CHRCL comments to INS rulemaking implementing Flores settlement

Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, NW, Rm. 5307
Washington, DC 20536

Re: Comments to proposed regulationsÐProcessing, Detention, and Release of Juveniles.

On July 24, 1998 the Service published proposed regulations setting forth standards for the processing, detention, and release of juveniles. 63 Fed.Reg. 39759-39763. The following comments regarding those proposed regulations are submitted pursuant to the Administrative Procedure Act, 5 U.S.C. § 553. These comments are submitted by the Center for Human Rights & Constitutional Law, one of the non-profit, public interest law firms representing the plaintiff class certified in Flores v. Reno.

Proposed § 236.3(a)
Proposed § 236.3(a) excludes from the definition of "juvenile" any individual "whom a reasonable person would conclude ... is an adult despite his or her claims to be a juvenile..." The proposed regulation goes on to provide, "The Service may require such an individual to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age." Although not explicitly addressed in the regulations, presumably individuals who are "reasonably suspected" of being adults will be incarcerated in adult facilities despite the possibility that they may be juveniles. This approach is defective in several ways.

* First, the regulations permit the Service to incarcerate an individual in an adult facility based solely on a "reasonable" belief that he or she is an adult.
Permitting the incarceration of persons who may be juveniles in adult facilities on such a vague basis presents a clear probability that a substantial number of minors will erroneously be held in adult facilities. The Service should not incarcerate an individual asserting minority unless either (i) no reasonable person would conclude the person is not an adult, or (ii) the individual is determined to be an adult through reliable scientific testing.

* The proposed regulation fixes no time limit within which the INS must arrange a medical or dental examination to verify that an individual placed in an adult facility is in fact an adult.
Except in unusual circumstances, such verification should take place within seventy-two hours following arrest.

* The regulations nowhere require that the INS actually give any putative juvenile a medical or dental examination to verify or refute its suspicion that the individual is an adult.
Persons alleging that they are juveniles should have the right to a medical or dental examination before being incarcerated with unrelated adults, particularly where they produce evidence corroborating their claim to being a juvenile, such as a birth or baptismal certificate.

* The regulations nowhere specify the type of medical or dental examination that will be acceptable to establish a detainee's age.
Empirical data suggests that the reliability of various medical and dental tests used for determining age varies widely. See Nortje, The Permanent Mandibular Third Molar: Its Value in Age Determination, 1 The Journal of Forensic Odonto-Stomatolgy 27-31 (1983).
The final regulation should require that age be tested through specific procedures the Service has verified are reliable. Selecting a testing method should not be left up to the Service's many field or regional offices. The regulations should list the types of tests the INS has determined are reliable indicators of actual age.

* The proposed regulation permits the Service to use "other appropriate procedures to verify ... [an individual's] age."
This provision effectively eliminates the mandate that the Service use medical or dental examinations. Accordingly, these provision either should be eliminated or it should specify the alternative procedures that may be used to verify an individual's age. Obviously, those procedures should reliably determine an individual's true age.

Proposed § 236.3(d)(4)
Proposed § 236.3(d)(4) specifies the circumstances where minors will be placed in secure facilities. In several respects, these standards are overly vague or violate the Juvenile Justice Delinquency and Prevention Act (JJDPA), 42 U.S.C. § 5633(a)(12)(A), and implementing regulations, 28 C.F.R. § 31.303(c). The proposed regulation violates these provisions in the following particulars:
* The JJDPA treats "alien children in custody" as "non-offenders" who may not be held in secure detention or other secure facilities as defined in the statute and regulations.
Thus, federal law prohibits the secure confinement of children on immigration holds where there is no alleged delinquent offense. Unlike the proposed regulation, federal law does not permit the placement of alien children in secure facilities because the INS considers them flight-risks or because secure confinement is arguably necessary to protect them or others. If adopted in its present form, the proposed regulations would be in clear violation of federal law.
Even if the minor is accused of a delinquent offense, the final regulations should not permit a minor's placement in a secure facility where the individual minor would be eligible for release from custody under the criteria for secure detention in the jurisdiction where the minor was arrested.
* As currently written, the proposed regulation improperly permits secure placement where the Service has reason to believe that a smuggler would abduct or coerce a particular juvenile to secure payment of smuggling fees.
Adding to the conflict between this provision and JJDPA discussed above, advocates report that the Service has in practice assumed that all minors from particular countries, specifically China, should be placed in secure facilities for this reason. The final regulation should make clear that minors will not be held in secure facilities solely because the come from a particular country. Such determinations should be based on specific, articulable facts supporting a reasonable belief that an individual minor should be housed in a secure facility for his or her own protection.

