UNICEF México awards Appleseed and México Appleseed first place for Best Investigation for our 2011 report, “Children at the Border” on April 25, 2012.
Glossary of Acronyms and Terms Within the United States
DHS The Department of Homeland Security. Within DHS:
CBP Customs and Border Protection has primary responsibility for protecting the borders and ports of the U.S. Within CBP:
OBP The Office of Border Patrol (Border Patrol or BP) guards the borders of the U.S. to prevent undocumented aliens, smugglers and drugs and other contraband from entering the U.S.; and
OFO The Office of Field Operations processes the people, goods and conveyances entering and leaving the U.S. at U.S. ports along the land borders and seaports of the U.S.
ICE Immigration and Customs Enforcement has primary responsibility for immigration enforcement within the interior of the U.S., and for the removal of deportable or excludable adults and minors from the U.S.
USCIS U.S. Citizenship and Immigration Services has primary responsibility for processing immigrant visa petitions, naturalization petitions and asylum applications.
HHS The Department of Health and Human Services. HHS takes custody of unaccompanied alien minors who are provisionally admitted into the U.S. Within HHS:
ORR The Office of Refugee Resettlement provides people in need with critical resources to aid in integration into the United States. Within ORR:
DUCS The Division of Unaccompanied Children’s Services supervises privately run shelters that provide for the care and least restrictive placement of unaccompanied alien children.
DOJ The Department of Justice. Within DOJ:
EOIR The Executive Office of Immigration Review is responsible for adjudicating immigration cases and interpreting U.S. immigration laws by conducting immigration court proceedings, appellate reviews and administrative hearings.
DOS The Department of State is responsible for entering into agreements with foreign countries to establish repatriation and reintegration processes.
TVPRA The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, among other things, mandates screening of Mexican children before they are repatriated to identify victims or potential victims of trafficking or persecution, and children who do not consent to be returned to Mexico.
UAC Unaccompanied Alien Child, also referred to as a UAM (Unaccompanied Alien Minor): a non-citizen who has no lawful immigration status in the United States, has not attained 18 years of age, and with respect to whom there is no parent or legal guardian in the United States available to provide care and legal custody.
Glossary of Acronyms and Terms Within the United States
DIF El Sistema Nacional para el Desarrollo Integral de la Familia (The National Agency for Family Development). DIF is the government social welfare network which, at the municipal and state level within Mexico, has primary responsibility for the temporary custody and family reunification of repatriated unaccompanied minors. The activities of the state and municipal DIF agencies are supported and, to a limited degree, coordinated by the national DIF.
INM Instituto Nacional de Migración. INM is Mexico’s primary agency with responsibility for immigration into Mexico and the migration of unaccompanied minors across Mexico. Within INM:
OPIs Oficiales de Protección a la Infancia are trained to receive and interact with repatriated minors.
SRE Secretaría de Relaciones Exteriores. SRE is the Mexican Ministry of Foreign Affairs. Among other things, SRE has oversight responsibility for the various Mexican Consulates on the U.S. side of the Mexico-U.S. border and, like DIF and INM, collects statistics on the unaccompanied minors repatriated to Mexico.
Every year tens of thousands of Mexican minors, many of whom are vulnerable to trafficking or other forms of abuse, make the perilous journey north and attempt to cross the border into the United States. Until late 2008, the United States, as a matter of policy and practice, turned around any unaccompanied Mexican children caught at or near the border with little or no evaluation of the risks they faced upon return to Mexico. In December 2008, Congress changed this “revolving door” policy. The William Wilberforce Trafficking Victims Protection and Reauthorization Act of 2008 (the TVPRA) mandated that the Department of Homeland Security (DHS) interview every unaccompanied Mexican minor in order to make the determination that the child (i) is not a potential victim of trafficking, (ii) has no possible claim to asylum, and (iii) can (and does) voluntarily agree to go back home. Unless all these questions are answered in the affirmative, the child is not to be immediately returned to Mexico, but rather must remain to be evaluated for a claim to protection in the United States.
The TVPRA further provided that the United States ensure safe repatriation of all minors, including unaccompanied Mexican minors, primarily through repatriation programs and bilateral agreements to be negotiated by the Department of State (DOS). The TVPRA also set standards for the care and custody of unaccompanied minors in the United States, required that federal agencies create programs to prevent the exploitation of unaccompanied minors, and provided more child-friendly procedures for child asylum claims.
Appleseed and Appleseed México (together, “Appleseed”) undertook this investigation to determine the extent to which the TVPRA has improved the screening and protection of unaccompanied Mexican minors at the border and after repatriation. More than two years after its passage, the promise of the TVPRA remains unfulfilled. While U.S. policy has changed, at the border the “revolving door” continues to be the practice. Moreover, U.S. attention to unaccompanied children has focused on children from Central America and elsewhere, when the vast majority of unaccompanied children crossing U.S. borders are Mexican.
In the United States, TVPRA screening is not conducted either in a manner or in environments likely to elicit information that would indicate whether the minor is a potential victim of trafficking or abuse, and whether the child can and does voluntarily agree to return to Mexico. This failure predictably follows DHS’s decision to assign TVPRA screening duties to its law enforcement branch, Customs and Border Protection (CBP), a force intended to repel external threats to the United States and, not surprisingly, without any child welfare expertise. The minimal training and tools provided to CBP officers have done little to equip them to satisfy the Congressional mandates of the TVPRA. As a result, the expected post-TVPRA influx of unaccompanied Mexican minors into the U.S. system designed to evaluate their rights to protection has not materialized, leaving many of these children vulnerable to trafficking and other forms of exploitation, including by criminal gangs and drug cartels.
On the Mexican side of the border, the repatriation process from the United States to Mexico moves quickly, yet the social service system does not ensure that minors are ultimately sent to safe and secure environments. While Mexican authorities have established a system of shelters staffed by child welfare workers, that system is under- resourced and its focus is on rapid screening and family reunification, with little attention paid to the threats posed to minors either in their home settings or by gang activity. U.S. and Mexican officials also do not coordinate well to identify and address the problems posed by minors who attempt to cross the border repeatedly, face serious problems, or are being used to smuggle other persons or drugs across the border.
In light of these findings, Appleseed recommends a number of concrete steps the United States should take to improve how it treats unaccompanied Mexican minors at the border, and to come into compliance with the letter and spirit of the TVPRA. We also offer recommendations to the Mexican government designed to enhance its ability to deal with the root causes of underage migration, and to both governments to improve the repatriation process along their lengthy shared border.
This report follows months of research and a comprehensive evaluation of the current detention and repatriation system as experienced by unaccompanied Mexican minors crossing the U.S.-Mexico border. The report draws on the pro bono contributions of a team of 32 lawyers and legal assistants at Akin Gump Strauss Hauer & Feld, DLA Piper, Mayer Brown, and Jáuregui, Navarrete y Nader.
In 2009 and 2010, members of the team conducted site visits at 14 different locations in the United States and Mexico. The locations were selected because they were major crossing points that presented somewhat different variations on the conditions encountered by minors making the trip across. In Texas, our team visited Brownsville, Harlingen, McAllen, and Hidalgo; in Arizona, we visited Nogales, Tucson and Phoenix; and in California, we visited Otay Mesa, Chula Vista, and San Diego. On the Mexican side of the border, we visited Matamoros, Reynosa, Nogales, and Tijuana.
We interviewed over 130 unaccompanied minors in the 14 cities we visited, some individually and some in group settings. Of these minors, 18 were Mexican children who had been repatriated to Mexico and 5 were Mexican minors in CBP custody; the balance, a majority of whom were not Mexican, were in shelters run by the Division of Unaccompanied Children’s Services (DUCS) within the Office of Refugee Resettlement (ORR). During the course of our visits, we also met with more than 40 officials at the local CBP Ports of Entry, Customs and Border Patrol Field Offices, DUCS facilities, Instituto Nacional de Migración (INM) offices, DIF shelters, YMCA shelters, and Mexican Consulates. On the U.S. side, the officials we interviewed in the course of our field work included employees of DHS, DOS, CBP and ORR/DUCS; on the Mexico side, we interviewed Consuls General and other consular employees of the Mexican Ministry of Foreign Affairs (SRE), state and municipal officials from Mexico’s National Agency for Family Development (DIF), and psychologists, social workers, lawyers and other staff employees of both the DIF and the YMCA shelters we visited.
