The Department of Homeland Security ("DHS") apprehends thousands of children each year. These children include asylum applicants, survivors of human trafficking, those who entered the U.S. lawfully at a young age and overstayed their visas, as well as young children who entered the U.S. unlawfully to reunite with their family members. 

For many years, the issue of detaining children has been scrutinized. In 1985, in the landmark case of Flores v. Reno, a class action lawsuit was filed against the Immigration & Naturalization Services (INS) challenging the way the agency processed, apprehended, detained, and released children in its custody.  The case established the national policy regarding the detention, release, and treatment of children in INS custody. In 1997, a California federal court approved the Flores agreement, and many of the agreement's provisions have been codified at 8 CFR §§ 236.3, 1236.3.

Under the Flores agreement, a juvenile is defined as a person under the age of 18 who is not emancipated by a state court or convicted and incarcerated due to a conviction for a criminal offense as an adult.  The agreement also requires that juveniles be held in the least restrictive setting appropriate for their age and that special needs are considered to ensure their protection and wellbeing. Additionally, juveniles must be released from custody without unnecessary delay to a parent, legal guardian, adult relative, individual specifically designated by the parent, licensed program, or an adult who seeks custody who DHS deems appropriate. Under the Flores agreement and INS policy, it is unlawful to detain juveniles with an unrelated adult for more than 24 hours. The Flores agreement applies to all children apprehended by DHS.

In 2003, the laws pertaining to the detention of children changed.  Prior to 2003, children were detained and prosecuted solely by INS. However, now, DHS must first determine if the child is "unaccompanied" before they assign the child's care and custody to a federal agency. Children who are declared "unaccompanied" are transferred to the care and custody of the Office of Refugee Resettlement ("ORR").  ORR contracts with child welfare agencies around the country where children receive legal and social services, and have access to education, health care, and other services.  These shelters have specific procedures to ensure compliance with the law. Children who are not "unaccompanied" remain in DHS custody. DHS can only legally detain children if they are held in child-appropriate facilities.

In 2010, the National Immigrant Justice Center ("NIJC") grew suspicious of DHS and filed a Freedom of Information Act (FOIA) lawsuit against the agency seeking information about children being detained under their control. Eventually, DHS provided the data being asked for. According to this data, DHS detained children under the age of 18 for a combined total of 36,598 days in 30 adult detention facilities around the country. More than 1,300 of these children were detained in violation of the Flores agreement. Moreover, the data DHS provided likely underreports how many children were actually affected, because the terms of the legal settlement limited the scope of their data to only 30 of the approximately 250 adult detention facilities which DHS had contracts with.

DHS cannot continue to disregard the law and detain these vulnerable children in adult prisons. As members of our communities, we must come together and pressure Congress to hold DHS accountable and to ensure that they cease their unlawful practices. Congress must make amendments to the current law to ensure that there are safekeeping provisions to protect these vulnerable children who are being detained in the immigration system. Congress should also amend the law to require DHS to immediately transfer all children it apprehends, both accompanied and unaccompanied, into the care and custody of ORR. Congress should also add a provision requiring DHS to submit an annual report to the House and Senate Judiciary Committees, reflecting the number of children apprehended and the length of time those children were detained in DHS custody.  Lastly, Congress should amend the law to provide appointed counsel to all children in immigration proceedings. These amendments are necessary to ensure DHS is following the law and ensuring the protection of children being detained through the immigration system.

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