Proposed § 236.3(d)(5)
Proposed § 236.3(a) defines "medium security facility," and proposed § 236.3(d)(5) provides that the Service should attempt to place juveniles in medium security facilities who are escape-risks or otherwise ineligible for placement in non-secure facilities before placing them in secure detention. We have the following concerns regarding these proposed regulations:
* The proposed regulations fail to specify what efforts the Service will undertake, if any, to ensure that such medium security facilities are in fact available to house minors in INS custody. The proposed regulations likewise fail to set out standards guiding Service officers' determinations whether an individual juvenile should be placed in a medium security facility rather than a secure one.
Final regulations should provide that placement in medium security facilities is reasonably available to all district offices and Border Patrol sectors, and that minors should be placed in such facilities unless they have been adjudicated delinquent on the basis of a serious offense.
* Proposed § 236.3(d)(6) requires that all determinations to place a juvenile in a secure facility must be reviewed and approved by a juvenile coordinator. The same should be required of a decision to place a juvenile in a medium security facility.

Proposed § 236.3(d)(3)(i)
Proposed § 236.3(d)(3)(i) sets forth the periods during which the INS may detain a minor in secure facilities. The proposed regulation is ill-advised for the following reasons:
* As discussed previously, to the extent this proposed regulation authorizes the detention in secure facilities of minors who have not been charged with any delinquent offense, it violates the JJDPA.
* The proposed regulation authorizes excessive detention of youth taken into custody in remote areas.
Accepted practice in the child welfare and juvenile justice fields emphasizes the importance of placing a child in an appropriate setting as quickly as possible to reduce psychological trauma and the risk of harm to the child.
The proposed regulation authorizes the detention of a child in inappropriate conditions for a full week (five business days). The proposed regulation is not only inconsistent with juvenile justice standards, but also with INS's previously announced policy that "[n]o alien minor may be held in a detention facility whether an INS facility or otherwise, longer than 72 hours ..." Memorandum, INS Office of the Commissioner to Regional Operations Liaison Officers, et al (Dec. 13, 1991) (hereinafter "1991 National Policy").
Although there may be occasions where it is impossible to place a minor in an appropriate facility within 72 hours of arrest, it is difficult to see how a full week would be needed merely because the juvenile is apprehended in a remote area. Should such remote areas exist, the final regulations should identify them specifically and provide that juveniles apprehended in all other areas will be placed in appropriate facilities within 72 hours.
* Similarly, that an individual juvenile speaks an unusual language should not be grounds for delaying his or her placement in an appropriate facility. The minor should be transferred to a licensed program, and processing completed thereafter.

Proposed § 236.3(d)(3)(i)
* The time limits on appropriate placement set out in proposed § 236.3(d)(3)(i) are subject to being improperly extended in several situations, including an "influx of juveniles into the United States."
An "influx" is defined to cover periods where the Service has more than 130 juveniles in custody and eligible for placement in licensed programs.
Historically, the Service has frequently had 150 to 200 minors in custody at recurring intervals, and having a similar number in the future is a virtual certainty. As drafted, the regulation's exceptions could swallow the rule. The final regulations should provide an exception to the placement schedule only in the event the Service has more than 200 minors in custody eligible for placement in licensed facilities.

