Background
In FY2014, the number of unaccompanied alien children (UAC) apprehended at the Southwest border by the Department of Homeland Security's (DHS's) Customs and Border Protection (CBP) peaked at 68,541. During a June 2014 hearing, some Members of Congress, like the Administration, characterized the issue as a humanitarian crisis.1
In recent years, most unaccompanied children have originated from three Central American countries—Guatemala, Honduras, and El Salvador—and Mexico. The reasons why they migrate to the United States often are multifaceted and difficult to measure analytically. The Congressional Research Service (CRS) has analyzed several out-migration-related factors, such as violent crime rates, economic conditions, rates of poverty, and the presence of transnational gangs.2 CRS also has analyzed in-migration-related factors, such as the search for economic opportunity, the desire to reunite with family members, and U.S. immigration policies. These factors may have contributed to the surge in the number of UAC that were apprehended along the Southwest border in FY2014.
Critics of the Obama Administration, however, assert that the surge in UAC fleeing their home countries was due to a perception of relaxed U.S. immigration policy toward children.3 They also cited a 2008 law4 that treats UAC from contiguous countries differently than those from noncontiguous countries (see "Customs and Border Protection" below).
Unaccompanied alien5 children are defined in statute as children who lack lawful immigration status in the United States,6 are under the age of 18, and are without a parent or legal guardian in the United States or without a parent or legal guardian in the United States who is available to provide care and physical custody.7 They most often arrive at U.S. ports of entry or are apprehended along the southwestern border with Mexico. Less frequently, they are apprehended in the interior of the country and determined to be juveniles8 and unaccompanied.9 Although most of these children are aged 14 or older, apprehensions of UAC under the age of 13 have increased.10
This report opens with an analysis of recent UAC apprehension data. It then discusses current policy on the treatment, care, and custody of the population, with a description of the responsibilities of each federal agency involved with the population. The report then discusses both administrative and congressional actions to deal with the UAC surge in FY2014 and ongoing action to address possible future surges.
Scope of the Problem
Since FY2011, UAC apprehensions have increased each year through FY2014, from 16,067 in FY2011 to 24,481 in FY2012 to 38,759 in FY2013 and 68,541 in FY2014. At the close of FY2014, the Border Patrol had apprehended more UAC than in any of the previous six years and close to four times as many UAC as in FY2011. In FY2015, apprehensions for the first 8 months numbered 22,869, representing a 49% drop from apprehensions during the same period in FY2014.11
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Figure 1. UAC Apprehensions at the Southwest Border by Country of Origin, FY2008-FY2015 |
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Sources: For FY2008-FY2013: U.S. Department of Homeland Security, United States Border Patrol, Juvenile and Adult Apprehensions—Fiscal Year 2013. For FY2014-FY2015, Customs and Border Protection, "Southwest Border Unaccompanied Alien Children," http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children. Notes: FY2015 figures represent eight months, from October 1, 2014, through June 1, 2015. |
Nationals of Guatemala, Honduras, El Salvador, and Mexico account for the majority of unaccompanied alien children apprehended at the Mexico-U.S. border (Figure 1). Flows of UAC from Mexico rose substantially in FY2009 and have remained relatively steady. In contrast, UAC from Guatemala, Honduras, and El Salvador increased substantially starting in FY2011. In FY2009, Mexican UAC accounted for 82% of 19,668 UAC apprehensions, while the three Central American countries accounted for 17%. By September 30, 2014, those proportions had almost reversed, with Mexican UAC comprising only 23% of the 68,541 UAC apprehensions and UAC from the three Central American countries comprising 75%.12 The latter percentage dropped to 66% in the first eight months of FY2015.
The majority of UAC apprehensions have occurred within the Rio Grande and Tucson border sectors (73% and 12%, respectively, in FY2014).13 The proportions of UAC who were female or who were under the age of 13 also increased in FY2014. Apprehensions of family units (unaccompanied children with a related adult) increased from 14,855 in FY2013 to 68,445 in FY2014. Of these apprehended family units, 90% originated from Guatemala, El Salvador, and Honduras.