Prior to and during the course of our field visits, we consulted with local legal service providers who regularly represent immigrant children in immigration proceedings. We also interviewed recognized policy experts in the field, including those mentioned in the Acknowledgements above. Our work was informed by these discussions, as well as by our review of much of the pertinent literature, including reports issued by the Women’s Refugee Commission, 1 the Center for Public Policy Priorities, 2 and the Congressional Research Service, 3 among numerous others. 4 Additionally, the team reviewed relevant United States anti-trafficking legislation, 5 the settlement agreements in Flores v. Reno 6 and In re Hutto, 7 and the repatriation arrangements in place between local governments on both sides of the United States/Mexico border. Further, we reviewed pertinent Mexican studies regarding the reasons why minors seek to enter the United States, the applicable Mexican law, and the government and private programs available to unaccompanied minors. 8
We also reviewed studies and statistical reports provided by Mexican authorities in response to requests for information that we submitted to Mexico’s national DIF system, to the local DIF in several Mexican states and municipalities, and to the SRE. In addition, in February 2010, we issued Freedom of Information Act (FOIA) requests to the United States Departments of Health and Human Services, Homeland Security (including separate requests to CBP and ICE within DHS) and State. As of the time this report was finalized in March 2011, we had received only limited numbers of documents in response to those FOIA requests, some of which were heavily redacted.
As noted in the Acknowledgements section, we met with representatives of DOS, DHS and HHS to discuss the issues raised by our investigation of U.S. screening and repatriation practices. In addition, we provided to both CBP and DOS a written summary of our preliminary findings and recommendations, and invited their comments. And finally, we shared with representatives of the Mexican Embassy to the United States and with representatives of the DIF, INM and SRE in Mexico City our preliminary findings and recommendations concerning conditions on the Mexican side of the border.
Executive Summary of Findings and Recommendations
In 2008, Congress determined to halt the revolving door through which unaccompanied Mexican minors had been repatriated at the U.S.-Mexico border without inquiry into their particular circumstances or motivations for crossing. With this change in the law, U.S. officials must now conduct an inquiry into the vulnerability of unaccompanied Mexican children to trafficking and other forms of abuse, and may repatriate them quickly only if the children are able to make, and do make, a voluntary decision to return. Yet these requirements of the TVPRA have not been translated into practice. On the Mexican side of the border, children are treated with greater initial concern and compassion, but the overwhelming desire and incentive to reunify children with their families leads Mexican authorities to return children home without any meaningful understanding of what caused them to leave in the first place. As a result, the promise of the TVPRA—U.S. protection of children at risk of trafficking, persecution and exploitation, and safe and secure repatriation for those returned to Mexico—remains unfulfilled.
Appleseed’s two-year investigation of the implementation of the TVPRA’s provisions relating to unaccompanied Mexican minors gives rise to a number of findings, and leads to related policy recommendations. These recommendations are practical and achievable, if the U.S. government has the will to turn the TVPRA’s mandate into reality at the border. Mexican officials too can improve the conditions for repatriated unaccompanied minors through increased coordination and greater attention to the underlying factors that cause children to leave their homes and communities and attempt to cross the border.
Appleseed’s core findings and recommendations are set forth below:
CBP Is the Wrong Agency to Interview Unaccompanied Mexican Children.
In March 2009, when the TVPRA became effective, DHS placed the responsibility for screening unaccompanied Mexican minors with CBP. This screening requires the agency to interview children to determine whether they have been trafficked, fear persecution, and can make an independent decision to return to Mexico. CBP, however, is a law enforcement agency charged with detecting and apprehending undocumented aliens at the border; it has no child welfare expertise. CBP officers are ill-equipped to conduct the kind of child-centric interviewing required by the TVPRA.
Transfer TVPRA Screening Responsibilities to USCIS.
DHS already has an agency that routinely interviews children: USCIS, which conducts asylum interviews of all unaccompanied minors who fear persecution. Given its role as a benefits determination agency, and its experience in evaluating claims by children, USCIS, not CBP, is the DHS agency that should be charged with screening unaccompanied Mexican children under the TVPRA. A cadre of appropriately trained staff should be developed within USCIS to handle the screening process.
Border Patrol Facilities Are Inappropriate Environments for Interviewing Children.
CBP’s facilities are secure buildings, guarded and staffed by uniformed and armed agents. Children are placed in cold holding cells and afforded minimal food, bedding, and medical care. In some facilities, children are held in cells within sight or hearing of adults, possibly including traffickers. Uniformed officers interview children in open areas, or in cells, often not in private. These facilities provide no environment for a child to feel safe and secure enough to divulge sensitive information about trafficking or other abuse.
Provide Safe, Secure and Child-Friendly Environments for TVPRA Interviews.
As it is unlikely that border patrol facilities can be configured to provide a child- friendly environment, new facilities should be used, and where necessary built, that allow a child to feel comfortable enough to talk about trafficking or other abuse.
CBP Officers Have No Specialized Training to Conduct TVPRA Interviews.
The TVPRA mandates that all U.S. federal personnel who have substantive contact with unaccompanied minors be given “specialized training” to work with these children and identify victims of trafficking, persecution and other forms of abuse. CBP officers have received no such specialized training. The limited TVPRA training CBP has provided to its officers is superficial and insufficient to ensure that they are able to identify children at risk of trafficking, abuse or persecution.RECOMMENDATION:
Develop Specialized Training in Consultation with Child Welfare Experts, as Explicitly Required by the TVPRA.
All personnel involved in the determination of the status of unaccompanied Mexican minors should be trained and qualified to interview children, identify juvenile victims of trafficking and other forms of abuse, understand and explain available U.S. immigration relief, speak Spanish fluently, and demonstrate some understanding of the culture and geography of Mexico.
The Forms Used to Interview Unaccompanied Mexican Minors Are Inadequate.
CBP Form 93, the form used by CBP to determine whether unaccompanied Mexican minors are victims or potential victims of trafficking, or are at risk of persecution, provides no meaningful guidance for the interviewer. Form I-770, the form used to solicit and confirm a minor’s voluntary and independent decision to return to Mexico, contains insufficient information for them to make an informed decision, and does little to dispel the minors’ common perception that their only realistic choice is to return to Mexico. Compounding the limitations of these forms, CBP personnel do not use them consistently and are not adequately trained to supplement the forms with information necessary for their intended purpose.RECOMMENDATION:
Develop Forms and Guidance to Elicit Sensitive Information from Unaccompanied Minors and to Ensure that a Child’s Decision to Return Is Independent and Voluntary.
The forms currently used in TVPRA interviews must be replaced or substantially revised if they are to serve as meaningful tools for those interviewing unaccompanied Mexican minors and as a meaningful explanation of rights for the children interviewed. The revised Form I-770 should be provided or read to the child in Spanish in all cases (except when the minor speaks only an indigenous language), and supplemented with a short video accurately explaining the child’s options in simple, intelligible terms. These forms and video should be developed with the assistance of child welfare experts and immigration NGOs, and supplemented by substantial written guidance and training.
Communications Between U.S. and Mexican Officials Are Geared Toward Repatriation and Not the Best Interests of the Child.
Communications between U.S. and Mexican officials at the border are designed more for the two governments’ convenience than they are to comply with their treaty obligations or to serve the best interests of the child. U.S. officials routinely fail to notify detained children of their right to meet with a Mexican consular official, and to notify Mexican consular officials, before the repatriation decision is made, that they have a Mexican child in their custody. Some U.S. officials rely upon Mexican officials to inform them if repatriation is inappropriate, failing to appreciate that the Mexican government’s strong predisposition is to return Mexican minors to Mexico, irrespective of the risks of trafficking or abuse. Upon repatriation, U.S. officials often do not communicate to the Mexican authorities valuable information that might assist in the child’s safe return. And, in the few instances when minors are transferred to DUCS, U.S. officials do not consistently provide to the Mexican consulates timely information on the status and location of the child.RECOMMENDATION:
U.S.-Mexico Communications Concerning Unaccompanied Minors Should Promote the Best Interests of the Child, and Comply with International Law.
U.S. officials should provide prompt notification to the Mexican consulate upon initial apprehension and upon any change in the custodial status of an unaccompanied Mexican minor. The intergovernmental role played by Mexican consular officials should be clarified, and understood to allow them to provide factual information to CBP concerning children in U.S. custody, but not to influence the determination of whether a minor should be repatriated under the TVPRA.
The Failure to Fully Implement the TVPRA Puts Children at Risk.
Cumulatively, these findings reflect a failure to implement the TVPRA at the border, leaving children vulnerable to the very issues that concerned Congress in 2008— trafficking, persecution and other forms of exploitation. While the full dimension of the problem is hard to determine, federal agencies expected a substantial increase in the number of unaccompanied Mexican minors remaining in the United States as a result of TVPRA screening. That influx has not materialized.RECOMMENDATION:
DHS Should Use Pilot Programs to Swiftly Put New Policies into Effect.
Appleseed’s U.S. recommendations can and should be put into place as swiftly and broadly as possible. Because implementation of these recommendations may pose unforeseen challenges, and because facilities and trained personnel may be difficult to obtain, DHS should implement a pilot program to test the recommended procedures, especially where uniform, national changes are not possible in the near term. This pilot program should be implemented immediately with a goal of full compliance along the border within two years.
