JEFM v. Lynch

(1 of 105)
Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-1, Page 1 of 31
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
J. E. F.M., a minor, by and

through his Next Friend, Bob
Ekblad; J. F.M., a minor, by and
through his Next Friend Bob
Ekblad; D. G. F.M., a minor, by
and through her Next Friend,
Bob Ekblad; F. L.B., a minor, by
and through his Next Friend,
Casey Trupin; G. D.S., a minor,
by and through his mother and
Next Friend, Ana Maria
Ruvalcaba; M. A.M., a minor, by
and through his mother and Next
Friend, Rose Pedro; J. E. V.G.;
A. E. G.E.; G. J. C.P.,
Plaintiffs-Appellees/
Cross-Appellants,
v.
LORETTA E. LYNCH, Attorney
General; JUAN P. OSUNA,
Director, Executive Office for
Immigration Review; JEH
JOHNSON, Secretary, Homeland
Security; THOMAS S.
WINKOWSKI, Principal Deputy
Assistant Secretary, U.S.
Immigration and Customs
Nos. 15-35738
15-35739
D.C. No.
2:14-cv-01026-TSZ
OPINION
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Enforcement; NATHALIE R.
ASHER, Field Office Director,
ICE ERO; KENNETH HAMILTON,
AAFOD, ERO; SYLVIA M.
BURWELL, Secretary, Health and
Human Services; ESKINDER
NEGASH, Director, Office of
Refugee Resettlement,
Defendants-Appellants
Cross-Appellees.
Appeal from the United States District Court

for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 7, 2016
Seattle, Washington
Filed September 20, 2016
Before: Andrew J. Kleinfeld, M. Margaret McKeown,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge McKeown;
Concurrence by Judge Kleinfeld
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SUMMARY*
Immigration
The panel affirmed in part and reversed in part the district
courts jurisdictional determinations in a class action brought
by indigent minor immigrants alleging that they have due
process and statutory rights to appointed counsel at
government expense in immigration proceedings.
The panel affirmed the district court's dismissal for lack
of jurisdiction of the minors' statutory claims for
court-appointed counsel. The panel held that because the
right-to-counsel claims arise from" removal proceedings,
they must be raised through the administrative petition for
review process pursuant to 8 U.S.C. 1252(b)(9) and
1252(a)(5).
The panel reversed the district court's determination that
it had jurisdiction over the minors constitutional claims. The
panel held that the district court erred in finding that an
exception to the Immigration and Nationality Acts exclusive
review process provided jurisdiction over the due process
right-to-counsel claims. The panel held that the district court
incorrectly found that the claims challenged a policy or
practice collateral to the substance of removal proceedings,
and that because an Immigration Judge was unlikely to
conduct the requisite due process balancing the administrative
record would not provide meaningful judicial review.
This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
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Specially concurring, Judge McKeown, joined by Judge

M. Smith, wrote to highlight the plight of unrepresented
children in immigration proceedings, and to underscore that
the Executive and Congress have the power to address this
crisis without judicial intervention.
Specially concurring, Judge Kleinfeld agreed that it is
unlikely that children or even adults can protect all their
rights in deportation proceedings without a lawyer. Judge
Kleinfeld wrote that solving the representation problem is a
highly controversial political matter, and that advocating for
a particular reform is unnecessary and better left to the
political process.
COUNSEL
Erez Reuveni (argued), Senior Litigation Counsel; Leon
Fresco, Deputy Assistant Attorney General; Benjamin C.
Mizer, Principal Deputy Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellants/Cross-Appellees.
Ahilan Thevanesan Arulanantham (argued), ACLU
Immigrants Rights Project, ACLU of Southern California,
Los Angeles, California; Heidi Craig Garcia, Todd Nunn, and
Theodore J. Angelis, K&L Gates LLP, Seattle, Washington;
Glenda M. Aldana Madrid and Matt Adams, Northwest
Immigrant Rights Project, Seattle, Washington; Cecillia
Wang and Stephen Kang, ACLU Immigrants Rights Project,
San Francisco, California; for Plaintiffs-Appellees/CrossAppellants.
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Marsha Chien, Assistant Attorney General; Colleen Melody,

Civil Rights Unit Chief; Robert W. Ferguson, Attorney
General; Office of the Attorney General, Seattle, Washington;
Kamala D. Harris, Attorney General; Office of the Attorney
General, Sacramento, California; for Amici Curiae States of
Washington and California.
Charles G. Wentworth, The Law Office of Lofgren &
Wentworth P.C., Glen Ellyn, Illinois; Charles Roth, National
Immigrant Justice Center, Chicago, Illinois; for Amici Curiae
National Immigrant Justice Center; American Immigration
Lawyers Association; Ayuda; Capital Area Immigrants
Rights Coalition; Catholic Legal Immigration Network, Inc;
Community Legal Services in East Palo Alto; Diocesan
Migrant & Refugee Services, Inc; First Focus; Florence
Immigrant and Refugee Rights Project; Hebrew Immigrant
Aid SocietyPennsylvania; Human Rights Initiative of
North Texas; Immigrant Defenders Law Center; Immigrant
Law Center of Minnesota; National Immigration Law Center;
National Justice for Our Neighbors; Pangea Legal Services;
Pennsylvania Immigrant Resource Center; Puentes:
Advocacy, Counseling & Education; Refugee and Immigrant
Center for Education and Legal Services; the Advocates for
Human Rights; Unlocal, Inc.; and U.s. Committee for
Immigrants and Refugees.
Paul W. Rodney, Holly E. Sterrett, and R. Reeves Anderson,
Arnold & Porter LLP, Denver, Colorado; Sally L. Pei, Arnold
& Porter LLP, Washington, D.C.; for Amici Curiae Former
Federal Immigration Judges.
Elisa S. Solomon, Covington & Burling LLP, New York,
New York; Risa E. Kaufman, Human Rights Institute,
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Columbia Law School, New York, New York; for Amicus