Current Policy
Two laws and a settlement, discussed below, most directly affect U.S. policy for the treatment and administrative processing of UAC: the Flores Settlement Agreement of 1997; the Homeland Security Act of 2002; and the Trafficking Victims Protection Reauthorization Act of 2008.
During the 1980s, allegations of UAC mistreatment by the former Immigration and Naturalization Service (INS)14 caused a series of lawsuits against the government that eventually resulted in the Flores Settlement Agreement (Flores Agreement) in 1997.15 The Flores Agreement established a nationwide policy for the detention, treatment, and release of UAC and recognized the particular vulnerability of UAC while detained without a parent or legal guardian present.16 It required that immigration officials detaining minors provide (1) food and drinking water; (2) medical assistance in emergencies; (3) toilets and sinks; (4) adequate temperature control and ventilation; (5) adequate supervision to protect minors from others; and (6) separation from unrelated adults whenever possible. For several years following the Flores Agreement, criticism continued over whether the INS had fully implemented the regulations that had been drafted.17
Five years later, the Homeland Security Act of 2002 (HSA; P.L. 107-296) divided responsibilities for the processing and treatment of UAC between the newly created Department of Homeland Security (DHS) and the Department of Health and Human Services' (HHS's) Office of Refugee Resettlement (ORR). The HSA assigned apprehension, transfer, and repatriation responsibilities to DHS. The law assigned responsibility to HHS for coordinating and implementing the care and placement of UAC in appropriate custody; reunifying UAC with their parents abroad if appropriate; maintaining and publishing a list of legal services available to UAC; and collecting statistical information on UAC, among other things.18 The HSA also established a statutory definition of UAC as unauthorized minors without the accompaniment of a parent or legal guardian. Despite these developments, criticism that the Flores Agreement had not been fully implemented continued.
In response to ongoing concerns that UAC who were apprehended by the Border Patrol were not being adequately screened to see if there was a reason that they should not be returned to their home country, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA, P.L. 110-457). The TVPRA directed the Secretary of DHS, in conjunction with other federal agencies, to develop policies and procedures to ensure that UAC in the United States are safely repatriated to their country of nationality or of last habitual residence. The section set forth special rules for UAC from contiguous countries (i.e., Mexico and Canada), allowing such children, under certain circumstances, to return to Mexico or Canada without additional penalties, and directing the Secretary of State to negotiate agreements with Mexico and Canada to manage the repatriation process. Unaccompanied alien children from countries other than Mexico or Canada—along with UAC from those countries who are apprehended away from the border—are to be transferred to the care and custody of HHS and placed in formal removal proceedings. The TVPRA requires that children from contiguous countries be screened within 48 hours of being apprehended to determine whether they should be returned to their country or transferred to HHS and placed in removal proceedings.
Processing and Treatment of Apprehended UAC19
Several DHS agencies handle the apprehension, processing, and repatriating of UAC, while HHS handles the care and custody of UAC. The Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice conducts immigration removal proceedings.
Customs and Border Protection (CBP) apprehends, processes, and detains the majority of UAC arrested along U.S. borders. Immigration and Customs Enforcement (ICE) physically transports UAC from CBP to HHS Office of Refugee Resettlement (HHS-ORR) custody. HHS-ORR is responsible for detaining and sheltering UAC who are from noncontiguous countries and those from contiguous countries (i.e., Canada and Mexico) who may be victims of trafficking or have an asylum claim while they await an immigration hearing. U.S. Citizenship and Immigration Services (USCIS) is responsible for the initial adjudication of asylum applications filed by UAC. EOIR conducts immigration proceedings that determine whether UAC may be allowed to remain in the United States or must be deported to their home countries. ICE is responsible for returning UAC who are ordered removed from the United States to their home countries. The following sections discuss the role of these federal agencies in apprehending, processing, detaining, and repatriating UAC.