DHS Does Not Publish, and Appears Not to Maintain, Important Data Regarding the Unaccompanied Minors Apprehended at the Border.
Even after passage of the TVPRA, DHS does not publish data concerning how many Mexican UACs it apprehends each year, how many of the apprehended minors have crossed the border and been detained before, how many are screened pursuant to the TVPRA, how many are repatriated, how many are transferred to the custody of HHS (that is, to ORR/DUCS shelters) or the reasons for such transfers. As to most of this data, it appears that DHS does not compile, and may not currently have any effective means to compile, the information. The absence of this data limits Congress’ and the public’s ability to assess the degree to which DHS is complying with its TVPRA obligations, and undermines the government’s (especially DHS’s own) ability effectively to address important child migration issues, including the identification and protection of trafficking victims and the challenges posed by repeat crossers, many of whom are likely caught up in smuggling trades.RECOMMENDATION:
Track and Publish Data on Unaccompanied Minors Screened Pursuant to the TVPRA.
DHS should establish a national database of all detained unaccompanied minors, which would include biographical information, previous detentions, adults that have accompanied the minor, sites of apprehensions, and locations of repatriation and shelter by DUCS facilities. The data should include sufficient information to allow U.S. officials (and others) to discern and track unaccompanied minor migration patterns, and allow U.S. agencies to identify repeat crossers, including those who may be engaged in the smuggling of persons or drugs, as well as those who were previously repatriated but were not successfully reintegrated into a stable family or other local structure. Finally, to enhance public understanding, the United States should track and publish how many unaccompanied Mexican children are apprehended by CBP each year, and of those children, how many are referred to DUCS and how many are repatriated.
The Absence of Consistent National Policies and Practices Puts Children at Risk of Further Exploitation.
Mexico does not have uniform laws or policies governing the rights of migrating minors or the responsibilities of the various agencies who assume custody of them after their repatriation from the U.S.-Mexico border. Instead, a patchwork of laws and regulations governs the shelter, treatment, and protection of unaccompanied minors in INM or DIF custody. The DIF system is not a fully integrated national welfare system, but composed of semi-autonomous state and local units and a national oversight body. As a result, the rights and protections afforded to the minors vary significantly depending on location, and best practices are not easily implemented nationwide.RECOMMENDATION:
Mexico Should Develop National Standards to Protect Repatriated Minors’ Welfare.
Mexico should implement a national law to govern the protection and care of repatriated minors on a national basis, and to replace the myriad diverse laws and regulations that currently exist. More specifically, Mexico should promulgate national standards for the shelter and treatment of all repatriated minors in state and municipal DIF facilities to regulate, among other things, social welfare assistance, medical and psychological services, physical conditions, and the conditions for and means of family reunification.
Mexico’s Overriding Emphasis on Swift Family Reunification Fails Adequately to Consider the Child’s Best Interests.
Following repatriation, the DIF system endeavors to return unaccompanied minors to their families as swiftly as possible without conducting a careful analysis of whether reunification is in the child’s best interests. As a result, children who have fled exploitative or abusive circumstances may find themselves returned to the same circumstances that drove them to migrate across the border in the first place. Without addressing the sustainability of the home environment, Mexican practice exposes children to further possible abuse and neglect, and ensures that a certain number of minors will attempt to cross again and again until they succeed. Although the national DIF is aware of and trying to address the problem, the numbers of repatriated children and the lack of available resources have hindered progress in this area.RECOMMENDATION:
Mexico Should Develop National Standards to Ensure Family Reunification Is Appropriate for the Child.
Mexico should develop national standards that encourage DIF to take a more pro- active role in providing social assistance to migrating minors and protect children from being returned to environments that place a child’s physical or psychological health at risk. DIF should consistently conduct home visits in cases of apparent neglect or abuse, provide care by professionals trained in treating children at risk, counsel families, supervise and assist in the adoption process for children without parents or legal guardians, and create specialized shelters and guidance programs for children who are at risk of drug addiction or criminal behaviors.
Mexico Lacks a Shared, Integrated Database to Identify Repatriated Minors and Help Prevent Their Further Exploitation.
Although Mexico compiles far more information on repatriated minors than does the United States, its databases are separately maintained by the three principal agencies that deal with this population—SRE, INM and DIF—without coordination or shared access among the agencies. As a result, the agency most responsible for the reintegration of the repatriated minor, DIF, often lacks information collected by the other two that could provide important assistance in the successful reunification and protection of the minor. Further, the separate record-keeping practices of the three agencies causes minors to be interviewed by at least three sets of officials in close succession, concerning substantially the same topics, which serves neither the best interests of the child nor the interests of efficiency or consistency. And finally, each of the current databases lack certain information that could help the DIF social welfare agencies identify repeat crossers and better protect the minors in their care.
SRE, INM and DIF Should Develop a Shared, Integrated Database of Repatriated Minors.
The Mexican agencies that handle repatriated minors should develop a shared, integrated database which maintains a record of each repatriated minor and would serve to identify repeat crossers and promote child welfare beyond family reunification. This database should include, among other things, biometric information, the number of times a minor has crossed the border (legally or illegally), the cities to which the minor has migrated and the routes(s) traveled, the places where the minor has been detained, any criminal arrest record, and the reasons why the minor has attempted to migrate. The particular form of the shared database would require technical coordination among the three agencies, but it must be designed to be accessible to DIF, reduce the amount of repetitive interviewing undergone by repatriated minors, and include robust security and privacy provisions to protect migrating children.
The Profile of Unaccompanied Mexican Children Encountered at the Border
In 2009, Customs and Border Protection (CBP) apprehended roughly 15,500 unaccompanied Mexican children at or near the U.S.-Mexico border. 9 Many embarked on the perilous journey to the United States seeking a better life through economic and educational opportunities. Some migrated to escape intolerable circumstances at home. By the time they crossed the border, some arrived in the United States as victims of human trafficking or as pawns of Mexico’s violent gangs. Though their motivations for attempting the trip varied, each traveled a dangerous journey rife with potential for abuse and exploitation. In 2008, with the screening and repatriation requirements of the William Wilberforce Trafficking Victims Protection and Reauthorization Act of 2008 (the TVPRA), Congress endeavored to provide a degree of protection to this vulnerable population. Understanding who these children are, why they came to the United States, and the dangers to which they were exposed during their journey, is key to understanding the challenges faced by those responsible for conducting TVPRA screening, to creating effective screening procedures, and to realizing the protections intended by the TVPRA.
How: The Perilous Journey
The journey to and across the U.S. border is filled with danger, and leaves the children vulnerable to a variety of abuse and exploitation. Within Mexico, young persons may travel by foot, by bus or by train to reach their intended crossing point. In many cases, they will sneak onto a bus or a train, and un-ticketed train travel can result in serious injuries, even death. Along the travel route, the possibility of abuse—being robbed, assaulted or sexually violated, by individuals, by criminal gangs, and even by Mexican law enforcement officers—is real and ever-present. And, as they approach the border, most of these children, just as many adults do, search out and have to pay for the services of a “coyote” or a “pollero”—a hired guide who makes a living smuggling would-be immigrants across the aggressively-defended U.S. border. For most Mexican minors, the cost of a coyote is extremely high. According to some analysts, it has grown higher in recent years as U.S. enforcement efforts have increased the risk of apprehension; it now usually exceeds $1,000 per crossing, and we heard figures as high as $2,000 and $2,500. 10 The coyote may accept a portion of the fee up front, with the balance to be paid upon a successful crossing—and if the customer cannot pay immediately, the debt will need to be worked off or paid later, on the U.S. side of the border.
The border crossing itself can be attempted in one of two principal ways—either at an official port of entry, or along a stretch of border between two ports. Those who try a port of entry crossing typically will either attempt to conceal their presence in a vehicle (often in a car trunk or under car seats or floorboards), or present false identification and immigration documents. In between the official ports of entry, the attempted entry will take as many forms as the geographical and security conditions permit—a subterranean tunnel, a long trek through harsh desert terrain, a small boat or raft across the river, or a dangerous swim. Usually, the minor is not alone but in a group assembled by the coyote for the crossing. He or she may even have traveled and crossed the border in the company of a parent or a relative, but then become “unaccompanied” for official purposes when the family group splits up in the effort to evade apprehension. 11
The areas of the Southwest border favored by Mexican children attempting to cross are essentially the same as those chosen by their adult counterparts. In 2008 and 2009, the CBP Border Sectors that reported the highest numbers of detained deportable aliens were, in order: Tucson (by far the highest; it includes the port of Nogales and wide stretches of the Sonoran and El Sásabe deserts); San Diego; the Rio Grande Valley (including the heavily traversed ports of McAllen and Brownsville); Laredo, Texas; and El Centro, California (which includes the Caléxico-Mexicali crossing). 12 This ranking corresponds closely to the data reported by Mexico’s DIF concerning the locations where repatriated unaccompanied children were detained, which is summarized by the arrows in the following figure: 13
Unaccompanied Minors: Location of Apprehensions in 2009
In recent years, the Tucson Sector has received an increasing percentage of those seeking to enter the United States. This trend is largely attributed to increased enforcement efforts across other parts of the border. Border fences, high tech surveillance and more border patrol agents have caused people to attempt to cross in more remote and dangerous places. 14 The lack of water, sparse population, extreme temperatures, and rough terrain make crossing in this area particularly dangerous. 15 Border Patrol agents report that smugglers mislead would-be immigrants about the dangers associated with the crossing, lying about the length of the journey and the extreme risks involved. 16
Why: Children’s Reasons for Crossing the Border
A number of factors lead Mexican children to embark on the hazardous journey to the United States. Many are motivated by the desire to improve their situation, some are sent by family in Mexico, others travel to join family already in the United States. Most children have multiple, inter-related motives for undertaking this difficult journey, which makes it difficult to categorize and quantify those motives.