Curiae Human Rights Watch.
OPINION
McKEOWN, Circuit Judge:
This interlocutory appeal requires us to answer a single
question: does a district court have jurisdiction over a claim
that indigent minor immigrants without counsel have a right
to government-appointed counsel in removal proceedings?
Our answer to this jurisdictional query is no. We underscore
that we address only the jurisdictional issue, not the merits of
the claims.
Congress has clearly provided that all
claimswhether statutory or constitutionalthat aris[e]
from immigration removal proceedings can only be brought
through the petition for review process in the federal courts
of appeals. 8 U.S.C. 1252(a)(5) & (b)(9). Despite the
gravity of their claims, the minors cannot bypass the
immigration courts and proceed directly to district court.
Instead, they must exhaust the administrative process before
they can access the federal courts.
BACKGROUND
The appellees (collectively the minors or children)
are immigrant minors, aged three to seventeen, who have
been placed in administrative removal proceedings. The
children are at various stages of the removal process: some
are waiting to have their first removal hearing, some have
already had a hearing, and some have been ordered removed
in absentia. None of the children can afford an attorney, and
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each has tried and failed to obtain pro bono counsel for
removal proceedings.
The children, suing on behalf of themselves and a class,
claim a due process1 and statutory right to appointed counsel
at government expense in immigration proceedings.2 They
claim that, as minors, they lack the intellectual and
emotional capacity of adults, yet are force[d] . . . to appear
unrepresented in complex, adversarial court proceedings
against trained [government] attorneys. According to the
complaint, this lack of representation ensure[s] that [they
and] thousands of children [are] deprived of a full and fair
opportunity to identify defenses or seek relief for which they
qualify in immigration court.
The children acknowledge that, generally, an immigrant
who has been placed in removal proceedings can challenge
those proceedings only after exhausting administrative
remedies and filing a petition for review (PFR) in a federal
court of appeals. But they argue that this case falls outside
the general rule because, in light of the complex nature of
removal proceedings and the appeals process, minors cannot
1
Immigration proceedings are civil, not criminal, in nature. Thus, the

right-to-counsel claims invoke the Fifth Amendments due process
requirement, not the Sixth Amendments right-to-counsel provision, which
is reserved for criminal proceedings.
2
This appeal was taken from the district courts order dismissing the
second amended complaint, which was brought on behalf of all minors
without counsel. The district court denied the governments motion to stay
the proceedings pending resolution of the interlocutory appeal. After the
briefs were filed in this case, the minors filed a third amended complaint,
redefined the proposed class to include an indigency limitation, and
dismissed some of the named plaintiffs. None of this activity affects our
analysis.
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effectively raise right-to-counsel claims through the PFR

process. As a result, they conclude, they would be denied
meaningful judicial review of their right-to-counsel claims if
the district court lacked jurisdiction to hear the case.
The government moved to dismiss the complaint on
multiple grounds, including ripeness (because in some cases
the removal proceedings had not commenced and in others
they had not concluded at the time the complaint was filed)
and jurisdiction (because the Immigration and Nationality Act
(INA) channels judicial review of claims arising out of
removal proceedings through the PFR process. 8 U.S.C.
1252(a)(5) & (b)(9)). The district court granted the
governments motion in part and denied it in part. As to
ripeness, the court dismissed for lack of jurisdiction the
named parties against whom removal proceedings have not
yet been initiated, reasoning that [r]emoval proceedings
might never be commenced. The other childrens claims
were ripe because the agency did not have authority to
appoint counsel or to declare a statute barring governmentfunded counsel unconstitutional, and [e]xhaustion is not
required to make a claim ripe when the agency lacks authority
to grant relief.
The district court then turned to the governments
jurisdictional challenge. The court recognized that the INAs
judicial review mechanism, 8 U.S.C. 1252(a)(5) and
1252(b)(9), is broad in scope and was designed to
consolidate and channel review of all legal and factual
questions that arise from the removal of an alien into the
administrative process, with judicial review of those
decisions vested exclusively in the courts of appeal.
(quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007)
(emphasis in original)).
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Despite the statutory strictures, the district court identified

an exception to the INAs exclusive review process and
concluded that it had jurisdiction over the minors due
process right-to-counsel claims. Citing McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479 (1991), and City of Rialto
v. West Coast Loading Corporation, 581 F.3d 865 (9th Cir.
2009), the court explained that the due process claims
challenged a procedure or policy collateral to the substance
of removal proceedings and, in light of the fact that an
immigration judge is unlikely to conduct the requisite [due
process] balancing, the administrative record would be
insufficient to provide a basis for meaningful judicial
review. Conversely, the district court held that it lacked
jurisdiction over the statutory right-to-counsel claims, in part
because the [constitutional] balancing standard does not
apply and . . . concerns about the adequacy of the
administrative record are not warranted.
The government filed this interlocutory appeal,
challenging the district courts determination that it had
jurisdiction over the constitutional claims. The minors crossappealed, disputing, among other issues, the district courts
dismissal of the statutory claims.
ANALYSIS
I. The Immigration and Nationality Act Provides
Exclusive Judicial Review through the Petition for
Review Process.
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This appeal turns on our interpretation of two provisions

of the INA, so we begin with the statute.3 The section titled
Exclusive means of review, 8 U.S.C. 1252(a)(5),
prescribes the vehicle for judicial review: [A] petition for
review . . . shall be the sole and exclusive means for judicial
review of an order of removal . . . . Lest there be any
question about the scope of judicial review, 1252(b)(9)
mandates that [j]udicial review of all questions of law and
fact, including interpretation and application of constitutional
and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States
. . . shall be available only in judicial review of a final order
. . . .
Section 1252(b)(9) is, as the First Circuit noted,
breathtaking in scope and vise-like in grip and therefore
swallows up virtually all claims that are tied to removal
proceedings. See Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir.
2007). Taken together, 1252(a)(5) and 1252(b)(9) mean
that any issuewhether legal or factualarising from any
removal-related activity can be reviewed only through the
PFR process. See Viloria v. Lynch, 808 F.3d 764, 767 (9th
Cir. 2015) (It is well established that this courts jurisdiction
over removal proceedings is limited to review of final orders
of removal.); cf. Bibiano v. Lynch, F.3d , 2016 WL
4409351, at *5 (9th Cir. 2016) (holding that 8 U.S.C.
1252(b)(2)s venue provision is not jurisdictional, but
contrasting the venue statute with other statutes in the INA
that use the terms judicial review or jurisdiction).
Section 1252(b)(9) encompasses both the statutory and