Customs and Border Protection
The Office of Border Patrol (OBP)20 and the Office of Field Operations (OFO)21 are responsible for apprehending and processing UAC that come through a port of entry (POE) or are found at or near the border.22 UAC that are apprehended between POEs are transported to Border Patrol stations, and if they are apprehended at POEs, they are escorted to CBP secondary screening areas. In both cases, when CBP confirms that juveniles have entered the country illegally and unaccompanied, they are considered UAC and processed for immigration violations, and the appropriate consulate is notified that the juvenile is being detained by DHS.
The Border Patrol apprehends the majority of UAC at or near the border. They also process UAC.23 With the exception of Mexican and Canadian UAC who meet a set of criteria discussed below, the Border Patrol has to turn UAC over to ICE for transport to HHS-ORR within 72 hours.24 Until 2008, the Border Patrol, as a matter of practice, returned Mexican UAC to Mexico. Under this practice, Mexican UAC were removed through the nearest POE and turned over to a Mexican official within 24 hours and during daylight.
As mentioned, the TVPRA required the Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services, to develop policies and procedures to ensure that UAC are safely repatriated to their country of nationality or last habitual residence. Of particular significance, the TVPRA required CBP to follow certain criteria for UAC who are nationals or habitual residents from a contiguous country (i.e., Canada and Mexico).25 In these cases, CBP personnel must screen each UAC within 48 hours to determine the following:
- the UAC has not been a victim of a severe form of trafficking in persons and there is no credible evidence that the minor is at risk should the minor be returned to his/her country of nationality or last habitual residence;
- the UAC does not have a possible claim to asylum; and
- the UAC is able to make an independent decision to voluntarily return to his/her country of nationality or last habitual residence.26
If, after assessing the UAC, CBP personnel determine the minor to be inadmissible under the Immigration and Nationality Act, they can permit the minor to withdraw his/her application for admission27 and the minor can voluntarily return to his/her country of nationality or last habitual residence.
The TVPRA contains a number of specific safeguards for the treatment of UAC while in the care and custody of CBP, and it provides guidance for CBP personnel on returning a minor to his/her country of nationality or last habitual residence. It also requires the Secretary of State to negotiate agreements with the contiguous countries with respect to the repatriation of their UAC. The agreements serve as a protection from trafficking and, at minimum, are required to include provisions pertaining to (1) the handoff of the minor children to an appropriate government official; (2) a prohibition against returning UAC outside of "reasonable business hours"; and (3) a requirement that the border personnel of the contiguous countries be trained in the terms of the agreements.
As mentioned, UAC apprehended by the Border Patrol are brought to a Border Patrol facility, where they are processed. In 2008, the agency issued a memorandum entitled "Hold Rooms and Short Term Custody."28 Since the issuance of this policy, non-governmental organizations (NGOs) have criticized the Border Patrol for failing to fully uphold the provisions in current law and the Flores Agreement.29 Indeed, the DHS Office of Inspector General (OIG) issued a report in 2010 that concluded while CBP was in general compliance with the Flores Agreement, it needed to make improvements in certain areas with respect to its handling of UAC.30
The 2010 OIG report, however, did not address whether CBP was in compliance with the TVPRA. As highlighted above, the TVPRA requires CBP personnel to screen UAC from contiguous countries for severe forms of trafficking in persons and for fear of persecution if they are returned to their country of nationality or last habitual residence. At least one NGO that conducted a two-year study on UAC31 asserted in its report that CBP does not adequately do this nor do they have training in place for their Border Patrol agents.32
Immigration and Customs Enforcement
ICE is responsible for the physical transfer of UAC from CBP to HHS-ORR. Additionally, ICE may apprehend UAC in the interior of the country during immigration enforcement actions. ICE is also responsible for representing the government in removal procedures before EOIR. Unaccompanied alien children who are not subject to TVPRA's special repatriation procedures for some children from Mexico or Canada (i.e., voluntary departure) may be placed in standard removal proceedings pursuant to INA Section 240. The TVPRA specifies that UAC in standard removal proceedings also are eligible to be granted voluntary departure under INA Section 240B at no cost to the child. The TVPRA requires that HHS ensure, to the greatest extent possible, that UAC have access to legal counsel, and it also permits HHS to appoint independent child advocates for child trafficking victims and other vulnerable unaccompanied alien children.