According to many reports and our own investigation, the most pervasive motive for children to leave home and attempt to enter the United States appears to be the search for better economic opportunity. Put simply, the prospect of a job or an education can lead to better employment, and thus a better life for these children and their families.
The second-most commonly cited reason that we found for children to attempt to cross on their own is family reunification. One or both of the children’s parents, or a close family member, may already be living and working in the United States. The child either will be “sent for,” or try on his or her own initiative to join up with parents or other family member(s) living in the United States. Family reunification likely has taken on greater importance in recent years. Increased border protection has reduced the fluidity of travel across the border and the opportunity for undocumented Mexican adults working in the United States to visit their families in Mexico on a regular basis. As a result, some parents attempt to bring their children to live with them in the United States, eliminating the need for frequent border crossings.
The 2009 study commissioned by DIF,the Mexican social services organization responsible for the treatment and protection of unaccompanied minors, provides a more nuanced perspective. According to the study, based on interviews of 40 Mexican and 8 Central American children housed in DIF shelters, motivations vary significantly by gender. In general, boys may seek to migrate to become better providers, achieve economic success or, in some cases, to escape the “head of the household” responsibility associated with being the only male in the household. For girls, on the other hand, the desire to escape domestic abuse and sexual violence tends to play a more significant role. 17
While surveys of the repatriated children do exist, the precision or reliability of their results should not be overstated. In its annual tabulation of statistics, for example, the Mexican Ministry of Foreign Affairs—Secretaría de Relaciones Exteriores (SRE)— includes a table on the motives for the unaccompanied minors’ migration.18 We witnessed the questioning by consular officials on the topics summarized in this table; it is extremely cursory and limits the responses to a short list of possible answers, none of which includes abuse, exploitation or trafficking. More fundamentally, abused youngsters are unlikely to reveal their true circumstances. 19 Accordingly, surveys will under-represent the incidence of sexual abuse, family violence, gang intimidation, coercion, and other exploitation.
Many minors attempt to cross multiple times until they succeed in avoiding apprehension and joining up with family members or finding work in the United States. One girl recently interviewed in a Matamoros shelter had been caught three times trying to reach her father in Kansas—once in Houston, once in San Antonio, and once while crossing the Rio Grande—only to be sent back to Mexico each time. 20 A 2008 SRE survey found high rates of “recidivism” among border-crossing minors in many areas, including 50% in McAllen, Texas, 48% in Yuma County, Arizona and between 39% and 42% in San Diego and Calexico, California. 21
A large percentage of these children are at risk of becoming victims of sex or labor trafficking. The risk factors for this type of victimization are numerous, including the three key elements that distinguish this population—their youth, their minimal level of education, and their separation from home or any other form of protective environment. According to the U.S. State Department (DOS), Mexico “is a large source, transit, and destination country for men, women, and children subjected to trafficking in persons, specifically forced prostitution and forced labor.” 22 Employers and “sex tourists” within the United States lure women, boys and girls especially into sexual servitude or forced labor with false job offers. 23 Even the high cost of crossing places juveniles in jeopardy, causing some young migrants to assume unsustainable levels of debt they will be coerced into repaying. The growing control over cross-border migration exercised by Mexico’s drug cartels, which regard human trafficking as an important potential source of revenue and minors as easy and valuable prey, further increases these risks. 24
Children who reside near the border or who seek to cross it may become caught up with organized gangs that smuggle immigrants or contraband. Mexican consular officials refer to such children as the “menores del circuito”—minors who are engaged in the smuggling of drugs, or the smuggling of other minors and adults, across the border, and who may have become coyotes or polleros themselves. These are an important subset of the “recidivist crossers,” children who have settled in or around the border cities and attempt to enter into the United States on a regular basis. When these children are apprehended and repatriated, they simply attempt reentry as soon as they return to Mexico. In many cases, Mexican officials believe, the minors are recruited by organized criminal gangs precisely because they make useful mules; if caught, they are likely to be sent straight back to Mexico, and are then available to smuggle or do other work again. With the growing strength of Mexican cartels along the border, it may be near impossible for a menor del circuito, once recruited, to escape this cycle of illicit trade, and significant numbers of minors risk retaliation should they decline recruitment or otherwise refuse to do the gang’s bidding.
Nearly All of the Unaccompanied Mexican Children Apprehended by CBP Are Immediately Repatriated
According to figures provided to Appleseed in September 2010, CBP apprehended 40,398 children in FY 2009; 25 out of these 43%, or about 17,371, were unaccompanied. 26 For the first 11 months of FY 2010 (through August 31, 2010), CBP reported that it apprehended 29,624 minors, but that a higher percentage—59%, or approximately 17,478—were unaccompanied. In both years, a certain portion of these children were reported to be from countries other than Mexico (principally the Central American nations to Mexico’s south)—12% in FY 2009, and 18.5% in FY 2010. 27
Assuming for simplicity’s sake that the percentage of all apprehended children that are unaccompanied is identical in both the Mexican and non-Mexican populations, the CBP figures suggest that, in FY 2009, CBP apprehended approximately 15,286 unaccompanied minors from Mexico; and that in FY 2010, on an annualized basis, CBP apprehended approximately 15,540 unaccompanied Mexican minors.
These estimates of apprehensions derived from the CBP data coincide roughly with the repatriation figures reported by the Mexican authorities. Mexico’s national DIF, for example, annually publishes detailed demographic statistics on the unaccompanied repatriated children and adolescents that are taken into custody by the municipal and state DIF agencies. 28 Because nearly all repatriated Mexican unaccompanied minors pass through a DIF facility, even if only briefly, the DIF statistics should provide a good approximation of the numbers of minors apprehended in the United States and sent back to Mexico. In 2009, DIF reports that Mexican authorities took back in a total of 15,534 unaccompanied minors who had been apprehended by the U.S. Border Patrol, 29 a figure quite close to the numbers of unaccompanied Mexican minors that we estimate CBP apprehended in each of FY 2009 and FY 2010 based on the more limited data provided to us by CBP. Whatever the exact number, these U.S. and Mexican figures, taken together, strongly indicate that even after the effective date of the TVPRA, the overwhelming percentage of Mexican unaccompanied minors who are detained by CBP at the border are immediately repatriated, and that only a tiny fraction of them are being transferred to the temporary custody of the Division of Unaccompanied Children’s Services (DUCS) within the Office of Refugee Resettlement (ORR). 30
The Legal Regime for Mexican Minors Apprehended at the Border
Upon encountering United States authorities near the border, unaccompanied Mexican minors enter into a complex structural and legal framework designed to determine whether they should be repatriated immediately or given at least temporary shelter in the United States. If they are repatriated, the mechanics of their repatriation are governed by an umbrella agreement between DHS and SRE, implemented by local agreements at different border areas.
If they are not immediately repatriated, unaccompanied Mexican minors apprehended at the border will be channeled into the same system that receives all other unaccompanied children—the non-Mexican unaccompanied children who are apprehended at the border as well as the unaccompanied alien minors, from whatever country, who are apprehended in the interior of the United States. For unaccompanied Mexican children detained at the border, this alternative system delays reunification with families left behind in Mexico. On the other hand, the system permits orderly adjudication of the minors’ claims to U.S. residence and, pending that adjudication, provides them with shelter in DUCS facilities, food, education, medical services, pro bono legal services (when available), access to their consulate and, potentially, reunification with their families or an appropriate guardian in the United States.
The U.S. Agencies Responsible for Detained Unaccompanied Minors
Several United States agencies interact with unaccompanied minors at the border and beyond, with separate federal departments responsible for apprehension, screening, custody, adjudication of claims to remain in the United States, and removal.
