Order Code RL33896
Unaccompanied Alien Children:
Policies and Issues
March 1, 2007
Chad C. Haddal
Analyst in Immigration Policy
Domestic Social Policy Division

---

Unaccompanied Alien Children: Policies and Issues
Summary
Unaccompanied alien children (UAC) are aliens under the age of 18 who come
to the United States without authorization or overstay their visa, and are without a
parent or legal guardian. Most arrive at U.S. ports of entry or are apprehended along
the border with Mexico. With the passage of the Homeland Security Act of 2002
(HSA), UAC tasking was split between the newly created Department of Homeland
Security (DHS) and the Department of Health and Human Services Office of Refugee
Removal (ORR). DHS was delegated the task of apprehension, transfer and
repatriation of UAC, while ORR was tasked to provide long-term detention and
foster placement. The issue for Congress concerns whether the current system
provides adequate protections for unaccompanied alien children.
The debate over UAC policy has polarized in recent years between two camps:
child welfare advocates arguing that the UAC are largely akin to refugees by being
victims of abuse and economic circumstances, and immigration security advocates
charging that unauthorized immigration is associated with increased community
violence and illicit activities. Consequently, these two camps advocate very different
policies for the treatment of UAC. This polarization is to some degree reflected in
the tension between DHS and ORR, which despite attempts and congressional urging
have failed to produce a Memorandum of Understanding between the two agencies.
In FY2006, the DHS’s Customs and Border Protection apprehended 101,952
juveniles. The majority of these children were from Mexico and were returned
voluntarily without being detained. DHS detained 7,746 UAC in this same year. In
FY2006, 74% of UAC were male and 26% female, with 80% being between the ages
of 15 and 18 and the remaining 20% being ages 0 to 14 years old. Three countries
— Guatemala, Honduras, and El Salvador — accounted for 85% of the UAC
detained in ORR custody.
Despite the implementation of the Flores Settlement Agreement (FSA), which
governs the policy for the treatment of alien juveniles in government custody,
advocacy groups have charged that DHS has failed to comply fully with the FSA.
Among the concerns raised by these groups are allegations of deliberate
misclassifications of UAC as “accompanied,” inaccurate age determination
techniques, the use of UAC as bait for apprehending unauthorized alien family
members, and unsafe repatriation practices. Congress also expressed concerns over
several of these issues in the FY2007 DHS Appropriations Act.
As an outgrowth of the debates regarding the treatment of UAC, child welfare
advocates have contended that legal representation for UAC would prevent potential
maltreatment and be in the best interests of the child. Security advocates argue that
aliens should not be granted legal representation in civil proceedings at the
government’s expense, because it would drain valuable resources from the judicial
system. Additionally, since the division of responsibility for handling UAC was
divided between DHS and ORR, custodial disputes have occasionally surfaced. This
report will be updated as warranted.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Standard Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Detention Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Philosophical Tensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legal Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Legal Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Claiming Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Gangs and Smuggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Apprehensions, Detentions, and UAC Characteristics . . . . . . . . . . . . . . . . . . . . 21
CBP Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Juveniles Held by ORR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Juveniles Held by DHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Current Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Advocacy Group Criticisms and DHS Responses . . . . . . . . . . . . . . . . . . . . 29
DHS Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Defining “Unaccompanied” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Age Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
List of Figures
Figure 1. General Process for Juvenile Aliens Involved with the
Immigration and Juvenile Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Figure 2. Apprehensions of Unauthorized Juveniles by Customs and
Border Protection, FY2001-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Figure 3. ORR Detentions of Unaccompanied Alien Children,
FY2003-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Figure 4. Country of Origin of Detained Unaccompanied Alien Children
in ORR Custody, FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
List of Tables
Table 1. ORR Facilities by Location and Type, December 2006 . . . . . . . . . . . . 11
Table 2. ICE Juvenile Facilities, December 2006 . . . . . . . . . . . . . . . . . . . . . . . . 12
Table 3. Gender, Age and Country of Origin of Unaccompanied Alien
Children in ORR Custody, FY2004-FY2006 . . . . . . . . . . . . . . . . . . . . . . . 24

---

Table 4. UAC in ICE DRO Custody by Hours Held, FY2005-FY2006 . . . . . . . 26
Table 5. UAC Held by ICE DRO 72 Hours or Longer by Reason for
Extended Detention, FY2005-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

---

Unaccompanied Alien Children:
Policies and Issues
Introduction
Unaccompanied alien children (UAC) are aliens under the age of 18 who either
come to the United States without authorization or overstay their visa, and are
without a parent or legal guardian. They often arrive at United States ports of entry
or are apprehended along the southwestern border with Mexico. Less frequently they
are apprehended in the interior (usually on suspicion of illicit activity) and
determined to be a juvenile and unaccompanied. In the past five years, immigration
authorities have apprehended more than 80,000 juveniles (both accompanied and
unaccompanied) annually, several thousand of whom are detained as UAC. The
majority of these children are aged 15 or older, although a number of them are
younger — some as young as infants.
Although individual circumstances dictate each juvenile’s case, the motivations
of economic need, persecution, or family unification have all been cited as the reason
for UAC coming to the United States.1 Detained UAC largely stem from less
economically developed countries, such as El Salvador, Honduras, and Guatemala.2
Frequently, families will save up money to pay for a child to travel to the United
States to find work.3 U.S. wages and economic conditions generally offer better
opportunities than the economy of the child’s home country.4 In some UAC cases,
children come to the United States attempting to flee the violence or natural disasters
they are subjected to in their home countries.5 Other UAC cases may stem from
parents or other family members who have settled in the United States and have sent
for a child to be transported from the home country. In these latter cases, the parent
or sibling sometimes entered the United States and established employment as an
1 Jacqueline Bhabha and Susan Schmidt, Seeking Asylum Alone: Unaccompanied and
Separated Children and Refugee Protection in the U.S., The John D. And Catherine T.
MacArthur Foundation, June 2006, pp. 20-23, at [http://www.humanrights.harvard.edu/
conference/Seeking_Asylum_Alone_US_Report.pdf], visited Feb. 1, 2007 (hereafter,
Jacqueline Bhabha and Susan Schmidt, Seeking Asylum Alone: Unaccompanied and
Separated Children and Refugee Protection in the U.S.) .
2 Based on CRS correspondence with Susana Ortiz-Ong, Deputy Director, Division of
Unaccompanied Children’s Services, Office of Refugee Resettlement, Dec. 13, 2006.
3 Sylvia Moreno, “A Set of Borders to Cross: For Children Seeking Immigrant Relatives in
U.S., Journey is Twofold,” The Washington Post, Oct. 23, 2006, pp. A1, A7.
4 Jacqueline Bhabha and Susan Schmidt, Seeking Asylum Alone: Unaccompanied and
Separated Children and Refugee Protection in the U.S., p. 20.
5 Ibid, p.13.

---

CRS-2
unauthorized immigrant.6 Thus, it is not uncommon for children categorized as UAC
to actually have family living in the United States.7
The debate over UAC policy has polarized in recent years between two camps:
child welfare advocates and immigration security advocates. The former group has
for decades advocated a more refugee-oriented policy toward UAC, arguing that the
UAC are largely victims of trafficking, abuse, and economic circumstances. Security
advocates, by contrast, advocate a more restrictive policy of deportation and
repatriation, charging that unauthorized immigration is associated with increased
community violence and illicit activities such as gang memberships. The UAC policy
question is how to provide for the security of the United States while simultaneously
safeguarding the rights and safe treatment of unaccompanied alien children.
Background
During the 1980s, allegations of mistreatment of UAC by the former
Immigration and Naturalization Service (INS) resulted in a series of lawsuits against
the government. These lawsuits culminated with the Supreme Court case of Reno v.
Flores, which has become the guiding case law for government agencies’ handling
of UAC. Although the Court ruled in favor of the INS’s UAC policy, a settlement
agreement was drafted between the parties. Known as the Flores Settlement
Agreement (FSA), this document spelled out specific guidelines for the detainment,
release and repatriation of UAC by the INS. The FSA remains the guiding document
regarding the treatment of UAC for both the Department of Homeland Security
(DHS) and the Department of Health and Human Services’ (HHS) Office of Refugee
Resettlement (ORR), which are the two agencies currently involved in handling
UAC.
The implementation of the Flores Settlement Agreement stems from the U.S.
Supreme Court’s judgment in Reno v. Flores.8 The case was brought by human
rights advocacy organizations against the INS charging that the release policy and
conditions of detention violated the legal rights of alien juveniles. In 1993, the
Supreme Court ruled that the INS’ release policy was reasonable, as were the
conditions of detention.9 Yet, three years later the plaintiffs in Flores negotiated a
settlement agreement with the INS on the processing, detention and release of
6 It is not always the case that parents of UAC are unauthorized immigrants. In some cases,
parents or legal guardians have failed to obtain authorizing documentation for their children
prior to travel to the United States.
7 Based upon CRS discussions with officials at the Department of Health and Human
Services’ Office of Refugee Resettlement, Sept. 6, 2006
8 507 U.S. 292 (1993).
9 The Supreme Court determined that the detention of alien juveniles fell within the scope
of the government’s interest under parens patrie. Additionally, striking down the former-
INS’ policy would endanger the government’s role in a host of other parens patrie
functions, including handling orphans. Also, the conditions of detention were deemed
sufficient by the court, provided that they complied with regulations (507 U.S. 292 (1993).