ICE is also responsible for the physical removal of all foreign nationals, including UAC, who have final orders of removal or who have elected voluntary departure while in removal proceedings. To safeguard the welfare of all UAC, ICE has established policies for repatriating UAC, including the following:
- returning the UAC only during daylight hours;
- recording the transfer by making sure that the receiving government official or designee signs for custody;
- returning the UAC through a port designated for repatriation;
- providing the UAC the opportunity to communicate with a consular official prior to departure for the home country; and
- preserving the unity of families during removal.33
ICE notifies the country of every foreign national being removed from the United States.34 The ability to affect a removal order is dependent on the ability of the U.S. government to secure travel documents for the alien being removed from the country in question.35 As a result, the United States is dependent on the willingness of foreign governments to accept the return of their nationals. Each country sets documentary requirements for repatriation of their nationals.36 While some countries allow ICE to use a valid passport to remove an alien (if the alien is in possession of one), other countries require ICE to obtain a travel document specifically for the repatriation.37 According to one report, the process of obtaining travel documents can become problematic because countries often change their documentary requirements or raise objections to the return of a juvenile.38
Once the foreign country has issued travel documents, ICE arranges transport of the UAC and, if flying, accompanies the UAC on the flight to his/her home country. The majority of ICE's UAC removals are conducted by commercial airlines. ICE provides two escort officers for each UAC.39 Mexican UAC are repatriated in accordance with Local Repatriation Agreements (LRA), which require notification of the Mexican Consulate for each UAC repatriated. Additional specific requirements apply to each LRA (e.g., specific hours of repatriation).40
Office of Refugee Resettlement
The Unaccompanied Alien Children Program in ORR/HHS provides for the custody and care of unaccompanied alien minors who have been apprehended by ICE or CBP or referred by other federal agencies. The TVPRA, which made significant reforms to UAC policies, directed that HHS ensure that the UAC "be promptly placed in the least restrictive setting that is in the best interest of the child."41 The HSA requires that ORR develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the interests of the child are considered in decisions and actions relating to the care and custody of a UAC, and oversee the infrastructure and personnel of UAC residential facilities, among other responsibilities.42 ORR also screens each UAC to determine if the child has been a victim of a severe form of trafficking in persons, if there is credible evidence that the minor would be at risk if he or she were returned to his/her country of nationality or last habitual residence, and if the UAC has a possible claim to asylum.43
ORR arranges to house the child either in one of its shelters or in foster care; or the UAC program reunites the child with a family member. The Flores Agreement outlines the following preference ranking for sponsor types: (1) a parent, (2) a legal guardian, (3) an adult relative, (4) an adult individual or entity designated by the child's parent or legal guardian, (5) a licensed program willing to accept legal custody, or (6) an adult or entity approved by ORR.44 According to ORR, the majority of the youth are cared for initially through a network of state-licensed ORR-funded care providers that provide classroom education, mental and medical health services, case management, and socialization and recreation.