Along the border and at ports of entry, CBP, an agency within the Department of Homeland Security (DHS),31 is generally responsible for policing and handling immigration matters. At or near the Mexican border, unaccompanied children (as well as adults) typically are apprehended by CBP agents who detain would-be immigrants between official ports of entry and who conduct traffic stops and enforcement operations in zones just inland from the border or, less commonly, in the ports of entry themselves. DHS has delegated to CBP the discrete responsibility to determine whether Mexican unaccompanied children should be repatriated or kept in the United States for further immigration proceedings. 32
Unaccompanied minors who are not immediately repatriated at the border by CBP are transferred to the United States Department of Health and Human Services (HHS)— specifically ORR/DUCS. 33 A Juvenile Coordinator of the Immigration and Customs Enforcement (ICE) arm of DHS is responsible for the transfer of unaccompanied minors who are apprehended by CBP (or for children apprehended in the interior by ICE) to DUCS. From that point, DUCS retains custody of all unaccompanied minors in the United States until they are released to a relative or other guardian, repatriated, or granted lawful, documented residence in the United States.
Adjudication of Rights
Once transferred to DUCS, and so long as not released to a relative or other guardian, unaccompanied children are housed in facilities designed for children or placed in foster care while their cases are heard in immigration court. The United States immigration courts are within the Executive Office of Immigration Review (EOIR), part of the United States Department of Justice (DOJ).
Children who successfully assert asylum claims may avoid immigration court proceedings. A claim of asylum triggers an interview with an asylum officer from United States Citizenship and Immigration Services (USCIS), another agency within DHS, which may then grant asylum. USCIS now also adjudicates petitions for Special Immigrant Juvenile status, relief available to children who have been abused, abandoned or neglected, and for whom reunification with one or both parents is not possible.
Except in the unusual case of a rapid grant of asylum by USCIS, or unless the child elects to accept voluntary return at some earlier point, all of these processes will likely take many months, and possibly more than a year, before the minor’s right to remain in the U.S. or to avoid removal is determined.
The Decision-Making Process at the Border Under the TVPRA
The TVPRA contains “contiguous country” provisions meant to determine whether an unaccompanied Mexican child detained at the border will be repatriated immediately or, instead, afforded the protections that unaccompanied children from all other countries receive—the opportunity to be sheltered in the United States at least temporarily while the child’s possible right to remain can be considered in an orderly fashion. In practical effect, these provisions apply only to Mexican nationals or minors whose primary residence is Mexico. 34 No other unaccompanied minors face the risk of immediate repatriation.
Determining Whether the Detained Person Is “Unaccompanied” and a “Minor”
When an apparent minor is apprehended at the border, CBP officers must answer certain threshold questions that pre-date passage of the TVPRA—namely, is the individual an alien, and if so, is he or she indeed “unaccompanied” and a “minor.” These three basic elements of the statutory definition of an “unaccompanied alien child” seem straightforward enough: a noncitizen 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.” 35
The determination of immigration status usually is answered easily, but the latter two elements can be complicated. First, CBP officers must decide whether the apparent minor is under 18. Given that a substantial percentage of unaccompanied minors crossing the border are between the ages of 15 and 17, and that many travel without official documents and may not provide reliable answers when asked about their age, determining an accurate age can be difficult. The price of an erroneous determination can also be quite high. Anyone determined to be 18 or older is subject to transfer to an adult detention facility, where he or she might remain for months or in some cases even years in prison-like conditions entirely unsuited for minors. Forensic age-determination techniques (including radiographs and dental exams) have been developed and are used by certain agencies, such as ICE, but not without criticism. 36 In any event, at least as of now, CBP agents do not appear to use any forensic or other sophisticated age- determination techniques. We were advised by several CBP agents that they just take the youngsters at their word with respect to age—though some children reported being questioned vigorously about their age—and will not use independent means to try to verify age unless what the person says is entirely unbelievable.
In addition, CBP must determine whether the apprehended child is “unaccompanied.” In practice, Appleseed and other observers have found confusion and inconsistency in the application of this element. The easiest case arises when a child is detained at the border together with one or more parents; in that situation, the child clearly is “accompanied” and typically will be placed into some form of family detention if not released. Beyond that case, the determination of whether a child is accompanied grows murkier. A putative adult relative who is apprehended with the child may or may not be assumed to be the child’s parent or legal guardian. This finding presents risks on either side: the child may be released to someone who may be trafficking or otherwise poses a threat to the child, 37 or the child may be separated from family. Even if he or she has a parent in the United States, CBP or ICE must treat a child as “unaccompanied” when the parent is unwilling or unable to retrieve the apprehended minor. 38
Precursor To the TVPRA: The Flores Agreement
The Flores Agreement, which still is in force, established the principle that minors are “particularly vulnerable” and are entitled to be treated “with dignity, respect and special concern”; it also mandated that children should be placed in the “least restrictive setting” appropriate for the child, provided the child’s appearance in immigration proceedings can be assured. The Flores Agreement arose out of the 1997 settlement of Flores v. Meese, brought in 1985 on behalf of a class of minors in the custody of immigration authorities. 39
The Flores Agreement contains several specific provisions to put these principles into practice. 40 These provisions include a requirement that the Immigration and Naturalization Service (INS), (subsequently, DHS), except in narrowly-defined circumstances, release an unaccompanied child from initial custody within 3 days (72 hours), thus setting a benchmark that was later incorporated into the TVPRA. 41 Other provisions in the Flores Agreement include standards for programs housing children (such as physical facilities and educational programming) and a presumptive rule that minors be released, in order of preference, to a parent or legal guardian, to an adult relative, or to an adult or entity designated by the child’s parent or legal guardian.
The time frame for decision-making at the border is short. If an apprehended unaccompanied minor from Mexico is to be repatriated, U.S. immigration law requires the child to make a voluntary, independent decision to withdraw his or her “application for admission” to the United States. Under both the Flores Agreement and the TVPRA, CBP has only 48 hours after apprehension to decide whether the child can consent to repatriation or whether he or she should be transferred instead to the custody of ORR/DUCS within HHS. The TVPRA also requires that any unaccompanied child apprehended by the U.S. authorities (usually CBP or ICE) who has not agreed to be repatriated must be transferred to ORR within 72 hours. These two- and three-day periods reflect the obligation of the U.S. government to place children in an appropriate setting quickly after apprehension.
The TVPRA’s Legal Requirements for Unaccompanied Children
The TVPRA is a “reauthorization” act; it retained in force (as amended) the provisions of the Trafficking Victims Protection Act (TVPA) of 2000 42 and the Trafficking Victims Protection Reauthorization Act of 2005 43 “to enhance measures to combat trafficking in persons.” 44 The amended TVPRA contains a section titled, “Enhancing Efforts to Combat the Trafficking of Children” at 8 U.S.C. § 1232 (Section 1232). Section 1232 contains the provisions designed to improve the treatment of all unaccompanied minors in the United States. 45 These include determination of asylum claims by USCIS (rather than by immigration courts), access to counsel and child advocates, changes to Special Immigrant Juvenile Status (a form of relief available to abused, abandoned or neglected unaccompanied minors, discussed further below), and the establishment of statutory standards of care by HHS, which since 2003 has been responsible for the custody of unaccompanied children within the United States.
Section 1232(a)(2) also provides “Special Rules for Children from Contiguous Countries.” Although literally applicable to both Mexico and Canada, the predominant impact of this section is on the treatment of Mexican-national children or children who last habitually resided in Mexico, who account for nearly all of the children who arrive from the two immediate neighbors of the United States. Section 1232(a)(3) calls upon DHS (without specifying which agency within DHS) to make three “screening” determinations on a “case by case” basis for such unaccompanied children—within 48 hours 46 of the child’s apprehension, and “in any event” before sending the child back to his or her country of origin or habitual residence:
If—and only if—all three inquiries are answered in the affirmative, an immigration officer “may” permit a Mexican national (or Mexican resident) unaccompanied minor whom the officer also determines is “inadmissible” under U.S. immigration law to “withdraw” his or her application for admission and to be returned to Mexico. 48 (Under immigration law, being caught at the border constitutes an “application for admission” to the United States.) If, on the other hand, the answer to any one of these three inquiries is “no,” or if no determination of all three criteria can be made within 48 hours, the TVPRA mandates that the child shall “immediately” be transferred to HHS custody (that is, to ORR/DUCS). Once transferred to HHS, Mexican unaccompanied minors are treated in accordance with those procedures applicable to all unaccompanied minors apprehended in the interior, or those from countries other than Mexico who are apprehended at the border, as laid out in Section 1232(b). 49
On paper at least, the TVPRA worked a significant change in the previous law, under which Mexican unaccompanied minors were routinely and swiftly repatriated after apprehension. Prior to the TVPRA, CBP’s practice was to “offer”—some might say impose upon—nearly all unaccompanied Mexican minors (and generally not other unaccompanied minors) the option of “voluntary return” to Mexico immediately after apprehension. 50 As noted before, the repatriation option is exercised through a voluntary “withdrawal” of the detainee’s de facto “application” for admission to the United States. The withdrawal of that application is documented by signing a form (Form I-770) 51 acknowledging that “I am in the United States illegally and ask that I be allowed to return to my country, which is named below.”
