisdictions-with-mandatorynotifications.html (last accessed: June 26, 2014).
137151
Compare id. with CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison
Siskin, and Ruth Ellen Wasem, at Figure 1.
138
VCCR, at art. 5.
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authorities,139 but current DHS regulations provide for mandatory consular notification only when
a bilateral agreement expressly requires it.140
The United States may also enter into both legally binding and nonlegal arrangements with
foreign countries concerning the repatriation of their nationals. In recent years, DHS and local
ICE or CBP field offices have entered (nonlegal)141 arrangements concerning the repatriation of
Mexican nationals, including UACs. These arrangements typically call for notification of
Mexican consular officials and other Mexican authorities when a UAC is to be repatriated, and
provide for repatriation to occur during daylight hours.142
152
VCCR, at art. 5.
153
See Betsy Cavendish & Maru Cortazar, Children at the Border: The Screening, Protection and Repatriation of
Unaccompanied Mexican Minors, at 25, 46-47 (2011), available at http://appleseednetwork.org/wp-content/uploads/
2012/05/Children-At-The-Border1.pdf.
154
8 C.F.R. §236.1(e).
155
Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a
legally binding international agreement. The repatriation arrangements made between Mexico and DHS in recent years
include language evidencing an intent for the arrangements not to be legally binding in nature. For background, see
CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Michael John Garcia, and
State Department Office of the Legal Adviser, Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/
guidance/.
156
A compendium of several of these arrangements can be viewed at http://www.ice.gov/doclib/foia/repatriation(continued...)
149
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In addition to consular notification requirements relating to the detention of a foreign national, the
VCCR also provides that appropriate authorities within the host country notify the appropriate
consular post “without delay of any case where the appointment of a guardian or trustee appears
to be in the interests of a minor or other person lacking full capacity who is a national of the
sending State.”143157
Are UACs eligible for Deferred Action for Childhood Arrivals?
UACs who entered the United States in FY2014 are generally not eligible for deferred action—a
type of temporary relief from removal, the receipt of which can result in aliens receiving work
authorization and certain public benefits—under the Deferred Action for Childhood Arrivals
(DACA) initiative.144158 Pursuant to the DHS guidelines regarding DACA, eligibility is limited to
aliens who have resided in the United States since June 15, 2007, and who were physically
present in the United States on June 15, 2012.145 Such residence must have been “continuous,”
139
See Betsy Cavendish & Maru Cortazar, Children at the Border: The Screening, Protection and Repatriation of
Unaccompanied Mexican Minors, at 25, 46-47 (2011), available at http://appleseednetwork.org/wp-content/uploads/
2012/05/Children-At-The-Border1.pdf.
140
8 C.F.R. §236.1(e).
141
Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a
legally binding international agreement. The repatriation arrangements made between Mexico and DHS in recent years
include language evidencing an intent for the arrangements not to be legally binding in nature. For background, see
CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Michael John Garcia, and
State Department Office of the Legal Adviser, Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/
guidance/.
142
A compendium of several of these arrangements can be viewed at http://www.ice.gov/doclib/foia/repatriationagreements159 Such residence must have been “continuous,”
which is generally construed to mean that any absences from the United States are “brief, causal,
and innocent.”160 Thus, even if individual UACs happened to be re-entering the United States
after a prior period of presence, the requirement as to continuous residence could present issues.
Immigration officials may, however, still grant deferred action to aliens outside of DACA if they
have prioritized other aliens for removal, or if humanitarian factors weigh in favor of allowing
individual aliens to remain in the United States.161
(...continued)
agreements/el-paso-tx-local-arrangement-for-repatriation-of-mexican-nationals.pdf. A template for local arrangements
between CBP or ICE field offices and Mexican Consulates General can be viewed at http://www.ice.gov/doclib/foia/
repatriation-agreements/local-arrangements-repatriation-of-mexican-nationals-full-list.pdf. The 2008 TVPRA includes
a provision calling for the Secretary of State to negotiate agreements with Mexico and Canada concerning similar
matters. P.L. 110-457, §235(a)(2)(C), codified at 8 U.S.C. §1232(a)(2)(C). However, the current arrangements between
local ICE and CBP offices and Mexican authorities implement DHS-Mexico arrangements that predate the 2008
TVPRA.
143157
VCCR, art. 37.
144158
Federal regulations provide that aliens granted deferred action—through DACA or upon another basis—may be
granted work authorization, provided they establish an “economic necessity for employment.” 8 C.F.R.
§274a.12(c)(14). Because aliens granted deferred action are deemed to be lawfully present, they could potentially also
be seen as eligible for certain “public benefits” whose provision to unlawfully present aliens is restricted. See CRS
Legal Sidebar WSLG923, DACA Beneficiaries’ Eligibility for In-State Tuition in Virginia, by Kate M. Manuel.
145159
Dep’t of Homeland Security, Deferred Action for Childhood Arrivals, available at http://www.dhs.gov/deferredaction-childhood-arrivals (last accessed: June 23, 2014).
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which is generally construed to mean that any absences from the United States are “brief, causal,
and innocent.”146 Thus, even if individual UACs happened to be re-entering the United States
after a prior period of presence, the requirement as to continuous residence could present issues.
Immigration officials may, however, still grant deferred action to aliens outside of DACA if they
have prioritized other aliens for removal, or if humanitarian factors weigh in favor of allowing
individual aliens to remain in the United States.147
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
146
160
Id. This reflects the standard that the Supreme Court articulated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), for
determining whether a return to the United States following a short absence constituted an “entry”, such that the alien
was subject to what were then known as the grounds of excludability.
147161
Because they are recent arrivals, UACs could potentially be classified as priorities for removal under current
guidance from DHS officials regarding prosecutorial discretion. See, e.g., John Morton, then-Director, ICE, Civil
Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, Mar. 2, 2011, at 1-2,
available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf (designating “recent illegal
entrants” as the second priority for removal, after aliens who pose a danger to national security or a risk to public
safety). However, these guidelines are not legally binding, and individual UAC could potentially have circumstances
that are seen as making them a lower priority for removal (e.g., parents who have been granted Temporary Protected
Status (TPS) and younger siblings who are U.S. citizens).
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Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
Congressional Research Service
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
24