---

CRS-3
juveniles. The language of the agreement became the basis on which some of the new
regulations were drafted.10 The agreement also provided procedural instructions to
field officers for implementing the new policies.11
For several years following the FSA, criticism continued over whether the INS
had fully implemented the regulations that had been drafted.12 Then, with the
passage of the Homeland Security Act of 2002 (HSA),13 the task of handling UAC
was split between the newly created DHS and ORR. DHS was delegated the task of
apprehension, transfer and repatriation of UAC, while ORR was tasked to provide
long-term detention and foster placement. The HSA additionally established a
statutory definition of UAC as juveniles without the accompaniment of a parent or
legal guardian. Despite the government’s delegation of UAC responsibility between
two agencies, the criticism of UAC handling (particularly concerning initial
detention) has not subsided.14
Child welfare advocacy groups have continued to protest the detention
conditions of DHS facilities and the agency’s policies on UAC. In 2001, these
protests led the Department of Justice (DOJ) Office of the Inspector General (OIG)
to investigate the charges of continuing mistreatment of alien juveniles in custody.
The report found that although the INS had developed a Juvenile Protocol Manual15
and strategic implementation plans for the FSA, the report concluded that there were
ongoing deficiencies in the agency’s handling of UAC with “potentially serious
10 U.S. Department of Justice, “Delegation of Authorities for Various Detention and
Removal Authorities and the Parole, Detention, Care and Custody of Alien Juveniles,”
Federal Register, vol. 67, no. 110 (July 24, 1998), pp. 39255-39260.
11 Center for Human Rights & Constitutional Law, Flores v. Meese: Final Text of Settlement
Establishing Minimum Standards and Conditions for Housing and Release of Juveniles in
INS Custody, Exhibit 2, at [http://web.centerforhumanrights.net:8080/centerforhumanrights/
children/Document.2004-06-18.8124043749], visited Dec. 12, 2006.
12 U.S. Department of Homeland Security, Office of the Inspector General, Open Inspector
General Recommendations Concerning the Former Immigration and Naturalization Service
from Unaccompanied Juveniles in INS Custody, a Report by the Department of Justice
Inspector General, Executive Summary, Report No. OIG-05-45, Sept. 2005 (hereafter, DHS,
Open Inspector General Recommendations Concerning the Former Immigration and
Naturalization Service from Unaccompanied Juveniles in INS Custody, a Report by the
Department of Justice Inspector General).
13 P.L.107-296.
14 Although a 2005 report by the DHS OIG found that the DHS had complied with its
responsibility to treat apprehended UAC with dignity and concern, there were still
outstanding issues for bringing the agency into compliance with the FSA. Advocacy groups
have also continued to charge that DHS has failed to comply fully with the FSA, often citing
anecdotal evidence of agency misconduct such as failing to inform juveniles of free legal
services (DHS, Open Inspector General Recommendations Concerning the Former
Immigration and Naturalization Service from Unaccompanied Juveniles in INS Custody, a
Report by the Department of Justice Inspector General).
15 When CRS checked the online version of the manual, on Dec. 12, 2006, the Manual had
last been updated in November 2003. The manual also referred to INS duties and policies,
rather than DHS and ORR.

---

CRS-4
consequences for the well-being of the juvenile.”16 The DOJ report additionally
provided 28 open recommendations for complying with the FSA. In 2004, the DHS
OIG wrote a report on the implementation of the DOJ recommendations.17 The OIG
report found that several recommendations remained open due to uncertainty over
responsibility between DHS and HHS.
According to one study on children in government custody, between January
2003 and July 2006, approximately 70% of adjudicated cases resulted in the
deportation of the child.18 Furthermore, approximately 2% of the children in closed
cases were granted asylum, while the majority of the remaining cases were closed
because the juveniles requested to have their applications withdrawn.19
Standard Practices
When a juvenile is apprehended by a DHS officer, a standard set of procedures
take effect. These procedures are listed in the flow chart presented in Figure 1
below. First among these procedures is determining whether a juvenile is
accompanied. The standard practice of classifying an alien juvenile as
“unaccompanied” is based upon the statutory definition of “unaccompanied alien
juvenile” from the Homeland Security Act. The HSA amended the United States
Code in 6 USC §279(g)(2) to provide the following statutory definition:
The term ‘unaccompanied alien child’ means a child who:
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom —
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to
provide care and physical custody.
16 U.S. Department of Justice, Office of the Inspector General, Unaccompanied Juveniles
in INS Custody, Executive Summary, Report no. I-2001-009, Sept. 28, 2001.
17 U.S. Department of Homeland Security, Office of the Inspector General, Open Inspector
General Recommendations Concerning the Former Immigration and Naturalization Service
from Unaccompanied Juveniles in INS Custody, a Report by the Department of Justice
Inspector General, Report no. OIG-04-18, Mar. 2004.
18 The figures are from a forthcoming study by the Vera Institute of Justice that analyzes
18,000 cases of children in government custody. The figures are cited in Cara Anna, “Few
Aiding Children Facing Deportation,” The Los Angeles Times, Dec. 1, 2006, at
[http://www.latimes.com/news/nationworld/nation/wire/sns-ap-immigration-kids-in-court,1,
1769838.story?coll=sns-ap-nation-headlines], visited Dec. 8, 2006.
19 The article is unclear as to whether the 18,000 cases being analyzed are only for cases of
UAC or if detained accompanied children are analyzed as well.

---

CRS-5
If neither a parent or a legal guardian (with a court-order to that effect) is with the
juvenile at the time of apprehension, or within a geographical proximity20 to quickly
provide care for the juvenile, the juvenile alien is classified as “unaccompanied.”21
The statutes and regulations do not provide definitions for what constitutes a legally
“accompanied” alien child.
20 The term “geographical proximity” is not defined. CRS conversations with DHS officials
suggested that there was some discretion for field officers to determine what constitutes a
reasonable geographic proximity.
21 8 CFR §236.3(b)(1)

---

CRS-6
Figure 1. General Process for Juvenile Aliens Involved with the Immigration and
Juvenile Justice System
Border Apprehensions (CBP)
Interior Apprehension (ICE)
Contact with Juvenile/Dependency Court
Detected at
sea and
Arrested in gang
Arrested for
Discovered after parent/guardian
turned
Referred to ICE by
Arrested for Lack of Documentation and
member sweeps or
an offence
death or in neglect/abuse cases
away by
local officials as
housed at Border Patrol stations for up to
for violating U.S.
U.S. Coast
undocumented
24 hours
immigration law
Housed in foster care
Placed with relative or
Guard
Housed in ICE facilities for up to 72 hours
or juvenile facilities
foster home
Available to Mexicans
Others
Referred to ICE
or Canadians
(may also remain in juvenile
facilities with ICE notice)
Pending Proceedings
Voluntary return
Immigration
May apply for
Reunify with
status not
Special
family here
checked,
Immigrant
or abroad
Accompanied:
Unaccompanied:
Unaccompanied:
follow
Juvenile
Housed in DRO
Release into
Placed in ORR
domestic
Status or
family shelter if
custody of sponsor
Facility
juvenile court
Unaccompanied
Accompanied
other visas
available
if available
proceedings
under court
jurisdiction
Turned over to
Returned with
ORR locates
immigration
relatives or
potential sponsor
authorities of
guardian
country of origin
In the U.S. legally:
Executive Office for Immigration Review
Apply to adjust
(Immigration Court)
immigration status
Granted asylum or visa by CIS or
Removal proceedings by ICE
allowed to withdraw application
CBP
Customs and Border Protection
ICE
Immigration and Customs Enforcement
DRO
Detention and Removal Office
ORR
Office of Refugee Resettlement
Source: CRS Presentation of chart from National Juvenile Justice Network, “Undocumented Immigrant Youth: Guide for Advocates and Service
Providers,” Policy Brief No. 2, November 2006.

---

CRS-7
Apprehension
Unaccompanied alien children are generally apprehended at the border by the
DHS Customs and Border Protection (CBP) or in the interior by DHS Immigration
and Customs Enforcement (ICE). If local law enforcement authorities contact ICE
to notify them that a possible unauthorized alien minor is in their custody, ICE
immediately places a detainer on that minor until the child can be transferred to a
DHS facility.22 ICE subsequently attempts to determine whether the minor has any
family living in the United States. For cases that are ambiguous, the field officers23
and regional juvenile coordinators may contact the National Juvenile Coordinator24
in Washington, DC, for clarification. If a child is determined to be unaccompanied,
he or she is usually transferred to Office of Refugee Removal (ORR) custody within
72 hours. The FSA allows for a 3-5 day time frame for transfer from DHS to ORR,
although 72 hours has been established as the standard practice by DHS. However,
if the juvenile is determined not to be “unaccompanied” then the juvenile remains
in the custody of DHS, according to DHS officials.
Once an unaccompanied alien child is detained by DHS, the juvenile is held
separately from adults in either a flexible use or continuous use facility.25 During this
time period, DHS authorities will determine the juvenile’s age, conduct background
checks, ascertain the juvenile’s nationality, and notify the appropriate consulate that
the juvenile is being detained by DHS.26 At any point the juvenile may withdraw his
or her application for admission and be allowed to return to his or her country of
origin.27 If the juvenile is from Mexico or Canada, consular officials from those
countries are contacted to arrange for the transfer of the juvenile.28 If the child is
from another country, transportation is arranged in consultation with that country’s
22 In conversations with CRS, DHS officials noted that they have “strict standards” for any
facility to operate as a secure juvenile facility under DHS contract which includes a list of
162 criteria.
23 The term “field officer” refers throughout this report to apprehending agents of either CBP
or ICE.
24 The DHS ICE Office of Detention and Removal (DRO) National Juvenile Coordinator has
direct authority over DHS field personnel in decisions relating to the proper handling of
juveniles, including the placement of juveniles in DHS-funded facilities, the transfer of
juveniles to other facilities, or their release from DHS custody.
25 DHS has three continuous use facilities, which all serve as family unity facilities. All
other facilities used by DHS to detain UAC are flexible use, meaning the usage varies
depending on whether DHS has a need for the available bed space.
26 The FSA has established the right of an apprehended UAC to be informed of their rights
to contact someone, to be represented by an attorney, to a hearing before an immigration
judge, to judicial review of their case, and to a list of free legal services in the area. The only
exception for these rights is for UAC that are eligible for expedited removal.
27 8 CFR §236.3(g). The cited regulation also requires that all juveniles must establish
contact with a parent, relative, friend, free legal services organization, or consular officer
prior to being released.
28 Ibid.