constitutional claims, which the parties acknowledge stand or fall together.
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Although 1252(a)(5) and 1252(b)(9) might seem

draconian at first glance, they have two mechanisms that
ensure immigrants receive their day in court. Singh v.
Gonzales, 499 F.3d 969, 979 (9th Cir. 2007). First, while
these sections limit how immigrants can challenge their
removal proceedings, they are not jurisdiction-stripping
statutes that, by their terms, foreclose all judicial review of
agency actions. Instead, the provisions channel judicial
review over final orders of removal to the courts of appeals.
See Elgin v. Dept of Treasury, 132 S. Ct. 2126, 2132 (2012)
(explaining that heightened scrutiny is not appropriate where
Congress channels judicial review of constitutional questions
to a particular court but does not deny all judicial review of
those questions). The Supreme Court has thus characterized
1252(b)(9) as a zipper clause,4 Reno v. Am.-Arab AntiDiscrimination Comm. (AAADC), 525 U.S. 471, 483 (1999),
explaining that the statutes purpose is to consolidate
judicial review of immigration proceedings into one action
in the court of appeals[.] INS v. St. Cyr, 533 U.S. 289, 313
& n.37 (2001).
Second, and equally importantly, 1252(b)(9) has built-in
limits. By channeling only those questions arising from any
action taken or proceeding brought to remove an alien, the
statute excludes from the PFR process any claim that does not
arise from removal proceedings. Accordingly, claims that are
independent of or collateral to the removal process do not fall
The term zipper clause comes from labor law, where it refers to
a provision in a collective bargaining agreement that prohibits further
collective bargaining during the term of the agreement or, more generally,
that limits the agreement of the parties to the four corners of the contract.
Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996
Immigration Act, 113 Harv. L. Rev. 1963, 198485 (2000).
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within the scope of 1252(b)(9). See Torres-Tristan v.

Holder, 656 F.3d 653, 658 (7th Cir. 2011) (Ancillary
determinations made outside the context of a removal
proceeding, however, are not subject to direct review.);
Aguilar, 510 F.3d at 11 (reading arising from to exclude
claims that are independent of, or wholly collateral to, the
removal process); see also City of Rialto, 581 F.3d at 874
(recognizing that McNary allowed the petitioners to challenge
a policy that was collateral to their substantive eligibility for
relief).
Thus, we have distinguished between claims that arise
from removal proceedings under 1252(b)(9)which must
be channeled through the PFR processand claims that are
collateral to, or independent of, the removal process. See
Aguilar, 510 F.3d at 11; Nadarajah v. Gonzales, 443 F.3d
1069, 107576 (9th Cir. 2006); Singh, 499 F.3d at 979. For
example, in Nadarajah v. Gonzales, we held that an
immigrant could challenge his five-year administrative
detention by filing a petition for a writ of habeas corpus in
district court, notwithstanding 1252(b)(9). 443 F.3d at
107576. Nadarajah had prevailed at every administrative
level of review, had been granted asylum, and had never
been charged with any crime, yet was being held in
detention without any established timeline for a decision on
when he may be released from detention. Id. at 1071, 1075.
We explained that 1252(b)(9) does not apply to federal
habeas corpus provisions that do not involve final orders of
removal. Id. at 1075. Because Nadarajah ha[d] prevailed
at every administrative level and been granted asylum, his
petition did not involve a final order of removal, and
1252(b)(9) did not channel jurisdiction to the courts of
appeals. Id. at 1076.
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13
Similarly, in the unique situation in Singh v. Gonzales, we

recognized that the district court had jurisdiction over the
petitioners ineffective-assistance-of-counsel claim that arose
after his attorney failed to file a timely PFR. 499 F.3d at 980.
We noted that Singhs claim could not have been raised
before the agency because it arose after a final order of
removal was entered and, absent habeas review, Singh would
have had no legal avenue to obtain judicial review of this
claim. We therefore concluded that his petition did not
challenge a final order of removal under 1252(b)(9). Id. at
979. We did not, however, allow Singh to raise a different
ineffective assistance of counsel claim that arose before a
final order of removal entered and that could and should have
been brought before the agency. Id. at 974; cf. Skurtu v.
Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (distinguishing
Singh and holding that a right-to-counsel claim must be
brought through the PFR process because the claim is a
direct result of the removal proceedings).
In contrast, in Martinez v. Napolitano, we held in the
context of a district court challenge under the Administrative
Procedure Act that [w]hen a claim by an alien, however it is
framed, challenges the procedure and substance of an agency
determination that is inextricably linked to the order of
removal, it is prohibited by section 1252(a)(5). 704 F.3d
620, 623 (9th Cir. 2012).
In light of 1252(b)(9) and 1252(a)(5) and our
precedent, the childrens right-to-counsel claims must be
raised through the PFR process because they arise from
removal proceedings.
The counsel claims are not
independent or ancillary to the removal proceedings. Rather,
these claims are bound up in and an inextricable part of the
administrative process. The First Circuit was the first court
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to consider whether a right-to-counsel claim falls outside the

