Re: USCCB Requests for Continued FY2019 Appropriations Process
As a Church at the service of all God’s people, the United States Conference of Catholic Bishops (USCCB) stands ready to work with the leaders of both parties to protect impoverished and marginalized people, promote human life and dignity, and advance the common good. As Congress contemplates the end of the Fiscal Year (FY) 2019 appropriations process, many USCCB policy offices have already expressed or will later express their views on appropriations matters under their purview. Together, these views represent the breadth of concern of the USCCB. Today, I write on behalf of the USCCB Committee on Migration to request your support for our funding priorities with respect to three outstanding accounts for FY 2019: Commerce Justice Science, Department of Homeland Security, and State Foreign Operations. These three accounts are crucial for immigrants, refugees, unaccompanied children, and trafficking victims and are currently being funded through a Continuing Resolution until December 7, 2018. As you finalize FY 2019 funding levels, please consider the following requests:
Commerce Justice Science and Related Agencies (CJS)
The House Full CJS Committee allocated funding for 100 immigration judge teams in FY2019 as a completion of a two-year plan (which includes FY 18) to hire a total of 200 additional immigration judge teams and to increase availability of court facilities to address the large docket backlog of the Executive Office for Immigration Review (EOIR). We urge you to accommodate this request.
We also ask that Congress appropriate funding at the Senate S. 3071 level of $10.4 million for the Administrative Review and Appeals/ Executive Office of Immigration Review (APA/EOIR) line item for the Legal Orientation Program (LOP), the Information Help Desks, and the Legal Orientation Program for Custodians of Unaccompanied Children (LOPC). These programs help ensure court efficiency and individuals’ greater knowledge of their legal rights and responsibilities, as well as increase the likelihood of compliance in immigration proceedings.
Department of Homeland Security (DHS)
For FY2019, the President requests $5.6 billion for 65 miles of new wall in the Rio Grande Valley sector, 750 new Border Patrol officers and 2,000 new ICE agents, increased deportation capacity, and detention capacity totaling 52,000 beds. Congress likewise continues to propose increased enforcement funding, with the House recommending $3.05 billion for Immigration and Customs Enforcement/Enforcement and Removal Operations (ICE/ERO) Custody Operations, (which funds the immigrant detention system), and the Senate recommending $2.89 billion for the same account. Similarly, the House recommended $5 billion for construction of 200 miles of new wall at the U.S./Mexico border through Customs and Border Protection Procurement, Construction & Improvements, and the Senate requested $1.6 billion for construction of new wall at the U.S./Mexico border for the same account.
The Catholic Church acknowledges the right of nations to control their borders and governments’ responsibility to protect the people within their borders. At the same time, we believe that those rights and responsibilities should be exercised in a manner consistent with their moral obligation to protect migrants and refugees. Enforcement measures should be proportionate and humane. For these reasons, we do not support further funding for new wall construction at the U.S./Mexico border and urge Congress, to the extent possible, to limit this funding, and at a minimum not to appropriate past the $1.6 billion set in the Senate’s FY 2019 bill, S.109. Additionally, we oppose further funding increases for the ICE/ERO/Custody Operations and support the FY 2019 Senate S.109 recommendation of $2.89 billion. We are deeply concerned about the massive increases in immigrant detention particularly, the large average daily population numbers of detained which exceeds Congress’s instructions set forth in the FY 2018 DHS appropriations law.
We urge Congress to direct DHS to further evaluate and monitor alternatives to detention (ATD) programs for cost effectiveness and compliance. We note with appreciation the FY 2019 House recommendation for $213 million for the ICE/ERO/ATD line item, but we urge lawmakers to direct use of all ATD funding increases for community-sponsored case management programs, particularly those that enroll families and vulnerable populations, instead of using ankle monitors. We believe that alternatives to detention, particularly those that leverage community support and utilize case management, can be, for certain populations, a way forward that is cost-effective, ensures compliance with immigration laws, and most importantly is more humane than immigrant detention. We also urge you to direct the reinstatement of the family case management alternative to detention program as presented and passed as Amendment 3 in the FY 2019 House DHS Mark Up.
We further request that Congress provide $6.7 million to Customs and Border Protection Operations and Support to enable Border Patrol agents to identify and protect trafficking victims, particularly children. We also support the FY 19 House Report Language on family separation. Lastly, we support the FY 2019 Senate DHS Report 115-283 language, requesting reporting on the detention of pregnant women. In general, we do not think it appropriate to hold pregnant immigrants in custody if it is not essential for public safety and order, and we are committed to ensuring that detained pregnant women and their unborn children receive suitable care and are treated in a manner that respects their human dignity.
Other Important Immigration Priorities
We note that the FY 2019 Continuing Resolution extended the expiring Special Immigrant Non-Minister Religious Worker Visa program until December 7, 2018. We ask that Congress include language that would permanently reauthorize these statutory provisions in any bill appropriating funds for DHS for FY 2019. We also ask that Congress include in any DHS appropriations vehicle it passes a Hyde-like provision to ensure that federal funds not be used to fund elective abortions.
State, Foreign Operations, and Related Programs (SFOPs)
For FY 2019, we urge Congress to fund SFOPs refugee related accounts at the S. 3108 funding level of $3.4 billion for Migration and Refugee Assistance (MRA), $1 million for Emergency Refugee and Migration Assistance (ERMA), and $4.4 billion for International Disaster Assistance (IDA). These are amounts we believe would ensure ongoing service to displaced populations while responding to numerous, grave humanitarian crises. Further, we urge the Administration to make full use of ERMA during FY 2019.
MRA funds the State Department’s Bureau of Population, Refugees, and Migration (PRM), providing overseas assistance to displaced refugees and funding for lifesaving services, including resettlement, while supporting U.S. allies and stabilizing refugee host countries in sensitive regions. ERMA is urgently needed due to escalating violence and record forced displacement in many parts of the world. The IDA account funds USAID to provide humanitarian assistance to internally displaced persons. Meeting the needs of internally displaced persons helps prevent them from having to flee their countries of origin and become refugees.
Finally, we urge Congress to appropriate $40 million, the funding level set in S. 3108, for the Department of State’s Office to Monitor and Combat Trafficking in Person Office (J/TIP) for efforts to end human trafficking. J/TIP needs these resources to ensure that it can administer anti-trafficking programming and research.
Thank you for considering our recommendations. Please let us know if you have any questions or would like to discuss these suggestions further.
Most Reverend Joe S. Vásquez,
Chairman, Committee on Migration
For a PDF of this document, click here
DHS Docket No. ICEB-2018-0002, Comments in Response to Proposed Rulemaking on “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children
Submitted via Email: ICE.Regulations@ice.dhs.gov
Ms. Debbie Seguin
Assistant Director, Office of Policy
U.S. Immigration and Customs Enforcement
Department of Homeland Security
500 12th Street, SW
Washington, DC 20536
Dear Ms. Seguin,
The United States Conference of Catholic Bishops (“USCCB”), the public policy agency of the Catholic Bishops in the United States, offers the following comments to the Department of Homeland Security (“DHS”) and the Department of Health and Human Services (“HHS”) regarding the Notice of Proposed Rulemaking (“NPRM” or “proposed rule”) to implement and amend regulations relating to the apprehension, processing, care, and custody of immigrant children under the Flores Settlement Agreement (“FSA”),1 published in the Federal Register on September 7, 2018 (83 Fed. Reg. 45,486).2
USCCB’s Department of Migration and Refugee Services (“USCCB/MRS”) has operated programs, working in collaboration with the U.S. government, to help protect unaccompanied children from all over the world for nearly 40 years. Since 1994, USCCB/MRS has operated the “Safe Passages” program. This program serves undocumented immigrant children apprehended by DHS and placed in the custody and care of HHS’s Office of Refugee Resettlement (“ORR”). Through cooperative agreements with ORR, and in collaboration with community-based social service agencies, the Safe Passages program provides residential care (i.e., foster care and small-scale shelter placements) to unaccompanied children in ORR custody, as well as family reunification services (i.e., pre-release placement screening (“home studies”) and post-release social services for families (“post-release services” or “PRS”)). In fiscal year 2017, the USCCB/MRS Safe Passages program served 1,294 youth who arrived as unaccompanied children—1,042 through the family reunification program and 252 through residential care programs.
Additionally, the Catholic Church in the United States has long worked to support immigrant families who have experienced immigrant detention, through the provision of legal assistance, visitation, and pastoral accompaniment to those in immigrant detention facilities, as well as social services assistance to those released. USCCB/MRS has also operated several alternatives to detention programs to assist immigrant families and other vulnerable populations.3 Through all of this work, we have seen first-hand the importance of the protections set forth in the FSA, and we have worked to help implement and ensure government compliance with these requirements.
We understand that parties to the FSA contemplated, in the 2001 stipulation, the publication of regulations implementing the agreement’s terms.4 The stipulation modified the provision providing for termination of the agreement, noting that the FSA would terminate “45 days following defendants’ publication of final regulations implementing this Agreement.”5 This language, however, also makes clear that the parties and the court envisioned such regulations as reflecting or “implementing” the terms of the agreement, not seeking to expand or change them. Nevertheless, the NPRM published by DHS and HHS proposes substantial changes to the terms of the FSA. This proposal is, unfortunately, an attempt to amend unilaterally the conditions to which the government previously agreed and which were entered by the Flores court, and, if implemented would drastically undermine protections for children.
While the proposed rule would make myriad changes to the FSA, USCCB is particularly concerned with:
- DHS’s proposal to revise the definition of “licensed facility” in a manner that is contrary to the plain terms of, and child welfare principles embodied in, the FSA, as well as numerous judicial orders, and which present grave public policy concerns;
- DHS’s proposal to create an alternative federal licensing scheme for family residential centers (“FRCs”), which would fail to provide substantially similar protections for children as compared to the current state licensing standards required by the FSA;
- DHS’s suggested definition of “non-secure facility,” given how the proposed definition seemingly conflicts with existing state definitions and judicial determinations; and
- DHS’s and HHS’s efforts to revise the definition of “emergency” and the corresponding emergency exceptions to the FSA requirements, as it would provide the government with more leeway to breach the agreement’s terms.
Additionally, in a fifth subsection, USCCB/MRS offers its concerns and suggestions in response to HHS’s specific request for comments on the possibility of adding regulations regarding the standards for home studies and post-release services.
USCCB/MRS recognizes that both DHS and HHS will have corresponding responsibilities under the proposed rule and that a separate set of rules would apply accordingly. DHS will revise 8 CFR § 236.3 while HHS will create a new 45 CFR Part 410. USCCB’s comments are related to both proposed sections. These comments turn first to the DHS sections and then to the HHS sections.
- 8 CFR § 236.3(b)(9) – DHS’s Revised Definition of “Licensed Facility” Seeks to Circumvent Court Decisions and Expand an Inhumane and Costly Practice.
The FSA requires that children be placed in facilities that are non-secure and “licensed by an appropriate State agency,” unless placement in a secure facility is otherwise required.6 The three FRCs – Karnes County Residential Center, Berks Family Residential Center, and South Texas Family Residential Center – currently operate a combined 3,326 beds.7 These facilities, however, are not licensed for childcare in their respective states and, as such, fail to meet basic child welfare requirements currently set forth in the FSA.
The proposed rule seeks to create an alternative federal licensing scheme for such facilities when state licensing schemes for detention of accompanied children are “not available.”8 This revision would allow for FRCs that cannot be licensed in the state in which they operate to detain accompanied children if they meet the standards set forth in 8 CFR § 236.3(i)(4). DHS proposes to employ an independent entity to monitor compliance with these standards. As detailed below, we object to this proposal because it contravenes the FSA on its face, seeks to circumvent numerous decisions by the U.S. District Court for the Central District of California, and raises serious public policy concerns.
As an initial matter, the plain language of the FSA requires that facilities holding immigrant children be licensed by the state.9 This language leaves no room for ambiguity or alternative interpretation, and DHS cannot post-hoc supply an alternative licensing definition simply because the state schemes do not currently allow for licensing of its FRCs. In fact, Judge Gee, for the U.S. District Court for the Central District of California, has repeatedly found during recent litigation regarding the FSA that “[t]he fact that the family residential centers cannot be licensed by an appropriate state agency simply means that, under the Agreement, class members cannot be housed in these facilities except as permitted by the Agreement.”10 Further, when the government specifically requested an exemption to the temporal limitations placed on detention of children in unlicensed facilities earlier this year, the court denied the request.11 In its justification for the NPRM, DHS makes the same arguments that failed before that court. Its proposed rule is consequently no more than an improper effort to find an end-run around the existing limitations and judicial decisions, via rulemaking.
In addition, DHS’s suggested definition would allow for vastly expanded use of family detention. The proposal would permit DHS to detain many of the accompanied children entering the country with their parents in the existing FRCs through the duration of their immigration proceedings. As discussed below, such a proposal presents significant public policy concerns given the negative impact it would have on accompanied children, their families, and the U.S. taxpayer.
The severe health and safety consequences of detaining children in DHS custody is well documented.12 Unfortunately, the negative consequences of family detention are neither minor nor short-term. The American Academy of Pediatrics (“AAP”) has reported that detained children experience developmental delay, poor psychological adjustment, post-traumatic stress disorder, anxiety, depression, suicidal ideation, and other behavioral problems.13 The AAP has further found that detention, even for brief periods, negatively effects not only the child, but also the adult and family structure.14 For example, it has noted that “[d]etention itself undermines parental authority and [parents’] capacity to respond to their children’s needs.”15
Furthermore, two medical and psychiatric experts hired by DHS itself recently expressed their concerns with the practice of family detention in a letter to the Senate Whistleblowing Caucus.16 After repeated investigations, the experts explained that: “The fundamental flaw of family detention is not just the risk posed by the conditions of confinement – it’s the incarceration of children itself.”17 The experts further noted that “[i]ndefinite detention, even for short periods, exacerbates the stress associated with detention and therefore increases the risk of harm.”18 They therefore recommended that DHS halt family detention except in very limited circumstances.19 A similar recommendation has also been made by DHS’s Advisory Committee on Residential Centers.20
DHS’s justification for proposing to alter the FSA’s licensing requirements not only fails to address these concerns, but it also consistently dismisses the fact that it has a spectrum of humane, proven, and cost-effective alternatives to detention (ATDs) that it can utilize – and is utilizing in some cases – to monitor families released from custody. Such alternatives are typically preferable, as they avoid inflicting unnecessary and long-lasting trauma on children and families. Additionally, detaining families that do not present a flight or safety risk is an unnecessary use of limited DHS resources. DHS has projected that in Fiscal Year (“FY”) 2019 family detention will cost approximately $319 per individual/per day.21 This compares to just over $4 per individual/per day for those enrolled in the Intensive Supervision Appearance Program (“ISAP”) III22 ATD program or $36 per family/per day for those in ICE’s former Family Case Management Program.23 Consequently, even though it takes longer to process individuals’ immigration cases when they are not detained,24 the government – and by extension the U.S. taxpayer – would save, on average, an estimated $22,512 per family (one parent, one child) if DHS released the family and placed the parent on ISAP III, rather than detaining them in an FRC.25 For these reasons, we urge DHS to minimize the use of family detention. DHS should revisit existing policy and program options currently available to it, such as ATD programs and family case management rather than seeking to unilaterally amend the FSA.
Additionally, even assuming that DHS’s federal licensing scheme is theoretically permissible and otherwise meets the FSA requirements – and, as discussed below, it does not – the proposed definition essentially allows DHS to self-certify its facilities for compliance with the licensing requirements. While the proposal contemplates hiring an outside entity, this entity would be employed by ICE, which calls into question such an entity’s ability to truly be independent and ensure compliance. In contrast, the FSA requires certification by an outside and fully independent entity with expertise in child safety – the state’s child welfare agency.26 Furthermore, DHS already contracts with Nakamoto Group, Inc. to inspect some of its adult detention facilities, but DHS’s Office of Inspector General has found that the contractor is unable to provide effective oversight because its “inspection practices are not consistently thorough, [and] its inspections do not fully examine actual conditions or identify all compliance deficiencies.”27 DHS’s proposal to allow certification by an entity that is not wholly independent of the agency is extremely problematic, in light of the serious deficiencies with DHS’s current compliance contractors, as well as the compliance issues that have already been documented in the FRCs.28 To allow such a scheme would run directly counter to the stated child welfare protections in the FSA.
2. 8 CFR § 236.3(i) – DHS’s Proposed Federal Scheme for Licensing Family Detention Centers Fails to Adequately Mirror the FSA.
Even assuming that an alternative federal licensing scheme for detention centers should be permitted – and, as discussed above, it should not – DHS’s proposed scheme fails to adequately implement the terms of the FSA. DHS suggests that its proposed licensing scheme is sufficient because the standards set forth in 8 CFR § 236.3(i)(4) “mirror the requirements in Exhibit 1 of the FSA and the current ICE Family Residential Standards.”29 It further claims that its proposed federal licensing scheme “provide[s] materially identically assurances about the conditions of such facilities.”30 For the following reasons, we disagree with this assertion and are deeply troubled by DHS’s proposal.
First, DHS’s assumption that the FSA Exhibit One standards, coupled with ICE’s Family Residential Standards (“FRC standards”), are adequate to meet the terms of the FSA, is flawed. The title of FSA Exhibit One, “Minimum Standards for Licensed Programs,” shows that the standards are seen as a floor, not a ceiling, to be supplemented by state standards. DHS might have a more persuasive argument if the existing FRC standards provided for essentially the same protections as the state licensing requirements. But, they do not. While ICE’s FRC standards note that they were written after a review of the state codes in Texas and Pennsylvania (where the current FRCs operate),31 in many instances, the state licensing standards for residential facilities caring for children are much more rigorous than the FRC standards. For example, under the licensing regulations in Texas, mechanical restraints32 may only be administered by Residential Treatment Centers (i.e., therapeutic care facilities).33 Even in these facilities, however, Texas standards clearly state that handcuffs and other devices with metal wrist or ankle cuffs cannot be used.34 In contrast, while ICE’s FRC standards place certain limitations on general use of mechanical restraints,35 they allow use of these restraints on children over 14 (and some children under 14 with prior approval).36 ICE’s standards also specifically allow for handcuffs to be used as a form of restraint on minors.37 Further, Texas standards delineating use of mechanical restraints place a strict time limit on use of such devices. For children over the age of nine, the maximum time for which a facility can employ mechanical restraints is one hour.38 ICE’s FRC standards provide no such time limitation on the use of mechanical restraints. Rather, ICE’s FRC standards note that “staff may not remove restraints until the resident has regained self-control,”39 and merely note that checks must be made on the detainee’s condition every 15 minutes.40
These are clear and concerning differences between the Texas state and ICE FRC standards that impact the safety and wellbeing of children in federal custody. Not only do ICE’s FRC standards fail to mirror the state requirements contemplated by the FSA, but there is no reasonable justification to eliminate these requirements. Detaining a child with his or her parent(s) does not inherently necessitate use of handcuffs or prolonged restraint.
In other instances, even where it may be the intent of ICE to replicate state requirements, the FRC standards do not always adequately accomplish this purpose. For example, Texas regulations require that licensed residential facilities “feed an infant whenever the infant is hungry.”41 This unambiguous directive is not matched in ICE’s FRC guidelines. Rather, the FRC standards state that a facility must meet the “minimal nutritional needs of toddlers and infants” and “meet recommended government guidelines for well-baby and well-child growth and development.”42 While one might assume that ICE is referring to the U.S. Department of Agriculture, Food and Nutrition Service’s guidelines,43 this would be entirely speculative since as no specific government guidelines are provided. In fact, the exact requirements remain ambiguous and leave room for various interpretations as the FRC standards neither footnote the guidelines nor attach them as an appendix. Given this ambiguity, ICE’s FRC standards fail to provide infants with the same clearly defined protections as the Texas state licensing requirements.
These examples highlight the manner in which ICE’s standards fail to adequately mirror state standards and illustrate how the federal licensing scheme proposed by DHS is insufficient under the FSA. If it is determined that a federal scheme is appropriate, DHS should conduct a detailed review of each individual provision of the state licensing standards in Texas and Pennsylvania to determine whether it is: i) relevant and transferrable to facilities detaining accompanied children; and ii) stricter than the existing FRC standards, if any exist on the topic. Without such a review and revision of ICE’s FRC standards, the agency’s assertions that the federal scheme “mirrors” the state standards is unfounded at best.
Finally, even if such a review is performed and state standards are adequately incorporated by DHS,44 any federal scheme must require ongoing analysis of state licensing requirements. This would include analysis of additional states’ regulations should new FRCs open in other states outside of Texas and Pennsylvania. It would also include annual analysis of the Texas and Pennsylvania standards to ensure that any updates to the state standards are timely incorporated into the federal licensing standards. Without such ongoing analysis, DHS could not reasonably claim that the federal standards provide “materially identically assurances” to state standards.
3. 8 CFR § 236.3 (b)(11) – DHS’s Definition of “Non-Secure Facility” Cannot Appropriately Be Used to Classify FRCs, or Similar Facilities, as Non-Secure.
As noted above, the FSA requires that children be placed in facilities that are “non-secure,” unless placement in a secure facility is otherwise required.45 The FSA does not, however, define the term “non-secure.”46 DHS seeks to supply a definition for this term in the proposed rule. To the extent that this definition would allow the existing FRCs, or similar facilities built in the future, to be deemed non-secure, it is unacceptable and contrary to prior determinations of the court.
DHS states that when a definition of “non-secure” is not provided for by the state in which a facility is located, “non-secure facilities” shall be defined as those in which “egress from a portion of the facility’s building is not prohibited through internal locks within the building or exterior locks and egress from the facility’s premises is not prohibited through secure fencing around the perimeter of the building.”47 In its justification for this provision, DHS notes that it looked to the Pennsylvania code as “a starting point for the proposed definition.”48 DHS’s proposed definition, however, turns Pennsylvania’s definition on its head. In Pennsylvania, a facility is deemed secure if egress from any portion of the facility is prohibited through locks.49 In contrast, under the natural reading of DHS’s definition, a facility could have multiple egress points that are locked and still not be deemed “secure” as long as one egress point is lock-free. If DHS intended to match the Pennsylvania state definition, DHS should consider rewriting its definition to state clearly that a facility is only non-secure if egress is not prohibited in any section of the facility. DHS provides no justification for this significant deviation nor clarity on its definition to this point.
The proposed definition is unacceptable to the extent that DHS is seeking to provide a definition that would allow the existing FRCs, or any similar facilities built in the future, to be deemed non-secure. DHS cannot unilaterally supply a definition of “non-secure,” particularly one that is not as rigorous as existing state definitions, to further its own agenda. Moreover, the U.S. District Court for the Central District of California has already found the existing FRC facilities to be secure.50 Thus, these facilities, and any similarly designed facilities DHS constructs in the future, cannot be appropriately classified as non-secure. Promulgating such a definition would undermine the purpose of the FSA’s protections on this issue, protections that seek to ensure that children are placed in the least-restrictive environment that is appropriate.51
4. 8 CFR § 236.3(b)(5), 8 CFR § 236.3(g)(2), and 45 CFR § 410.101 – DHS’s and HHS’s Revised Definition of “Emergency” and Corresponding References Seek to Inappropriately Expand the FSA’s Exception.
The FSA provides an exception to the requirement for timely placement of children in licensed facilities by the government when there is an “emergency.”52 It states that emergencies “include, natural disasters (e.g., earthquakes, hurricanes, etc.), facility fires, civil disturbances, and medical emergencies (e.g., a chicken pox epidemic among a group of minors).”53 In both DHS’s and HHS’s proposed regulations, however, “emergency” is defined as “an act or event (including, but not limited to a natural disaster, facility fire, civil disturbance, or medical or public health concerns at one or more facilities) that prevents timely transport or placement of minors, or impacts other conditions provided by this section.”54
The agencies’ proposals to revise and expand the emergency exception ignore the fact that the government voluntarily entered into the FSA and negotiated its terms. Had the government wanted to create a broader emergency exception, it should have attempted to do so before signing the agreement in 1996. Emergency exceptions were clearly a topic of consideration and negotiation between the parties. Indeed, parties to the FSA specifically incorporated the emergency exception in certain sections of the agreement (e.g., in the provisions on transfer to licensed facilities) but chose not to provide similar exceptions for other provisions, such as those that limit housing children with unrelated adults. DHS even admits that its proposal does not adhere to the FSA’s terms, stating that its definition of the term emergency “reflects DHS’s recognition that emergencies may not only delay placement of minors, but could also delay compliance with other provisions of this proposed rule, or excuse noncompliance on a temporary basis.”55 Despite the operational realities that DHS may be facing, such an effort to expand unilaterally the emergency exception and create a safeguard to excuse future breaches of the FSA’s terms is untenable – due to the voluntary nature of the agreement, the fact that the Flores court approved the Agreement, the fact that the parties clearly contemplated when emergencies should excuse non-compliance, and larger public policy concerns.
From a public policy perspective, the proposed definition gives serious cause for concern. It provides DHS and HHS with broad discretion to define what constitutes an emergency. This is a fact that DHS admits in its justification, noting that the proposed definition “is flexible and designed to cover a wide range of possible emergencies.”56 Consequently, under the proposed definition, DHS could, in theory, define “emergency” to include lack of available staffing due to the flu. Because DHS’s proposed rule also creates a new emergency exception excusing non-compliance with limitations for holding minors with unrelated adults,57 it could then theoretically use its lack of staffing as an excuse for holding children with unrelated adults for more than 24 hours. To do so would put such minors at increased risk for abuse and harm, and it directly contravenes the plain language and intent of the FSA. The FSA strictly limits placement of children with unrelated adults to 24 hours.58
For these reasons, DHS’s and HHS’s proposals contravene the FSA and raise significant public policy concerns. We urge DHS and HHS to revise their proposed definitions of “emergency,” and corresponding references, in the final rule to reflect the terms the government agreed to in the FSA. And, if DHS and HHS feel that broadening the exception is essential to their operations, they should negotiate this with opposing counsel, and attempt to secure the court’s agreement thereto. As Judge Gee has noted, “the parties are always free to meet and confer regarding any contractual amendments on which they can mutually agree. This is basic contract law.”59
5. 8 CFR § 410.302(e) – HHS Should Provide Flexibility in Home Study and Post-Release Services Requirements to Ensure Ability to Timely Respond to Emerging Child Protection Needs
In its discussion of 8 CFR § 410.302(e), HHS specifically invites comments on whether it should set forth in the final rule policies regarding requirements for home studies, denial of release to sponsors, and post-release services.60 As a long-time provider of home studies61 and post-release services,62 we encourage HHS not to include these requirements in the final rule. Instead, we recommend ORR develop specific guidelines and minimum requirements for these services in its Policy Guide.63
Family reunification services are vital to promote safe and stable placements of children in appropriate environments. As social service providers, we have seen that unaccompanied children are particularly vulnerable to human trafficking, forced domestic servitude, and other exploitative situations. Standards for determining which children receive family reunification services have developed over time, responding to newly identified needs and vulnerabilities. Take, for example, the development of new home study categories in response to the Marion, Ohio egg farm case. Over a period of four months in 2014, ORR released eight children into the care of human traffickers. None of the children received home studies, and, after release, the children were subjected to labor trafficking on an egg farm in Marion.64 Local and federal officers discovered the trafficking situation during a raid of the farm in December 2014.65 In response to this incident and a corresponding investigation by the Senate Homeland Security and Government Affairs’ Subcommittee on Permanent Investigations, ORR announced in July 2015 that it was adding two discretionary categories of home studies66 for: (i) all unaccompanied children 12 years of age and under who are to be placed with a Category 3 sponsor; and (ii) any proposed sponsor who is a non-relative and is seeking to sponsor multiple children or has previously sponsored a child and is seeking to sponsor additional children.67
As new areas of vulnerability or concern are identified, it is important that ORR have the flexibility to respond and improve home study and post-release standards as quickly as possible. We caution against setting these standards via rulemaking as it likely would not allow ORR this necessary flexibility. For example, while the response was certainly not immediate after the Marion trafficking case, discussed above, had the standards been regulated in a manner requiring notice-and-comment rulemaking prior ORR’s addition of new home study categories, the regulatory process would have delayed ORR’s programmatic response by months.68
USCCB supports and encourages the continuing development of minimum standards for family reunification services. To allow it the necessary flexibility, we suggest ORR do this through its Policy Guide. Standards should be developed with input and feedback from services providers and other organizations with expertise in this area. Further, while ORR has made some progress in improving and expanding family reunification services to promote the safety of children, the fact is that the vast majority of children released from ORR care do not receive these vital services,69 and it must continue to address new needs and vulnerabilities that are identified. To that end, ORR should facilitate annual engagement, at a minimum, with service providers and other key organizations to discuss the existing standards and evaluate new and additional risk factors for placement of unaccompanied children.70
At a minimum, if ORR decides to issue regulations on family reunification standards, we urge it to ensure that these standards are framed as minimum requirements. To do so would help ensure ORR has the flexibility it needs in the future to timely respond and improve standards that promote safety of children, without conflicting with the existing regulations.
In sum, USCCB supports the development of minimum standards for family reunification services, but we caution against the use of rulemaking to do so.
For the reasons set forth above, the proposed rule fails to adequately implement the terms of the FSA, and DHS and HHS lack the authority to unilaterally make the changes they propose to the FSA. Even if the proposed rule were legally permissible, however, it is objectionable from a public policy standpoint. The NPRM repeatedly seeks to undermine existing protections for children — protections which have served to safeguard immigrant children from neglect, abuse, and exploitation. We urge DHS and HHS either to abandon this rulemaking or to revise the proposed rule to mirror the conditions agreed upon in the FSA.
Anthony R. Picarello, Jr.
Associate General Secretary and General Counsel
United States Conference of Catholic Bishops
1 Settlement Agreement, Flores, et al. v. Reno, et al., Case No. CV 85-4544 (C.D. Cal., Jan. 1, 1997), available at https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_settlement_agreement_1.pdf.
2 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,468 (Sept. 7, 2018).
3 See, e.g., U.S. Conference of Catholic Bishops/Migration and Refugee Serv., et al., The Real Alternatives to Detention, JUSTICE FOR IMMIGRANTS, available at https://justiceforimmigrants.org/wp-content/uploads/2017/07/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf (last visited on Sep. 25, 2018).
4 Stipulation Extending Settlement Agreement, Flores v. Reno, Case No. CV 85-4544 (C.D. Cal., Dec. 7, 2001).
6 Settlement Agreement, Flores, supra note 1, ¶¶ 6,19, 23.
7 83 Fed. Reg. at 45,512.
8 Id. at 45,525.
9 Settlement Agreement, Flores, supra note 1, ¶ 6.
10 Order on Motion to Enforce at 12-13, Flores, et al. v. Johnson, et al., cv-85-4544 (C.D. Cal. July 24, 2015); Order on Motion to Enforce at 29, Flores, et al. v. Sessions, et al., cv 85-4544 (C.D. Cal. June 27, 2017) (quoting the July 24, 2015 order).
11 Order Denying Application for Limited Relief, Flores, et al. v. Sessions, et al., cv 85-4544 (C.D. Cal. July 9, 2018).
12 J. M. Linton, et al., Detention of Immigrant Children, 139 PEDIATRICS 1-13 (2017).
13 Id. at 6.
16 Scott Allen, MD & Pamela McPherson, MD, Letter to Senate Whistleblowing Caucus (July 17, 2018), available at https://www.whistleblower.org/sites/default/files/Original%20Docs%20Letter.pdf.
17 Id. at 2.
18 Id. at 4.
19 Id. at 3.
20 ADVISORY COMMITTEE ON FAMILY RESIDENTIAL CENTERS, REPORT OF THE ICE ADVISORY COMMITTEE ON FAMILY RESIDENTIAL CENTERS 2 (OCT. 2016), available at https://www.ice.gov/sites/default/files/documents/Report/2016/acfrc-report-final-102016.pdf.
21 DEP’T OF HOMELAND SECURITY, U.S. IMMIGRATIONS AND CUSTOMS ENFORCEMENT BUDGET OVERVIEW CONGRESSIONAL JUSTIFICATION, FISCAL YEAR 2010, 111 (2018), available at https://www.dhs.gov/sites/default/files/publications/U.S.%20Immigration%20and%20Customs%20Enforcement.pdf
22 Id. at 147.
23 Aria Bendix, ICE Shuts Down Program for Asylum-Seekers, THE ATLANTIC (June 9, 2017), https://www.theatlantic.com/news/archive/2017/06/ice-shuts-down-program-for-asylum-seekers/529887/.
24 This also is assuming that the government could detain a family through the completion of their immigration proceedings.
25 Calculated as $638 per day for a family of two in an FRC ($319 x 2 = $638) and multiplied by the average time to process an individual on the detained docket, 40 days ($638 x 40 = $25,520). For ISAP, calculated as the daily rate for the head of household to be enrolled and multiped by the average time to process an individual on the non-detained docket, 752 days ($4 x 752 = $3,008). Thus, on average, a savings of $22,512 can be estimated if the family is kept on ISAP III as opposed to detaining the parent and child in an FRC. Please note that docket length averages utilized were those supplied by DOJ to the Senate. See Joseph Edlow, Senate Homeland Security and Government Affairs Committee Hearing on “The Implications of the Reinterpretation of the Flores Settlement Agreement for Border Security and Illegal Immigration Incentives” (Sept. 18, 2018), available at https://www.hsgac.senate.gov/hearings/the-implications-of-the-reinterpretation-of-the-flores-settlement-agreement-for-border-security-and-illegal-immigration-incentives (during questioning by Sen. Johnson).
26 Settlement Agreement, Flores, supra note 1, ¶ 6.
27 DEPARTMENT OF HOMELAND SECURITY – OFFICE OF INSPECTOR GENERAL, ICE’S INSPECTIONS AND MONITORING
OF DETENTION FACILITIES DO NOT LEAD TO SUSTAINED COMPLIANCE OR SYSTEMATIC IMPROVEMENTS 4 (2018), available at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
28 Scott Allen, MD & Pamela McPherson, MD, supra note, 16 at 1.
29 83 Fed. Reg. at 45,501.
30 Id. at 45,488.
31 E.g., U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE/DRO RESIDENTIAL STANDARD: DISCIPLINE AND
BEHAVIOR MANAGEMENT 2 (2007), available at https://www.ice.gov/doclib/dro/family-residential/pdf/rs_discipline_and_behavior_management.pdf.
32 “A type of emergency behavior intervention that uses the application of a device to restrict the free movement of all or part of a child’s body in order to control physical activity.” 26 Texas Admin. Code, Part I, Chapter 748, Subchapter B, Division 1, Rule § 748.43(37).
33 26 Texas Admin. Code, Part I, Chapter 748, Subchapter N, Division 1, Rule § 748.2451.
34 26 Texas Admin. Code, Part I, Chapter 748, Subchapter N, Division 7, Rule § 748.2705.
35 Note that ICE’s standards use the general term “restraint,” rather than “mechanical restraint,” even when they are referring to devices that would be considered “mechanical restraints” under the Texas regulations (e.g., handcuffs).
See U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE/DRO RESIDENTIAL STANDARD: USE OF PHYSICAL FORCE AND RESTRAINTS 3 (2007), available at https://www.ice.gov/doclib/dro/family-residential/pdf/rs_use_of_force.pdf.
37 Id. at 10, 3.
38 26 Texas Admin. Code, Part I, Chapter 748, Subchapter N, Division 9, Rule § 748.2801.
39 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, USE OF PHYSICAL FORCE AND RESTRAINTS, supra note 31 at 3.
41 26 Texas Admin. Code Part I, Chapter 748, Subchapter J, Division 7, Rule § 748.1691.
42 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE/DRO RESIDENTIAL STANDARD: FOOD SERVICE 16 (2007), available at https://www.ice.gov/doclib/dro/family-residential/pdf/rs-food-service.pdf.
43 Guidelines for Feeding Healthy Infants, U.S. DEPARTMENT OF AGRICULTURE, https://wicworks.fns.usda.gov/resources/guidelines-feeding-healthy-infants (last visited Sept. 26, 2018).
44 E.g., U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, DISCIPLINE AND BEHAVIOR MANAGEMENT, supra note 31,
45 Settlement Agreement, Flores, supra note 1, ¶¶ 6, 23.
46 See id.
47 83 Fed. Reg. at 45,525.
48 Id. at 45,497 n. 14.
49 55 Pa. Code § 3800.5 (stating a secure care facility is one in which “voluntary egress is prohibited through one of the following mechanisms: (i) Egress from the building, or a portion of the building, is prohibited through internal locks within the building or exterior locks. (ii) Egress from the premises is prohibited through secure fencing around the perimeter of the building.”).
50 2015 Order on Motion to Enforce, Flores, et al. v. Johnson, supra note 10, at 15 (“[E]ven if the Court disregards the conditions in, and the unlicensed status of, the facilities, the facilities are secure, which violates the Agreement’s requirement[s].”).
51 See Settlement Agreement, Flores, supra note 1, ¶ 11.
52 Id. at ¶ 12(B).
54 83 Fed. Reg. at 45,525 (emphasis added); accord id. at 45,529.
55 Id. at 45,496 (emphasis added).
57 Id. at 45,526.
58 Settlement Agreement, Flores, supra note 1, ¶ 12 (“The INS will segregate unaccompanied minors from unrelated adults. Where such segregation is not immediately possible, an unaccompanied minor will not be detained with an unrelated adult for more than 24 hours.”).
59 Order Denying Ex Part Application for Limited Relief at 7, Flores et al. v. Sessions et al., Case No. CV 85-4544 (C.D. Cal. July 9, 2018), available at https://www.aila.org/File/Related/14111359ac.pdf.
60 83 Fed. Reg. at 45,507.
61 During a home study, a community-based case worker assesses the safety and suitability of the proposed caregiver and placement, including the caregiver’s capacity to meet the child’s unique needs, any potential risks of the placement, and the caregiver’s motivation and commitment to care for the child. Home studies result in a recommendation on whether placement with the proposed caregiver is in the child’s best interest.
62 Post-release services include risk assessment and action-planning with families around areas of need and concern, connection to community services, and provision of a referral to legal services. Consequently, these services are not only critical to ensuring a child’s safe placement, but they also mitigate the risk for family breakdown, facilitate community integration, and help the family understand the need to comply with their immigration court proceedings.
63 Children Entering the United States Unaccompanied, OFFICE OF REFUGEE RESETTLEMENT (Aug. 30, 2018), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied.
64 PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, SENATE COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENT AFFAIRS, PROTECTING UNACCOMPANIED ALIEN CHILDREN FROM TRAFFICKING AND OTHER ABUSES 1
(2016), available at
65 Abbie Van Sickle, Overwhelmed Federal Officials Released Immigrant Teens to Traffickers in 2014, THE
WASHINGTON POST (Jan. 26, 2016), https://www.washingtonpost.com/national/failures-in-handling-unaccompanied-migrant-minors-have-led-to-trafficking/2016/01/26/c47de164-c138-11e5-9443-7074c3645405_story.html?utm_term=.d4002785484e.
66 Those that are not specifically required by statute.
67 PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, supra note, 64 at 20.
68 While ORR could try to invoke the “good cause” exception to the Administrative Procedure Act requirements,
this would open the door to litigation. 5 U.S.C. §553(d)(3); MAEVE P. CAREY, CONGRESSIONAL RESEARCH SERVICE, THE FEDERAL RULEMAKING PROCESS 7 (2013), available at https://fas.org/sgp/crs/misc/RL32240.pdf (“A federal agency’s invocation of the good cause exception (or other exceptions to notice and comment procedures) is subject to judicial review.”).
69 In FY 2017, ORR provided family reunification services for less than thirty-two percent of the 42,416 children released from its care – with only 7% of youth receiving home studies. See Facts and Data, OFFICE OF REFUGEE RESETTLEMENT (June 25, 2018), https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
70 In USCCB/MRS’s experience, for example, factors such as a youth being a pregnant or parenting teen should be added to the list necessitating a discretionary home study.
U.S. Bishops’ Office of Migration and Refugee Services and Lutheran Immigration and Refugee Service Release Report on Agencies Assisting Trump Administration with Family Reunification
October 17, 2018
WASHINGTON—The U.S. Conference of Catholic Bishops’ Office of Migration and Refugee Services (USCCB/MRS) and Lutheran Immigration and Refugee Service (LIRS), released its report today, entitled Serving Separated and Reunited Families: Lessons Learned and the Way Forward to Promote Family Unity, which documents the work of Catholic and Lutheran agencies who assisted the Administration with reuniting separated families during the month of July.
Bishop Joe S. Vásquez of Austin, Texas, Chairman of the USCCB Committee on Migration, in a letter of introduction of the report states: “I am proud of the response of USCCB/MRS, LIRS and of our Catholic (in particular CCUSA and the Catholic Charities network) and Lutheran partners around the country, including my brother bishops, to be able to work with the Administration to provide support to these vulnerable families.” He further states: “USCCB/MRS (in collaboration with 75 Catholic Charities agencies) and LIRS continue to provide assistance including helping families comply with their immigration obligations. I believe the recommendations made [in this report] are important and should be seriously considered in order to avoid pain and suffering in the future caused by the separation of families.”
In July 2018, USCCB/MRS and LIRS assisted over 1200 families who were reunified after being separated due to the Administration’s “Zero Tolerance” policy. The report highlights the work that was undertaken by Catholic and Lutheran partners on the ground and gives a unique data point regarding the separated and reunited families.
Resources and information about family separation and the report are available on the Justice for Immigrants website www.justiceforimmigrants.org. Included is a backgrounder on family separation and information about the current release practices of immigrant families at the U.S./Mexico border and their immigration compliance requirements.
The full text of the report can be found here.
Written Statement of
U.S. Conference of Catholic Bishops Migration and Refugee Services
For a Hearing of the
Full Senate Committee on Homeland Security and Government Affairs
“The Implications of the Reinterpretation of the Flores Settlement Agreement for Border Security and Illegal Immigration Incentives”
Tuesday, September 18, 2018 Dirksen Senate Office Building 342
My name is William Canny. I am the Executive Director of the Department of Migration and Refugee Services (MRS) within the U.S. Conference of Catholic Bishops (USCCB). On behalf of USCCB/MRS, I would like to thank the Senate Homeland Security & Governmental Affairs Committee, Chairman Senator Ron Johnson (R-WI), and Ranking Member Senator Claire McCaskill (D-MO) for the opportunity to submit this written statement for the record.
USCCB/MRS has operated programs, working in a public/private partnership with the U.S. government, to help protect unaccompanied children from all over the world for nearly 40 years. Additionally, the Catholic Church in the United States has long worked to support immigrant families who have experienced immigrant detention, providing legal assistance and pastoral accompaniment and visitation within immigrant detention facilities, as well as social assistance upon release. Through this work, we have seen the importance of the protections set forth in the Flores Settlement Agreement of 1997 (Flores),1 and we have worked to help implement and ensure government compliance with these requirements.
In this statement, I give context to what we are seeing as the primary factors leading to forced migration of children and families, share insights from our work serving unaccompanied and accompanied children and their families, and offer recommendations to: (1) address root causes of migration; (2) help ensure that immigrant children and families are protected and treated with dignity; and (3) ensure such children and families are in compliance with their immigration proceedings, while maintaining the existing protections of Flores.
2. Catholic Experience Assisting Immigrant Families and Children in Federal Custody
Since 1994, USCCB/MRS has operated the “Safe Passages” program. This program serves undocumented immigrant children apprehended by the Department of Homeland Security (DHS) and placed in the custody and care of the Office of Refugee Resettlement (ORR), within the Department of Health and Human Services (HHS). Through cooperative agreements with ORR, and in collaboration with community-based social service agencies, the Safe Passages program provides community-based residential care (foster care and small-scale shelter placements) to unaccompanied children in ORR custody, as well as family reunification services (pre-release placement screening and post-release social services for families). In fiscal year 2017, the USCCB/MRS Safe Passages program served 1,294 youth who arrived as unaccompanied children—1,042 through the family reunification program and 252 through the residential care programs.
In addition to providing programming and care for unaccompanied children, the Catholic Church has been a leading service provider for detained immigrant families, as well as a vocal opponent2 against family detention. Immigrant detention, particularly the detention of families and children, is an explicit and long-standing concern of the Catholic Church. Each day, the Church witnesses the baleful effects of immigrant detention in ministry, including pastoral and legal work in prisons and detention centers. Catholic entities serve separated families that struggle to maintain a semblance of normal family life and host support groups for the spouses of detained and deported immigrants. We lament the growth of family detention centers, which undermine families and harm children. We have seen case after case of families who represent no threat or danger, but who are nonetheless treated as criminals and detained for reasons of enforcement. We further view immigrant detention from the perspective of Biblical tradition, which calls us to care for, act justly toward, and identify with persons on the margins of society, including newcomers and imprisoned persons.
Besides advocating for reform of the existing detention system, USCCB/MRS has operated several alternatives to detention programs to assist immigrant families and other vulnerable populations. From 1999 – 2002, INS (Immigration and Naturalization Service), the legacy DHS department, collaborated with Catholic Charities of New Orleans to work with 39 asylum seekers released from detention and 64 “indefinite detainees” who could not be removed from the United States. The court appearance rate for participants was 97%. From January 2014 to March 2015, the USCCB/MRS (in partnership with Immigration and Customs Enforcement (ICE)) ran a community support alternative to detention program through its Catholic Charities partners in Baton Rouge, Louisiana and in Boston, Massachusetts that utilized case management and served individuals who would have not been ordinarily released from detention. The program yielded an over 95% appearance rate and included four family units. Additionally, from 2015-2016, the Catholic Legal Immigration Network (CLINIC) provided direct legal service assistance to families held in the family detention facility in Artesia, New Mexico. CLINIC also currently provides direct legal assistance to families in the South Texas Family Residential Facility in Dilley, Texas through the CARA Pro Bono Project.3
3. Understanding the Root Causes That Are Forcing Children and Families to Flee
U.S. government officials have recently made public statements4 attempting to frame the Flores Settlement Agreement as a pull factor for arriving asylum-seeking families coming to the United States. The reality, however, is that violence and internal displacement continue within the Northern Triangle countries (El Salvador, Guatemala, and Honduras) unabated and that much of the violence is targeted at the vulnerable families and children who are subsequently forced to flee for safety. Through our work on the ground with Catholic partners, we know that entire families, not just children, are currently facing targeted violence and displacement. It is these realities – gang and domestic violence, impunity, and lack of opportunity related to displacement and violence – that cause families to flee north for protection, not awareness of Flores and its legal litigation progeny. Due to conditions in the Northern Triangle, families face forced migration; and, many of these families are truly fleeing persecution. As such, they should not be held in detention facilities but instead be allowed to pursue their asylum claims in a more humane and cost-effective manner. Proposed changes to Flores will erode existing protections for such asylum-seeking children, while ignoring the larger holistic migration issue that must be addressed on a regional level.
The Church in Guatemala, Honduras and El Salvador is experiencing, publicly reflecting on, and responding to the escalation of violence in urban communities, in rural communities, and to family units. In his pastoral letter, “I See Violence and Strife in the City,” Most Reverend José Luis Escobar Alas, Archbishop of San Salvador, stated: “[t]he faithful know that they are being monitored in their comings and goings in the communities. The same applies to pastoral agents who are constantly watched . . . The exodus of families is heartbreaking . . . It is truly unfortunate and painful that the Church cannot work because of this atmosphere of insecurity and anxiety that shakes our beloved country.”5 The Archbishop describes one parish alone that in one year was “exposed to murder, persecution, exodus, and extortion,” including the murder of six active parishioners by stabbing, dismemberment, or firearms.6
The presence of the gangs is widespread and continues to grow. Some studies assert there are 70,000 gang members in El Salvador alone, while others cite lower numbers for El Salvador but up to 22,000 members in Guatemala.7 Extortion is the driving force behind the gang growth and control. It represents a direct cost to businesses of $756 million/year in El Salvador.8 Extortion is considered one of the leading causes of forced displacement of families in gang-controlled communities. In many cases, gang violence directed at a person involves threats to his or her whole family group and breaks down the social fabric of communities, as people are forced to flee with their families.
This targeting of entire families is a relatively newer element in the Northern Triangle and corresponds to the higher numbers of asylum-seeking families that the U.S. has apprehended in the last few years.9 Many Catholic and other civil society NGO service organizations that serve people affected by violence and forced displacement10 have attempted to attend to people who frequently leave their homes against their will to save their own and their families’ lives. Many families initially seek safety in other areas within their home countries. As these families have been victimized to the point of being forced to move and be displaced from their homes, they then often struggle to acclimate to the new communities in which they are living. Facing hardships relating to finding employment and securing safety (given the widespread gang networks), families begin to feel increasingly desperate to migrate to find safe and secure living conditions. As such they begin to look to leave their home countries and migrate internationally in search of protection. This was the case for Reyna11 and her family:
Reyna and her two daughters lived in El Salvador in a neighborhood that was contested gang territory. The dangers of the area were evidenced by the murders of her children’s fathers. Reyna lived near a house that gang members would bring women they kidnapped. One evening, eight gang members came and informed Reyna that she knew too much about the gang’s involvement; they informed her that she must join the gang as a girlfriend or be killed. Reyna and her daughters fled her community and moved to another town in El Salvador. For a short time, Reyna was able to prosper, but the gangs quickly found her. This time, they threatened her and demand that both she and her daughter join the gang as girlfriends. Reyna fled north immediately with no possessions. Reyna was detained at the South Texas Family Residential Facility in Dilley, Texas, in 2016 with her two daughters. She was assisted by the CARA Pro Bono Project and passed her credible fear interview and was subsequently released from family detention. She is currently applying for asylum.
Reyna and her family have experienced extreme trauma with mental health consequences. When interviewed about her experience, Reyna, like many asylum-seeking parents who make the dangerous journey with their children, spoke of the desire to stay in El Salvador, her efforts to relocate prior to migrating north, and her desire to find safety and protection for her daughters.
Amending the Flores Settlement Agreement will not stop mothers like Reyna from coming and seeking protection in the United States. Rather, it will ensure that more families like Reyna and her daughters experience the long-lasting consequences of prolonged detention.
4. Altering Flores to Expand Family Detention Would Harm Both Children and Taxpayers
The Flores Settlement Agreement was the result of over a decade of litigation. Flores sets forth foundational principles and critical protections regarding the care, custody, and release of immigrant children – both accompanied and unaccompanied – who are in federal custody.12 The agreement, which the federal government voluntarily entered into, requires (in part) that: facilities provide children in their custody with access to sanitary and temperature-controlled conditions, water, food, medical assistance, ventilation, adequate supervision, and contact with family members;13 facilities ensure that children are not held with unrelated adults;14 the government release children from detention without unnecessary delay to parents or other approved sponsors;15 and if a child cannot be released from care, the child be placed in the “least restrictive” setting appropriate, based on his or her age and needs.16 As it relates to the custody of children, Flores also mandates that the government typically transfer immigrant children to facilities that are licensed by the state for childcare.17
The three family detention facilities – Karnes County Residential Center, Berks Family Residential Center, and South Texas Family Residential Center – currently operate a combined 3,326 beds.18 These facilities are not licensed for childcare in their respective states and, as such, fail to meet basic child welfare requirements set forth in Flores. Further, because the family detention centers are unlicensed, the federal government is limited in the amount of time it can detain an accompanied child in these facilities. The District Court for the Central District of California has previously allowed that during times of influx or emergency, the government may detain children in unlicensed facilities for a period of 20 days and still meet its obligations under Flores;19 however, in its latest petition to the court, the government sought to detain children in unlicensed facilities indefinitely.20 The court rejected this request.21 Nevertheless, the Administration continues to suggest that amending this requirement is necessary.22
Proposals such as these are deeply troubling and would have severe implications for accompanied children, their families, and the U.S. taxpayer. If Flores is amended or limited, many of the accompanied children entering the country with their parents would face the possibility of being forced to remain in detention through the duration of their immigration proceedings. Such changes would allow these children to be held for periods longer than 20 days and in detention facilities that are not licensed to care for them. Licensing requirements are vital to ensure that facilities meet basic child welfare standards and children are protected from abuse. Further, holding children in family detention has been proven to have long-lasting negative consequences. For instance, the American Academy of Pediatrics has reported that detained children experience developmental delay, poor psychological adjustment, post-traumatic stress disorder, anxiety, depression, suicidal ideation, and other behavioral problems. Even brief stints in detention can lead to psychological trauma and lasting mental health risks.23
Additionally, detaining families that do not present a flight or safety risk is an unnecessary use of limited DHS resources. Costs in FY 2019 are anticipated to be $319 per individual/per day for those in family detention.24 In comparison, alternative programs such as the Family Case Management Program cost only $36 per individual/per day and had a 99% compliance rate.25 Proposals to alter Flores consistently ignore the fact that DHS has a spectrum of humane, proven, and cost-effective alternatives to detention that it can utilize (and is utilizing in some cases) to monitor released families.
5. Recommendations to Maintain Existing Flores Protection While Ensuring Humane Enforcement
In light of these concerns and vulnerabilities, we recommend the following ways in which we can provide humane care to immigrant children and families in accordance with Flores and still ensure compliance with our immigration laws and fairness to U.S. taxpayers:
- Invest Robustly in a Variety of Alternatives to Detention. Congress should more robustly fund alternatives to detention in the DHS budget. Congress should also ensure that DHS is working to undertake and pilot diverse alternatives to detention programming – in the form of the Intensive Supervision Appearance Program (ISAP) as well as alternatives to detention programming that utilize case management and, in some cases, NGO civil society participation. Congress should instruct DHS to publicly report on the outcomes of these programs and ensure that a continual pilot period is undertaken to secure transparent and viable data on the effectiveness of such programs.
- Create Greater Capacity for Effectuating Legal Outcomes for Asylum-Seeking Families. Congress should further invest in augmenting the capacity of the immigration courts by hiring more judges and providing additional funding for new courtroom facilities. Additionally, Congress should ensure robust funding for legal information programs such as the Legal Orientation Program and the Information Help Desk, which do not fund immigration counsel but help provide information to detained and released immigrants to ensure they know more about compliance requirements.
- Address Root Causes of Migration with Trauma-Informed Responses. More interdisciplinary programming and funding needs to be implemented to address root causes of migration in the Northern Triangle. Programming must address the actual social service needs of vulnerable children and families who are currently in forced migration situations. Special consideration should be given to funding initiatives like safe repatriation services, home country needs assessments and referrals, and aid that strengthens educational and work opportunities.
- Maintain Existing Protections for Unaccompanied and Accompanied Children. Given the long- lasting physical and mental consequences of detention on children, proposals seeking to alter existing safeguards relating to such detention must be firmly rejected. Immigrant children should be viewed as children first and foremost.
- Augment Existing Trafficking Training and Prevention Tools to Ensure Customs and Border Protection (CBP) Can Adequately Screen and Identify Trafficking Situations. To the extent there are concerns about traffickers using children to enter the U.S. and avoid detention, Congress should ensure that appropriate funding and resources are dedicated to the training of CBP officers on this topic. In particular, CBP should utilize NGOs with experience and expertise in anti-trafficking in their training efforts.
As always, USCCB/MRS stands ready to offer our assistance to Congress and the Administration to address the root causes of forced migration and ensure families are treated with dignity but also understand and comply with their immigration requirements.
Settlement Agreement, Flores v. Reno, Case No. CV 85-4544-RJK (C.D. CA, 1997), available at
2 The Catholic Bishops addressed immigrant detention explicitly in Responsibility Rehabilitation and Restoration, A
Catholic Perspective on Crime and Criminal Justice, stating: “We bishops have a long history of supporting the rights of immigrants. The special circumstance of immigrants in detention centers is of particular concern. [The government] uses a variety of methods to detain immigrants some of them clearly inappropriate.” USCCB, Responsibility Rehabilitation and Restoration: A Catholic Perspective on Crime and Criminal Justice (Nov. 15, 2000), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/criminal-justice-restorative- justice/crime-and-criminal-justice.cfm Additionally, Bishop Eusebio Elizondo, then-Chairman of the U.S. Conference of Catholic Bishops’ Committee on Migration, wrote to Department of Homeland Security (DHS) Secretary Jeh Johnson in 2015 opposing family detention, declaring that “it is inhumane to house young mothers with children in restrictive detention facilities as if they are criminals.” USCCB Chairman Decries Opening of Family Detention Center in Dilley, Texas, Proposes More Humane Alternatives to Detention for Vulnerable Families, USCCB (December 16,2004), http://www.usccb.org/news/2014/14-201.cfm
3 The CARA Pro Bono Project is a joint effort by the American Immigration Lawyers Association, American
Immigration Council, Catholic Legal Immigration Network, and RAICES. It operates out of the South Texas Family
Residential Facility in Dilley Texas, assisting with direct immigration services since 2015.
4 In its September 12, 2018 statement on the August U.S. Mexico Border numbers, DHS states: “Smugglers and
traffickers understand our broken immigration laws better than most and know that if a family unit illegally enters the U.S. they are likely to be released into the interior. Specifically, DHS is required to release families entering the country illegally within 20 days of apprehension.” Statement of DHS Press Secretary on August Border Numbers, DEPARTMENT OF HOMELAND SECURITY (September 12, 2018), https://www.dhs.gov/news/2018/09/12/statement-dhs-press-secretary- august-border-numbers
5 Most Reverend Jose Luis Escobar Alas, I See Violence and Strife in the City: A Pastoral Letter on the Occasion of the
Feast of the Beloved Blessed Oscar Romero, 18 (March 24, 2016).
6 Id. at 15.
7 INTERNATIONAL CRISIS GROUP, MAFIA OF THE POOR: GANG VIOLENCE AND EXTORTION IN CENTRAL AMERICA 17 (2017), available at
https://d2071andvip0wj.cloudfront.net/062-mafia-of-the-poor_0.pdf ; United Nations Office of Drugs and Crime
(UNODC)Transnational Organized Crime in Central America and the Caribbean, a threat assessment”, 2012.
9 See, e.g., United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children
Apprehensions Statement on Fiscal Year 2013- 2016, CUSTOMS AND BORDER PROTECTION (Oct. 18, 2016),
10 The issue of forced internal displacement is especially troublesome in El Salvador and Honduras. In 2016, El
Salvador was second in the world in terms of the number of new displacements relative to population size, exceeding countries such as Libya, South Sudan, and Afghanistan. There are an estimated 220,000-400,000 internally displaced persons (IDPs) in El Salvador, many displaced by violence but not officially recognized by the government. The Salvadoran government’s inability to publicly acknowledge the issue of IDPs who are displaced due to violence prevents larger measures to address protection frameworks from being implemented to assist with this migration phenomenon. In Honduras, UNHCR estimates that there are 174,000 IDPs. A recent study estimates that from 2004 -2014, approximately 41,000 households within 20 municipalities were internally displaced because of violence or insecurity. INTERNAL DISPLACEMENT MONITORING CENTRE, 2016 GLOBAL REPORT INTERNAL DISPLACEMENT IN 2016 (2017), available at http://internal-displacement.org/global-report/grid2017/ ; UNHCR HONDURAS FACT SHEET (March 2017), available at http://reporting.unhcr.org/sites/default/files/UNHCR%20Honduras%20Fact%20Sheet%20-%20March%202017.pdf ; INTERINSTITUTIONAL COMMISSION FOR PROTECTION OF DISPLACED PEOPLE DUE TO VIOLENCE, CHARACTERIZATION OF INTERNAL DISPLACEMENT IN HONDURAS 12 (2015).
11 Name and identifying information changed to protect client confidentiality.
12 When the U.S. government began detaining family units together in 2014, the U.S. District Court for the CentralDistrict of California ruled that “accompanied” children were also protected under the principles of Flores, including those who were being held in family detention facilities. The Ninth Circuit Court affirmed this decision in 2016.
13 Flores, supra note 1, at 7-8.
14 Id. at 8.
15 Id. at 6.
16 Id. at 4.
17 Id. at 5-6.
18 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg.
45,486, 45,512 (Sept. 7, 2018).
19 Jenny L. Flores, et al. v. Jefferson B. Sessions, III, et al., Case No. CV 85-4544, Dkt. No. 363, 30-31 (C.D. Cal. June 27,
2017), available at https://www.aila.org/File/Related/14111359v.pdf .
20 Jenny L. Flores, et al. v. Jefferson B. Sessions, III, et al., Case No. CV 85-4544, Dkt. No. 455, 3-4 (C.D. Cal. July 9,
2018), available at https://www.aila.org/File/Related/14111359ac.pdf .
21 Id. at 7.
22 83 Fed. Reg. at 45,494.
23 JULIE M. LINTON, ET AL., AMERICAN ACADEMY OF PEDIATRICS, DETENTION OF IMMIGRANT CHILDREN 6 (2017), available at
USCCB Testimony For a Hearing of the Senate Committee on Homeland Security and Government Affairs Permanent Subcommittee on Investigations
Written Statement of
Mr. Bill Canny Executive Director
U.S. Conference of Catholic Bishops Migration and Refugee Services
For a Hearing of the Senate Committee on Homeland Security and Government Affairs Permanent Subcommittee on Investigations
“Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse”
My name is Bill Canny. I am the Executive Director of the Department of Migration and Refugee Services (MRS) within the U.S. Conference of Catholic Bishops (USCCB). On behalf of USCCB/MRS, I would like to thank the Senate Homeland Security & Government Affairs, Permanent Subcommittee on Investigations, as well as the Subcommittee Chair Senator Ron Johnson (R-WI) and Ranking Member Senator Claire McCaskill (D-MO) for the opportunity to submit this written statement for the record.
The care of unaccompanied immigrant children is of great importance to the Catholic Church. USCCB/MRS has operated programs, working in a public/private partnership with the U.S. government, to help protect unaccompanied children from all over the world for nearly 40 years and trafficking victims for more than 10 years. In this statement, I share insights from our work serving these children and their families and offer recommendations to help ensure that unaccompanied children are protected from situations of abuse and human trafficking.
U.S. Conference of Catholic Bishops & Catholic Social Teaching
The Catholic Church in the United States has played a critical role in the care of unaccompanied children and prevention of human trafficking, and USCCB/MRS has been a leader in the protection of and advocacy for unaccompanied children and human trafficking survivors. Our work assisting unaccompanied children is rooted in the belief that they, like all God’s children, were created in His image and have a unique and sacred human dignity.
Since 1994, USCCB/MRS has operated the “Safe Passages” program. This program serves undocumented immigrant children apprehended by the Department of Homeland Security (DHS) and placed in the custody and care of the Office of Refugee Resettlement (ORR), within the Department of Health and Human Services (HHS). Through cooperative agreements with ORR, and in collaboration with community-based social service agencies, the Safe Passages program provides community-based residential care (foster care and small-scale shelter placements) to unaccompanied children in ORR custody, as well as family reunification services (pre-release placement screening and post-release social services for families). In fiscal year 2017, the USCCB/MRS Safe Passages program served 1,294 youth who arrived as unaccompanied children—1,042 through the family reunification program and 252 through the residential care programs.
In collaboration with HHS and the Department of Justice, and through private programming, USCCB/MRS also provides critical case-management, employment services, and victim identification training to help prevent human trafficking and to assist those victimized by it, including unaccompanied children. As Catholics, we believe that such work and efforts to combat human trafficking are, as Pope Francis has aptly stated, “a moral imperative.”1
Preventing Abuse and Trafficking of Unaccompanied Children
Once an unaccompanied child arrives at our border, we have a moral obligation to ensure his or her safety and wellbeing. As Pope Francis has said: “Among migrants, children constitute the most vulnerable group, because as they face the life ahead of them, they are invisible and voiceless.”2
a. The Importance of Family Reunification Services
Facilitating release of unaccompanied children to family or “sponsors” pending their immigration removal proceedings is both a humane and fiscally-sound policy. Not only is reunification with family typically in a child’s best interest, but maintaining children in government custody is incredibly costly.3 It is vital, however, to ensure that families are supported and connected to community resources, that they understand their legal obligations, and, most importantly, that children are not released to unsafe situations.
As a social service provider, we have seen that unaccompanied children are particularly vulnerable to human trafficking, domestic servitude, and other exploitative situations. In the case of children in a forced migration context, prior victimization in their home country or during their journey to the United States, debts incurred for smuggling or transit fees, and their undocumented status are all characteristics that put them at heightened risk and make them easy prey for traffickers and others with ill intent.
Family reunification services – home studies and post-release services – are therefore vital to promote safe placements of children in appropriate environments. During a home study, a community-based case worker assesses the safety and suitability of the proposed caregiver and placement, including the caregiver’s capacity to meet the child’s unique needs, any potential risks of the placement, and the caregiver’s motivation and commitment to care for the child. Home studies result in a recommendation on whether placement with the proposed caregiver is in the child’s best interest. Post-release services (PRS) include risk assessment and action-planning with families around areas of need and concern, connection to community services, and referral to legal services. Consequently, these services are not only critical to ensuring a child’s safe placement, but they also mitigate the risk for family breakdown, facilitate community integration, and help the family understand the need to comply with their immigration court proceedings.
While some recent improvements have been made to address the gaps in adequate family reunification services, the vast majority of unaccompanied children released from ORR care do not receive these important services. In fact, in FY 2017, ORR provided family reunification services for less than thirty-two percent of the 42,416 children released from its care – with only seven percent of youth receiving home studies.
Unfortunately, we know that the limited use of these services has resulted in children being released to unsafe placements, including situations of abuse and trafficking, and left without vital services for which they qualify under law. These are children like Raul,4 a teenager from Central America who suffered severe abuse in his home country. Raul’s uncle “sold” his sisters and physically abused Raul. Raul has scars all over his body from the severe abuse, but Raul fears telling his sponsor (who is his biological father) because his uncle threatened his mother’s life if anyone learned of the situation. As a result of this trauma, Raul is now wetting the bed, having nightmares, and constantly fears for his mother’s safety. Despite this past abuse and clear need for family reunification services, including counseling services, Raul was released from ORR care without a home study or post-release services. USCCB/MRS was alerted to this case by Raul’s legal counsel.
b. The Unintended Risks of Information Sharing
In addition to the underutilization of these valuable family reunification tools, we also believe that certain elements of well-intentioned policy changes regarding information-sharing of sponsors may put children at increased risk. In May 2018, ORR and the Department of Homeland Security (DHS) offices of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) entered into a Memorandum of Agreement (MOA) mandating continuous information-sharing on unaccompanied immigrant children beginning when CBP or ICE takes the children into custody through their release from ORR custody.5 This includes information sharing on the children’s potential sponsors, as well as anyone else living with the sponsors. One intent of such information sharing is to improve sponsor vetting and ensure safe placement of children, which we greatly appreciate and consider to be beneficial.
We are concerned, however, that the MOA may have severe unintended consequences in terms children’s increased length of stay in ORR custody and the increased possibility of risk for abuse or trafficking. We are troubled over the possibility of these unintended consequences because the MOA fails to place any limitations on the use a sponsor’s data by ICE and CBP. Without any limitations on and sufficient communication about the use of such data, family reunifications, the fundamental principle of child welfare, may likely be undermined by turning safe placement screening into a mechanism for immigration enforcement or, in the least, may be perceived by the immigrant community as such. It is anticipated that the MOA, as written, may accelerate not only the decline in releases to parents, but also releases overall, leading to longer and costly stays in ORR custody. USCCB/MRS is also highly concerned that, given the MOA, undocumented family members may fear coming forward to sponsor their children, instead seeking – or even paying – documented individuals in the community to come forward and claim to be a child’s sponsor. This type of arrangement will put unaccompanied children and their families at increased risk of exploitation and trafficking by the third-party.
In light of these concerns and vulnerabilities, we recommend the following ways in which the important child protection and human trafficking prevention work of ORR can be strengthened:
* Clearly Designate Responsibilities of ORR After Release. Congress should pass legislation to ensure that ORR is clearly authorized to provide for the care of children even after their release to a sponsor. Unfortunately, USCCB/MRS has witnessed instances in which a sponsor placement breaks down but Children’s Protective Services (CPS) is unwilling to get involved and take custody of the child. In some of these instances, it has also been difficult to get ORR to resume care for the child.
We appreciate Senator Portman’s attention to this issue and the efforts of all the offices engaged in bipartisan discussions to try to find a solution. We also welcomed the willingness of Senate offices to engage providers like USCCB/MRS in the conversation. We look forward to seeing what comes out of these discussions.
* Increase Funding for Family Reunification Services. In accordance with domestic child welfare best practices, Congress should urge ORR to increase the number unaccompanied children and families receiving family reunification services. As noted above, expanded family reunification services would increase protection for these children, allow them to be linked to local resources, provide education on immigration court requirements, and also provide monitoring of the child’s safety and wellbeing – promoting the overall safety of our communities. We note that such programming should focus on strengthening the family to best promote long-term placement stability and integration.
* Work to Identify Additional Risk Factors for Children. We appreciate the steps ORR took in 2016 to designate additional risk factors warranting “discretionary” home studies (those not mandated by law). We encourage ORR, however, to regularly engage with providers to evaluate new and additional risk factors that could help to indicate concerns with placement of unaccompanied children. These factors, such as a youth being a pregnant or parenting teen, should be added to the list necessitating a discretionary home study.
* Ensure Flexibility to Respond to Newly Identified Needs. Children who are receiving PRS-only services, (those who generally do not get home studies), typically receive services for a shorter period of time than those children for whom family reunification services (PRS and a home study) are required by law. In some instances, we have seen children appropriately being designated to receive PRS-only services, only for the provider to later discover concerns that would have warranted legally mandated family reunification services (PRS and home study). In our experience, ORR has not allowed these children to be re-designated to receive the lengthier services.
ORR must ensure that that the system maintains flexibility to address such situations. When risk factors are identified by service providers, it should allow for re-designation the child for legally- mandated PRS, even after release, so that the child can receive services through the pendency of his or her immigration court proceedings.
* Limit Use of Sponsor Information to Prevent Trafficking Risk. Congress should encourage DHS leadership, through rulemaking or policy memoranda, to limit the ability of information obtained pursuant to the MOA to be used for enforcement purposes absent extenuating circumstances (such as those individuals who are national security threats or have felony convictions which present a public safety concern).
How we respond to the children arriving at our border is a test of our moral character. In the words of Pope Francis, we must “not tire of courageously living the Gospel, which calls you to recognize and welcome the Lord Jesus among the smallest and most vulnerable.”6 As always, USCCB/MRS stands ready to offer our assistance to Congress, DHS, and HHS/ORR to strengthen protections for unaccompanied children and to help prevent and mitigate situations of human trafficking, abuse, and neglect.
1 Pope Francis, Address to Participants in the International Forum on Migration and Peace (February 2017), available at http://w2.vatican.va/content/francesco/en/speeches/2017/february/documents/papa- francesco_20170221_forum-migrazioni-pace.html.
2 Pope Francis, 2017 World Day of Migrants and Refugees Message (September 8, 2016), available at https://w2.vatican.va/content/francesco/en/messages/migration/documents/papa-francesco_20160908_world- migrants-day-2017.html.
3 GOVERNMENT ACCOUNTABILITY OFFICE, UNACCOMPANIED ALIEN CHILDREN: ACTIONS NEEDED TO ENSURE CHILDREN RECEIVE REQUIRED CARE IN DHS CUSTODY 66 (JULY 2015), available at https://www.gao.gov/assets/680/671393.pdf (estimating that the average cost to the taxpayer to keep an unaccompanied child in an ORR shelter is $248 per day).
4 Identifying information changed to protect child’s confidentiality.
5 See UCCB/MRS et al., ORR and DHS Information-Sharing Agreement: The Unintended Consequences, https://justiceforimmigrants.org/wp-content/uploads/2018/06/MOA-Backgrounder-Final.pdf (last visited Aug. 10, 2018).
6 Pope Francis, 2017 World Day of Migrants and Refugees Message, supra note 2.
USCCB Chairman of Committee on Migration Letter to Congress with Concerns on Two Immigration Bills Before Congress
June 18, 2018
I write on behalf of the U.S. Conference of Catholic Bishops’ Committee on Migration (USCCB/COM) concerning the two pending immigration bills that may be brought to the House floor this week.
For over 18 years, the Catholic Church has urged Congress to put forth and pass a common sense and just legislative solution for Dreamers, young people who were brought to the U.S. by their parents. We believe that any such legislative solution must: (1) be bipartisan, (2) provide Dreamers with a path to citizenship, (3) be pro-family, (4) protect the vulnerable; and (5) be respectful of human dignity with regard to border security and enforcement.
While my brother bishops and I appreciate your good faith effort to find a legislative solution for Dreamers by bringing immigration measures before the full House of Representatives, these two bills contain a number of provisions that cause us serious concern. As the USCCB/COM has written regarding our opposition to H.R. 4760 in the past, I turn to the second, yet-to-be-numbered alternative immigration bill that also may soon be before you. As written, this bill contains several provisions that run contrary to our Catholic social teaching. Specifically, it would:
- undermine asylum protections by significantly raising the hurdle applicants face during the “Credible Fear” review;
- lead to increases in child and family detention through the proposed changes to the Flores Settlement;
- eliminate protection for unaccompanied minors through the proposed changes to the Trafficking Victims Protection Reauthorization Act (TVPRA);
- includes part of the DACA-eligible population but does not include same population eligible in the USA Act and the Dream Act;
- make sweeping cuts to family-based immigration; and
- unilaterally implement a safe third country agreement without a bilateral or multilateral treaty or agreement.
Lastly, it is important to note that the bill would not end the practice of separating families at the U.S./Mexico border, which could be ended by the Administration at its discretion at any point. Instead, (as mentioned above) this bill would increase the number of children and families in detention, which is not acceptable.
While we truly want a legislative solution for Dreamers, we cannot, in good faith, endorse large structural changes to the immigration system that detrimentally impact families and the vulnerable, such as those that are contained in this legislation. The Catholic Church’s work in assisting these vulnerable migrants stems from the belief that every person is created in God’s image and should be treated with compassion and dignity.
We respectfully urge you to reject H.R. 4760. With respect to the alternative immigration bill that has been put forward, we ask for timely consideration of our concerns mentioned above, particularly the cuts to family-based immigration, as well as the harmful changes to the asylum system and existing protections for unaccompanied children. Without such changes to these measures, we would be compelled to oppose it.
We ask for a truly bipartisan effort to achieve a legislative solution for Dreamers that will protect them, keep our borders safe, and not harm families or the vulnerable. We remain committed to working with Congress to find such a solution.
Wishing you God’s blessings in your work on these critical issues, I am
Sincerely in Christ,
Most Reverend Joe S. Vásquez
Bishop of Austin
Chairman, USCCB Committee on Migration
Written Testimony of Most Reverend Joe S. Vásquez, Bishop of Austin, Chairman, U.S. Conference of Catholic Bishops Committee on Migration, Regarding The Prevention of Trafficking and Abuse of Unaccompanied Children For a Hearing of the Senate Committee on the Judiciary, Subcommittee on Border Security and Immigration
My name is Bishop Joe Vásquez. I am the Catholic Bishop of the Diocese of Austin, Texas and the Chairman of the U.S. Conference of Catholic Bishops’ (USCCB) Committee on Migration. The Committee on Migration oversees the work of the Department of Migration and Refugee Services (MRS) within the USCCB. On behalf of the USCCB/MRS, I would like to thank the Senate Committee on the Judiciary, Subcommittee on Border Security and Immigration, as well as Subcommittee Chair Senator John Cornyn (R-TX) and Ranking Member Senator Dick Durbin (D-IL), for the opportunity to submit this written statement for the record.
The care of unaccompanied children fleeing violence in Central America is of great importance to the Catholic Church. In this testimony, I highlight the need for existing protections for unaccompanied children to combat human trafficking and also to ensure safe placement and strong integration into communities. I also offer a few key recommendations for improved care of these children and for increased protection against trafficking and exploitation.
U.S. Conference of Catholic Bishops & Catholic Social Teaching
While the Catholic Church recognizes governments’ right to control their borders and enforce immigration laws, we also hold a strong pastoral interest in the welfare and humane treatment of unaccompanied immigrant children. The protection of immigrant children is an especially important issue for the Catholic Church, as one of Jesus’ first experiences as an infant was to flee for his life from King Herod with his family to Egypt. Indeed, Jesus, Himself, was a child migrant fleeing violence, and the Holy Family is the archetype of the refugee families we see today, both at our borders and around the world. The Holy Family faced the same difficult migration circumstance as thousands of children fleeing to the United States each year.
The Catholic Church in the United States has played a critical role in the care of unaccompanied children, and the USCCB/MRS has been a leader in the protection of and advocacy for this vulnerable population. Since 1994, the USCCB/MRS has operated the “Safe Passages” program. This program serves undocumented immigrant children apprehended by the Department of Homeland Security (DHS) and placed in the custody and care of the Office of Refugee Resettlement (ORR), within the Department of Health and Human Services (HHS).
Through cooperative agreements with ORR, and in collaboration with community-based social service agencies, the Safe Passages program provides community-based residential care (foster care and small group home placements) to unaccompanied children in ORR custody, as well as family reunification services (pre-release placement screening and post-release social services for families). In fiscal year 2017, the USCCB/MRS Safe Passages program served 1,294 youth who arrived as unaccompanied children—1,042 through the family reunification program and 252 through the residential care programs.
Our work assisting these children is rooted in the belief that they, like all God’s children, were created in His image and have a unique and sacred dignity.
The Northern Triangle – A Refugee Crisis
We know from the extensive presence of the Catholic Church in El Salvador, Guatemala, and Honduras (the Northern Triangle of Central America) and from over three decades serving this population that these children are fleeing for their lives. Violence in the home and at the community and state level is a primary factor forcing children to leave the Northern Triangle. As a result, many of these children present extreme international protection concerns. Given their vulnerability, they deserve and need our protection and our compassion.
In our years of service, we have seen firsthand the human consequences of violence and impunity in the Northern Triangle. We urge you to look beyond statistics and rhetoric and see that these are children. Children such as:
- Karen, a young teen from El Salvador who began to be tormented by the MS-13 gang after winning a beauty pageant in her small town. The gang started by trailing Karen and her younger sister on their way home from school. The situation quickly escalated, however, and the gang demanded $10,000 from Karen’s family, saying that they would murder both girls if the fee was not paid. The girls fled for their lives, unaccompanied and seeking protection in the U.S. Karen quickly learned English, excelled in her studies, and was granted asylum in 2017. She recently won a scholarship and looks forward to attending college and working towards her dream of becoming a pediatrician. “I want people to be proud of me, to see all I’m trying to do,” she explained. “People think we are bad people. . . We don’t come because we want to come; we come because of conflicts so we can survive. We want to make things better, not give problems.”1
- Manuel and Lucas, 9- and 11-year-old brothers from Honduras. The boys’ father was a local police officer who was working to combat gang violence in the community. When he was murdered by gang members, his mother fled to the U.S. and left the boys with their grandmother. Unfortunately, the boys were also forced to flee when the gang found them and murdered their grandmother. Arriving to the U.S. unaccompanied, they were transferred to the custody of ORR and eventually reunited with their mother. USCCB/MRS provided the family with vital family reunification services – assisting with school enrollment, providing education on the immigration court process, linking the family to legal counsel, and connecting the boys with counseling services to address their past trauma. Manuel and Lucas ultimately won their asylum cases and are adjusting well to their new community. 2
The trauma and persecution these children faced in their home countries highlights the Northern Triangle governments’ inability to adequately protect children due to corrupt or inadequate law enforcement and legal systems, as well as limited social welfare and child protection infrastructure.
In a time when the immigration debate has become increasingly polarized, it is easy to focus on statistics and fears, rather than faces and stories. But as the stories above clearly illustrate, these children are refugees.
Preventing Persecution and Trafficking of Unaccompanied Children
Once an unaccompanied child arrives at our border, we have a moral obligation to ensure his or her safety and wellbeing. As Pope Francis has said: “Among migrants, children constitute the most vulnerable group, because as they face the life ahead of them, they are invisible and voiceless.”3 Unaccompanied children are particularly vulnerable to human trafficking, domestic servitude, and other exploitative situations – in part, like any child, due to their age and inherent desire to trust and please adults. In the case of children in a forced migration context, prior victimization in their home country or during their journey to the United States, debts incurred for smuggling fees, and their undocumented status are all characteristics that put them at heightened risk and make them easy prey for traffickers and others with ill intent.
Recognizing these unique vulnerabilities to trafficking and exploitation, Congress passed critical protections for unaccompanied children in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. Under the TVPRA, transfer of apprehended unaccompanied children from non-contiguous countries (e.g., Honduras, Guatemala, and El Salvador) to ORR is required within 72 hours.4 These children are subsequently placed into immigration court proceedings. This automatic transfer, which has come under recent attack, is a vital safeguard to ensure that persecuted and trafficked children are afforded a meaningful chance at protection.
For children who are not afforded this automatic referral (i.e., children from Mexico and Canada), screening by Customs and Border Protection (CBP) for trafficking and protection concerns is currently inadequate and leaves many children vulnerable to trafficking and exploitation. In its 2015 report, the Government Accountability Office (GAO) found that 95% of Mexican unaccompanied children from fiscal years 2009-2014 were returned to Mexico, despite frequent indicators of trafficking or fear of return.5 The GAO report also found that CBP often did not correctly apply trafficking indicators, did not routinely ask follow-up questions to rule out all trafficking concerns, and did not ask questions pertaining to the risk of trafficking upon return to Mexico.6
We greatly respect the work of CBP agents and recognize their contributions to defend our borders and make us safe. However, they are law enforcement officers – not trained asylum officers or child welfare experts. The protections codified in the TVPRA are needed to ensure that child trafficking is identified and addressed. Consequently, rolling back TVPRA protections would undoubtedly lead to increased numbers of children being returned to the hands of their traffickers and abusers.
Ensuring Safe Placements & Promoting Community Integration
Facilitating release of unaccompanied children to family or “sponsors” pending their immigration removal proceedings is a humane and fiscally-sound policy. In addition to the moral and humanitarian concerns, detention of children is incredibly costly and an unnecessary use of government resources.7 It is vital, however, to ensure that children are not released to unsafe situations, that families are supported and connected to community resources, and that they understand the need to appear for their immigration court proceedings.
Family reunification services promote safe placements and facilitate family and community integration after reunification. These services include screening of placements prior to the release of children to relatives or family friends pending their immigration proceedings (“home studies”), as well as support to families after unaccompanied children are released from ORR custody (“post-release services”). While home studies and post-release services are valuable tools, we believe them to be under-utilized. We commend ORR’s recent efforts to increase post-release services but note that all family reunification services should be expanded and provided to a much greater number of children.
The limited use of these services has resulted in children being released to situations of abuse, abandonment, neglect, and trafficking. These are youth like Juan,8 who was released without services to his half-uncle in Florida. Shortly after his reunification, Juan’s uncle withdrew him from school and sent him to work in the fields with his two cousins (who had not been in the care of ORR). This forced labor continued until Juan’s cousin was injured and brought to the Emergency Room, where the injury raised abuse concerns. Child Protective Services investigated the situation and removed the children from the home, placing the children in state custody. From our work, we know that Juan’s story is more common than we think. We cannot let this happen to children.
To ensure that child trafficking is identified, we look to robust protection measures. Family reunification services, providing a connection to a child welfare professional trained to identify and respond to any such indicators, are one such measure that put children at a decreased risk of trafficking and exploitation. Additionally, with these short-term case management services and monitoring by child welfare professionals, it is more likely that children will appear at their immigration proceedings, enroll in school, and integrate into their communities — mitigating risk for future entry into the public child welfare system.
We must ensure that all children – regardless of their immigration status – are offered safety, support, and care in the United States.
- Address Root Causes of Migration. Congress should ensure robust appropriation of funds to address the root causes of forced migration from Northern Triangle countries. Such funding should support the efforts of Northern Triangle countries to strengthen their humanitarian and child protection responses, to include developing and improving education and child welfare systems, increasing opportunities for youth development, and providing safe spaces and alternatives to gang entry and migration. An example of programming that achieves these goals is the Catholic Relief Services “YouthBuilders” initiatives in Honduras and El Salvador. Government assistance must not solely be focused on enforcement but on strengthening protection systems and communities. We must address these issues to help ensure that children are not forced to make the dangerous journey north.
- Maintain Existing Protections for Children. In order to continue to fight human trafficking, which Pope Francis has rightly deemed “a crime against humanity,” we must safeguard our existing anti-trafficking protections. The TVPRA, including the automatic referral system for children from non-contiguous countries, is vital to ensuring that unaccompanied children are not returned to persecution or trafficking. Proposals to undermine or eliminate these existing safeguards are inhumane, run counter to basic child protection principles, and should be firmly rejected.
- Ensure Safe Placements and Facilitate Community Integration. In accordance with domestic child welfare best practices, Congress should urge ORR to increase the number unaccompanied children and families receiving family reunification services. While we were pleased to see the rates of post-release services improve slightly last fiscal year, ORR still provides family reunification services for less than thirty-two percent of children released from its care (with only seven percent of these children receiving home studies). Expanded family reunification services would increase protection for these children and allow for them to be linked to local resources, educated on immigration court processes and requirements, and also provide monitoring of the child’s safety and well-being, promoting the overall safety of our communities. We note that such programming should focus on strengthening the family to best promote long-term placement stability and integration.
- Support Safe Repatriation. Congress should provide funding to ensure that repatriation of unaccompanied children to the Northern Triangle, when appropriate, is accomplished safely. It is recommended that the U.S. government work with governments and non-governmental organizations in the region to provide repatriation and re-integration programs. Such programs will ensure that children are returned safely to appropriate caregivers and provided with follow-up services to help them reintegrate into their communities – with the goal of preventing re-migration.
How we respond to the children arriving at our border is a test of our moral character. In the words of Pope Francis, we must “not tire of courageously living the Gospel, which calls you to recognize and welcome the Lord Jesus among the smallest and most vulnerable.”
We urge you to reject proposals and legislation that are rooted in fear – that seek to treat unaccompanied children not as children seeking protection, but as threats and criminals. As always, USCCB/MRS stands ready to offer our assistance to Congress and ORR to strengthen protections for unaccompanied children to prevent and mitigate situations of human trafficking, exploitation, abuse, and neglect.
1)Alice Kenny, Beauty Queen Targeted by MS-13, CATHOLIC CHARITIES ARCHDIOCESE OF NEW YORK (Jan. 17,2018), https://catholiccharitiesny.org/blog/beauty-queen-targeted-ms-13-gang.
2) Identifying information changed to protect client confidentiality.
3) Pope Francis, 2017 World Day of Migrants and Refugees Message (September 8, 2016), available at https://w2.vatican.va/content/francesco/en/messages/migration/documents/papa-francesco_20160908_world-migrants-day-2017.html.
4)Trafficking and Victims Protection Reauthorization Act (TVPRA) of 2008, § 235 (2008).
5)See GOVERNMENT ACCOUNTABILITY OFFICE, UNACCOMPANIED ALIEN CHILDREN: ACTIONS NEEDED TO ENSURE CHILDREN RECEIVE REQUIRED CARE IN DHS CUSTODY 24, 27-36 (JULY 2015), available at https://www.gao.gov/assets/680/671393.pdf.
7)Id at 66 (estimating that the average cost to the taxpayer to keep an unaccompanied child in an ORR shelter is $248 per day).
8)Identifying information changed to protect client confidentiality.
April 6, 2018 – In response to announcements regarding deploying the United States National Guard to the U.S./Mexico Border, the U.S. Catholic Bishops of the U.S./Mexico Border issued the following statement:
We are deeply concerned by the announcement that the National Guard will be deployed on the U.S./Mexico Border. The continued militarization of the U.S./Mexico Border distorts the reality of life on the border; this is not a war zone but instead is comprised of many peaceful and law-abiding communities that are also generous in their response to human suffering. We recognize the right of nations to control and secure their borders; we also recognize the need of nations to respect the rule of law. Current law in the United States rightly provides that those arriving to our country fleeing persecution are entitled to due-process as their claims are reviewed. Seeking refuge from persecution and violence in search of a peaceful life for oneself and one’s family is not a crime. Our faith calls us to respond with compassion to those who suffer, and to live in a spirit of solidarity with all human beings. We remain hopeful that our local, state and federal officials will work collaboratively and prudently in the implementation of this deployment, ensuring that the presence of the National Guard is measured and not disruptive to community life. We are also deeply concerned that at this time divisive rhetoric often promotes the dehumanization of immigrants, as if all were threats and criminals. We urge Catholics and people of good will to look past the dehumanizing rhetoric regarding immigrants and remember that they are a vulnerable population, our neighbors, and our sisters and brothers in Christ.
Archbishop Gustavo García-Siller, Archdiocese of San Antonio
Bishop Daniel E. Flores, Diocese of Brownsville
Bishop Michael J. Sis, Diocese of San Angelo
Bishop James Tamayo, Diocese of Laredo
Bishop Mark J. Seitz, Diocese of El Pasp
Bishop Edward J. Weisenburger, Diocese of Tuscon
Bishop Robert W. McElroy, Diocese of San Diego
Bishop Oscar Cantú, Diocese of Las Cruses