The same care providers also facilitate the release of UAC to family members or other sponsors who are able to care for them.45 In making these placement determinations, ORR conducts a background investigation to ensure the identity of the adult assuming legal guardianship for the UAC and that the adult does not have a record of abusive behavior. ORR may consult with the consulate of the UAC's country of origin as well as interview the UAC to ensure he/she also agrees with the proposed placement. If such background checks reveal evidence of actual or potential abuse or trafficking, ORR may require a home study as an additional precaution.46 In addition, the parent or guardian is required to complete a Parent Reunification Packet to attest that they agree to take responsibility for the UAC and provide him/her with proper care.47
A juvenile may be held in a secure facility only if he/she is charged with criminal or delinquent actions, threatens or commits violence, displays unacceptably disruptive conduct in a shelter, presents an escape risk, is in danger and is detained for his/her own safety, or is part of an emergency or influx of minors that results in insufficient bed space at nonsecure facilities.48
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Figure 2. UACs in ORR Custody, FY2008 Through FY2014 (monthly referrals) |
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Source: CRS presentation of unpublished data from the HHS Office of Refugee Resettlement. |
Figure 2 uses data on monthly referrals to ORR to illustrate trends over time. It shows a sharp increase in UAC in ORR custody in FY2014. Monthly referrals were less than 1,000 until March 2012. By March 2013, monthly referrals to ORR surpassed 2,000, and the number hit 5,527 in March 2014. In June 2014, 10,128 UAC were transferred to ORR. In the first 4 months of FY2015, ORR reported 6,837 referrals of UAC.49 Note that not all UAC are referred to ORR; for example, some UAC from contiguous countries voluntarily return home.
Of the children served, ORR reports that ultimately about 90% are reunified with their families.50 Between FY2008 and FY2010, the length of stay in ORR care averaged 61 days and total time in custody ranged from less than 1 day to 710 days.51 In May 2014, ORR reported that the average length of stay in the program was about 35 days.52 It is important to note that removal proceedings continue even when UAC are placed with parents or other relatives.
U.S. Citizenship and Immigration Services
As mentioned, U.S. Citizenship and Immigration Services (USCIS) is responsible for the initial adjudication of asylum applications filed by UAC.53 If either CBP or ICE finds that the child is a UAC and transfers him/her to ORR custody, USCIS generally will take jurisdiction over the asylum application, even where evidence shows that the child reunited with a parent or legal guardian after CBP or ICE made the UAC determination. In addition, USCIS has initial jurisdiction over asylum applications filed by UAC with pending claims in immigration court, with cases on appeal before the Board of Immigration Appeals, or with petitions for review with federal courts as of when the TVPRA was enacted (December 23, 2008). UAC must appear at any hearings scheduled in immigration court even after filing for asylum with USCIS.
The Executive Office for Immigration Review
The U.S. Department of Justice Executive Office for Immigration Review (EOIR) is responsible for adjudicating immigration cases, including removal proceedings. Generally, during an immigration removal proceeding, the foreign national and the U.S. government present testimony so that the immigration judge can make a determination on whether the foreign national is removable or qualifies for some type of relief from removal (i.e., the alien is permitted to remain in the United States either permanently or temporarily).
EOIR has specific policies for conducting the removal hearings of UAC to ensure that UAC understand the nature of the proceedings, can effectively present evidence about their cases, and have appropriate assistance. The policy guidelines discuss possible adjustments to create "an atmosphere in which the child is better able to present a claim and to participate more fully in the proceedings." Under these guidelines, the immigration judges are supposed to
- establish special dockets for UAC so that they are separated from the general population;
- allow child-friendly courtroom modifications (e.g., judges not wearing robes, allowing the child to have a toy, permitting the child to testify from a seat rather than the witness stand, allowing more breaks during the proceedings);
- provide courtroom orientations to familiarize the child with the court;
- explain the proceedings at the outset;
- prepare the child to testify; and
- employ child-sensitive questioning.
Under policy, immigration judges should strongly encourage the use of pro bono legal representation if the child is not represented.
On July 18, 2014, EOIR initiated a new case recording system that coincided with its announcement of its revised adjudication priorities in response to the UAC surge.54 The system allows EOIR to track the outcomes of UAC with greater precision than in previous years.55 CRS reviewed seven months of these EOIR data covering July 18, 2014, through February 24, 2015.56 Of the 25,091 UAC who were given Notices to Appear (NTA) by DHS, 23,760 had been scheduled to appear for their first hearing. Of those scheduled, 15,633 were adjourned, 1,453 had changes of venues or were transferred, and in the remaining 6,090 cases, decisions were rendered by immigration judges. Of these decisions, 4,265 (70%) were removals and 3,775 (62%) were rendered in absentia, meaning that the UAC had not shown up to the hearing.