---

CRS-8
consulate. However, if the juvenile does not withdraw his application for admission,
the child will be placed in removal proceedings.
Most unaccompanied children are placed in a removal proceeding under §240
of the Immigration and Nationality Act (INA).29 However, there are a few
circumstances which serve as exceptions. Generally, UAC are not eligible for
expedited removal,30 but if a child has previously been issued a final order of
removal, or the child has a criminal record, that juvenile is not subject to the same
procedural practices as other unaccompanied alien juveniles. Rather, those children
may be placed in expedited removal.31 Additionally, DHS may detain any
unaccompanied alien child that is deemed to be a security threat, and has some
discretion in making such determinations.
This decision to place an unaccompanied alien child in expedited or formal
removal is made by the field officers. A child erroneously placed in expedited
removal (by mistakenly being identified as having a previous criminal conviction or
final order of removal) may be transferred out of that process.32 Juveniles in
expedited removal are placed under ORR’s care and ORR is not allowed to release
them.
Detention Facilities
Generally, a child who is classified as a UAC and has no previous criminal
conviction or removal order issued against him is transferred into the custody of ORR
within 72 hours. In the time-span between the apprehension and the transfer of the
UAC, however, DHS must still provide safe and sanitary detention facilities for
juveniles in compliance with the FSA.33 For those juveniles that must be detained,34
29 Whenever an unaccompanied child is placed in removal proceedings, the child’s relatives
in the United States, if any, are contacted. If these relatives (individuals who are either
parents, legal guardians, adult siblings, aunts, uncles, or grandparents) accept custody of the
child, they sign documents acknowledging custody. Additionally, these relatives become
responsible for producing the juvenile at any immigration proceedings. (8 CFR §236.3)
30 Under expedited removal, an alien who lacks proper documentation or has committed
fraud or willful misrepresentation of facts to gain admission into the United States is
inadmissible and may be removed from the United States without any further hearings or
review unless the alien indicates either an intention to apply for asylum or a fear of
persecution (CRS Report RL33109, Immigration Policy on Expedited Removal of Aliens,
by Alison Siskin and Ruth Ellen Wasem).
31 The term “expedited removal” refers to removal under INA §235(b). For more
information on expedited removal, see CRS Report RL33109, Immigration Policy on
Expedited Removal of Aliens, by Alison Siskin and Ruth Ellen Wasem.
32 A “criminal alien juvenile” as referred to in this report is a juvenile who is removable on
criminal grounds under INA §212(a)(2) or INA §237(a)(2).
33 Prior to the HSA, the INS held juveniles in five different types of facilities: short-term
housing, foster homes, shelter care facilities, medium-secure facilities, and secure detention
facilities (U.S. Department of Justice, Office of the Inspector General, Unaccompanied
Juveniles in INS Custody. Executive Summary, Report no. I-2001-009, Sept. 28, 2001). All
(continued...)

---

CRS-9
ICE DRO is largely responsible for detentions, although CBP occasionally must hold
UAC until they can be transferred to DRO. DHS currently has contracted with a
number of flexible-use facilities, particularly in the southwestern United States, as
temporary bed space for apprehended minors. DHS must detain children separately
from unrelated adults.35 Furthermore, the FSA held that a juvenile may only be held
in secure facilities under one or more of the following conditions:
! A child is charged or chargeable with criminal or delinquent actions;
! A child threatens or commits violence;
! A child’s conduct becomes unacceptably disruptive in a shelter
facility;
! A child presents an escape risk;
! A child is in danger and is securely detained for their own safety; or
! An emergency, or influx of minors, results in insufficient bed space
at non-secure facilities.36
When under the care of ORR, UAC are placed in licensed facilities37 that are
contracted or under cooperative agreements.38 These facilities are largely located
near areas of high juvenile apprehension rates to minimize the transfer time from
DHS custody. These facilities provide children with education, health care, mental
health services, socialization/recreation, access to legal services, and family
reunification services. There are also special needs services available for children
with acute medical and mental health needs. The facilities range in level of security
and openness, from nonsecure to staff secure39 to secure detention.40 Foster care
33 (...continued)
of these facilities were licensed by state or local governments. ORR has since taken over
foster care programs. CRS is not aware of whether DHS currently uses the other categorical
distinctions for its facilities.
34 It is the policy of DRO to transfer all UAC, including those with criminal convictions, to
ORR custody within 72 hours. This transfer policy, however, does not extend to UAC that
are deemed potential threats to national security; rather, such juveniles remain in the custody
of DHS.
35 The FSA stipulates that where such a separation is not possible, a juvenile may be held
with an unrelated adult for no more than 24 hours.
36 Center for Human Rights & Constitutional Law, Flores v. Meese: Final Text of Settlement
Establishing Minimum Standards and Conditions for Housing and Release of Juveniles in
INS Custody, Exhibit 2, at [http://web.centerforhumanrights.net:8080/centerforhumanrights/
children/Document.2004-06-18.8124043749], visited Dec. 12, 2006.
37 In addition to being licensed, these facilities must meet a number of ORR requirements.
38 U.S. Department of Health and Human Services, Office of Refugee Removal, “Services.”
Unaccompanied Alien Children, May 8, 2006, at [http://www.acf.hhs.gov/programs/orr/
programs/uac.htm], visited Dec. 13, 2006.
39 A “staff secure” facility is generally understood as a group facility or home at which each
juvenile is continuously under staff supervision and at which all services, including but not
limited to education and treatment, are provided on site. A staff secure facility may or may
not be a locked facility. These facilities are commonly used by ORR for children with
(continued...)

---

CRS-10
placement is also available for children with special needs through the refugee foster
care program network.41
As Table 1 shows, there are currently 42 facilities operated by ORR for the care
of UAC.42 A significant majority of these facilities are located in states that have
either major ports of entry into the United States or have large inflows of
unauthorized aliens. ORR has strategically placed the largest number of facilities in
the border states of Arizona, California, and Texas, which combined hold 56% of
ORR’s UAC facilities. Of the 42 facilities ORR operates, 36 are shelter care, group
homes, and transitional foster care programs. Additionally, ORR operates three staff-
secure facilities and two secure detention facilities. ORR also contracts with
residential treatment centers for children with psychiatric and mental health needs on
an as needed basis.43
39 (...continued)
behavioral management issues.
40 The secure detention facilities are used by ORR for individuals with a criminal history.
ORR has discontinued the use of county lock-down juvenile detention centers, and has
reduced the number of secure detention centers from 32 in FY2003 to 2 in FY2006 (based
on CRS correspondence with Susana Ortiz-Ong, Deputy Director, Division of
Unaccompanied Children’s Services, Office of Refugee Resettlement, Dec. 13, 2006).
41 ORR increased the number of annual foster care placements available to UAC to 100 in
FY2006. These long-term foster care placements are performed through the Lutheran
Immigrant and Refugee Services and the U.S. Conference of Catholic Bishops. (Ibid.)
42 Ibid.
43 Ibid.

---

CRS-11
Table 1. ORR Facilities by Location and Type, December 2006
State
Facilities
4 shelter and transitional foster care programs;
Arizona
1 long-term foster care site
5 shelter programs;
California
1 secure program
2 shelter programs;
Florida
1 long-term foster care site;
1 residential treatment center
Illinois
1 shelter program
1 staff-secure program;
Indiana
1 secure program
Massachusetts
1 long term foster care site
Michigan
3 long-term foster care sites
New York
1 shelter program
Pennsylvania
1 long-term foster care site
11 shelter, group home and transitional foster care programs;
Texas
1 long-term foster care site
Virginia
1 long-term foster care site
2 shelter and transitional foster care programs;
Washington
1 staff-secure program;
2 long-term foster care sites
Source: CRS presentation of unpublished HHS ORR data (2006).
In terms of the facilities available to ICE DRO for juvenile detentions, there
are currently 22 facilities in the United States, as displayed in Table 2 below. Of
these facilities, three are under continuous use, while the remaining 19 serve as
flexible use facilities as needs for bed space arises. The three facilities under
continuous use serve as family unity facilities. All DRO juvenile only facilities are
under flexible use contracts, with no specific bed space reserved for DRO. The only
states that have both DRO juvenile facilities and ORR facilities are Arizona,
California, New York, Pennsylvania, Texas, and Washington. As a result of the 30
ORR facilities in these six states, a total of 73% of all ORR facilities have a DRO
facility in the same state. By contrast, only 41% of DRO facilities have an ORR
facility in the same state.