Proposed § 236.3(d)
* Proposed § 236.3(d) sets out a hierarchy of individuals and entities to whom the Service may release juveniles. This approach unnecessarily favors detention over release. The INS should release minors whenever possible to reputable adults regardless of blood relationship to a detained minor.
Current child welfare practices recognize that routinely institutionalizing children endangers their mental health and progress toward productive adulthood. Long experience has verified the damage detention works upon children's ability to form close personal relationships, upon their social maturity, performance on intelligence and developmental tests, ability to function in non-institutional settings, and self-concept. .i.North American Council on Adoptable Children, Research Brief #1, Challenges to Child Welfare, Countering the Call for a Return to Orphanages (November 1990) at 8-12; .i.M. Wald, et al., Protecting Abused/Neglected Children, A Comparison of Home and Foster Placement (Stanford Center for the Study of Youth Development, Stanford University, November 1985) at 10;. At best, detention creates "needless idleness, boredom, acute anxiety, fear, depression, and hostility. Idle, unattended confined children present special supervisory problems. They frequently become destructive and cause physical harm to each other, or their surroundings." D.B. v. Tewksbury, 545 F.Supp. 896, 904 (D. Ore. 1982).
All recognized juvenile justice standardsÐthose promulgated by the American Bar Association, the National Advisory Committee for Juvenile Justice and Delinquency Prevention, the National Conference of Commissioners on Uniform State Laws, the National Advisory Commission on Criminal Justice Standards and Goals, and the U.S. Department of Health, Education and Welfare, among othersÐprovide that children should only be detained upon a reasoned determination that confinement is strictly necessary. Congress, too, has joined this consensus, mandating that federal magistrates release minors whenever possible to reputable adults regardless of blood relationship. .i.18 U.S.C. § 5034.
The final regulation should adhere to the approach set out in 18 U.S.C. § 5034.
Should the Service decide to retain its hierarchical approach to release, the proposed regulations should be amended in several specific ways to minimize unnecessary detention of minors. Final regulations should be revised to incorporate the following:
* The final regulation should provide that no individual who appears to request custody of a detained minor will be arrested for or placed in removal proceedings as a result of requesting a juvenile's release. This would ensure that children will not be detained as an aid to apprehending undocumented relatives.
We understand that this would require an exception to the Service's general law enforcement practices, but the government's interest in apprehending removable aliens has been subordinated in the past for reasons no more important than saving children from unnecessary confinement. E.g., 8 U.S.C. § 1255a(c)(5) (precluding the use of information submitted in connection with legalization application to initiate deportation proceedings).

Proposed § 236.3(g)
* Proposed § 236.3(g) permitsÐand in some cases requiresÐthe incarceration of juveniles pending the results of a positive suitability assessment while nowhere requiring the Service to initiate or complete such an assessment within any specific time.
The final regulations should require the initiation of a positive suitability assessment within 24 hours of a potential custodian's appearance, and that such a study will normally be completed within 72 hours thereafter. The final regulation should provide for extension of this 72 hour period in increments of 24 hours upon approval of the regional juvenile coordinator.
* There is no reasonable basis for the proposed regulation's requiring such an assessment in all cases within § 236.3(e)(6).
There will instances where an unrelated adult or entity proposing to care for a minor is unquestionably qualified to do so. Requiring a positive suitability assessment in such cases will needlessly prolong the incarceration of children, as well as run counter to established juvenile justice standards and the Flores settlement.

Proposed § 236.3(e)(4)(i)
* The proposed regulation requires in § 236.3(e)(4)(i) that a parent's declaration or affidavit designating a custodian be executed before an INS or consular officer. Many children have experienced inordinate delays or outright impossibility in obtaining such declarations, particularly where a minor's parents are in remote areas or in countries undergoing civil strife.
In many instances this provision would require parents to travel hundreds of miles using primitive transportation, an enormous difficulty that is not required in any comparable area of Service practice. An affidavit executed pursuant to the Service's generally prevailing practices should be sufficient. See, e.g., 8 C.F.R. § 3.3(b) (requiring affidavit executed pursuant to 28 U.S.C. § 1746).
The following language should be inserted in lieu of the analogous language of § 236.3(e)(4)(i):
[A minor may be released] to a responsible adult who has been designated by the parent or legal guardian in a declaration executed under penalty of perjury before an immigration officer or consular officer, or in a sworn affidavit accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. In its discretion, the Service may require the submission of birth, baptismal or court records evidencing the affiant's paternity or guardianship.
The italicized language mirrors that of Rule 902, Fed.R.Evid. As the Advisory Committee Note to Rule 902 explains, "Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect ... because practical considerations reduce the possibility of unauthenticity to a very small dimension." Advisory Committee Note, Rule 902, Fed.R.Evid. Any remaining doubts are satisfactorily addressed by the proposed language respecting birth and baptismal records.

Independent monitoring of facilities
The proposed regulation provides no mechanism for independent monitoring of facilities in which minors are held. Independent monitoring essential. The proposed regulations should encourage such monitoring by providing that the INS will ensure that all facilities in which minors are housed will be monitored as a matter of course either by an appropriate state agency or an independent child welfare or juvenile justice organization.