Administrative and Congressional Action
The Administration and Congress both took action in 2014 to respond to the UAC surge. The Administration developed a working group to coordinate the efforts of the various agencies involved in responding to the issue. It also opened additional shelters and holding facilities to accommodate the large number of UAC apprehended at the border; initiated programs to address root causes of child migration in Central America; and requested funding from Congress to deal with the crisis. Relatedly, Congress increased funding for UAC-related activities in HHS/ORR and DHS appropriations for FY2015 and considered supplemental appropriations for FY2014.
Administrative Action
In response to the UAC surge, the Administration announced in June 2014 that it had developed a Unified Coordination Group comprised of representatives from key agencies responding to this issue.57 Federal Emergency Management Agency (FEMA) Administrator Craig Fugate was named as the Federal Coordinating Official.58 The FEMA administrator's role was to support the lead agencies, CBP and HHS/ORR, by bringing in capacity from throughout the federal government so the lead agencies can focus on their missions.59
CBP maintained primary responsibility for border security operations at and between ports of entry and, working with ICE, provided for the care of unaccompanied children when they were temporarily in DHS custody.60 DHS coordinated with the Departments of Health and Human Services, State, and Defense, as well as the General Services Administration and other agencies, to ensure a coordinated and prompt response within the United States in the short term, and in the longer term to work with the sending countries to undertake reforms to address the causes behind the recent migration trends.61 In June 2014, DHS initiated a program to work with the Central American countries on a public education campaign to dissuade UAC from attempting to migrate illegally to the United States.62
To manage the influx of UAC, HHS/ORR made use of a network of group homes operated by nonprofit organizations with experience providing UAC-oriented services (e.g., medical attention, education). HHS also coordinated with the Department of Defense (DOD), which temporarily made facilities available for UAC housing at Lackland Air Force Base in San Antonio, Texas, and at Naval Base Ventura County in Oxnard, California. Arrangements at both sites ended August 2014.63
In addition, the Corporation for National and Community Service (CNCS), which administers AmeriCorps,64 partnered with EOIR to create "Justice AmeriCorps," a grant program that enrolled approximately 100 lawyers and paralegals as AmeriCorps members to provide UAC with legal representation during removal proceedings.65
Additional Administration initiatives include partnering with Central American governments to combat gang violence, strengthen citizen security, spur economic development, and support the reintegration and repatriation of returned citizens.66 The Administration also initiated a collaborative information campaign with Central American governments to inform would-be migrants on a variety of issues.67
Congressional Action
As the UAC crisis ensued in late spring and early summer 2014, initial congressional attention focused on the various agencies' resources and whether they had adequate funding to respond to the crisis. As the crisis began to wane, congressional attention shifted to mechanisms to prevent such a surge from happening again.
Appropriations
In the President's original FY2015 budget for the various agencies directly responsible for the UAC population (i.e., specifically in HHS/ORR and DHS budgets), the Administration did not request funding increases to help address what had been characterized as a strain on agency resources. However, on May 30, 2014, the Office of Management and Budget updated its cost projections related to the UAC crisis and requested a total of $2.28 billion for FY2015 for ORR's UAC program. For DHS agencies, the Administration's amended request included an additional $166 million for "CBP overtime, contract services for care and support of UAC, and transportation costs."68
On July 8, 2014, the Administration requested $3.7 billion in emergency appropriations, almost all of which was directly related to addressing the UAC surge, including $433 million for CBP, $1.1 billion for ICE, $1.8 billion for HHS, $64 million for the Department of Justice (DOJ), and $300 million for the Department of State.69 On July 23, 2014, Senator Mikulski introduced the Emergency Supplemental Act, 2014 (S. 2648). The bill would have funded the related agencies and its component parts at a lower amount than what was requested by the Administration. HHS's Administration for Children and Families would have received the largest appropriation, $1.2 billion, for its Refugee and Entrant Assistance Program to go toward the care of UAC. For CBP and the Office of Air and Marine, the act would have appropriated $320.5 million and $22.1 million, respectively; for ICE, the act would have appropriated $762.8 million to go toward transportation and enforcement and removal costs. S. 2648 would have appropriated $124.5 million for DOJ court activities related to the processing of UAC. For the Department of State's and the U.S. Agency for International Development's (USAID's) unaccompanied alien-related activities, however, the bill would have appropriated $300 million, the same amount the Administration requested. Congress did not pass S. 2648.
The Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235) was enacted on December 16, 2014. The act provided nearly $1.6 billion for Refugee and Entrant Assistance Programs for FY2015. The joint explanatory statement accompanying P.L. 113-235 expressed an expectation that the majority of these funds would be directed toward the UAC program.70 In addition, P.L. 113-235 included a new provision allowing HHS to augment appropriations for the Refugee and Entrant Assistance account by up to 10% via transfers from other discretionary HHS funds.71
The Department of Homeland Security Appropriations Act, FY2015 (P.L. 114-4) provided $3.4 billion to ICE for detection, enforcement, and removal operations, including for the transport of unaccompanied children for CBP.
In the "General Provisions" of the Homeland Appropriations Act of 2015, Section 569 sets forth a requirement that DHS submit a proposal with the annual budget that estimates the number of unaccompanied children the agency anticipates will be apprehended that fiscal year, along with the number of agent or officer hours and related costs required to manage the workload.
Section 571 of the act permits the Secretary to reprogram funds within CBP and ICE and transfer such funds into the two agencies' "Salaries and Expenses" accounts for the care and transportation of UAC. Section 572 of the act allows for State Homeland Security Program and Urban Area Security Initiative grants awarded to states along the Southwest border to be used by recipients for costs or reimbursement of costs related to providing humanitarian relief to unaccompanied children.72
Legislation and FY2016 Appropriations
Several pieces of legislation have been introduced in the current Congress; however, only two have seen legislative activity. On March 18, 2015, the House Judiciary Committee marked up the "Asylum Reform and Border Protection Act of 2015" (H.R. 1153); and on March 4, 2015, the House Subcommittee on Immigration and Border Security marked up the Protection of Children Act of 2015 (H.R. 1149). Additionally, both chambers reported a DHS appropriations bill out of committee. This section will discuss the bills that have seen legislative activity.
The Asylum Reform and Border Protection Act of 2015 (H.R. 1153)
The Asylum Reform and Border Protection Act of 2005 (H.R. 1153) would make several changes to current UAC policy. Among them, H.R. 1153 would amend the definition of UAC.73 The current UAC definition requires that in order for a minor to be deemed unaccompanied, he or she must have no parent or legal guardian available to provide care and physical custody to the minor. H.R. 1153 would amend the language to add, in addition to no parent or legal guardian, that there are no siblings, aunts, uncles, grandparents, or cousins over the age of 18 available to provide care and physical custody to the unaccompanied minor. The act would also provide that the term unaccompanied alien child would cease if any person in the aforementioned category is found in the United States and is available to provide care and physical custody to the minor.
H.R. 1153 would amend asylum provisions by treating unaccompanied children who may be seeking asylum in another country similar to other (adult) asylum seekers. The so-called Safe Third Country provision requires aliens seeking asylum to make such a claim in the first country in which they arrive. Under current law, UAC are not subject to the Safe Third Country requirement. H.R. 1153 also would require, under most circumstances, UAC to file their asylum claim within one year after arriving in the United States. Under the bill, USCIS would no longer be given initial jurisdiction over UAC asylum petitions.
H.R. 1153 would amend current law by requiring agencies to notify HHS within seven days of the apprehension or discovery of unaccompanied children. (Current law requires such notification to take place within 48 hours.) It also would require the transfer of custody of unaccompanied children to HHS no later than 30 days after determining that the minor is a UAC. (Current law requires such transfer to occur no later than 72 hours.)