---

CRS-12
Table 2. ICE Juvenile Facilities, December 2006
State
Facility Name
Facility Typea
# Bedsb
Alaska
McLaughlin Youth Center
Flexible
NA
Gila County Juvenile Detention
Arizona
Flexible
NA
Center
As needed and
California
Casa San Juan
Continuous
as available
Snake River Juvenile Detention
Idaho
Flexible NA
Facility
Kansas
Shawnee County Juvenile Detention
Flexible
NA
Anoka County Shelter
Flexible
NA
Anoka County Juvenile Center
Flexible
NA
Carver County Juvenile Detention
Flexible NA
Facility
Minnesota
East Central Regional Juvenile
Flexible
NA
Center
Washington County LEC Juvenile
Flexible NA
Home
Montana
Ted Lechner Youth Services Center
Flexible
NA
Compass House Shelter
Flexible
NA
New York
Casey House Shelter
Flexible
NA
Equinox Youth Shelter
Flexible
NA
Sarpy County Juvenile Justice
Flexible
NA
Nebraska
Center
NE Nebraska Juvenile Service, Inc.
Flexible
NA
Grand Forks County Juvenile
North Dakota
Flexible NA
Detention Center
Oregon
NOROC Juvenile Detention Facility
Flexible
NA
Berks County Youth Center
Flexible
NA
Pennsylvania
Berks Family Shelter
Continuous
84
Texas
T. Don Hutto
Continuous
512
Washington
Cowlitz County Juvenile Detention
Flexible
NA
Source: CRS presentation of unpublished ICE DRO data.
a. Facilities deemed ‘flexible use’ are those facilities that are used on an as-needed basis, with no beds
specifically reserved for ICE DRO. Facilities deemed “continuous use” are those facilities
for which all beds are for the exclusive use of ICE DRO. These latter facilities are noted
with italics in the table.
b. Only family unity facilities are designated as “continuous use.” These family unity facilities are:
T. Don Hutto Family Shelter, Berks Family Shelter, and Casa San Juan, a facility shared
between ICE DRO and the U.S. Marshall’s Office. Casa San Juan houses only adult females
and their minor children.

---

CRS-13
Some of the facilities for ORR and DRO are within four hour ground
transportation44 of each other, but a number of the facilities fall outside this range.
For example, for juveniles detained at the six DRO facilities in Minnesota or North
Dakota, the closest ORR facilities are located in Illinois. Therefore, the likelihood
that a juvenile will be held for more than 72 hours by DHS increases, because
arranging such transportation is not always possible.
Philosophical Tensions
An underlying tension in dealing with UAC is the philosophical positions of
the government agencies involved in the handling of the children. Specifically, the
dominant cleavage line from which many other issues spring is that of whether the
UAC should be treated as humanitarian refugees or as unauthorized aliens subject to
expedited removal. Those who advocate more of a refugee approach see the children
as victims who have been forced to migrate across borders out of hardship
circumstances.45 Alternatively, those who focus on the enforcement issues tend to
highlight the cost burden placed upon U.S. citizens and legal immigrants by creating
incentives for unauthorized juvenile immigration, including detrimental spillover
effects such as increased criminal enforcement costs.46 These tensions have resulted
in legislation pitting government agencies with conflicting missions against each
other,47 and generating confusion among advocates and government actors alike.48
There are a few notable sources of these philosophical tensions, including the
guiding principles and the agency tasking stemming from the HSA. ORR’s
experience with juvenile aliens prior to UAC had been the handling of
unaccompanied refugees and Cuban-Haitian entrants.49 These juveniles have been
44 Four hours of ground transportation or less from DRO to ORR facilities is a transport time
that DHS officials consider desirable.
45 For example, see Jacqueline Bhabha and Susan Schmidt, Seeking Asylum Alone:
Unaccompanied and Separated Children and Refugee Protection in the U.S.
46 Stephen Johnson, “Immigration Plans Need a Foreign Policy Component,” The Heritage
Foundation, Webmemo #948, Dec. 19, 2005, at [http://www.heritage.org/Research/
Immigration/wm948.cfm], visited Feb. 1, 2007.
47 U.S. Department of Homeland Security, Office of Inspector General, Office of Inspections
and Special Reviews, A Review of DHS’ Responsibilities for Juvenile Aliens, OIG-05-45,
Sept. 2005, pp. 23-24.
48 Based on CRS discussions with attorneys from both the National Center for Refugee and
Immigrant Children and the Hebrew Immigrant Aid Society (HIAS) & Council Migration
Service of Philadelphia.
49 The term “refugee” refers to those juveniles that were screened prior to their arrival in the
United States. The term “entrants” in this context refers to juveniles arriving from Haiti or
Cuba, and who are subsequently reclassified as unaccompanied refugee minors. For
additional information on refugees and Cuban and Haitian entrants, see CRS Report
RL31269, Refugee Admission and Resettlement Policy, by Andorra Bruno; CRS Report
RS31349, U.S. Immigration Policy on Haitian Migrants, by Ruth Ellen Wasem; and CRS
(continued...)

---

CRS-14
provided with various forms of services and care governed by child welfare
regulations. Thus, when absorbing the UAC detention program, ORR employed
many of the policies and procedures that it uses in treating unaccompanied refugees
and Cuban-Haitian entrants.50 This same philosophy is reflected in the guiding
principles the agency has for the UAC program, including (1) treating UAC with
“dignity, respect, and a special concern for their particular vulnerabilities;” and (2)
accounting for the unique nature of each child’s situation in making placement, case
management, and release decisions.”51
As guided by the Flores Settlement Agreement (FSA), DHS is also concerned
with the safety and well-being of juveniles that it apprehends. Yet, in contrast to
ORR’s refugee-based mission, the Immigration and Customs Enforcement (ICE)
Office of Detention and Removal (DRO) of DHS has the mission of enforcing U.S.
immigration laws to ensure “the departure from the United States of all removable
aliens.”52 This agency also has the difficult task, however, of balancing potential
security threats alongside child welfare concerns. DHS and its subagencies operate
under a strategic goal of identifying potential threats and vulnerabilities to the
homeland (including terrorist and criminal risks).53 The previous actions of DHS
indicate that it does not rule out the potential use by terrorists of alien juveniles for
terrorist actions against the United States.54 DHS therefore must not only provide
dignified care to a juvenile in their custody, but they simultaneously must evaluate
the potential security and criminal risk that each apprehended UAC poses.
A significant result of these interagency philosophical tensions is the lack of
a Memorandum of Understanding (MOU) between DHS and ORR.55 Despite a
number of contentious issues between the agencies, a previous effort was made by
49 (...continued)
Report RS20468, Cuban Migration Policy and Issues, by Ruth Ellen Wasem.
50 Based on CRS discussion with Maureen Dunn, Director of the Division of
Unaccompanied Children’s Services at HHS ORR, Sept. 6, 2006.
51 Additional guiding principles for the ORR UAC program are (1) providing “care and
services free from discrimination based on race, religion, national origin, sex handicap, or
political beliefs,” as well as (2) placing a UAC “in the least restrictive setting appropriate
for to their age and special need.” (U.S. Department of Health and Human Services, Office
of Refugee Removal, “Services,” Unaccompanied Alien Children, May 8, 2006, at
[http://www.acf.hhs.gov/programs/orr/programs/uac.htm], visited Dec. 13, 2006).
52 U.S. Department of Homeland Security. Immigration and Customs Enforcement.
ENDGAME: Office of Detention an Removal Strategic Plan, 2003-2012, June 27, 2003.
53 U.S. Department of Homeland Security, Strategic Plan — Securing Our Homeland, Sept.
23, 2006, at [http://www.dhs.gov/xabout/strategicplan/index.shtm], visited Dec. 20, 2006.
54 Nina Bernstein and Eric Lichtblau, “Two Girls Held As U.S. Fears Suicide Bomb,” The
New York Times, Apr. 7, 2005, p. B1.
55 This lack of an MOU was highlighted in a report by the DHS Office of the Inspector
General (U.S. Department of Homeland Security, Office of Inspector General, Office of
Inspections and Special Reviews, A Review of DHS’ Responsibilities for Juvenile Aliens,
OIG-05-45, Sept. 2005, p. 24).

---

CRS-15
the agencies to draft an MOU, but the negotiations resulted in a “stalemate.”56 Issues
such as information sharing, location of facilities, release notification, age
determination, and UAC classification are some of the contentious points that have
yet to be addressed by an MOU. At present, there is a Statement of Principles
between DHS and HHS, but the statement is broad and does not address all of the
interagency issues.57 This Statement of Principles constitutes the only current, formal
agreement between HHS and DHS on UAC.
Legal Representation
Providing UAC with legal representation has long been an important issue for
child welfare advocates, and was one of the central tenets of the FSA. Legal
representation is seen by many child welfare advocates as a necessary safeguard to
not only prevent maltreatment, but also to secure the rights and protect the best
interests of the children. According to the terms stipulated by the FSA, each
unaccompanied alien child is to be provided with (1) a form I-770,58 which explains
the immigration process; (2) a list of free legal services; and (3) an explanation of the
right to judicial review. Additionally, in accordance with terms from the decision in
Perze-Funez v. INS, UAC are to be advised by DHS of their right to a hearing before
being presented with a voluntary departure form.59
Under the current regulations, the immigration courts and handling agencies
are not required to provide UAC with legal representation. Removal proceedings are
civil proceedings, and therefore aliens are allowed to have council but are not entitled
to counsel at government expense as they are in criminal proceedings.60 Reportedly,
many alien juveniles appear at legal proceedings without representation.61
Immigration judges reportedly find this lack of legal representation frustrating
because the juveniles are frequently unable to comprehend the proceedings.62
Juveniles often need the proceedings explained to them through a translator. In this
respect, the difficulties for judges at juvenile proceedings mirror those of adult
56 According to a 2005 DHS OIG report, ORR had been concerned with privacy and social
services issues, while ICE DRO had security concerns. These contrasting concerns resulted
in the agencies reaching an impasse on the MOU. (Ibid.)
57 Statement of Principles Between the Department of Homeland Security and the
Department of Health and Human Services, Unaccompanied Alien Children’s Program,
Apr. 6, 2004.
58 Form I-770 is the “Notice of Rights and Disposition.”
59 619 F. Supp. 656 (C.D. Cal. 1985). Additionally, the Perez-Funez decision ordered the
INS to allow UAC apprehended near the Mexican or Canadian border, and who resided in
the respective border country, to contact by telephone a parent, close relative, friend, or pro
bono legal services agency.
60 INA §240(b)(4)(A).
61 Cara Anna, “Few Aiding Children Facing Deportation,” The Los Angeles Times, Dec. 1,
2006, at [http://www.latimes.com/news/nationworld/nation/wire/sns-ap-immigration-kids-
in-court,1,1769838.story?coll=sns-ap-nation-headlines], visited Dec. 8, 2006.
62 Ibid.