scope of 1252(b)(9). The court unequivocally said no.
Thus, we agree with the courts analysis in Aguilar that, [b]y
any realistic measure, the aliens right to counsel is part and
parcel of the removal proceeding itself. . . . [A]n aliens right
to counsel possesses a direct link to, and is inextricably
intertwined with, the administrative process that Congress so
painstakingly fashioned. Aguilar, 510 F.3d at 13.
Right-to-counsel claims are routinely raised in petitions
for review filed with a federal court of appeals. See, e.g.,
Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008)
(holding that the petitioner did not knowingly and voluntarily
waive the right to counsel); Zepeda-Melendez v. INS, 741
F.2d 285, 289 (9th Cir. 1984) (holding that the INSs
deportation of an immigrant without notice to counsel
violated the immigrants statutory right to counsel). In part,
this is because immigration judges have an obligation to ask
whether a petitioner wants counsel: Although [immigration
judges] may not be required to undertake Herculean efforts to
afford the right to counsel, at a minimum they must inquire
whether the petitioner wishes counsel, determine a reasonable
period for obtaining counsel, and assess whether any waiver
of counsel is knowing and voluntary. Biwot v. Gonzales,
403 F.3d 1094, 1100 (9th Cir. 2005). An immigration judges
failure to inquire into whether the petitioner wants (or can
knowingly waive) counsel is grounds for reversal. See id. As
we discuss below, special protections are provided to minors
who are unrepresented. See infra at pp. 2122.
The legislative history of the INA, as well as amendments
to 1252(b)(9), confirm that Congress intended to channel all
claims arising from removal proceedings, including right-tocounsel claims, to the federal courts of appeals and bypass the
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15
district courts. Consolidation of the review process for

immigration orders of removal began in 1961, when Congress
amended the INA to channel immigrants challenges to their
removal proceedings to the courts of appeals via the PFR.5
H.R. Rep. No. 87-1086, at 22 (1961), as reprinted in 1961
U.S.C.C.A.N. 2950, 2966; see also Magana-Pizano v. INS,
152 F.3d 1213, 1220 (9th Cir. 1998) (recognizing 1961
changes to INA), vacated on other grounds, 526 U.S. 1001
(1999) (mem.). The change was intended to create a single,
separate, statutory form of judicial review of administrative
orders for the [removal] of aliens from the United States and
to shorten the time frame for judicial review of deportation
orders by eliminat[ing] . . . a suit in a District Court. H.R.
Rep. No. 109-72, at 172 (2005) (Conf. Rep.), reprinted in
2005 U.S.C.C.A.N. 240, 297301 (citations omitted).
Congress continued to streamline judicial review of
immigration proceedings in 1996, when it enacted the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3546 (1996).
IIRIRA repealed the old judicial-review scheme . . . and
instituted a new (and significantly more restrictive) one in
The text of the 1961 statute differs from the text of 1252(a)(5)
and 1252(b)(9). It reads: [The petition for review process] shall apply to,
and shall be the exclusive procedure for, the judicial review of all final
orders of deportation . . . made against aliens within the United States
pursuant to administrative proceedings . . . . 8 U.S.C. 1105a(a) (1964).
As we explained in Magana-Pizano, the statute was subject to various
interim measures from 1961 to 1996. 152 F.3d at 1220. In 1996,
Congress repealed 1105a(a) and enacted 1252(b)(9). AAADC,
525 U.S. at 475. It enacted 1252(a)(5) in 2005 as part of the REAL ID
Act. Singh, 499 F.3d at 977. In each of these amendments, Congress has
consistently sought to channel judicial review of immigration proceedings
through the PFR process.
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8 U.S.C. 1252. AAADC, 525 U.S. at 475. The new

judicial review provisions were designed to make perfectly
clear that only courts of appealsand not district
courtscould review a final removal order, that review of
a final removal order is the only mechanism for reviewing
any issue raised in a removal proceeding, and that the statute
was intended to preclude all district court review of any
issue raised in a removal proceeding.6 H.R. Rep. No. 10972, at 173.
When it enacted 1252(b)(9) in 1996, Congress was
legislating against the backdrop of recent Supreme Court law.
In 1991, in McNary v. Haitian Refugee Center, the Court
offered a blueprint for how Congress could draft a
jurisdiction-channeling statute that would cover not only
individual challenges to agency decisions, but also broader
challenges to agency policies and practices. A group of
immigrants, who applied unsuccessfully for amnesty under
the special agricultural workers (SAW) program (or thought
they would be unsuccessful in the future), filed an action in
district court, alleging injuries caused by unlawful practices
6
In the REAL ID ACT of 2005, Congress amended 1252(b)(9) to

clarify that federal courts lack habeas jurisdiction over orders of removal.
The statute now contains an additional sentence on habeas jurisdiction, but
the operative jurisdiction-channeling language has not changed from 1996.
The 2005 amendment provides that: Except as otherwise provided in this
section, no court shall have jurisdiction, by habeas corpus under section
2241 of Title 28 or any other habeas corpus provision, by section 1361 or
1651 of such title, or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of law or fact.
8 U.S.C. 1252(b)(9). Congress amended the statute in response to St.
Cyr, in which the Supreme Court held that the pre-2005 version of
1252(b)(9) did not clearly strip the courts of habeas jurisdiction over
immigrants who had committed crimes. See H.R. Rep. No. 109-72, at
173.
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17
and policies adopted by the INS in its administration of the

