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

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UNHCR recommends that the Forms 93 and I-770 be officially translated to Spanish and made available to the entity conducting the screening and all stations and POEs, respectively. UNHCR observed that some locations had a translated copy of one or both of the forms, although it was not clear who had made the translation, but many other locations only had access to the English versions. In light of the fact that the vast majority of questioning is handled in Spanish, UNHCR believes it would be useful to the screeners and the agents and officers to have a translated copy of the Form 93 and Form I-770, respectively, to ensure a more accurate and consistent translation.

UNHCR recommends that easy-to-use reference kits be available at all USBP stations and OFO POEs on the requirements for processing UAC cases. UNHCR observed that certain locations took the initiative to create their own binders of official policy on UAC, step-bystep instructions, flow charts, and checklists which appeared to be a useful reference for agents and officers.

3) Protection Awareness Trainings UNHCR recommends that trainings provided to all CBP agents and officers include at a minimum: the international and U.S. legal frameworks; the rationale behind the protection screening; identification of trafficking victims; and country of origin information for the top countries of origin of arriving UAC. In order for CBP to handle its role with the UAC, there is a need for agents and officers to be sensitized to the needs of the UAC and why a separate standard is applied to them than to adults.

Because all law enforcement personnel should be trained in the identification of human trafficking victims, UNHCR recommends that new guidance and instruction should include the identification of fact patterns and indicators consistent with current trends in human trafficking and should be developed with the help of UNHCR and other government and NGO experts with direct experience with human trafficking of unaccompanied children. This could include a review of identified human trafficking cases in order to look at patterns of behavior exhibited by human traffickers while the victim (or intended victim) is still in transit, other forms of criminal smuggling or exploitation and the interplay between human trafficking and other illicit activities, and factors that increase children’s susceptibility to coercion and intimidation.

4) Improve Use of CBP Space and Conditions UNHCR recommends that, where feasible, USBP stations and OFO POEs identify a space within their facilities in which UAC can be interviewed in private in order to process their cases. UNHCR recommends that special measures are taken so that UAC are warm enough in order to prevent illness and have mats or cots to sleep on while in CBP custody.

5) Support the Field by Providing Refreshers on Protection Screening Pending delegation of screening responsibility to ORR, UNHCR recommends that the field receive continued guidance and reminders on the following policies or standards which

UNHCR noted were inconsistently applied. These refreshers should include:

 It is mandatory that all Mexican UAC are to be screened for protection needs on a case-by-case basis, including children recruited into the human smuggling industry.

CBP is the only entity charged with this responsibility, delegated from DHS, and is in the position of first responder to enable protection for the children who may need it.

 As required by TVPRA 08, each Mexican child is to be assessed for his or her ability to make an independent decision to return to Mexico.

 The interviewer must establish the absence of risk to the UAC upon return by finding that the UAC is not afraid to return due to a credible fear of persecution, that the UAC has not been subject to a severe form of trafficking in persons, and that there is no credible evidence that the UAC is at risk of being trafficked upon return.

 The definition of unaccompanied alien child and the associated consequences for who can speak for the child, who can be detained in the same cell with a child, and to whom a child can be released.

 CBP is responsible for making the assessment whether Mexican UAC are to be referred to ORR based on its assessment under the TVPRA 08. This assessment is made independent of the Mexican Consulate. CBP is able to reverse a decision to return a Mexican child based on the Consulate’s recommendation to refer the child to ORR, but cannot decide to return a child to Mexico based on the Consulate’s opinion. The Mexican Consulate and CBP have different mandates which may conflict.

 UAC are to be shown the Know What to Expect video before they are questioned so that the information provided is timely and helps facilitate the processing of the UAC.

BACKGROUND

While the total number of U.S. Border Patrol (USBP) apprehensions in FY 2013 is 58% of what it was in FY 20081, the number of unaccompanied children (UAC)2 apprehended in FY 2013 is approximately two and a half times what it was in FY 2008.3 In FY 2013, CBP apprehended 41,890 UAC seeking entry into the United States4, of whom 18,754 - 45% were Mexican nationals.5 Of the total number of UAC apprehended by U.S. authorities in FY 2013, 24,668 were referred to the Office of Refugee Resettlement (ORR) and placed in removal proceedings where they had the opportunity to request asylum or other remedies.6 This number is nearly double the 13,625 UAC referred to ORR in FY 2012. Of the 24,668 UAC referred to ORR in FY 2013, 846 of them were Mexican nationals.7 While Mexican UAC comprised 45% of the UAC apprehended, they only account for 3.4% of the UAC referred to ORR custody. Only 4.5% of all Mexican UAC apprehended by CBP in FY2013 were not returned at the border and instead were subsequently placed in the custody of U.S.