---

CRS-16
proceedings, since many adults facing removal experience linguistic and legal
comprehension difficulties as well.63 According to one news report, judges will
occasionally ask volunteer lawyers to step in and assist on the juvenile’s behalf.64
To provide legal representation for UAC, many child welfare advocates have
developed organizations that offer pro bono legal services.65 To encourage more pro
bono representation, some of these organizations provide training for attorneys on
representing child clients,66 as well as online reference materials and mentoring
attorneys. However, since legal representation for UAC is not required, one of the
difficulties cited by these groups for the pro bono services is getting juveniles to
contact them. Despite available pro bono services, many children reportedly do not
seek out legal representatives.67
Custody
Since 1999, custody for UAC has become an increasingly complex issue.
One complicating factor was the arrival of and subsequent tensions over Elian
Gonzalez, which raised questions over a child’s ability to claim asylum in the United
63 For additional discussion of linguistic issues in adult removal proceedings, see Detention
Working Group, Massachusetts Chapter of the National Lawyers Guild, Give Me Your
Tired, Your Poor...: A Report on Due Process Issues in the Handling of Immigration
Detainees in Massachusetts, June 29, 2005, at [http://www.nlgmass.org/DWGreport
070105.pdf], visited Feb. 1, 2007.
64 Cara Anna, “Few Aiding Children Facing Deportation,” The Los Angeles Times, Dec. 1,
2006, at [http://www.latimes.com/news/nationworld/nation/wire/sns-ap-immigration-kids-
in-court,1,1769838.story?coll=sns-ap-nation-headlines], visited December 8, 2006.
65 For example, one such organization is The National Center for Refugee and Immigrant
Children, which was established in 2005.
66 Some recent child welfare efforts have proposed assigning guardians ad litem to each
UAC that is detained. Guardians ad litem are individuals who are assigned to represent the
best interest of the child. These individuals would in some cases be an immigration attorney,
but other professionals could be used as well. Social workers and other trained professionals
may also be used for these purposes (Jacqueline Bhabha and Susan Schmidt, Seeking
Asylum Alone: Unaccompanied and Separated Children and Refugee Protection in the U.S.,
pp.81-85).
67 According to some accounts, the most likely reason these children do not seek out pro
bono legal services could be attributed to the possibility that the children are intimidated by
the process of taking such actions on their own (see Jacqueline Bhabha and Susan Schmidt,
Seeking Asylum Alone: Unaccompanied and Separated Children and Refugee Protection
in the U.S., p. 6, or Cara Anna, “Few Aiding Children Facing Deportation,” The Los
Angeles Times, Dec. 1, 2006,at [http://www.latimes.com/news/nationworld/nation/wire/
sns-ap-immigration-kids-in-court,1,1769838.story?coll=sns-ap-nation-headlines], visited
Dec. 8, 2006). Furthermore, this pattern of lacking legal representation mirrors that of adult
aliens in removal proceeding. In FY2005, the immigration courts completed 314,218
removal proceedings, and 65% of the aliens in these proceedings lacked representation
(Executive Office of Immigration Review, FY2005 Statistical Yearbook, Feb. 2006, p. G1).

---

CRS-17
States without a parent’s consent.68 Additional complications occurred when the INS
was dissolved following the HSA transferring responsibilities for UAC to ORR.
Apprehensions became the duty of both CBP and ICE, and ICE DRO became
responsible for transferring UAC to ORR. Consequently, these DHS agencies were
responsible for determining whether an individual was an unaccompanied alien child
or an adult — a responsibility resulting in occasional age determination and custodial
disputes between DHS and advocacy groups.69
Legal Custody. Numerous issues pertaining to which agency has legal
custody have yet to be resolved. One example of such ambiguity is when an
unaccompanied alien child is under ORR care. There is no memorandum of
understanding between the two agencies on such matters, only a broad statement of
principles. Furthermore, age determination methods and assumptions play an
important role in who takes custody of a potential unaccompanied alien child, since
current scientific methods do not offer precise age results.70 Some child welfare
advocates believe that a significant number children may be placed in the custody of
the wrong agency because they are misclassified as adults.71

According to DHS officials, the overriding principle in determining custody
of a juvenile for DHS is HSA.72 Generally, if a juvenile is determined to be
unaccompanied as defined by HSA, then the juvenile is transferred to ORR’s
custody. Such transfers also include juveniles with a criminal conviction or who are
under expedited removal proceedings.
Occasionally, state or local jurisdictions will have custody of an
unaccompanied alien child. If a child is apprehended by local or state authorities for
some type of criminal action,73 and the child is suspected of being an unauthorized
alien, DHS is notified by the authorities to come and make a determination. If a child
is determined by DHS to be an unaccompanied alien child, DHS will not take that
child into custody until the state or local authorities have determined that their
68 For a discussion on the Elian Gonzalez case, see CRS Report RL30570, Elian Gonzalez:
Chronology and Issues, by Ruth Ellen Wasem and Barbara A. Salazar; and CRS Report
RS20450, The Case of Elian Gonzalez: Legal Basics, by Larry M. Eig.
69 Jennifer Smythe, “Age Determination Authority of Unaccompanied Alien Children and
the Demand for Legislative Reform,” Interpreter Releases, vol. 81, no. 23 (June 7, 2004),
pp. 753-763.
70 Ibid.
71 Based on CRS discussions with attorneys from both the National Center for Refugee and
Immigrant Children and the Hebrew Immigrant Aid Society (HIAS) & Council Migration
Service of Philadelphia.
72 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.
73 Since a juvenile may be apprehended by local officials for delinquent activities (e.g.
violating curfew), a delinquent juvenile could potentially be reported to ICE DRO by state
and local officials as well.

---

CRS-18
proceedings are complete.74 This may mean that an unaccompanied alien child has
to serve a state sentence in a county juvenile detention facility or juvenile shelter care
facility before being transferred to DHS custody. Some localities, however, choose
to terminate their proceedings when a juvenile is determined to be an unaccompanied
alien child, in order to expedite the transfer to DHS. Such state and local proceeding
terminations means that DHS has no record of the criminal charges in their database
if the juvenile is apprehended in the future.75 Consequently, DHS would have no
information in its records to indicate whether the individual represented a criminal
threat upon a future inspection or apprehension.
Claiming Asylum. For those UAC who wish to claim asylum in the United
States, the asylum process is broadly similar to the adult process, but with some key
distinctions. While the general statutory requirements for children remain the same
as adults,76 both the DHS guidelines and case law provide an unclear picture of the
qualifying requirements. For example, to qualify for asylum, a child does not need
to show that his or her persecutor had malicious intent, nor that he or she sought
government protection.77 Yet simultaneously, there is ambiguity as to how old a
child separated from a parent must be before that child can apply for asylum without
parental consent. The cases of Walter Polovchak78 and Elian Gonzalez79 established
that while a 12-year-old minor was old enough to independently seek asylum, a six
year old needed to be represented by an adult in immigration matters. The lack of a
definitive age for asylum is further complicated by the fact that these two cases were
decided in the context of highly charged foreign affairs considerations, concerning
the former-Soviet Union and Cuba, respectively.
Gangs and Smuggling
Recent years have seen a rise in gangs with cross-national affiliations,
particularly ties from the regions of Central America and East Asia to the United
States.80 Observers have been concerned with the growing involvement of these
gangs in human smuggling of unauthorized individuals across U.S. borders. A
number of these smuggled individuals are juvenile aliens; some are smuggled with
family members and others come unaccompanied. The increased border security
74 A detainer is placed on the UAC so that the child is not released from custody when
proceedings are complete, but is instead transferred to DHS. This is similar with alien
adults who, under statute, must complete their criminal sentences prior to being taken into
ICE custody.
75 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.
76 Generally see Section 208 of the Immigration and Nationality Act.
77 Memorandum from Jeff Weiss, Office of International Affairs, to all INS Asylum
Officers, File NO. 120/11.26, Guidelines for Children’s Asylum Claims (Dec. 10, 1998).
78 Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985).
79 Gonzalez v. Reno, 212 F3d 1338 (11th Cir. 2000).
80 For discussion on Central American gang violence, see CRS Report RS22141, Gangs in
Central America, by Claire M. Ribando.