SAW program. 498 U.S. at 487. The Court held that, under
the governing statute, the district court had jurisdiction to
hear a challenge to INS practices and policies because the
statute channeled only individualnot wider policyclaims
through the PFR process.7
Of significance to our analysis, the Court explained that
Congress could have crafted language to channel challenges
to agency policies through the PFR process if it had chosen
to do so:
[H]ad Congress intended the limited review
provisions of 210(e) . . . to encompass
challenges to INS procedures and practices, it
could easily have used broader statutory
language. Congress could, for example, have
. . . channel[ed] into the Reform Acts special
review procedures all causes . . . arising
under any of the provisions of the
legalization program. It moreover could have
. . . referr[ed] to review on all questions of
law and fact under the SAW legalization
program.
Id. at 494 (citations omitted).
In McNary, the Court did everything but write the future
statute and so it makes sense to presume that Congress was
aware of this precedent when it amended the INA in 1996.
The operative language in the statute at issue in McNary provided

that judicial review of a determination respecting an application for
adjustment of status must be brought through a PFR. Id. at 486, 491.
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See United States v. Wells, 519 U.S. 482, 495 (1997) ([W]e
presume that Congress expects its statutes to be read in
conformity with [the Supreme Courts] precedents. . . .).
With this presumption in mind, we note that 1252(b)(9)
neatly tracks the policy and practice jurisdiction-channeling
language suggested in McNary: the amended section channels
review of all questions of law and fact to the courts of
appeals for all claims arising from any action taken or
proceeding brought to remove an alien from the United
States. 8 U.S.C. 1252(b)(9). Thus, the legislative history
and chronology of amendments to 1252(b)(9) confirm the
plain meaning of the statute. We conclude that 1252(a)(5)
and 1252(b)(9) channel review of all claims, including
policies-and-practices challenges, through the PFR process
whenever they arise from removal proceedings. Because
the childrens right-to-counsel claims arise from their
removal proceedings, they can only raise those claims
through the PFR process. Aguilar, 510 F.3d at 13.
II. The Minors Have Not Been Denied All Forms of
Meaningful Judicial Review.
The minors do not seriously dispute that the plain text of
1252(b)(9) prohibits them from filing a complaint in federal
district court. Instead, they attempt to get around the statute
by claiming that they have been (or will be) denied
meaningful judicial review in light of their juvenile status. In
other words, they argue that 1252(b)(9), as applied in this
context, creates a Catch-22 that effectively bars all judicial
review of their claims.
The argument goes as follows: Minors who obtain
counsel in their immigration proceedings will be unable to
raise right-to-counsel claims because they have no such
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19
claim. As a practical matter, children who lack counsel will

be unable to reach federal court to raise a right-to-counsel
claim because they are subject to the same exhaustion
requirements and filing deadlines that apply to adults. Even
if an unrepresented child were able to navigate the PFR
process, the child would still be deprived of meaningful
judicial review, because the record on appeal would be
insufficient to sustain review. Because, according to the
minors, their right-to-counsel claims will never see the light
of day through the PFR process, the panel should construe
1252(b)(9) as not covering these claims.
The assertion that the minors will be denied meaningful
judicial review stems from dicta in McNary. In McNary, the
Court noted that the SAW regime imposed several practical
impediments to judicial review. Most importantly, SAW
procedures d[id] not allow applicants to assemble adequate
records for review.8 498 U.S. at 496. Agency interviews
were neither recorded nor transcribed, and SAW applicants
had inadequate opportunity to present evidence and
witnesses on their own behalf.
Id.
Because the
administrative record was minimal, the courts of appeals
[had] no complete or meaningful basis upon which to review
application determinations. Id. As a result, if the workers
were not allowed to pursue their claims in the District Court,
[they] would not as a practical matter be able to obtain
meaningful judicial review of their application denials or of
8
The Court cited two other aspects of the SAW program that were
problematic but are not pertinent here: first, under the statute, judicial
review was available only if immigrants voluntarily surrendered
themselves for deportation after being denied relief, and second, the
plaintiffs adduced a substantial amount of evidence, most of which would
have been irrelevant in the processing of a particular individual
application. 498 U.S. at 49697.
(20 of 105)
20
J.E. F.M. V. LYNCH
their objections to INS procedures. Id. Citing the wellsettled presumption favoring interpretations of statutes that
allow judicial review of administrative action, the Court
concluded that it is most unlikely that Congress intended to
foreclose all forms of meaningful judicial review. Id.
The difficulty with the minors argument is that McNary
was, at its core, a statutory interpretation case involving a
completely different statute.9 See Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 14 (2000) (declining to
apply McNary because it turned on the different language of
that different statute, and noting that the Court suggested
that statutory language similar to the language at issue
hereany claim arising under . . . would have led it to a
different legal conclusion). The point in McNary was that
Congress used language (a determination respecting an
application for SAW status) that did not encompass the
constitutional pattern and practice claims urged by the
workers. As a consequence, their claims fell outside of the
narrow channeling provisions of the statute.
Because this case turns on the interpretation of the statute, the

district courts reliance on cases involving different statutes is misplaced.
See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999) (holding
that the district court had jurisdiction to hear challenges to agency policies
under a statute that read [t]here shall be judicial review of a [denial of an
application for adjustment of status by the agency] only in the judicial
review of an order of deportation, 8 U.S.C. 1255a(f)(4)(A)); and Ortiz
v. Meissner, 179 F.3d 718 (9th Cir. 1999) (holding that the district court
had jurisdiction to hear policies and practices challenge under 8 U.S.C.
1255a(f) and 1160(e), which provided that [t]here shall be judicial
review of such a denial only in the judicial review of an order of exclusion
or deportation[.]). Neither case involved the zipper clause of
1252(b)(9) or the arising from language. Both Proyecto and Ortiz
analyzed McNary only in the context of the Immigration Reform and
Control Act.
(21 of 105)
J.E. F.M. V. LYNCH
21
In providing two alternative formulations of channeling

language, the Court more than foreshadowed what language
would be expansive enough to remove district court
jurisdiction. Thus, the Courts note to Congress laid out the
language necessary to limit challenges to INS procedures
and practices. McNary, 498 U.S. at 494. McNary does not
provide an avenue for litigants to circumvent an unambiguous
statute.
We would be naive if we did not acknowledge that having
an unrepresented minor in immigration proceedings poses an
extremely difficult situation. But we are not convinced that
agency removal proceedings raise the same concerns that
were present in the SAW proceedings. Unlike the SAW
program, removal hearings are recorded and transcribed and
provide a basis for meaningful judicial review. Immigration
judges are both trained and required to probe the record and
to ask questions to elicit information about possible avenues
of relief. See 8 U.S.C. 1229a(b)(1) (detailing immigration
judges obligation to administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any
witnesses). Immigration judges must adequately explain
the hearing procedures to the alien, Agyeman v. INS,
296 F.3d 871, 877 (9th Cir. 2002), and where immigrants
proceed pro se, the judges have a duty to fully develop the
record. Id. (quoting Jacinto v. INS, 208 F.3d 725, 73334
(9th Cir. 2000)). They are also required to inform immigrants
of any ability to apply for relief from removal and the right to
appeal removal orders. See United States v. UbaldoFigueroa, 364 F.3d 1042, 1050 (9th Cir. 2004).
Unrepresented minors receive additional special
protections in removal proceedings. Unless the child is
accompanied by an attorney or legal representative, a near
(22 of 105)
22
J.E. F.M. V. LYNCH
relative, legal guardian, or friend, the immigration judge