Department of Health and Human Services (HHS), Office for Refugee Resettlement (ORR) after screening by CBP. The remaining 95.5% of Mexican UAC were returned to Mexico, ending any opportunity to seek protection or other relief in the U.S., if needed.

Two key questions explored by the Office of the United Nations High Commissioner for Refugees (UNHCR) Regional Office for the United States and the Caribbean in Washington, DC during the four monitoring visits, and as discussed throughout this Report, is whether the current screening mechanisms in place are adequate to accurately identify children in need

USBP, Nationwide Illegal Alien Apprehensions Fiscal Years 1925 – 2013, available at:

http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20 Apprehension%20Statistics%201925-2013.pdf The term Unaccompanied Child is defined by section 462(g) of the Homeland Security Act of 2002. (6 USC § 279(g)) as “a child who—(A) has no lawful immigration status in the United States;

(B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” Any reference to minors, juveniles, or children in this report are considered to also meet the UAC definition.

USBP, Sector Profile – FY 2013, available at:

http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%202 013%20Profile.pdf; Unaccompanied Children (Age 0-17) Apprehensions: Fiscal Year 2008 through Fiscal Year 2012, previously available on CBP’s website and cited to in several recent reports about unaccompanied children, see Mission to Central America: The Flight of Unaccompanied Children to the United States (United States Conference of Catholic Bishops Nov. 2013); and A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System (U.C. Hastings, Center for Gender and Refugee Studies, and KIND, Feb. 2014).

USBP and OFO statistics shared with UNHCR.

USBP and OFO statistics shared with UNHCR.

The Office of Refugee Resettlement, The Year in Review - 2013, available at:

http://www.acf.hhs.gov/programs/orr/resource/office-of-refugee-resettlement-year-in-review-fy2013 Statistics from the Office of Refugee Resettlement.

of protection as required by the mandatory legal framework and whether the screening mechanisms are appropriately applied in order to do so.

LEGAL PROTECTION FRAMEWORK

Under the Immigration and Nationality Act, DHS has the discretionary authority to return to Mexico Mexican nationals apprehended at or near the border without initiating formal removal proceedings. Bilateral agreements between the U.S. and Mexico in part address how this authority is put into practice across the U.S.-Mexico border. Before 2008, these arrangements led to specific concerns that unaccompanied children of Mexican nationality were being returned to Mexico without an assessment of whether they were at risk of persecution, torture, trafficking or other harm as required both by international and domestic laws.

For refugees, the principle of "non-refoulement" is enshrined in the 1951 Convention relating to the Status of Refugees and is also contained in the 1967 Protocol and Article 3 of the 1984 UN Convention Against Torture. This cardinal principle is found under Article 33 (1)

of the 1951 Convention relating to the Status of Refugees, which states that:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

This provision constitutes one of the basic Articles of the 1951 Convention, to which no reservations are permitted. It is also an obligation under the 1967 Protocol by virtue of Article I (1) of that international legal instrument.

International human rights law provides additional forms of protection in this area. Article 3 of the 1984 UN Convention Against Torture stipulates that no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. 8 All relevant provisions of these conventions have been incorporated into domestic U.S. law.

Congress enacted the Refugee Act of 1980 expressly to “bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987) (citing H.R. Rep. No. 96-608 at 9 (1979)). As the Supreme Court has recognized, “‘one of Congress’ primary purposes’ in passing the Refugee Act was to implement the principles agreed to in the 1967 [Protocol]..

..” INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (quoting Cardoza-Fonseca, 480 U.S. at 436-37). The U.S. obligation of non-refoulement under Article 3 of the Convention Against Similarly, the U.N. Human Rights Committee has interpreted Article 7 of the International Covenant on Civil and Political Rights (ICCPR) as prohibiting the return of persons to places where torture or persecution is feared; however, the United States does not agree with the Committee’s view that States Parties to the ICCPR have accepted a non-refoulement obligation under the Covenant.

Torture has been implemented through federal regulations that establish “procedures for raising a claim for protection from torture, as directed by the Foreign Affairs Reform and Restructuring Act of 1998.” 64 FR 8478-01 (February 19, 1999) (the final regulations are found primarily at 8 C.F.R. §§ 208. 16(c)-. 18, 1208.16(c)-.18).

Procedures or arrangements for identifying refugees should provide a meaningful opportunity for noncitizens in the country to seek and, if eligible, secure protection from refoulement. Such procedures or arrangements are particularly important in the U.S.

context as it receives asylum-seekers, including children, within mixed migratory movements which often makes the identification of asylum-seekers more difficult.



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