---

CRS-19
along the southwestern border with Mexico has made the smuggling of persons both
more difficult and more profitable.81 Some have maintained that children have
become especially lucrative for smugglers, who frequently charge twice as much to
smuggle a child than an adult.82 Reportedly, gangs have become a common link in
the smuggling of UAC and are charging as much as $6,000 per child in Central
America.83
In regard to the issues of UAC and gang involvement in migration, there are
two concerns for policy makers. Mirroring the broader debate, the gang-related
discussions divide the refugee advocates against the security advocates. These two
issues concern the (1) UAC as impoverished victims that are easily exploited during
smuggling operations, and (2) the inflow of UAC as potential or existing gang
members.84 The first of these issues represents a view largely held by refugee
agencies, as well as a position largely reflected in policies of ORR. Advocates of
treating all UAC as victims point to the allegedly significant levels of physical and
sexual abuse85 that occurs en route to the United States by smugglers and gang
members.86 Additionally, a number of these children reportedly do not travel of their
own accord. Instead, they are sent by impoverished families to find work in the
United States and send remittance payments to their home country. According to
advocacy groups, these mitigating circumstances, along with their legal juvenile
81 An article highlighted the fact that the smuggling of persons was both less risky (due to
less punitive sentences) and more profitable than drug trafficking, making the transition to
such illicit activity appealing for many criminal organizations (Patrick Radden Keefe, “The
Snakehead,” The New Yorker, June 24, 2006, at [http://www.newyorker.com/fact/content/
articles/060424fa_fact6], visited Feb. 1, 2007).
82 Tim Gaynor, “Children Cross U.S. Border Solo as Security Rises.” Reuters, Dec. 4, 2006.
83 Sylvia Moreno, “A Set of Borders to Cross: For Children Seeking Immigrant Relatives
in U.S., Journey is Twofold,” The Washington Post, Oct. 23, 2006, pp. A1, A7.
84 Recent news accounts have noted that the number of immigrants seeking asylum on the
basis of gang activity in their home country has increased. These asylum claims include
children, who claim they are threatened to be killed by gang members in their home country
if they do not join the gang (N.C. Aizenman, “More Immigrants Seeking Asylum Cite Gang
Violence,” The Washington Post, Nov. 15, 2006, p. A8.
85 According to ORR officials, human smuggling through criminal organizations has become
especially troublesome because of the physical and psychological effects it has upon
children. Increasingly, the children have become targets for physical and sexual abuse by
traffickers on their journey to the United States. According to ORR officials, it is not
uncommon that children arrive in the United States with special needs requiring professional
services. These special needs cover a wide range of issues, but include teenage pregnancy,
acute mental illness, severe depression, and other physical illnesses. Also, the physical and
psychological damage caused to children by human smuggling may be compounded by the
fact that some children have experienced trauma or domestic abuse in their country of origin
(Based upon CRS discussions with officials at ORR, Sept. 6, 2006).
86 Jennifer Smythe, “Age Determination Authority of Unaccompanied Alien Children and
the Demand for Legislative Reform,” Interpreter Releases, vol. 81, no. 23 (June 7, 2004),
pp.754-763.

---

CRS-20
status, warrants a refugee paradigm for UAC policy similar to how the U.S. treats
refugees.87
Some border security proponents contend, however, that despite what the
UAC may endure en route to the United States, from an immigration perspective they
are not victims; rather, these UAC are participants in human smuggling. These
advocates assert that participation in human smuggling is a criminal action and
should be treated with expedited removal.88 Other security proponents further point
out the connection of some UAC to violent crimes, noting that there have been cases
of UAC committing criminal acts after being released in the United States.89 Of
particular concern are the potential links that some UAC may have to both gangs and
terrorism.90 Gangs such as MS-1391 have strong ties to Central America and have
sought to bring members to the United States.92 The gangs are increasingly involved
in the trafficking of guns, arms, and people, thereby increasing the likelihood that
youth gang members would promote these trafficking activities in the United States.93
Finally, security proponents have noted the high rate of foreign-born members in
these more violent gangs.94
Some security proponents believe that such gangs may eventually court
terrorist connections in order to raise revenues for their gang activity.95 The arrests
of two unaccompanied alien children arriving from East Asia on suspicion of terrorist
87 Christine M Gordon, “Are Unaccompanied Alien Children Really Getting a Fair Trial?
An Overview of Asylum Law and Children,” Denver Journal of International Law and
Policy, vol. 33, no. 4, (Sept. 22, 2005), pp. 641-674.
88 For discussion, see CRS Report RL33200, Trafficking in Persons in Latin America and
the Caribbean, by Clare M. Ribando.
89 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.
90 Nina Bernstein and Eric Lichtblau, “Two Girls Held as U.S. Fears Suicide Bomb,” The
New York Times, Apr. 7, 2005, Section B, Column 5, p. 1.
91 MS-13 is shorthand for Mara Salvatrucha.
92 The Mara Salvatrucha was originally formed in Los Angeles, California, by immigrants
and refugees from El Salvador. Having recently spread to become significant threats to the
Washington, DC, and Baltimore metropolitan area, the gang is estimated to have between
8,000 and 10,000 dedicated members. (For further discussion see CRS Report RL33400,
Youth Gangs: Legislative Issues in the 109th Congress, by Celinda Franco.)
93 CRS Report RL33200, Trafficking in Persons in Latin America and the Caribbean, by
Clare M. Ribando.
94 Monisha Bansal, “Chertoff: Street Gangs a Threat to National Security,” Cybercast News
Service, March 13, 2006, at [http://www.cnsnews.com/ViewNation.asp?Page=%5CNation
%5Carchive%5C200603%5CNAT20060313b.html], visited Dec. 21, 2006.
95 The Associated Press, “Immigrant Gang Suspected of Al-Qaida Ties,” Sept. 3, 2005, at
[http://www.terrorismknowledgebase.net/NewsStory.jsp?storyID=84214], visited Dec. 21,
2006.

---

CRS-21
intentions further elevated the concerns of security advocates.96 There has been no
evidence to date, however, of any such gang-terrorist connection.97 The subsequent
release of these juveniles, however, has provoked refugee paradigm advocates to
further condemn the security paradigm.98 These advocates further believe that UAC
are more likely to be victims of gang activity than complicit actors.
Apprehensions, Detentions, and UAC
Characteristics
The data on UAC are important for evaluating the current policies toward
UAC by both ORR and DHS. Prior to the HSA, the former-INS was responsible for
all aspects of handling UAC. Since the dissolution of the INS, UAC statistics have
been collected by ORR, CBP, and ICE. These data are not consolidated into any
publically available database, although they are made available upon request from the
various agencies.
CBP Apprehensions
Figure 2 below depicts the apprehensions of unauthorized alien juveniles
(and not UAC specifically) by CBP for the time period FY2001-FY2006. The
number of apprehensions has exceeded 86,000 annually since FY2001. The highest
rate of apprehensions came in FY2005, when the CBP apprehended 114,563
juveniles. This number represented a 17% higher rate than that of FY2001, which
had 97,954 juvenile apprehensions. FY2006 did see a decline of nearly 11% from
FY2005 in juvenile apprehensions. The FY2006, CBP apprehension rate constitutes
an average of 279 juvenile apprehensions per day. CBP does not keep separate
apprehension figures on UAC. Furthermore, the data do not delineate how many
children were released to border patrol authorities in Mexico or Canada, rather than
being detained. Official numbers from the CBP’s Enforcement Case Tracking
System (ENFORCE) indicate that in recent years approximately four out of every
five juveniles apprehended in the border sectors are nationals of Mexico.99
96 Nina Bernstein and Eric Lichtblau, “Two Girls Held as U.S. Fears Suicide Bomb,” The
New York Times, Apr. 7, 2005, Section B, Column 5, p. 1.
97 For additional discussion, see CRS Report RL33400, Youth Gangs, Legislative Issues in
the 109th Congress, by Celinda Franco.
98 Nina Bernstein, William Krashbaum, and Souad Mekhennet, “Questions, Bitterness, and
Exile for Queens Girl in Terror Case,” The New York Times, June 17, 2005, p. A1.
99 U.S. Department of Homeland Security, Office of Inspector General, Office of
Inspections and Special Reviews, A Review of DHS’ Responsibilities for Juvenile Aliens,
OIG-05-45, Sept. 2005, p. 3.

---

CRS-22
Figure 2. Apprehensions of Unauthorized Juveniles by Customs and
Border Protection, FY2001-FY2006
Note: FY2003 includes combined data from the CBP and INS. FY2001 and FY2002 data are INS statistics.
Juveniles Held by ORR
As demonstrated in Figure 3 below, FY2006 ORR detentions of 7,746 are
a 25% increase over the FY2004 total of 6,200, the first fiscal year for which
complete data is available. In FY2005, a total of 7,787 UAC were detained by ORR.
This detention total constitutes a 26% increase over FY2004, while the decline
experienced in FY2006 represented a decrease of less than 1%.

---

CRS-23
Figure 3. ORR Detentions of Unaccompanied Alien Children,
FY2003-FY2006
Note: FY2003 data do not include all detentions by the INS.
The children detained by ORR have held relatively steady demographic
patterns in the past several years. Table 3 provides statistical breakdowns of UAC
that show that the majority of juveniles in detention are males. Between FY2004 and
FY2006, the gender proportion of UAC males that were detained by ORR held
almost constant at between 73% and 74%. For this same time period, the proportion
of UAC in ORR’s custody that were in the age range of 15 to 18100 also remained
nearly constant, fluctuating between 80% and 81%. For FY2006, the proportions of
UAC were 74% male and 26% female, with 80% being from the ages of 15 to 18 and
the remaining 20% being ages 0 to 14 years old.
100 Even though 18 year olds are no longer considered UAC, they may be held beyond their
18th birthday by ORR due to transfer delays.