Since passage of the TVPRA, DHS no longer is permitted to process unaccompanied detained Mexican children through these steps as a matter of course. Congress mandated that DHS must screen each unaccompanied Mexican child who comes into its custody—on a “case by case” basis—and only if a child meets all three of the Section 1232 screening criteria can it permit that minor to choose immediate repatriation.
Congress also included in the TVPRA several requirements for U.S. government agencies to ensure that any repatriation of unaccompanied minors is “safe” and “sustainable”:
U.S./Mexico Consular Access and Repatriation Agreements
Although no new agreements have been negotiated specifically pursuant to TVPRA Section 1232(a)(2)(C), several existing multilateral and bilateral treaties and agreements between the United States and Mexico govern the repatriation of all Mexican nationals, including special rules for unaccompanied minors. These treaties also govern the consular contacts that are supposed to occur between the two nations in matters of immigration and repatriation.
Under the 1963 Vienna Convention on Consular Relations (Vienna Convention)—to which the United States is a signatory—and specific consular agreements between the United States and Mexico, 53 all Mexican nationals in the United States are guaranteed certain rights of access to Mexican consular officers. Article 36 of the Vienna Convention requires that (a) consular officers are free to communicate with and have access to nationals of their state, and vice versa; (b) if the foreign national requests consular notification, authorities of the receiving state shall “without delay” inform the consular officials of the sending state upon taking custody of a national of the receiving state; and (c) consular officers have the right to visit their nationals in custody in the receiving state. 54 The Vienna Convention further provides that “consular functions consist in safeguarding ... the interests of minors and other persons lacking full capacity who are nationals of the sending State ...” 55 Mexican unaccompanied minors thus have the right to communicate with Mexican consular officials, to have the consulate notified when they are taken into custody, to be informed of this right of consular notification, and to be visited by a consular official while in custody. At the same time, Mexican consular officials have the right to be notified of Mexican unaccompanied minors taken into custody by CBP and ORR/DUCS.
The specific U.S.-Mexico consular agreement most relevant to Mexican unaccompanied minors is an April 2009 agreement between DHS Secretary Janet Napolitano and Mexican Secretary of Foreign Affairs Patricia Espinosa that provides a template for formalized local arrangements for the expedited and humane repatriation of Mexican nationals. This 2009 Bilateral Agreement is implemented through thirty Local Arrangements for the Repatriation of Mexican Nationals (Local Arrangements), 56 which are based largely upon a 2004 Memorandum of Understanding between DHS and SRE (2004 MOU). Both the 2004 MOU 57 and the April 2009 Bilateral Agreement 58 provide that:
The Process for Children Not Immediately Repatriated
Referral to ORR/DUCS Custody; Social Services and Legal Assistance Unaccompanied Mexican children who cannot be returned to Mexico within 48 hours under the terms of the TVPRA are to be transferred to the custody of HHS. Thereafter, U.S. laws and institutions apply the same rules to unaccompanied children from Mexico as are applied to those from any other country. Removal proceedings are commenced to determine whether the child is removable and whether the child is entitled to any immigration relief. The essential elements of this treatment for minors not immediately repatriated include:
Access to legal counsel. TVPRA Section 1232(b)(5) calls upon HHS to “ensure to the greatest extent practicable” that all UACs in its custody “have counsel to represent them in legal proceedings.” 62 Not all children receive pro bono legal services, but when they do, counsel can greatly assist them in establishing the child’s right to continued or permanent residence in the United States. 63 None of the potentially significant benefits of being placed in the DUCS system accrue to the children who are immediately repatriated to Mexico. For unaccompanied Mexican children detained at the border, access to this alternative path depends entirely on the outcome of the initial CBP screening. CBP, then, truly is the “gatekeeper” for these children. The DUCS system itself illustrates the benefits that can be gained by shifting responsibility for immigrant juveniles away from law enforcement agencies. Prior to 2003, INS, a law enforcement agency, was responsible for the custody and care of unaccompanied minors. INS employed a harsh, institutional juvenile detention model that paid almost no attention to the special needs of children and often placed them at appreciable physical and psychological risk. 64 In contrast, the DUCS system, though hardly perfect, endeavors to place minors in the least restrictive available setting, incorporates child welfare principles, and attempts to meet the physical, psychological, educational, and (with the assistance of pro bono attorneys) legal needs of the minors in its custody. 65 Substantive Legal Grounds for an Unaccompanied Child’s Continued or Permanent Residence in the United States For children who face serious risks, and for those who cannot be safely returned to Mexico, U.S. law recognizes that the United States has an obligation to provide not just temporary protection, but the opportunity of a new, more secure life in the United States. The TVPRA expanded several of the avenues available to unaccompanied children for achieving continued or permanent residence in the United States The principal grounds for relief from removal potentially available to unaccompanied minors (provided they make it past the initial screening and are not immediately repatriated) are:
1. Special Immigrant Juvenile Status. One route to permanent residence for unaccompanied minors in the United States is Special Immigrant Juvenile Status (SIJS). This remedy is available to an unaccompanied child who cannot be reunited with one or both parents due to abuse, neglect, or abandonment, and who obtains a judicial determination that it is not in his or her best interest to return to his or her (or a parent’s) country of origin. 66 To qualify for SIJS, a child must first petition and be declared dependent on a state juvenile court. The TVPRA changed this route to relief by removing the requirement that DHS consent to the State Court’s jurisdiction, allowing HHS to offer consent in place of DHS. Once a child obtains SIJ Status, he or she can usually obtain a status adjustment to become a legal permanent resident. In FY 2009, 1,144 minors obtained permanent residence through this process. 67
2. Visas for Victims of Severe Forms of Trafficking (T Visas). Under the TVPA of 2000, an unaccompanied minor who has experienced a “severe form of trafficking” can qualify for a non-immigrant “T Visa.” 68 A child must show that he or she was a victim of a severe form of trafficking (defined as sex trafficking or forced labor), 69 is physically present in the United States on account of trafficking, and would suffer “extreme hardship involving unusual and severe harm upon removal.” 70 Though permanent residence is not automatically granted, the T Visa provides a potential path to permanent resident status. Trafficking victims, including those under the age of 18, regardless of immigration status, have access to certain benefits and services accorded to persons granted refugee status under 8 U.S.C. § 1157. 71
3. Asylum. In the TVPRA, Congress provided unaccompanied minors with a more child-friendly asylum procedure, giving initial jurisdiction over all unaccompanied minors asylum applications to USCIS, rather than forcing the minors to defend their asylum applications in immigration court. 72 As is the case for adults, an unaccompanied minor who has a well-founded fear of persecution on account of race, religion, political opinion, nationality, or membership in a particular social group may qualify for asylum. 73 If asylum is granted, that child can obtain benefits from ORR, apply for U.S. lawful permanent residency and, eventually, citizenship. The persecution must be by the government, or by a group that the government cannot, or will not, control. 74 In the contemporary Mexican and Central American context, a number of unaccompanied minors may have such well-founded fears of persecution not so much because of religious, racial, or political persecution, but because of their identity in socially marginalized and devalued groups, such as homosexual or transgendered communities, or because of their unwillingness to accede to the pressures of the gang violence that is increasingly prevalent in Mexican society. 75 If the child is granted asylum, he or she is eligible to receive social services and benefits under the Unaccompanied Refugee Minors Program. 76
In addition to these three substantive grounds for U.S. residence that the TVPRA made more accessible to unaccompanied minors, an unaccompanied Mexican minor allowed temporary entry into the United States could, like unaccompanied children from any other country, also seek to establish permanent residency under one of the following grounds for relief from removal:
1. Withholding of Removal Under INA Section 241(b)(3). An individual’s removal is prohibited to a country where the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
2. Withholding of Removal and Deferral of Removal Under the U.N. Convention Against Torture (CAT). An individual’s removal is also prohibited to a country where it is more likely than not that the individual would be tortured. In such instances, an individual is granted withholding of removal under federal regulations implementing U.S. obligations under the CAT found at 8 C.F.R. Sections 208.16(c) and 208.17.
3. U Visa. The U Nonimmigrant Status (U Visa) is available for victims of crimes who have suffered mental or physical abuse as a result of those crimes and who are willing to assist law enforcement and government officials in the investigation of the criminal activity. Those who have been granted a U Visa may later adjust their status to lawful permanent resident.
