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«June 2014 TABLE OF CONTENTS ACKNOWLEDGEMENTS ABBREVIATIONS EXECUTIVE SUMMARY BACKGROUND LEGAL PROTECTION FRAMEWORK OVERVIEW AND OBJECTIVES ...»

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CONFIDENTIAL REPORT

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

REGIONAL OFFICE WASHINGTON, D.C.

FOR THE UNITED STATES AND THE CARIBBEAN

FINDINGS AND RECOMMENDATIONS RELATING TO THE 2012 - 2013 MISSIONS TO

MONITOR THE PROTECTION SCREENING OF MEXICAN UNACCOMPANIED CHILDREN

ALONG THE U.S.-MEXICO BORDER

June 2014

TABLE OF CONTENTS

ACKNOWLEDGEMENTS

ABBREVIATIONS

EXECUTIVE SUMMARY

BACKGROUND

LEGAL PROTECTION FRAMEWORK

OVERVIEW AND OBJECTIVES

METHODOLOGY

FINDINGS

Summary of Findings

Positive CBP Practices

Genuine Concern for Wellbeing of UAC and Prioritization of UAC Processing

Technological Systems in Place to Monitor UAC in Custody and Improve Accountability........... 15 Sector Juvenile Coordinator Improves Accountability

Central Processing Improves Accountability

Good Intra- and Intergovernmental Coordination

Concerns Expressed by CBP Related to Screening of UAC

Inability to Stop the Revolving Door of UAC from Mexico

Definition of Accompanying Family Members Is Too Restrictive

Need to Limit Children’s Time Spent in CBP Custody

Challenges to Effective Communication with UAC

Need for Additional Training and Information Related to UAC and Effective Screening............. 22 The Consequences of the High Volume of Apprehensions

Areas of Concern Identified by UNHCR

Need for Greater Understanding of UAC Framework and Protection Mandate

Assumptions and Narrative Relating to Mexican UAC and Their Protection Needs

Need for Child, Victim, and Refugee-Sensitive Approaches

Need for Effective Tools to Screen UAC

Inconsistent Implementation of CBP Policy on UAC

False Belief in a “Safety Net”

Opportunities for Further Investigation

IMMEDIATE RECOMMENDATIONS

ACKNOWLEDGEMENTS

UNHCR wishes to express its deep gratitude for the opportunity to have had access to CBP’s operations in the Laredo, San Diego, Rio Grande Valley and Tucson Sectors. UNHCR thanks DHS Policy and the many CBP staff at Headquarters and in all four sectors who went out of their way to facilitate the monitoring trips. UNHCR appreciates the transparency and the cooperation and goodwill with which the team was met at each location.

ABBREVIATIONS

CBP Customs and Border Protection DHS Department of Homeland Security DIF El Sistema Nacional para el Desarrollo Integral de la Familia (National Agency for Family Development) DCS Division of Children’s Services HHS Department of Health and Human Services HSI Homeland Security Investigations INM Instituto Nacional de Migración (National Migration Institute) JDM Juvenile Detention Module NTA Notice to Appear ORR Office of Refugee Resettlement OFO Office of Field Operations POE Port of Entry TVPRA 08 William Wilberforce Trafficking Victims Protection Reauthorization Act of UAC Unaccompanied Child UNHCR Office of the United Nations High Commissioner for Refugees USBP United States Border Patrol VLC Virtual Learning Center WA-NTA Warrant for Arrest – Notice to Appear

EXECUTIVE SUMMARY

The Office of the United Nations High Commissioner for Refugees (UNHCR) Regional Office for the United States and the Caribbean in Washington, DC (ROW) presents this report based on the monitoring of U.S. Customs and Border Protection (CBP) operations in the Laredo, San Diego, Rio Grande Valley and Tucson Sectors at the request of CBP regarding the protection screening of unaccompanied children (UAC) from Mexico. The goal of the four monitoring trips was for UNHCR to review and observe CBP’s methods for implementing the screening requirements of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 08) and U.S. obligations of non-rejection or return of persons, including current screening practices, operational challenges faced by CBP in implementing the screening provisions, the tools and training available.

During the course of the four visits, UNHCR identified certain positive practices by CBP, received from CBP its concerns regarding the processing of UAC, and identified issues of concern to UNHCR. In evaluating CBP’s implementation of the protection screening mandated by TVPRA 08, UNHCR’s observations of positive practices and concerns are informed by U.S. and international law and standards related to human trafficking and

protection and guided by the following four child protection principles:

1) The extent to which the procedures acknowledge and address the Safety & Emotional Well-Being of the unaccompanied child. This applies to the attention given to any physical or emotional needs at the time the child first comes into contact with CBP and throughout their time in CBP custody, as well as the ability to identify and address any fear of return or risk of human trafficking.

2) The extent to which the process is designed to employ Child Sensitive Procedures, such as modified interview techniques to take into account the child’s age, maturity, psychological development, and ability to articulate experiences and emotions.





