Portman, Carper Unveil Report on Federal Government’s Lack of Progress on Improving Safety for Unaccompanied Minors, Ensuring They Show Up for Immigration Court Proceedings

WASHINGTON, D.C. – In advance of a Permanent Subcommittee on Investigations (PSI) hearing tomorrow to examine efforts by the federal government to protect unaccompanied alien children (UACs) from human trafficking and other forms of abuse, U.S. Senators Rob Portman (R-OH) and Tom Carper (D-DE), PSI’s Chairman and Ranking Member, today unveiled a bipartisan report detailing the lack of progress from the Department of Health and Human Services (HHS) and Department of Homeland Security (DHS) in improving programs designed to care for these children, ensure their safety, and ensure they appear at their immigration court proceedings.

Since 2015, PSI has conducted extensive oversight of UAC programs, conducting two previous hearings on April 26, 2018 and January 28, 2016.  In 2016, PSI released a report revealing that HHS had failed to establish procedures to protect UACs and provided recommendations for improving the UAC system to ensure these children are properly cared for and protected.  Unfortunately, while HHS and DHS have taken incremental steps toward improving the care of these children, major deficiencies persist that leave the children at significant risk for trafficking and abuse and undermine our immigration system.

“This is an incredibly difficult issue and it’s not a partisan one.  The problems that exist today began during the previous administration and have continued under this one.  These federal agencies must do more to care for unaccompanied minors and ensure they aren’t trafficked or abused,” said Senator Portman.  “More than two years ago, PSI provided HHS and DHS with a road map for how to improve these programs and protect these children, yet they have largely ignored those recommendations.  This report details some small progress but also a glaring need for these agencies to take more responsibility for ensuring these children are safe and appear at their immigration court proceedings.  I look forward to hearing how these agencies will improve the UAC system and better protect these children going forward.”

“This Administration continues to make an already challenging reality for migrant children even more difficult and more dangerous. While the recommendations in this report do not solve all of the issues that arise for unaccompanied minors arriving at our southern border, they identify critical steps needed to protect an already vulnerable population. I remain convinced that, to truly resolve these issues, we must address the root causes of this problem – extreme poverty and unspeakable violence in countries like Guatemala, Honduras and El Salvador,” said Senator Carper. “We have a moral responsibility to ensure that these migrant children fleeing their homes and extreme violence are safely and responsibly guided through the immigration process. It is my hope that, finally, the administration officials coming before this subcommittee are prepared to discuss concrete steps being taken to better protect children living in our country.”

Following are the report’s key findings and recommendations.  The report’s key findings include:

(1)           No federal agency claims legal responsibility or authority to ensure UACs are not being trafficked or abused once the Office of Refugee Resettlement (ORR) places a child with a sponsor. 

(2)           DHS and HHS took 29 months to create a Joint Concept of Operations (JCO) governing their responsibilities for the care and safety of UACs and missed their own deadline by 17 months.  Moreover, one senior DHS official questioned why Subcommittee staff believed the JCO was important, implying that he did not see value in completing the JCO and committing DHS and HHS processes to paper.

(3)           The JCO reflects the status quo and does not address any of the recommendations offered by the Subcommittee or the GAO.  

(4)           No federal agency tracks UACs after the (ORR) places them with sponsors.  Without a method to track UACs after placement, the federal government has few means to determine whether the children are safe or to ensure they appear at their immigration court proceedings. 

(5)           HHS’s follow-up telephone calls to UACs placed with sponsors from October to December 2017 demonstrate that HHS does not know with certainty where approximately 20 percent of UACs are three months after placement.  ORR found that out of 7,635 attempted telephone calls, 28 UACs “had run away” and “ORR was unable to determine with certainty the whereabouts of 1,475 UAC.”  In response to those findings, HHS took no further action to determine their whereabouts.

(6)           HHS has directed its legal service grantees to cease providing legal representation to new UACs placed with sponsors because it believes its authority to provide such services is “shaky.”  According to UAC legal service providers, UACs represented by attorneys are significantly more likely to appear at their immigration court proceedings.

(7)           No agency ensures UACs placed with sponsors appear at their immigration court proceedings or enforces the sponsorship agreement requiring sponsors to ensure the children’s appearance at the proceedings.  If UACs fail to appear at their immigration court proceedings, the court typically will enter an in absentia removal order.  Those children lose their opportunity to present a case for staying in the United States unless they petition to re-open their case, and if they leave the country, they likely will be barred from future entry.

(8)           UACs are failing to appear for their immigration court proceedings at increased rates.  The percentage of UACs ordered removed in absentia increased from 41 percent in 2016 (6,089 out of 15,016 completed cases) to 48 percent in 2017 (6,634 out of 13,758 completed cases).

(9)           According to UAC legal service providers, many UACs fail to appear for their immigration court proceedings because the courts are located far from where they live and they have no means to get to court. 

(10)        The backlog of immigration court cases, including UAC cases, is significant, and DOJ does not have enough immigration court judges to process the cases.  Currently, 732,730 immigration cases total are pending; of those, 80,266 are UAC cases.  More than 8,000 UAC cases have been pending for more than three years. 

(11)        DOJ has not hired its full allotted complement of immigration court judges.  Currently, 355 immigration judges handle all immigration court cases, including 29 judges invested on August 10, 2018.  DOJ has authority to hire 129 additional judges.

(12)        The median length of time UAC cases currently have been pending since the filing of a notice to appear is 480 days.  This significant lapse of time makes it less likely UACs will appear for their immigration proceedings.

(13)        HHS does not notify state governments before placing UACs with sponsors in those states.  Without notification, states are hamstrung in providing welfare and other services to the children or to ensure they attend public school.

(14)        HHS has a plan to notify state governments before placing UACs previously held in secure facilities, but HHS has failed to implement that plan. 

(15)        HHS regularly fails to submit required post-placement plans to DHS for UACs who turn age 18 while in HHS’s care.  

(16)        HHS does not contract with appropriate facilities to house UACs who must be held in a secure facility and who also have significant mental health or emotional issues. 

(17)        Due to delays in ORR’s internal review processes, some UACs are spending more time than necessary in secure facilities.  This is contrary to the statutory mandate that UACs should be placed in the least restrictive setting that is in the best interests of the child.

As discussed in this new report, HHS has not implemented most of the recommendations in the Subcommittee’s 2016 report, Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office of Refugee Resettlement.  In addition to those recommendations, today’s new report includes the following key recommendations:

(1)           HHS should acknowledge that, under the Trafficking Victims Protection Reauthorization Act (TVPRA) and the Flores Agreement, it has the legal responsibility to ensure that children it places with sponsors who are not the children’s parents or legal guardians are not abused or trafficked.  If HHS continues to refuse to acknowledge its responsibility, Congress should pass legislation clarifying HHS’s obligations.

(2)           DHS and HHS should review their information-sharing processes and methods outlined in the JCO to ensure that email communications do not lead to errors in transferring UACs from DHS to HHS custody.

(3)           DHS and HHS should evaluate their information-sharing policies described in Agreement II to mitigate circumstances that could dissuade potential sponsors from claiming UACs because of fear of enforcement.

(4)           HHS should track UACs after it places them with sponsors to ensure that they are safe and appear at their immigration court proceedings.

(5)           If HHS cannot reach a UAC after the UAC is placed with a sponsor by telephone, HHS should make continued efforts to determine the location and living conditions of the UAC. 

(6)           HHS should enforce the sponsorship agreement requirement that sponsors ensure that the UACs appear at their immigration court proceedings.

(7)           HHS should increase its efforts to enlist and coordinate pro bono legal services for children living with sponsors.

(8)           DOJ should hire its full allotted complement of 484 immigration court judges.

(9)           HHS should determine the appropriate point of contact in all 50 state governments to notify regarding the placement of UACs within each state.  

(10)        HHS should notify state governments before placing UACs with sponsors in those states.

(11)        HHS should offer training to state and local government officials to educate them on their role, responsibilities, and authorities with regard to UACs.

(12)        HHS should always submit the required post-placement plans to DHS for UACs who turn age 18 while in HHS’s care.

(13)        HHS should contract with a secure residential treatment facility to house UACs who must be held in a secure facility and who have significant mental or emotional issues.

(14)        HHS should streamline its decision-making process for determining whether children in secure or staff-secure facilities are eligible to move to a lower level facility or for release to a sponsor.