4. Family-Based Immigration. U.S. citizens or legal permanent residents can petition for certain family members to receive family based immigrant visas. Once the family petition is approved, the intending immigrant must file for adjustment of status. The Attorney General or the Secretary of Homeland Security may adjust the status of an alien to that of a lawful permanent resident if a visa petition on behalf of the alien has been approved, an immigrant-visa is immediately available at the time of the alien’s application for adjustment of status, and the alien is not otherwise inadmissible to the United States.
The TVPRA: An Unfulfilled Promise
With the passage of the TVPRA, Congress rejected the routine practice of immediate repatriation of unaccompanied Mexican minors at the border. It decided that an unaccompanied minor must stay in the United States for adjudication of any available immigration remedies, unless DHS makes a determination within 48 hours that the child is not a victim or potential victim of trafficking, has no credible fear of persecution, and is willing and able to choose voluntary return to Mexico. 77 Despite this substantial change, today, in most cases, no meaningful screening is being conducted. The revolving door at the border keeps spinning.
The primary explanation for the continued status quo lies with DHS’s decision to assign its new TVPRA screening responsibilities to CBP, a law enforcement body with neither the expertise nor resources to make these critical determinations in any meaningful manner. Compounding the problem, border patrol facilities are not a suitable environment for interviewing minors to uncover abuse and exploitation. Moreover, CBP officers have been provided neither the training nor the tools to conduct adequate TVPRA screenings. Finally, communications between U.S. and Mexican authorities with respect to unaccompanied minors are inconsistent, often depriving U.S. officials of potentially useful information when making repatriation decisions and leaving Mexican officials in the dark as to the locations of Mexican children in U.S. custody. With the promise of the TVPRA unfulfilled, minors are not being informed of their rights, have little or no comprehension regarding their options, and are encouraged to believe that they have no real choice other than to return to Mexico, regardless of their circumstances. On the whole, then, unaccompanied Mexican children still are being returned to whatever conditions led them to migrate north, even if those conditions include an abusive home environment, or exploitation by traffickers, gangs, and drug cartels.
CBP Is the Wrong Agency for TVPRA Screening
Congress delegated the TVPRA screening responsibilities to DHS without further specification. 78 DHS then assigned this responsibility to CBP, its law enforcement component charged with protecting the border against external threats. DHS could have assigned its new TVPRA responsibilities to USCIS, the benefits determination branch that already conducts screenings for adults and unaccompanied children with potential asylum claims. More than any other single factor, this decision has resulted in the absence of any meaningful screening under the TVPRA.
The choice of CBP to conduct TVPRA screenings is understandable as a matter of convenience: this is the agency whose officers pursue, apprehend, and initially detain undocumented aliens at or near the border, including unaccompanied Mexican minors. It is not, however, comprehensible in terms of a natural fit between the agency and the Congressionally assigned function. CBP is not “just” a law enforcement agency; it has a unique role in U.S. law enforcement, summed up in its own Mission Statement as follows: 79
We are the guardians of our Nation’s borders.
We are America’s frontline.
We safeguard the American homeland at and beyond our borders.
We protect the American public against terrorists and the instruments of terror.
We steadfastly enforce the laws of the United States while fostering our Nation’s security through lawful international trade and travel.
We serve the American public with vigilance, integrity and professionalism.
As the agency’s website goes on to say: “Securing America’s borders from those who will do harm is CBP’s top priority. It deploys the government’s largest law enforcement work force to protect at and between ports of entry, supported by air and marine assets.” 80 To carry out this mission, CBP employs its “personnel, tactical infrastructure and technology”—including roads, fences, lights and unmanned aerial surveillance—“to gain and maintain effective control of U.S. land border areas.” 81
CBP officers are highly trained, uniformed, and armed, and are regularly placed in dangerous situations. The daily duties of Border Patrol officers involve “the detection, prevention and apprehension of terrorists, undocumented aliens and smugglers of aliens at or near the border by maintaining surveillance from a covert position...” 82 The demands of the job, difficult at all times, have only increased in recent years, as the violence spawned by organized Mexican cartels that smuggle humans, drugs, and guns has spilled over the border and affected residents on both sides.
Given these assignments, it is unsurprising that CBP officers have no particular expertise in the handling, much less the protection, of minors. Nor has CBP ever had a specialized unit dedicated to the treatment of minors. Instead, minors are detained and processed by the same agents who detain and process adult undocumented immigrants at the border, including smugglers who are a principal focus of CBP’s enforcement efforts. All of these agents receive the same basic training courses, and they do not include, so far as we could determine, anything on the unique vulnerabilities of minors, how to communicate with them, or how to conduct the screenings called for by the TVPRA.
An unaccompanied minor’s initial interaction with a CBP officer is rarely pleasant, and can often be traumatic. The initial apprehension typically occurs in the frontier somewhere along the border, though in some cases CBP identifies a child at an official border crossing (i.e., port of entry). (At the port of entry, CBP agents are called Office of Field Operations (OFO) officers; for ease of reference we will refer to all CBP agents, either stationed along the border or at a port of entry, as “CBP officers.”) At port of entry checkpoints, minors sometimes are found hidden in a searched car at a border checkpoint or caught trying to enter using false papers. Along the border frontier, minors (often with adults, sometimes with human smugglers) cross treacherous deserts, rivers, and mountains to evade detection. When caught by CBP officers, they are arrested and placed in cars or vans to be taken to a border patrol facility for questioning, sometimes in handcuffs (though handcuffing children is against CBP policy). Some minors we interviewed reported being hit, kicked, manhandled or roughly handcuffed during their initial apprehension, or insulted and cursed at by CBP officers. It can come as no surprise then that CBP officers appear to have little enthusiasm for their TVPRA screening duties, or that unaccompanied minors are unlikely to reveal sensitive information to the officers who just arrested them.
Transfer TVPRA Screening Responsibilities to USCIS
CBP officials maintain that the agency can perform the TVPRA screening functions, and that it is committed to the training and has adopted the procedures necessary to do the job. Experience has shown, though, that CBP’s core focus on law enforcement, detection, and apprehension makes its personnel unsuited to perform the sensitive child-centric screening mandated by the TVPRA and its management unwilling to embrace the training and culture shift that the TVPRA requires.
Appleseed therefore recommends that another entity be tasked with the TVPRA screening duties. The branch within DHS that is the most natural fit for this task is USCIS, the immigration benefits determination arm of DHS. USCIS already is responsible for interviewing all unaccompanied children applying for asylum, and has, since 1998, implemented and followed detailed guidelines for interviewing child asylum seekers.83 USCIS also conducts “credible fear” interviews, initial evaluations of adult asylum seekers at the border, inquiries that require skills similar, though not identical, to TVPRA screening interviews. While this change would require additional resources for USCIS, removing the screening responsibility from CBP would also free up personnel better devoted to law enforcement tasks at the border.
HHS is another possible candidate to conduct TVPRA screening, as it already is responsible for all unaccompanied minors in the United States not immediately repatriated and has substantial experience dealing with traumatized children. However, the TVPRA as currently written delegates the screening duties to DHS; allowing HHS to execute this function would require either a statutory amendment or a new arrangement between the departments that would allow DHS to retain the final TVPRA determination. Both options present significant hurdles.
Appleseed received suggestions that DHS delegate its TVPRA screening responsibilities to NGOs, which have personnel trained in the evaluation and protection of at-risk children. Delegation to NGO contractors does have precedent in this context; DUCS contracts NGOs to manage and staff many of the shelters that house UACs across the United States. On the other hand, delegating the care and custody of children is of a different order than delegating a statutory decision-making responsibility. It is unclear whether DHS would have the authority to delegate this responsibility to contractors or confidence in the decisions made by those contractors.
Whichever new agency undertakes screening responsibilities, it should have a specifically dedicated child welfare unit that employs individuals with training and expertise in child interviewing and protection. CBP’s role following apprehension of an apparent unaccompanied minor should be limited to an initial determination that the minor is, in fact, under 18, unaccompanied, and of Mexican origin. Upon that initial determination, the minor would be transferred without delay to the custody of the new agency or unit, which would conduct further screening pursuant to the TVPRA.