cannot accept the childs admission of removability. 8 C.F.R.
1240.10(c). Immigration judges also must ensure that any
waiver of the right to counsel is knowing and voluntary; on
review, we can indulge every reasonable presumption
against waiver, United States v. Cisneros-Rodriguez,
813 F.3d 748, 756 (9th Cir. 2015) (citation omitted), and
when the petitioner is a minor, we factor the minors age,
intelligence, education, information, information, and
understanding and ability to comprehend into our analysis.
Jie Lin v. Ashcroft, 377 F.3d 1014, 1033 (9th Cir. 2004).
Further, recognizing a growing need for support systems the
courts can use to effectively and efficiently manage the cases
of unaccompanied minors, in 2014, the Office of the Chief
Immigration Judge provided guidelines for The Friend of the
Court Model for Unaccompanied Minors in Immigration
Proceedings. Although the friend of the court does not act
as a representative, the friends assistance role can be critical
in monitoring the proceedings. These protections distinguish
removal proceedings from the SAW program, and the
concerns highlighted by McNary are not in play.
At argument, counsel for the children claimed that it was
essentially impossible to get the right-to-counsel claim before
a federal court. This assertion is belied by the fact that the
minors counsel has previously raised a right-to-counsel
claim through the PFR process. See Guzman-Heredia v.
Gonzales, No. 04-72769 (9th Cir.). In Guzman-Heredia, the
petitioner was a fourteen-year-old boy who was placed in
removal proceedings. He explained to the immigration judge
that he had been unable to find an attorney to represent him
and requested that the Immigration Judge appoint an attorney
for him. The judge denied the request, stating that he could
not give people a free lawyer. The immigration judge then
(23 of 105)
J.E. F.M. V. LYNCH
23
ordered the petitioner removed, and the Board of Immigration

Appeals affirmed. At this stage, the petitioner obtained pro
bono counsel, who argued in a PFR that:
Petitioners Fifth Amendment right to due
process was violated when the Immigration
Judge refused to appoint an attorney to
represent him in removal proceedings.
Because Petitioner is an unaccompanied child
of 14 years of age, he is of limited cognitive
abilities and lacks understanding of legal
process. Due to the seriousness of the
proceedings against him and the importance
of the interest at stake, namely immigration
proceedings in which the government seeks to
remove Petitioner from his family, home and
school in the United States, the Constitution
compels that Petitioner have been afforded the
protection of appointed counsel at public
expense.
Id. Although the case ultimately settled, Guzman-Heredia
lays rest to the contention that right-to-counsel claims will
never surface through the PFR process.
The reality is that current counsel for the minors are in a
unique position to bring multiple test cases on the counsel
issue.10 The claim in this suit is that indigent minors are
10
Following discussion at oral argument, to facilitate a test case,
through December 2016 the government is providing the childrens
counsel with notice of any minor without counsel that the government is
aware of ordered removed by an immigration judge following a merits
hearing. To take the government at its word that it is willing to cooperate
(24 of 105)
24
J.E. F.M. V. LYNCH
entitled to government-provided counsel as a matter of

constitutional and statutory right. For accompanied minors,
a parent could make the claim or, for unaccompanied minors,
a next friend could help them do so.11 Even better, the IJ and
the government could acknowledge that absent a knowing
and voluntary waiver, a minor proceeding without counsel
has de facto requested a right to court-appointed counsel.
Under any of these scenarios, a right-to-counsel claim is
teed up for appellate review. It is true that at present neither
the immigration judge nor the Board of Immigration Appeals
has authority to order court-appointed counsel. But the
question at hand is a legal one involving constitutional rights.
Even if not raised in the proceedings below, the court of
appeals has authority to consider the issue because it falls
within the narrow exception for constitutional challenges
that are not within the competence of administrative agencies
to decide and for arguments that are so entirely foreclosed
. . . that no remedies [are] available as of right from the
agency.12 Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (first quotation); Alvarado v. Holder, 759 F.3d 1121,
with counsel, the government should continue such notice.
11
The Friend of the Court Model for Unaccompanied Minors can

provide an avenue for counsel to play a role in individual proceedings.
For example, one of the childrens counsel appeared as a friend in an
individual immigration proceeding in July 2016 and stated that although
he did not represent the child, for whatever value it has in the record that
[the minor] does I know want appointed counsel. See Attachment to
Governments Letter to the Court, dated August 18, 2016.
12
Under the statute, immigrants in removal proceedings have the

privilege of being represented, at no expense to the Government, by
counsel of the aliens choosing. 8 U.S.C. 1229a(b)(4)(A). Agency
regulations recognize the same privilege. 8 C.F.R. 238.1(b)(2).
(25 of 105)
J.E. F.M. V. LYNCH
25
1128 (9th Cir. 2014) (second quotation; quotation marks and