---

CRS-24
Table 3. Gender, Age and Country of Origin of Unaccompanied
Alien Children in ORR Custody, FY2004-FY2006
Category
FY2004
FY2005
FY2006
Gender
Male
74%
73%
74%
Female
26%
27%
26%
Age
15-18
80%
81%
80%
0-14
20%
19%
20%
Countries of Origin
El Salvador
26%
24%
31%
Honduras
30%
35%
28%
Guatemala
20%
23%
26%
Mexico
10%
6%
7%
Brazil
3%
3%
1%
China
2%
1%
1%
Ecuador
2%
2%
1%
Nicaragua
0.8%
0.9%
1%
Other
6.2%
5.1%
4%
Source: CRS presentation of HHS ORR data (2006).
Note: For FY2006 data, countries of origin rounded to the nearest percent.
Most UAC in ORR’s custody come from three countries: El Salvador,
Honduras, and Guatemala. Figure 4 demonstrates that in FY2006, these three
countries accounted for 31%, 28%, and 26% of the ORR detainees, respectively.
Thus, these countries combined for 85% of the UAC detained by ORR. The only
other country with more than 1% of detainees was Mexico, which in FY2006
accounted for 7% of the UAC total. China is the only non-Latin American country
accounting for 1% or more of UAC in ORR custody. When comparing these
statistics to those in Table 3 for FY2005 and FY2004, a few points are worth noting.
First, according to data from ORR the top four sending countries of UAC have
remained in the top four from FY2004 through FY2006. Guatemala’s share of UAC
detainees has increased by 6% since FY2004, whereas Honduras has decreased by
2% (and down by 7% from FY2005). El Salvador’s detainee share increased by 5%
since FY2004, whereas Mexico’s share has decreased by 3%. All of these four
countries represent sending totals that are multiple times higher than any other
sending country with UAC in ORR custody.

---

CRS-25
Figure 4. Country of Origin of Detained Unaccompanied Alien
Children in ORR Custody, FY2006

China
Brazil
Ecuador
Mexico
1%
1%

1%
7%
Nicaragua
1%
Other
4%
Guatemala
26%
El Salvador
31%
Honduras
28%
Source: CRS presentation of unpublished HHS ORR data (2006).
Juveniles Held by DHS
Contrary to the data on the longer term juvenile detentions by ORR, data from
ICE DRO depicts apprehended UAC that were detained by the agency in excess of
72 hours. Table 4 displays the number of UAC held in DRO facilities by fiscal year
and month, and identifies the number of UAC that were held by DRO both under and
in excess of 72 hours. The total number of UAC held by this agency during FY2005-
FY2006 was 2,707, of which 1,365 were held in FY2005 and 1,342 were held in
FY2006. As the table demonstrates, the number of juveniles held by DRO for a
period of 72 hours or longer in FY2005 was 142, representing 10.4% of the total
UAC detentions for the fiscal year. By FY2006, this proportion had dropped
significantly to a level of 2.8%, or 37 UAC. The highest rates of extended detentions
occurred in the summer months of FY2005. In the months of July, August, and
September of FY2005, the extended detention rate of UAC in DRO custody was
49%, 37.9%, and 19.5%, respectively. Subsequently, the rates of extended detention
dropped significantly, although in August of FY2006 the rate began to increase again.
For September of FY2006, the rate was at 9.5%.101
101 Statistically, there is little evidence of any relationship between the number of juveniles
held in a month and the number that were held for over 72 hours. Pearson correlation scores
are a measure of the strength of the relationship between two variables. It is measured on
a continuous scale between -1 to 1, with -1 indicating a linear inverse relationship, 1
(continued...)

---

CRS-26
Table 4. UAC in ICE DRO Custody by Hours Held,
FY2005-FY2006
# of Juveniles
# of Juveniles
# of Juveniles
# of Juveniles
Held 72
Held 72
FY2005
Held Under
FY2006
Held Under
Hours or
Hours or
72 Hours
72 Hours
Longer
Longer
October
111
11
October
102
8
November
126
2
November
75
6
December
150
0
December
82
4
January
67
0
January
76
1
February
85
0
February
79
0
March
131
1
March
131
0
April
123
0
April
76
0
May
119
17
May
177
1
June
119
8
June
171
1
July
98
48
July
134
0
August
103
29
August
113
4
September
133
26
September
126
12
Total
1365
142
Total
1342
37
Source: CRS presentation of unpublished DRO data (2006).
Table 5 displays the number of unaccompanied alien juveniles (UAC) held
longer than 72 hours in DRO facilities by fiscal year and month, and indicates the
explanation (see legend) for extended detention. It is clear from the data in Table 5
that despite a 74% drop from FY2005 to FY2006 in the number of UAC held in
excess of 72 hours, there continues to be a geographic disconnect between the
placement of some ORR facilities and DRO facilities. As the table demonstrates, the
predominant reason for a UAC being held in excess of 72 hours was the lack of ORR
bed space or no beds available in a “reasonable”102 commuting area. For FY2005,
the 79 cases that were categorized in this manner accounted for 55.6% of juveniles
held in excess of 72 hours for that fiscal year. The corresponding 22 cases in
FY2006 accounted for 59.5% of the extended detentions for FY2006. Consequently,
while the absolute numbers of such difficulties decreased, difficulties in transferring
101 (...continued)
indicating a direct linear relationship, and 0 indicating no relationship.
The Pearson correlation scores for FY2005 and FY2006 were -.11 and -.1,
respectively. Not only does their proximity to zero indicate a very weak relationship, but
the negative sign on the correlation indicates that the two data columns actually had an
inverse relationship. Thus, as the number of juveniles held by DRO increased, the
proportion of juveniles held 72 hours or longer would show a tendency to slightly decrease.
One possible explanation for this lack of correlation would be that ORR bed space openings
varied in relation to where juveniles were apprehended. A random variation in bed space
location would drive down the correlation.
102 The term “reasonable” was not defined by DHS in the data they provided to CRS.

---

CRS-27
UAC from DRO to ORR remained the principal reason for the majority of extended
detentions.
The second highest cause of extended DRO detention in FY2005 was
escorting staff shortages in conjunction with the lack of ORR bed space within
reasonable proximity, with 27 cases (or 19%) being classified as such. In FY2006,
a total of two cases were attributed to such difficulties. A similar pattern is evident
with the number of UAC held in excess of 72 hours due to being in the custody of
CBP. The decline from 24 cases in FY2005 to 2 cases in FY2006 represents a 95%
reduction in absolute terms. Cases of UAC being held in excess of 72 hours for
voluntary return dropped from eight cases in FY2005 to four cases in FY2006. The
only two categories which saw absolute increases in the number of juveniles held for
extended duration were cases with escorting staff shortages and unavailable flights.
The former category had five cases, whereas the latter had two cases in FY2006.
Neither category had any cases in FY2005.

---

CRS-28
Table 5. UAC Held by ICE DRO 72 Hours or Longer by Reason for Extended Detention, FY2005-FY2006
# of Juveniles Held 72 Hours or Longer
# of Juveniles Held 72 Hours or Longer
FY2005
(see legend below)
Total
FY2006
(see legend below)
Total
Month
A
B
C
D
E
F
A&D
Month
A
B
C
D
E
F
D&F
October 3
8
11
October
7
1
8
November 2
2
November
5
1
6
December December
4
4
January January
1
1
February February
March 1
1
March
April April
May 3
14
17
May
1
1
June 4
4
8
June
1
1
July 38
10
48
July
August
12
17
29
August
1
1
1
1
4
September 24
2
26
September
3
2
4
2
1
12
Total
79
24
0
0
4
8
27
142
Total
22
2
2
5
0
4
2
37
Source: CRS presentation of unpublished DRO data (2006).
Legend:
A=Lack of ORR Bed Space and/or No Beds Available in a “Reasonable” Commuting Area
B=Juveniles in CBP (Border Patrol) Custody
C=Flights Unavailable
D=Lack of Escorts/Transportation Officers
E=Quarantined Due to Chicken Pox - No Facility Available for Quarantined Juveniles
F=Held for Voluntary Return

---

CRS-29
Current Issues
Although policy changes regarding UAC treatment and procedures have
responded to the concerns of both security and child welfare advocates, criticism
continues to be leveled against the various agencies. Advocates for both security and
refugee paradigms for UAC policy point to several practices that they claim violate
existing agreements and laws. Consequently, some advocates wish to see additional
involvement by Congress to address these policy and compliance issues.
Advocacy Group Criticisms and DHS Responses
DHS Transfers. Advocacy groups have leveled charges against DHS that
the agency is not complying with the terms of the Flores Agreement governing the
rights and treatment of UAC.103 DHS is responsible for the transportation and
removal of any unaccompanied alien child from the United States, as well as the
transportation and transfer of any unaccompanied alien child into ORR’s care. Those
unauthorized juveniles who are “unaccompanied” under the HSA statutory definition
belong in the custody of the ORR, and under the FSA any such juvenile must be
transferred to their custody within 3-5 days of apprehension (with 72 hours being the
standard practice).104 Critics charge that DHS frequently fails to achieve this task,
and that children are detained at DHS facilities for longer than 72 hours.
Additionally, UAC under ORR’s care who are to be deported from the United States
must be transferred back into DHS custody. Frequently, such removals take more
than a month. Congress has taken notice of these transfer issues, and has directed ICE
to contact ORR immediately upon apprehension of an unaccompanied alien child,
and ensure that the UAC is transferred to ORR within 72 hours.105
Officials at DRO have contended that many such transfer difficulties arise
from staff shortages or on the difficulties in arranging transportation to ORR facilities
that require anything other than standard ground transportation.106 DHS has
requested that ORR contract with rural detention centers and consider a child
“placed” when deposited at a contracted detention center. Under such a contracting
arrangement, ORR would be charged with the responsibility of transporting the
juvenile from a rural contract center to a permanent facility. Despite such placement
103 Based on CRS discussions with attorneys from both the National Center for Refugee and
Immigrant Children and the Hebrew Immigrant Aid Society (HIAS) & Council Migration
Service of Philadelphia.
104 This time-frame is stipulated by the Flores Settlement Agreement (Reno v. Flores, 507
U.S. 292 (1993)) and was detailed in the proposed rules presented in U.S. Department of
Justice, “Processing, Detention, and Release of Juveniles,” Federal Register, no. 63, vol.
142 (July 24, 1998), pp. 39759-39763.
105 H.Rept.109-699.
106 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.

