«June 2014 TABLE OF CONTENTS ACKNOWLEDGEMENTS ABBREVIATIONS EXECUTIVE SUMMARY BACKGROUND LEGAL PROTECTION FRAMEWORK OVERVIEW AND OBJECTIVES ...»
To enhance screening procedures for UAC arriving from a contiguous country at a land border or port of entry, including those relating to identifying risk of trafficking in persons and fear of persecution, and to ensure that such UAC are safely repatriated, Congress enacted Section 235(a) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 08), which mandates a screening process specific to such UAC that includes screening for protection needs for UAC who may be victims of trafficking or at risk of being trafficked upon return, or fear return to their home country because of a credible fear of persecution. In doing so, the provision requires DHS to determine that UAC from contiguous countries meet certain requirements before they are allowed to withdraw their application for admission and be returned to their country of nationality. Placing the burden of proving a negative on the government, the TVPRA 08 requires that the screening official establish the absence of a reason to provide protection rather than establishing a reason to provide it, which is the case for adults. Thus, at a minimum, the TVPRA 08 requires DHS to screen each unaccompanied child, who is a national or habitual resident of Mexico or Canada,9 arriving at a land border or port of entry
in order to establish that:
i) such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;
(ii) such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and (iii) the child is able to make an independent decision to withdraw the child’s application for admission to the United States.10 If every one of these criteria cannot be satisfied, the procedure is to mirror that followed for all other UAC from non-contiguous countries. In these cases, the child shall be handed over Although both Canada and Mexico are contiguous to the United States, it is only in the context of Mexico that the concern about inadequate protection screening has been identified. And while TVPRA 08 mandates the screening only for unaccompanied children from Canada and Mexico, CBP policy requires all UAC from every country be screened.
TVPRA § 235(a)(2)(A). UAC who are not from contiguous countries are automatically referred to the care and custody of the Division of Unaccompanied Children within the Office of Refugee Resettlement, Department of Health and Human Services, for legal orientation and the opportunity to seek protection or other relief in immigration proceedings. See TVPRA 08 § 235(a)(5)(D), (b), (c)(4)(5).
to the care and custody of the Secretary of Health and Human Services (HHS), who in turn has delegated responsibility for UAC to ORR, Division of Children Services (DCS), and the child shall be placed in removal proceedings under Section 240 of the Immigration and Nationality Act with an opportunity to seek protection or other forms of relief from removal.
CBP implements the DHS responsibility of making contiguous UAC screening determinations under the TVPRA 08, as CBP is the agency within DHS that controls entry into the U.S. at POEs, and monitors the border for those who enter or attempt to enter unlawfully. The two offices within CBP charged with carrying out these duties are the U.S. Border Patrol and the Office of Field Operations.
OVERVIEW AND OBJECTIVES
The UNHCR Regional Office in Washington has identified the vulnerability of UAC as a primary concern to be addressed in accordance with UNHCR Global and Regional priorities and in light of the sizeable population noted above. UNHCR works with governments and others to best ensure that national and regional migration policies are sensitive to potential protection needs of children. In UNHCR's view, respect for the principle of non-refoulement can therefore be most effectively ensured through procedural safeguards that substantively and expeditiously determine the protection needs of individuals. These procedures must be adapted so that children, especially those unaccompanied, may still access the protection system as needed. In addition, UNHCR strives to ensure that measures to combat smuggling, which is understood to mean unlawfully bringing or attempting to bring individuals into the U.S. and trafficking, which is the unlawful bringing of individuals into the U.S. expressly for purposes of exploitation in the form of forced labor or forced prostitution or related exploitative reasons, often against the will or without the knowledge of the persons being trafficked, are carefully designed to help reduce risks of violence and exploitation and that individuals in need of protection are able to seek it.
In furtherance of these commitments, UNHCR sought to assist the U.S. government to ensure that all UAC with protection needs, in particular those from Mexico seeking to enter the U.S. who historically have not been given the same automatic access to protection as UAC from other countries, are properly screened for protection needs and provided the opportunity to seek protection from the U.S. accordingly. In keeping with these goals and concerns, UNHCR has a long-standing, collaborative relationship with DHS, ORR and other U.S. Government departments and agencies addressing issues related to ensuring the protection of unaccompanied children. In particular, following the passage of TVPRA 08, UNHCR has participated in on-going efforts within the U.S. Government and among other stakeholders to ensure the provisions of that law are carried out as effectively and efficiently as possible with an eye to monitoring the U.S. commitment to non-refoulment of UAC.