citation omitted, first alteration in original); see also, e.g.,
Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per
curiam) (recognizing exception to exhaustion requirement for
constitutional challenges to agency procedures and the statute
the agency administers).
We recognize that a class remedy arguably might be more
efficient than requiring each applicant to file a PFR, but that
is not a ground for ignoring the jurisdictional statute. Indeed,
should a court determine that the statute barring payment for
counsel does not mean what it saysa position taken by the
minorsthat statute would be infirm across the circuit and
in every case. Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114
(9th Cir. 1994). We also recognize that there are limited
and already more than stretchedpro bono resources
available to help unaccompanied minors navigate the removal
process. But these considerations cannot overcome a clear
statutory prescription against district court review. Relief is
through review in the court of appeals or executive or
congressional action.
In sum, the minors claim that they are entitled to courtappointed counsel arises from their removal proceedings
and 1252(a)(5) and 1252(b)(9) provide petitions for review
of a removal order as the exclusive avenue for judicial
review. The district court lacks jurisdiction over the minors
claims.13
13
Because the district court lacks jurisdiction, we do not reach the

other issues the minors raise on cross-appeal.
(26 of 105)
26
J.E. F.M. V. LYNCH
AFFIRMED as to the statutory claim; REVERSED as

to the constitutional claim. The parties shall each bear
their own costs on appeal.
McKEOWN, Circuit Judge, with whom M. SMITH, Circuit

Judge, joins, specially concurring:
Jurisdictional rulings have an anodyne character that may
suggest insensitivity to the plight of the parties, particularly
in a case involving immigrant children whose treatment,
according to former Attorney General Eric Holder, raises
serious policy and moral questions.1 But we must heed the
Supreme Courts admonition that [f]ederal courts are courts
of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be
expanded by judicial decree. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
We did not reach the merits here because we hewed to the
statute channeling federal court jurisdiction. That said, I
cannot let the occasion pass without highlighting the plight of
unrepresented children who find themselves in immigration
proceedings. While I do not take a position on the merits of
the childrens constitutional and statutory claims, I write to
underscore that the Executive and Congress have the power
to address this crisis without judicial intervention. What is
missing here? Money and resolvepolitical solutions that
fall outside the purview of the courts.
Attorney General Eric Holder, Remarks at the Hispanic National Bar

Association 39th Annual Convention (Sept. 12, 2014), available at
https://www.justice.gov/opa/speech/remarks-attorney-general-eric-holderhispanic-national-bar-association-39th-annual.
(27 of 105)
J.E. F.M. V. LYNCH
27
In fiscal year 2014, more than 60,000 unaccompanied

minors made their way to the United States,2 prompting the
Department of Homeland Security to declare a crisis at our
southern border.3 Although the numbers dropped in fiscal
year 2015, the surge has now reappeared. According to the
Pew Research Center, [t]he number of apprehensions of
unaccompanied children shot up by 78% during the first six
months of fiscal year 2016.4 Indeed, earlier some Members
of Congress as well as the Administration characterized the
issue as a humanitarian crisis.5 The border crisis created
what has been called a perfect storm in immigration courts,
as children wend their way from border crossings to
immigration proceedings.6
The storm has battered
immigration courtrooms crowded with young defendants but
William Kandel, Unaccompanied Alien Children: An Overview,

Congressional Research Service, 1 (May 11, 2016), available at
https://fas.org/sgp/crs/homesec/R43599.pdf.
3
Julia Preston, U.S. Setting Up Emergency Shelter in Texas as Youths

Cross Border Alone, N.Y. Times, May 16, 2014, available at
http://www.nytimes.com/2014/05/17/us/us-sets-up-crisis-shelter-aschildren-flow-across-border-alone.html?_r=0.
4
Jens Krogstad, U.S. Border Apprehensions of Families and

Unaccompanied Children Jump Dramatically, Pew Research Center, May
4, 2016, available at http://www.pewresearch.org/fact-tank/2016/05/04/us-border-apprehensions-of-families-and-unaccompanied-children-jumpdramatically/.
5
See Kandel, supra note 2, at 1.
6
ABA Commission on Immigration, A Humanitarian Call to Action:
Unaccompanied Children in Removal Proceedings Present a Critical
Need for Legal Representation, 1 (June 3, 2015), available at
http://www.americanbar.org/content/dam/aba/administrative/immigrati
on/UACSstatement.authcheckdam.pdf (internal quotation marks omitted).
(28 of 105)
28
J.E. F.M. V. LYNCH
lacking lawyers and judges to handle the sheer volume of

cases.7
The net result is that thousands of children8 are left to
thread their way alone through the labyrinthine maze of
immigration laws, which, without hyperbole, have been
termed second only to the Internal Revenue Code in
complexity. Castro-ORyan v. INS, 847 F.2d 1307, 1312
(9th Cir. 1987) (internal quotation marks omitted); see also
Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004)
(emphasizing the complexity of immigration laws and noting
that lawyers may be the only ones capable of navigating
through it). This reality prompted the Chief Immigration
Judge to acknowledge that [t]he demands placed on the
[immigration] courts are increasing due to the unprecedented
numbers of unaccompanied minors being placed in
immigration proceedings. As a result there is a growing need
for support systems the [immigration] courts can use to
effectively and efficiently manage the cases of
unaccompanied minors.9
Liz Robbins, Immigration Crisis Shifts from Border to Courts,

N.Y. Times, Aug. 23, 2015, available at http://www.nytimes.com/
2015/08/24/nyregion/border-crisis-shifts-as-undocumented-childrenscases-overwhelm-courts.html.
8
According to the Transactional Records Access Clearinghouse at

Syracuse University, between 2011 and 2014, the number of juvenile
cases in immigration courts leaped from 6,425 in 2011 to 59,394 in 2014.
As of September 2015, children in more than 32,700 pending immigration
cases were unrepresented.
9
Memorandum from the Executive Office for Immigration Review,