The Protection of Children Act of 2015
The Protection of Children Act of 2015 (H.R. 1149) would amend current law74 by requiring unaccompanied children from noncontiguous countries to be returned immediately to their country of origin if they are deemed not to be a victim of or at risk of being a victim of trafficking or they do not have a fear of returning. (Under current law, the immediate repatriation requirement applies only to unaccompanied children from contiguous countries.) The act also would amend current law by removing language that requires unaccompanied children to independently decide if they want to withdraw their application for admission.75
H.R. 1149 would amend current law to require the Secretary of State to negotiate repatriation agreements between the United States and any foreign country the Secretary deems appropriate. (Under current law, the Secretary is able to negotiate such agreements only with contiguous countries.)
H.R. 1149 sets forth a time period for unaccompanied children who do not meet the screening requirements76 to be placed in removal proceedings. It also differentiates between UAC who did not meet the screening requirements and those that did meet such requirements, mandating the former to be transferred to HHS no later than 30 days after failing to meet such requirements (it does not specify a time period for the transfer of UAC who met the screening requirements). Like H.R. 1153, H.R. 1149 would no longer give USCIS initial jurisdiction over the asylum petitions of unaccompanied children.
H.R. 1149 would require HHS to provide DHS with identifying information of the individual with whom the unaccompanied children will be placed. For unaccompanied children who were apprehended on or after June 12, 2012, and before the enactment of the act, H.R. 1149 would require HHS to provide such information to DHS within 90 days of the act's enactment.
In addition, H.R. 1149 would require DHS to investigate any unknown immigration status of the individuals with whom unaccompanied children are placed. If the individual is unlawfully present in the country, the act would require DHS to initiate removal proceedings.
H.R. 1149 also would amend current law to clarify that unaccompanied children, "to the greatest extent practicable," should have access to counsel but not at the government's expense.
Appropriations
As previously mentioned (see Figure 1), the number of unaccompanied children apprehended at the border during the first eight months of FY2015 is one-third of the number that was apprehended by the end of FY2014. The Administration, however, requested contingency funding in its FY2016 budget for several agencies in the event that there is another surge in FY2016.
For the Unaccompanied Children (UC) program (located in the Refugee and Entrant Assistance program in HHS), the Administration requested $948 million in base funding and $400 million in contingency funding. H.R. 3020, however, would provide $818 million and S. 1695 would provide $750 million for the UC program. Neither bill includes amounts for contingency funding. The Senate committee noted the expected decrease in apprehensions of unaccompanied minor in FY2016 and the unexpended amount in FY2014 due to lower than estimated costs of caring for the population as the reason for its recommended amount.
The Administration requested up to $134 million for FY2016 for a UAC Contingency Fund (fund) in CBP and up to $27.6 million for such a fund in ICE if the number of UAC apprehended exceeds the number that were apprehended in FY2015. The CBP fund would be used for costs associated with the apprehension and care of unaccompanied children and the ICE fund would be used for transportation costs. Neither the Senate-reported bill77 nor the House-reported bill78 would provide an appropriation for the funds for FY2016.
The House-reported bill, however, would extend a provision in the FY2015 bill that permits the Secretary of DHS to use several homeland security grants to provide humanitarian relief to unaccompanied children (and to families).
Policy Challenges
In response to the UAC surge in the spring and summer of 2014, the Administration announced initiatives to unify efforts among federal agencies with UAC responsibilities and to address the crisis with programs geared toward unaccompanied children from several Central American countries. Additionally, Congress increased funding for the HHS program that is primarily responsible for the care of unaccompanied children, and permitted the Secretary of DHS to transfer funds from within a specific CBP and ICE account for the care and transportation of unaccompanied children, among other things.
Once in the United States, the number of unaccompanied children who will ultimately qualify for asylum or other forms of immigration relief that may allow them to remain in the United States remains unclear. Many unaccompanied children have family members in the United States, large proportions of which may not be present legally. Such circumstances raise challenging policy questions that may pit what is in the "best interests of the child" against what is permissible under the Immigration and Nationality Act and other relevant laws.