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Letters to the 107th Congress

July 12, 2002

The Honorable Joseph I. Lieberman
Chairman
Senate Governmental Affairs Committee
United States Senate
Washington, D.C. 20510

The Honorable Fred Thompson
Ranking Member
Senate Governmental Affairs Committee
United States Senate
Washington, D.C. 20510

Re: Unaccompanied Alien Children and Homeland Security

Dear Mr. Chairman and Senator Thompson:

We understand that you soon will be acting upon homeland security legislation. As you draft and revise this critical legislation, we strongly urge you to include provisions that would improve the treatment of a most vulnerable population--unaccompanied alien children.

Approximately 5,000 foreign-born children enter the United States each year unaccompanied by their parents or other legal guardians. Some of the children are fleeing political persecution, war, famine, abusive families, or other dangerous conditions in their home countries. Due to lack of adequate bed space in immigration facilities, approximately 35% of the children are placed in juvenile jails where they are commingled with criminals and subject to strip searches, shackles and handcuffs. Upon arrival in the United States, many of these children do not speak English and are unfamiliar with their rights under U.S. laws. They face a complex web of immigration proceedings as well as the challenge of finding legal assistance. Less than half of these children are represented by counsel.

U.S. immigration laws do not allow for the appointment of counsel at the government's expense. Unaccompanied immigrant children frequently have no choice but to represent themselves against experienced trial lawyers. This could be an intimidating ordeal for anyone-let alone someone who is unfamiliar with the English language and the American legal system. It is unrealistic to expect children to represent themselves. Fundamental fairness dictates that the playing field should be leveled by appointing counsel to protect the children's interests and to help them exercise their legal rights--both inside and outside of the courtroom. As a result, protections for these children have been included in bipartisan legislation such as the House Judiciary Committee's version of the Homeland Security Act of 2002 (H.R. 5005), the Unaccompanied Alien Child Protection Act (S. 121) and the Immigration Reform, Accountability and Security Enhancement Act of 2002 (S. 2444).

The Administration's homeland security proposal would move INS functions into a new Department of Homeland Security (DHS). Since DHS inherently would be an enforcement agency designed to thwart any threats of terrorism, it would be inappropriate to place vulnerable unaccompanied children within DHS. In addition, the vast oversight responsibility of DHS regarding enforcement functions would make it difficult for DHS to focus on unaccompanied alien children.

It would be preferable, in our opinion, to place such children within the Office of Refugee Resettlement (ORR) which is under the Administration for Children and Families (ACF) within the Department of Health and Human Services. ORR, with its extensive child welfare expertise, would play an important oversight role and ensure that children's interests are respected at all stages of immigration processes and custody. For example, ACF runs a specialized resettlement program for unaccompanied refugee children through ORR, so it is already familiar with some of the challenges that face unaccompanied alien children. It would help provide counsel and guardians ad litem for unaccompanied, detained children, in order to ensure that no child goes unrepresented in his or her immigration court proceedings. Finally, ORR could improve conditions of confinement for detained children by establishing regulations in these areas and curbing the use of secure detention facilities.

As the world's largest voluntary professional association, with more than 400,000 members, the ABA urges you and your colleagues to include provisions on improving the treatment of unaccompanied alien children in any homeland security legislation.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office

107th Congress Letters Home

AMERICAN BAR ASSOCIATION
Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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