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Letters to the 107th Congress

February 27, 2002

The Honorable Edward M. Kennedy
Chairman, Subcommittee on Immigration
Committee on the Judiciary
United States Senate
Washington, DC 20515

Re: The Unaccompanied Alien Child Protection Act of 2001 (S. 121)

Dear Mr. Chairman:

I am writing on behalf of the American Bar Association to express our support for the Unaccompanied Alien Child Protection Act (S. 121). This legislation is needed urgently to improve protections for unaccompanied immigrant children, including legal representation.

Approximately 4,700 foreign-born children who are unaccompanied by their parents or other legal guardians arrive in the United States each year. Last year, they were detained at over 90 locations. Some are fleeing political persecution, civil war, famine, abusive families, or other dangerous conditions in their home countries. When they arrive, these children generally have no legal status or support system and face a stressful and confusing ordeal.

Most detained children speak little or no English and are rarely aware of their rights under U.S. law. They frequently are detained in secure facilities, sometimes commingled with juvenile offenders. Although some children may have U.S. family members to whom they can be released, many will remain in INS custody while their cases proceed through the immigration court system.

While the consequences of deportation may be dire, U.S. immigration laws do not allow for the appointment of counsel at the government's expense. As a result, these vulnerable children frequently are forced to represent themselves. Nervously they wait, with very little understanding of the law and legal process, for their turn to appear before an immigration judge. Their cases are prosecuted by experienced INS trial lawyers. When these children are later deported, there is virtually no follow up to find out what happens to them.

In the absence of appointed counsel, the ABA is working with state and local bar associations across the country to help these children secure pro bono representation. The ABA has provided grants thus far to 10 programs at major detention sites (i.e. Arizona, California, Florida, Texas), in order to recruit, train and coordinate the assignments of volunteer lawyers for unaccompanied and detained children in immigration proceedings. We also operate the ProBAR Immigrant Children's Assistance Project in South Texas, near the U.S.-Mexico border, in cooperation with the State Bar of Texas and American Immigration Lawyers Association. Notwithstanding these efforts and those of other nonprofit legal service organizations, the majority of detained children are not receiving legal assistance. Since an essential feature of the American system of justice is that important decisions are made following a fair process, S. 121 would provide for appointed counsel at government expense for these children.

The ABA also monitors the treatment of children in INS custody, and has documented alarming reports such as children who are: commingled with violent juvenile offenders in violation of INS rules; forced to shower in shackles; limited in the amount of formal education that they receive; rarely permitted outside during the many months they wait for their immigration situations to be resolved; interrogated by INS deportation officers outside the presence of, and without notification to, their lawyers; and stripped of their shoes, when they go to immigration court, in order to prevent them from running away.

The ABA worked with the INS to develop uniform Detention Standards in 2000 to improve detainee access to counsel and conditions of confinement, including access to telephones, legal information, and visitation. Since these Standards only apply to adults in INS custody, children in some facilities are subject to numerous conditions not usually applicable to adult detainees (e.g. strip-searches after attorney visitation and lack of access to free phone calls to secure pro bono counsel).

While Commissioner Ziglar's attention to this issue and his efforts to reform the INS juvenile services may have good intentions, childcare is a specialized issue that requires additional resources. S. 121 would create an independent office with child welfare experts within the Department of Justice. The independent office would have an oversight role and ensure that children's interests are respected at all stages of immigration processes and while in immigration custody.

The ABA believes that children within our borders should be treated fairly by our laws and justice system. We want to thank you for holding this hearing to examine solutions for these children and we offer our assistance in securing these long overdue improvements.


Robert D. Evans
Director, Governmental Affairs Office

cc: Members, Subcommittee on Immigration

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