This report presents UNHCR’s final findings and recommendations based on the four monitoring trips it conducted from 2012 to 2013, hosted by U.S. Customs and Border Protection (CBP)11 in the following USBP sectors.
Laredo, Texas: 23 January 2012 to 3 February 2012 San Diego, California: 27 November 2012 to 7 December 2012 Rio Grande Valley, Texas: 11-19 November 2013 Tucson, Arizona: 4-11 December 2013 In consultation with CBP and DHS, the Laredo Sector was chosen as the first site due to the high volume of UAC typically apprehended there and the reasonable distances between USBP Stations within the Laredo Sector and between POEs within the Laredo Field Office.
For the second trip, UNHCR proposed San Diego to provide sufficient contrast to Laredo.
Unlike Laredo where most of the UAC are handled by USBP, most of the UAC seen in San Diego come through the POEs and are handled by OFO. In addition, UNHCR had heard San Diego mentioned as a site that employs good practices in its work with UAC and as such was considered an important location to observe. For the third trip, UNHCR chose the Rio Grande Valley (RGV) Sector in order to observe the location with the highest volume of UAC.
The Tucson Sector was selected as the final location due in large part to its historical position as the most traveled sector before southwest Texas became the most popular and in order to visit a third state.
The methodology for the issue specific monitoring trips agreed to by UNHCR, DHS, and CBP included on-site observation of CBP’s processing of UAC, group meetings with USBP and OFO as well as individual interviews with agents and officers, and interviews with the UAC in custody. UNHCR also met with ORR officials, toured ORR shelters and interviewed UAC at the shelters during the Laredo and San Diego trips. During all four trips, UNHCR met with the local Mexican Consul General and also met with officials from Mexico’s National Institute of Migration (INM) during the Laredo and RGV trips. During all the trips, except the last one to the Tucson Sector, UNHCR met with officials from the National System for Family Development (DIF) which runs shelters in Mexico for children including repatriated Mexican children. While visiting the DIF shelters, UNHCR also spoke with the Mexican UAC who had recently been repatriated to Mexico. In the first three trips, UNHCR also met with representatives from local NGOs who provide legal representation to UAC in immigration court.
Over the course of the monitoring project, UNHCR conducted 68 interviews with USBP agents, 28 interviews with OFO officers, 33 interviews with UAC in CBP custody, 24 of whom were Mexican, and observed the processing of 17 UAC. These interviews and observations took place at 20 USBP stations and checkpoints and seven POEs.
In this report, CBP will be used when discussing matters relating to both agencies within its ambit, the U.S. Border Patrol (USBP), which monitors the border areas outside of the lawful ports of entry and Office of Field Operations (OFO), which monitors the lawful Ports of Entry, or, as will be identifiable by the context, when referring to CBP Headquarters. Where necessary to make a distinction between the two, USBP or OFO will be specified.
In keeping with UNHCR’s proposal to the U.S. Government, the findings and recommendations in this report are informed by U.S. and international law and standards related to human trafficking and protection and guided by the following four child
5) 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.
6) 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.
7) 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.
8) 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.
During the four monitoring trips, UNHCR identified areas of positive CBP practice, areas of concern to CBP regarding its work with UAC, and areas of concern to UNHCR. These findings are the result of UNHCR’s multiple observations and interviews with CBP officials12 and with UAC. Unless otherwise specified, the positive practices and concerns indicate an observed pattern of practice.
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 its hands are tied by law or policy and that it cannot always react logically to In this report, UNHCR uses the term “CBP officials” to refer to both USBP agents and OFO officers as a collective when it is not necessary to distinguish between them. All references to officials, agents and officers are to individuals UNHCR met with in the field and not to CBP staff at Headquarters in Washington, DC.
the situation as it arises. One example given by CBP is that of Mexican UAC working in the smuggling industry against whom CBP cannot enforce any consequences, such as prosecution, and instead must return them immediately to Mexico. Other concerns raised by CBP reflect the challenges of working within a limited budget while others reflect the challenges of working with a young population which can take a toll on the CBP officials.