Border Patrol Facilities Are Inappropriate Environments for Interviewing Vulnerable Unaccompanied Minors
The detention setting of a border patrol facility makes it especially unlikely that unaccompanied children will divulge sensitive information to their arresting CBP officers. These secure facilities, though not all identical, share physical and logistical features that are intimidating to the minors detained in them:
Given these conditions, minors in CBP custody have no sense whatsoever that they are in a safe and secure place. In some CBP facilities, TVPRA screenings are conducted in empty cells, and when children are detained in groups, they may be interviewed at the same time by different CBP officers. In other CBP facilities, CBP officers sit at a row of metal desks, interviewing children across the desks in an open area, within sight and earshot of detained adults. In all cases, nothing in the physical environment is designed to provide a sense of warmth and comfort for the child. Everything about this experience tells these unaccompanied children that they are in a detention center run by a powerful U.S. law enforcement agency and that the alternative to repatriation is to be “locked up” in the United States. It is unreasonable to expect that most children in this environment would divulge sensitive information that would indicate that they had been trafficked or otherwise feared abuse. Indeed, one CBP agent we spoke with told us that he does not expect Mexican minors to trust him or his colleagues in this “police station” environment. Trafficking victim guidance issued by DHS concurs with this view: “ICE recognizes that in order to successfully investigate and prosecute traffickers, victims must be stable and free from fear and intimidation to be effective witnesses.” 84
Provide Separate, Safe, and Child-Friendly Environments for TVPRA Interviews
One CBP officer forthrightly recommended to Appleseed that unaccompanied Mexican minors be transferred immediately to a separate, friendlier “hub facility” where they can be questioned by someone in plain clothes, preferably a social worker who is child-trained. Appleseed concurs with this suggestion, and recommends that DHS remove unaccompanied Mexican minors from CBP facilities immediately after making a determination that the individual is in fact unaccompanied, Mexican, and a minor, so that TVPRA screening can be conducted in an environment conducive to a trustful exchange.
This may well require new facilities—regional centers not far from the border—yet it is clear that removing children from CBP facilities is necessary to comply with the Congressional mandate. Removing children from CBP facilities should also free up CBP officers to concentrate on their core law enforcement responsibilities.
CBP Officers Are Not Adequately Trained to Conduct TVPRA Screening
The TVPRA requires all personnel who have substantive contact with unaccompanied children, including Mexican minors at the border, to receive “specialized training” to “work with unaccompanied alien children, including identifying children who are victims of severe forms of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate.” 85 Nevertheless, and despite the fact that the TVPRA screening requirements added an entirely new dimension to the CBP officers’ portfolio, CBP leadership has failed to recognize that intensive training of existing officers, or the creation of a new cadre of personnel, would be needed to effectuate the Congressional mandate.
From the information Appleseed reviewed, CBP officers are not receiving any training (“specialized” or otherwise) on how to work with children in general, and in particular how to identify the conditions specified by the TVPRA. Our Freedom of Information Act (FOIA) requests to the agencies yielded no indication of any specialized training, and CBP refused to share with us any of their training modules on the claim that disclosure would reveal law enforcement methodologies. A September 2010 report by the DHS Office of Inspector General, which focuses on the Department’s compliance not with the TVPRA, but with the earlier Flores Agreement, states that as part of their basic training, CBP officers “receive instruction on CBP’s responsibilities for the care and treatment of juveniles in its custody.” 86 This OIG Report goes on to note the existence of a one-hour electronic “refresher” course, titled “Unaccompanied Juveniles/Minors and the Flores v. Reno Settlement Agreement,” available to CBP personnel through the agency’s Virtual Learning Center (VLC). 87 The OIG report found that about 35% of CBP’s agents completed the course in FY 2008, and less than 40% in 2009. 88 It also quoted a number of CBP officers and managers who had little or no familiarity with the refresher course, or who were aware that it was required to be viewed on an annual basis. 89
In addressing these observations from the OIG, CBP management made no claim that any TVPRA, child screening, or related materials were included in its basic training curriculum for new agents and officers. On the contrary: in response to the spotty attendance record for the existing one-hour VLC “refresher” course, CBP management said that it had held off sending to the field a reminder about attendance “pending the revisions of the course to include the updated material from the [TVPRA],” and reported expected completion of the revised video course by the end of calendar 2010. 90 A request for funds to develop the revised course material, produced in response to our FOIA request and dated July 23, 2009, reflects what CBP has in mind: expanding the existing video by 30 minutes, developing “approximately 30 screens of new content,” and creating a new one-hour course for delivery at the basic training academies “using the same content contained in the VLC course,” for a total cost of $36,000. 91
Indeed, to this date, the only significant change in practice adopted by the CBP in response to the TVPRA has been the creation of a new two-page screening form— CBP Form 93—and a short accompanying memo sent to its offices in the field. That memo, dated March 20, 2009, together with the new form, appear to have been sent out either on or a few days after the March 20, 2009 effective date of the TVPRA. (A copy of the memo, with the redactions made by CBP in response to our FOIA request, is annexed as Exhibit 3 to the Appendix to this report; a copy of Form 93, as produced with redaction by CBP, is found at Exhibit 5 to the Appendix.) The memo devotes approximately one page to the new screening requirements, and Form 93, which we discuss separately below, devotes less than one page to the determinations called for by the screening process. 92 Neither the memo nor the form itself could be characterized as “specialized training” that would equip CBP officers to deal with and screen detained Mexican minors. Senior CBP officials do not contend otherwise.
Comments we received from CBP officers in the field confirm that CBP has not provided any meaningful TVPRA-related training to its agents. When asked generally about their training to work with detained migrant children, the most common response we heard from agents and officers was “on the job”; another, slightly less common response we heard is that since the CBP officers have children, nieces or nephews of their own, they have sufficient experience to deal with children. Two CBP officers with whom we spoke were unaware of training on the TVPRA screening requirements. Another CBP officer we interviewed said that the agents had received no formal training on the TVPRA screening requirements or how to conduct the TVPRA screening, but that they did receive an email notifying them of the effective date of the TVPRA and that the Standard Operating Procedures (SOPs) were being updated. The same officer noted that agents attend formal trainings only when there is a “big change” in the law (apparently, the TVPRA did not qualify). Yet another officer with whom we spoke, who was in charge of the processing of unaccompanied minors at her facility, seemed thoroughly unfamiliar with the TVPRA screening requirements and procedures. She repeatedly told us that her staff relies largely upon Mexican consular officials to make these determinations.
Only one CBP officer whom we interviewed claimed that CBP agents receive training on TVPRA compliance, but his understanding of the rules for repatriating Mexican- national unaccompanied minors raises doubts about his claim, and suggests that whatever training he is referring to is not only inadequate, but seriously amiss. In this officer’s understanding, if a child indicates that he does not want to return to Mexico, the child then is screened under the TVPRA to determine whether he should be placed in ORR custody—the implication being that no screening is conducted for children who request voluntary return, and that the screening process may be used to reject a minor’s decision to remain in the United States. Indeed, according to this officer, if the child opts to stay in the United States but the subsequent TVPRA screening does not indicate that the child may be a victim of trafficking or may have a credible fear of persecution, the child nonetheless will be repatriated. If screenings worked as this officer claimed to have been instructed they should, they would effectively eliminate the third TVPRA requirement, which prohibits a child being repatriated unless he makes an “independent decision” to accept voluntary return, regardless of whether the child is a trafficking victim or has a credible fear of persecution.
Case Study: José
“José” is a 16-year-old Mexican national from San Felipe in Baja California. In 2010 he decided that he wanted to reunite with his family in Houston, Texas. José paid a coyote in San Felipe $250 to guide him across the border near Ciudad Camargo, Tamaulipas, a Mexican city near McAllen, Texas. José crossed the Rio Grande at night with a group of 22 Mexican nationals. He was the only minor in the group. Three days after he crossed the border, José and eight other adults were detained by Border Patrol while they were sleeping in the brush. José was transported to McAllen, Texas for detention and screening. The CBP officer who interviewed José told him that he could not see an attorney or a judge because he was a Mexican minor, and because this was his first time crossing the border. José was then told that he had to sign a document, written in Spanish, which stated that he refused to see a judge. He signed the form. That same day, José was returned to Mexico.
The problems posed by CBP’s inadequate training are exacerbated by the scant attention CBP pays to the cultural and language skills of the officers interacting with these children. Apparently, Spanish fluency is not a job requirement for CBP officers who handle these children; CBP officials told us that officers who work along the border simply learn Spanish quickly. This “on-the-job” language training may be sufficient for an officer whose job is to apprehend unauthorized adult border crossers, but it hardly qualifies that officer to interview a child to determine whether he or she has been trafficked or is otherwise a victim of abuse.
Whether or not CBP has rolled out its expanded-format video by the time this report goes to press, three things are clear: (i) for the past two years, CBP has implemented no training program at all concerning how to interview, screen, and elicit reliable information needed to make the determinations called for by the TVPRA; (ii) the kind of training that CBP envisions in this area could not reasonably provide to the vast majority of CBP law enforcement agents the specialized skills, understanding, and sensitivity they would need in order meaningfully to carry out their TVPRA screening responsibilities; and (iii) there is no current commitment at CBP to the kind of training and expertise that would be commensurate with the responsibility that Congress has assigned to DHS.
Develop Specialized Training in Consultation with Child Welfare Experts, as Explicitly Required by the TVPRA
Whether the TVPRA screening duties remain with CBP, or are transferred to another agency, it is clear that a significant commitment to specialized training must be made. The TVPRA requires it. The training should ensure, at a minimum, that the personnel responsible for screening detained unaccompanied minors are qualified to: