ORR and DHS Information-Sharing Agreement: The Unintended Consequences

///ORR and DHS Information-Sharing Agreement: The Unintended Consequences
ORR and DHS Information-Sharing Agreement: The Unintended Consequences2018-06-08T14:08:35+00:00

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In May 2018, the Office of Refugee Resettlement (ORR), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) entered into a Memorandum of Agreement (MOA)[i] mandating continuous information-sharing on unaccompanied immigrant children beginning when CBP or ICE takes them into custody through their release from ORR custody. This includes information on the children’s potential “sponsors” (usually family members), as well as anyone else living with the sponsor. The MOA represents a dramatic change from past practice and is likely to have severe unintended consequences in terms of increased costs, lost contact with children, and risk for abuse or trafficking. The following summarizes the MOA’s changes and their impact on children, families, and the U.S. taxpayer:

Overview of the MOA:

  • Initial Referral – The MOA delineates what information and forms ICE or CBP must share with ORR upon initial transfer of the unaccompanied child into ORR custody.
    • Analysis: This provision will likely be beneficial in ensuring that ORR is provided with adequate and uniform data.
  • Children in ORR Custody – The MOA requires ORR to report a great deal of information about children in its custody to ICE or CBP. The list of mandatory reporting requirements is long, with broad, undefined terms, and it lacks sufficient explanation of how ICE and CBP will use the reported information.
  • Sponsor Vetting – Under the MOA, while ORR is still responsible for processing and vetting a potential sponsor, ICE will run background checks (criminal and immigration) and then provide that information to ORR for their determination of the suitability of the sponsor. The MOA stipulates that ORR will also provide ICE with the name, date of birth, address, fingerprints, and any available documents or biographic information about not only the sponsor but also all adult members of the potential sponsor’s household.
    • Analysis: While thorough vetting of sponsors is beneficial, the MOA fails to place any limitations on the use of this data by ICE and CBP. Without these limitations, it will likely undermine family reunification, the fundamental principle of child welfare,[ii] by turning safe placement screening into a mechanism for immigration enforcement.

Unintended Consequences of the MOA:

While the share of unaccompanied children being released to parents was nearly 60% from 2014 to 2015,[i] it has dropped to 41% so far in fiscal year 2018.[ii] It is anticipated that the MOA, as written, will accelerate not only the decline in releases to parents, but also releases overall, leading to longer stays in ORR custody. For some children, it is expected that documented third-party sponsors may be asked to come forward by children’s undocumented family members. Consequently, providers and advocates expect to see:

  • Increased Trafficking and Exploitation of Children. Providers are highly concerned that, given the MOA, undocumented family members will 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 the families and children at increased risk of exploitation and trafficking by the third-party sponsor.
  • Increased Rate of “Lost-Contact” Cases. As undocumented parents seek documented individuals to come forward as sponsors – whether distant relatives or others – ORR will likely see a significant increase in the number of lost contact cases, an issue which has already come under significant scrutiny recently. If ORR does not have the contact information for the actual sponsor, it will be incredibly difficult to ensure that the child is in a safe environment, connected to community resources, and understands the need to appear at his or her immigration proceedings.
  • Increased Cost to the U.S. Taxpayer. It is also anticipated that families’ fear of enforcement will increase the likelihood that children will remain in custody for great periods of time. This is not only contrary to theTVPRA’s recognition that it is in a child’s best interests to be with a family member,[iii] but it also raises fiscal concerns. A 2015 Government Accountability Office report estimates that the average cost to the taxpayer to keep an unaccompanied child in an ORR shelter is $248 per day,[iv] and we know this cost has only increased since that time.
  • Return of Children to Danger. For those children with no sponsor willing to come forward, indefinite detention will lead children to abandon valid protection claims to request return to their home countries despite risks of serious harm and death.[v] Furthermore, the success of a child’s claim for protection often depends on facts and documentation from her parent, especially when she is of tender age.[vi] Arrest, detention, and deportation of the parent increases the likelihood the child will be deported to danger and erodes the child’s right to due process.

How Members of Congress Can Take Action:

  • Seeking to implement the MOA, DHS has issued a proposed rulemaking on its planned changes to its System of Records (where sponsor data will be stored). Encourage DHS leadership in its final rulemaking to limit the ability of information obtained pursuant to the MOA to be used for enforcement purposes.
  • Insist that ORR provide clear and complete information to unaccompanied children, potential sponsors, and their household members on how their data may be used. This information should be provided when the family reunification process is initiated.
  • Support robust funding of ORR’s programs that are serving the best interests of unaccompanied immigrant children, including community-based residential care, home studies, and post-release services.

For additional information or questions, please contact:

 

 

[i] Statement of Kathryn A. Larin, Government Accountability Office, Testimony Before the Permanent Subcommittee on Investigations, Senate Committee on Homeland Security and Governmental Affairs, Unaccompanied Children: DHS and HHS Have Taken Steps to Improve Transfers and Monitoring of Care, but Actions Still Needed 9 (2018), available at https://www.hsgac.senate.gov/imo/media/doc/Larin%20Testimony.pdf.
[ii] Statement of Steven Wagner, Admin. for Children and Families, U.S. Dep’t of Health & Human Services, Before the Permanent Subcommittee on Investigations, Senate Committee on Homeland Security and Governmental Affairs, 3 (2018), available at https://www.hsgac.senate.gov/imo/media/doc/Wagner%20Testimony.pdf.
[iii] See 8 U.S.C. § 1232(c).
[iv] See 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.
[v] See, e.g., Julie Linton et al., Am. Academy of Pediatrics, Detention of Immigrant Children, 139 Pediatrics 4, 6-7 (Apr. 2017), available at http://pediatrics.aappublications.org/content/pediatrics/early/2017/03/09/peds.2017-0483.full.pdf.
[vi] See Women’s Refugee Cms’n et al., Betraying Family Values: How Immigration Policy at the United States Border is Separating Families 3-4 (2017), available at https://supportkind.org/wp-content/uploads/2017/03/BetrayingFamilyValues_Feb2017.pdf.
[i] Requests for UAC Case File Information, Office of Refugee Resettlement (April 14, 2014), https://www.acf.hhs.gov/orr/resource/requests-for-uac-case-file-information.
[ii] See, e.g., Administration for Children and Families – Child Welfare Information Gateway, Determining the Best Interests of the Child (2016), https://www.childwelfare.gov/pubPDFs/best_interest.pdf.
[i] See Yeganeh Torbati, Trump Administration Will Fingerprint Child Migrants’ Parents, Reuters, May 29, 2018, https://www.reuters.com/article/us-usa-immigration-children/trump-administration-will-fingerprint-child-migrants-parents-idUSKCN1IU2VF?rpc=401; Eli Hager, Young Migrants: Victims of Gangs or Members of Them?, N.Y. Times, May 1, 2018, https://www.nytimes.com/2018/05/01/us/immigration-minors-children.html.