3) The extent to which the child is able to have Meaningful Participation in the Decision Making as it relates to the child’s ability to understand and respond to the questions and make an informed decision as to whether to withdraw an application for admission in favor of return and that such agreement to return is voluntary.

4) The Accountability and Transparency of CBP operations through the use of appropriate documentation, reporting and review of all interactions between the government officials and the unaccompanied child.

The theme of the positive CBP practices identified by UNHCR is improving accountability and efficiency. UNHCR noted the employment of technological strategies to improve recordkeeping of the UAC in CBP custody which also helps ensure that CBP meets the benchmarks set for UAC care. UNHCR observed sound inter-governmental relationships which are important to maintain when there are as many stakeholders involved as there are for UAC.

UNHCR also observed the centralization of certain UAC functions which serves to increase efficiency but also provide better service through a smaller, more experienced group of officials.

The concerns that CBP itself has are diverse. In some instances, CBP representatives expressed that it is constrained by law or policy and that it cannot always react logically to the situation as it arises. One example given by CBP is that of Mexican UAC working in the smuggling industry against whom CBP cannot take enforcement action, such as prosecution, and instead must return them immediately to Mexico. Other concerns raised by CBP, such as the conditions and amenities at CBP facilities, reflect the challenges of working within a limited budget while others, such as insufficient training, reflect the challenges of working with a young population which can take a toll on the CBP officials.

The information gathered in all four sectors led UNHCR to conclude that, while the law is clear regarding DHS’s burden to establish that each Mexican UAC does not have an international protection need, CBP’s operational practices, including new efforts to implement the TVPRA mandate to DHS, continue to reinforce the presumption of an absence of protection needs for Mexican UAC rather than a ruling out of any needs as required under TVPRA 08. Indeed during UNHCR field missions, UNHCR observed a predominant bias, influenced by a range of valid and invalid factors, desensitizing officers to any protection needs of Mexican children. In all sectors visited, CBP communicated to UNHCR that Mexican UAC are always returned to Mexico. This reflects the current state of the institutional culture on this narrow issue and this entrenched practice and approach to Mexican UAC presents the single largest challenge in implementing the mandate under TVPRA. This plays out in a number of ways of concern to UNHCR: a number of CBP officials employ overly restrictive standards by which to assess trafficking and fear of persecution upon return to one’s home country; CBP’s mandate to assess each Mexican UAC’s capacity to make an independent decision is often overlooked; children with needs that Congress intended to protect are likely rejected at the U.S. border.

UNHCR is concerned about the manner of communication between CBP and UAC and the setting of the interviews, especially in light of the power dynamic between children and government authorities. Based on UAC interviews, UNHCR learned that many UAC do not understand the information conveyed to them by CBP officials and do not understand what rights they have. In addition, the public area in which UAC are questioned and the speed of questioning did not appear conducive to UAC revealing very personal details about having been trafficked, the risk of trafficking, or the circumstances that may cause them to fear returning to Mexico.

Especially given the operational challenges to identifying individuals with protection needs in a mixed migration flow, UNHCR is also concerned about the adequacy and effectiveness of the training CBP officials receive on CBP’s responsibilities towards UAC in particular, and refugees and asylum-seekers, generally. Interviews with CBP revealed confusion regarding the definitions of “UAC”, “persecution”, and “trafficking”, which are all essential concepts in identifying the protection needs of unaccompanied children. In addition, CBP feedback regarding the Virtual Learning Center course on UAC issues indicates that it is not extensive enough to prepare CBP agents and officers to adequately screen Mexican UAC for protection needs.

Following its review of the four US Border Patrol sectors visited and in the current climate of unprecedented UAC arrivals, UNHCR recommends concrete action steps, which it believes feasible, to bring about an immediate improvement in the screening of UAC for protection needs. UNHCR stands ready to support DHS in all of them as appropriate.

1) Refer All Mexican UAC to ORR UNHCR recommends that DHS automatically refer all Mexican (and Canadian) UAC to ORR’s custody and outsource the DHS responsibility to screen all such children for protection needs to trained child welfare with expertise to identify indicia of trafficking and persecution. This function can be outsourced to other government entities or to appropriate private contractors. Rather than CBP conducting the screening immediately after its apprehension of the UAC, the screening can be conducted once the child has arrived in ORR’s custody and has a chance to settle down in a setting that is much more child-friendly with staff that are already trained in working with children and victims of trauma. UNHCR believes that this recommended mode of operation would result in more equal treatment for UAC of all nationalities, relieve CBP of the pressure of assessing UAC’s protection needs, and that it might also serve the added purpose of discouraging the practice of recruiting Mexican children into the smuggling industry.

2) Redesign the Screening Tools Available Including Form 93 UNHCR recommends that it, along with other experts on children, asylum and trafficking, redesign Form 93 to improve its utility and support a robust and efficient screening process.

As part of its approval and socialization process, DHS should conduct a survey of the staff who will be utilizing the form to solicit their anonymous feedback on the proposed form so that it is clear the form is accepted by them and will be effective when used. Once the new form is finalized, including any appropriate edits from the survey, and approved by DHS, experts should conduct trainings on how to use the form for an effective screening.



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