---

CRS-30
difficulties, DHS maintains that it makes every effort to keep unaccompanied
children separate from criminal juvenile aliens.107
Defining “Unaccompanied”. A related issue to the transfer criticism has
been the procedural definition of “unaccompanied” in classifying UAC. Specifically,
critics charge that DHS has misclassified many juveniles as either “accompanied”
or “unaccompanied,” and that in a number of cases these misclassifications are
deliberate. The critics charge that DHS is separating children from their parents and
classifying the children as UAC in order to avoid spending additional resources on
“family unity” housing. Additionally, some advocacy groups have claimed that
children who have no accompanying adult have on occasion been declared
“accompanied” by virtue of having previously lived in the United States with a parent
or legal guardian. Critics of these practices contend that it is unnecessary and
harmful to the juveniles to separate them from their parents if they are available, and
that DHS should prevent such separations from occurring.108 In certain cases, critics
have argued that DHS has classified juveniles as UAC and used the juvenile as bait
to draw out parents who are suspected of being unauthorized. In other cases, the
critics charge, DHS has misclassified juveniles as “accompanied” in order to keep the
juveniles in secure DHS facilities on suspicion of criminal intent.
Although children who are apprehended with a parent or legal guardian are
not legally unaccompanied, they are sometimes separated from the adult and detained
as an unaccompanied alien child.109 Such a scenario may occur when the parent or
legal guardian is a criminal alien and must be housed in a detention unit for criminal
aliens. In such cases, DRO is legally unable to keep the child with the parent or legal
guardian and places the child under the care of ORR, since such facilities are not
considered “suitable” for juveniles under 8 CFR §236.3. In other cases, the
separation of children from their family is based upon a shortage of bed space. DHS’
Office of Inspector General (OIG) has noted that longer-term care facilities are
frequently not readily available to accommodate families. Under such circumstances
the juveniles are treated as unaccompanied minors and placed under ORR’s
jurisdiction.110 In each of these above cases, the children involved default to a status
of “unaccompanied” pursuant to the UAC statutory definition since the parent or
legal guardian, although present in the United States, is not available to provide care
and physical custody for the child.
107 Ibid.
108 Based on CRS discussions with attorneys from both the National Center for Refugee and
Immigrant Children and the Hebrew Immigrant Aid Society (HIAS) & Council Migration
Service of Philadelphia.
109 U.S. Department of Homeland Security. Office of the Inspector General. Open Inspector
General Recommendations Concerning the Former Immigration and Naturalization Service
from Unaccompanied Juveniles in INS Custody, a Report by the Department of Justice
Inspector General. Report no. OIG-04-18, Mar. 2004.
110 U.S. Department of Homeland Security, Office of Inspector General, Office of
Inspections and Special Reviews, A Review of DHS’ Responsibilities for Juvenile Aliens,
OIG-05-45, Sept. 2005, pp. 19-20.

---

CRS-31
Investigations by DHS and DOJ of some of these charges of deliberate
juvenile misclassifications have confirmed that some charges are correct, although
they have yet to be shown to result from any malicious intent. In some cases, DHS
has deliberately separated juveniles from their parents because of shortages of beds
in family unity facilities. Regulations dictate that the facility must meet a number of
criteria in order to allow the housing of juveniles (e.g. juveniles may not be detained
in a facility with adult criminal offenders). In some cases where facilities were not
available to provide for proper family unity detainment, DHS did separate the family
and place the children in juvenile facilities as UAC. But despite DHS’ construction
of new family unity facilities in Texas, advocacy groups charge that these
misclassifications continue to occur.
In addition, some children that are designated as “unaccompanied” actually
have parents or legal guardians in the United States, but for various reasons the
custodian does not come forward. Regardless of whether a unaccompanied alien
child is picked up by CBP or ICE, it is sometimes the case that parents who are
unlawfully present will not come forward out of fear of facing removal.111 Other
times there is confusion with the family over where they are to appear or find their
child, since DHS often transfers juveniles from the original detention or apprehension
locations. Linguistic barriers can also make communication especially difficult.
Age Determination. Another issue that has concerned advocacy groups
has been the age determination of UAC by DHS. Critics charge that the DHS age
determination methodologies are too reliant on forensic techniques.112 Child
advocacy groups argue that the forensic techniques such as bone and dental analysis
are not scientifically rigorous, and are prone to error.113 These critics have further
charged that the findings of the individuals conducting the bone analysis are skewed
heavily towards adult ages, and therefore reflect an investigatory bias. DHS officials
disputed this interpretation of its forensic procedure, stating that its age determination
process was more nuanced and the forensic determination was only part of this
process.114 Congress has expressed concern over DHS’ forensic techniques in the
report language of several appropriations bills, and in so doing has urged DHS to
employ more holistic methodologies including psychological evaluations.115
Repatriation. There have been concerns expressed about the repatriation
practices conducted by DHS of UAC. What has concerned many advocacy groups
111 According to ORR, DHS does not apprehend the families in many such cases because
of lack of resources. DHS officials admitted that a shortage of resources sometimes
prevents them from fulfilling all the agency’s obligations.
112 Jennifer Smythe, “Age Determination Authority of Unaccompanied Alien Children and
the Demand for Legislative Reform,” Interpreter Releases, vol. 81, no. 23 (June 7, 2004),
p.754-763.
113 According to critics, factors such as bad nutrition may result in forensic estimates that
deviate significantly from those of a healthy child.
114 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.
115 H.Rept.109-476.

---

CRS-32
are reports that some children are not safely repatriated back to their homelands to
the care of a parent, legal guardian, or sponsoring agency.116 The standard procedure
for DHS and ORR is to contact the juvenile’s appropriate consulate in order to
facilitate a safe repatriation. With nationals of Mexico and Canada apprehended
along the border, CBP officials may contact their respective Mexican or Canadian
border protection counterparts and transfer the juvenile to their custody for further
processing. Advocacy agencies have charged that many juveniles are caught within
the United States and released across the border without any sponsor to care for them
nor any official notification of foreign officials. They have also charged that DHS
does not properly verify that a juvenile will be safely repatriated.117 Congress has
expressed concern in both committee and conference report language about the
dearth of repatriation services, and has urged DHS to work with DOS and ORR to
develop policies and procedures for the safe repatriation of juveniles.118
DHS has contended that the responsibility for safe repatriation should lie at
least in part with the appropriate consulate for the alien juvenile.119 Both DHS and
ORR noted that consular officials can be particularly troublesome for the repatriation
process by regularly changing their documentation requests or raising objections to
a juvenile transfer. Both of these actions serve as drains on DHS resources. Despite
such difficulties with resources and foreign consulates, DHS maintains that it makes
every effort to safely repatriate all UAC.120
Legislation
During the 109th Congress, there were several efforts at addressing the issues
and charges advocates have raised surrounding UAC. In the Senate, Senator Diane
Feinstein and Senator Sam Brownback co-sponsored the Unaccompanied Alien Child
Protection Act of 2005 (S. 119). This legislation included many provisions,
including the rights of UAC to consult with a consular officer prior to repatriation,
criteria for treatment and detention of UAC, and the preference order of child
placement. The legislation additionally would have granted ORR access to children
in DHS’ custody to determine the child’s age. Notably, the legislation also would
have provided for the appointment of child advocates for UAC, including counsel for
all children in the custody of DHS that are not being repatriated to a contiguous
country. These advocates would have served on a pro bono basis. S. 119 was passed
in the Senate and subsequently referred to the House Subcommittee on Immigration,
Border Security, and Claims. In the House, Representative Zoe Lofgren sponsored
the Unaccompanied Alien Child Protection Act of 2005, which became H.R. 1172.
116 American Immigration Lawyers Association, “Sign On Letter Advocating Reform for
Children Seeking Asylum,” July 1, 2004, at [http://www.aila.org/content/default.aspx?docid
=10988], visited February 1, 2007.
117 Ibid.
118 H.Rept.109-476.
119 Based on CRS discussion with John Pogash, Chief of the National Juvenile Coordination
Unit in DHS ICE’s Office of Detention & Removal, Dec. 19, 2006.
120 Ibid.

---

CRS-33
In the conference report for the FY2007 Department of Homeland Security
Appropriations Act ,121 the conferees outlined a number of concerns related to UAC.
These concerns included issues such as the age determination methodologies
employed by DHS, the safe repatriation of UAC back to their home country, and the
separation of juveniles from their parents in DHS facilities. This report language also
directed DHS to provide monthly statistics on apprehensions and detention of UAC
to the committee.
121 P.L.109-295; H.Rept.109-699.

---