Published standards for licensed facilities
The proposed regulation fails to include specific standards that licensed facilities must meet. At a minimum, the following standards should be incorporated into the final regulations:
A. A licensed facility shall be a non-secure facility licensed or approved by the State in which it is situated as a child care facility suitable for the care of dependent children accommodating no more than 20 minors. See 42 U.S.C. § 672(c). It shall operate in accordance with applicable state child welfare statutes and regulations and generally accepted child welfare standards, practices, principles and procedures and in accordance with all applicable building, fire, health and safety codes and/or ordinances. See 52 Fed. Reg. 15571, Alien Minors Shelter Care Program-Description and Requirements, 23.
B. At a minimum, INS shall ensure that licensed facilities Ð
1. afford children a structured, safe and productive environment that meets or exceeds respective state guidelines and standards for similar services designed to serve children in their care and custody [53 Fed. Reg. 15569-15570];
2. provide or arrange for assistance and services for each minor including but not limited to:
[Note: The following are from 52 Fed. Reg. 15570, 15571 and Alien Minors Shelter Care Description and Requirements, 7-12 with additional references noted.]
i. physical care and maintenance, including suitable living accommodations, food, appropriate clothing, personal grooming items and personal allowance or remuneration for work as defined by applicable State statutes;
ii. routine and emergency medical and dental care, including a complete medical examination within 24 hours of admission excluding weekends and holidays, family planning services, appropriate immunizations in accordance with U.S. Public Health Service Center for Disease Control policies, hospitalization, provision of special diets and medications, and mental health interventions;
iii. an individualized comprehensive needs assessment and service plan within 10 days of admission that shall include: (a) an educational assessment and plan, (b) assessment of family relationships and interaction with adults, peers and authority figures, (c) identification of religious preference, (d) assessment of the minor's personal goals, strengths and weaknesses, (e) assessment of the impact of migration on the youth's future adjustment, (f) identification of information regarding immediate family members, other relatives, godparents or friends who may be residing in the United States, and (g) identification of any special needs the youth may have and how those needs will be met;
iv. appropriate education services that meet the requirements for public education in the state in which the facility is situated and that include an educational program in a structured classroom setting which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training and the provision of educational and other reading materials and educational instruction in other languages as needed;
v. recreation, social, and work activities as appropriate to the individual child, including daily outdoor activity, weather permitting, and at least one hour of large muscle activity and one hour of structured leisure time activities per day on school days increased to a total of three hours on non school days;
vi. individual and group counseling, including at least one individual counseling session per week conducted by trained social work staff to review the minor's progress, establish new short term objectives, and address the developmental and crisis related needs of the minor, and group counseling sessions at least twice a week designed to give the minors an opportunity to get acquainted with the staff and other children and the rules if the program and to discuss daily program management, recreational plans and individual concerns and problems;
vii. orientation to the facility which shall include information about the program intent, services, oral and written rules and expectations and information about legal assistance;
viii. acculturation and adaptation services which shall assist the minor in gaining skills and information necessary to live independently and responsibly;
ix. access to appropriate religious services;
x. visits and other contact with family and friends, which shall be structured to encourage such visitation and contact and to respect the minor's privacy;
xi. reasonable and equitable access to telephones and mail which shall respect the minor's right to privacy;
xii. family reunification services designed to identify family and friends of the minor and to assist in family reunification efforts, such as obtaining legal guardianship when necessary for the release of the child;
xiii. legal services information and referral including information that advises the minor of the right to be represented, the right to a deportation or exclusion hearing, the right to apply for political asylum and the right to request voluntary departure and the availability of free legal assistance; and
xiv. other services, such as mental health services and substance abuse counseling, necessary to meet the needs of a particular child;
3. provide services in a manner that is sensitive to culture, native language and the complex needs of the minor [52 Fed. Reg. 15571];
4. provide services in a manner that is appropriate for the age of the minor [52 Fed. Reg. 15570];
5. develop and implement an appropriate individualized service plan for the care and maintenance of each minor in accordance with his or her needs as determined in an intake assessment [52 Fed. Reg. 15570];
6. establish appropriate disciplinary policies emphasizing positive behavioral interventions that respect a child's right to human dignity and personal privacy and that prohibit the use of corporal punishment and other practices that cause pain or trauma;
7. implement and administer a case management system that tracks and monitors client progress on a regular basis to ensure that each child receives the full range of services in an integrated and comprehensive manner according to the minor's individual service plan [52 Fed. Reg. 15571];
8. develop and maintain individual client case records and procedures to ensure the preservation of client confidentiality and to prevent the unauthorized use or disclosure of confidential information [Alien Minors Shelter Care Program - Description and Requirements, 12]; and
9. maintain adequate records and make regular reports as required by the INS that permit the INS to monitor and enforce this order and other requirements or standards as the INS may determine are in the best interest of the minors [Alien Minors Shelter Care Program - Description and Requirements, 13 & 14-17].

Thank you for your consideration.

Sincerely,

Carlos Holguín
General Counsel