The Friend of the Court Model for Unaccompanied Minors in Immigration
Proceedings (Sept. 10, 2014).
(29 of 105)
J.E. F.M. V. LYNCH
29
Given the onslaught of cases involving unaccompanied

minors, there is only so much even the most dedicated and
judicious immigration judges (and, on appeal, members of the
Board of Immigration Appeals) can do. See Amicus Curiae
Brief of Former Federal Immigration Judges at 7.
Immigration judges are constrained by extremely limited
time and resources. Id. at 4. Indeed, those judges may
sometimes hear as many as 50 to 70 petitions in a three-tofour hour period, id., leaving scant time to delve deeply into
the particular circumstances of a childs case.
In light of all this, it is no surprise that then-Attorney
General Holder took the position in 2014 that [t]hough these
children may not have a Constitutional right to a lawyer, we
have policy reasons and a moral obligation to ensure the
presence of counsel.10 But Congress has clearlyand
repeatedlyindicated that these policy and moral concerns
may not be addressed in the district court. Rather, these
issues come initially within the Executives purview as part
of the administrative removal process, with review available
in the Courts of Appeals through the petition for review
process.11 See Maj. Op. at 1417.
To its credit, the Executive has taken some steps within
this process to address the difficulties confronting
unaccompanied and unrepresented minors. Through the
10
See supra note 1.
11
As discussed in the majority opinion, under the current statutory
scheme, Congress has recognized the privilege of being represented, at
no expense to the Government, by counsel. 8 U.S.C. 1229a(b)(4)(A).
Implementing regulations enacted by the Executive recognize the same
limited privilege. See 8 C.F.R. 238.1(b)(2).
(30 of 105)
30
J.E. F.M. V. LYNCH
Justice AmeriCorps program, the government awarded $1.8

million to support living allowances for 100 legal fellows
who will represent children in removal proceedings.12 The
government has also partnered with the United States
Conference of Catholic Bishops and the United States
Committee for Refugees and Immigrants to provide legal
representation to unaccompanied children.13 The Executive
Office for Immigration Review offers legal orientations for
custodians of unaccompanied children in removal
proceedings and it launched a pilot program to provide legal
services to unaccompanied minors.14
Yet these programs, while laudable, are a drop in the
bucket in relation to the magnitude of the problemtens of
thousands of children will remain unrepresented. A
meritorious application for asylum, refuge, withholding of
removal or other relief may fall through the cracks, despite
the best efforts of immigration agencies and the best interests
of the child. Additional policy and funding initiatives aimed
at securing representation for minors are important to ensure
12
See Press Release, Department of Justice, Justice Department and
CNCS Announce $1.8 Million in Grants to Enhance Immigration Court
Proceedings and Provide Assistance to Unaccompanied Children (Sept.
12, 2014), available at https://www.justice.gov/opa/pr/justice-departmentand-cncs-announce-18-million-grants-enhance-immigration-courtproceedings.
13
See Announcement of Award of Two Single-Source Program

Expansion Supplement Grants To Support Legal Services to Refugees
Under the Unaccompanied Alien Childrens Program, 79 Fed. Reg.
62,15901 (Oct. 16, 2014).
14
See Press Release, Department of Justice, EOIR Expands Legal

Orientation Program Sites (Oct. 22, 2014), available at
https://www.justice.gov/eoir/pr/eoir-expands-legal-orientation-programs.
(31 of 105)
J.E. F.M. V. LYNCH
31
the smooth functioning of our immigration system and the

fair and proper application of our immigration laws.
Eventually, an appeal asserting a right to governmentfunded counsel will find its way from the immigration courts
to a Court of Appeals through the petition for review process.
It would be both inappropriate and premature to comment on
the legal merits of such a claim. But, no matter the ultimate
outcome of such an appeal, Congress and the Executive
should not simply wait for a judicial determination before
taking up the policy reasons and . . . moral obligation to
respond to the dilemma of the thousands of children left to
serve as their own advocates in the immigration courts in the
meantime. The stakes are too high. To give meaning to
Equal Justice Under Law, the tag line engraved on the U.S.
Supreme Court building, to ensure the fair and effective
administration of our immigration system, and to protect the
interests of children who must struggle through that system,
the problem demands action now.
KLEINFELD, Senior Circuit Judge, specially concurring:

I agree with my colleagues that a child (or for that matter,
an adult) is unlikely to be able to protect all his rights in a
deportation proceeding unless he has a lawyer. Many
advocacy groups are deeply involved in immigration issues,
including the ones who provided counsel in this one, and
because the solution to the representation problem is a highly
controversial political matter, I think our own advocacy of
some particular reform measure is unnecessary and the matter
is better left to the political process.
(32 of 105)
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JUSTICE NEWS
Remarks by Attorney General Eric Holder at the Hispanic National
Bar Association 39th Annual Convention
SHARE
Washington, DC, United States ~ Friday, September 12, 2014
Remarks as Prepared for Delivery

Buenas tardes. Muchas gracias por sus emotivas palabras y su calurosa bienvenida.
16
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Its a privilege to help welcome the Hispanic National Bar Association to our nations
capital
ep
on S
your 39 th Annual Convention. And its a great pleasure, as always, to bercinhisuch
ved distinguished
8a
company.
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.
v
. Pozo
Id like to thank President [Miguel Alexander]
and the entire HNBA leadership team along
. F.M
n JRicardo
i
d
with your Honorary ConventioncChair,
Anzaldua;
President [Fernando] Rivero, of the
e
it
Hispanic Bar Association of the District of Columbia; and all of this organizations members for
everything youve done to bring us together this week. Id also like to congratulate the award
recipients who are being honored for their leadership over the course of this Latina Commission
Awards Luncheon. And I want to recognize the law students, attorneys, and judges who make up
this remarkable organization and who have taken time away from their busy schedules and full
dockets to take part in this important annual convention.
We come together today in a moment of great consequence with critical challenges stretching
before us. Six decades after Hernandez v. Texas extended the Constitutions guarantee of equal
protection to people of all races and backgrounds and half a century since the passage of the Civil
Rights Act finally codified American equality into American law theres no question that our
nation has taken a range of extraordinary, once-unimaginable steps forward. Yet recent headlines
remind us that these advances have not put the issue of equal justice to rest.
On the contrary: from Americas heartland to our southwest border, the events that have captured
attention and sparked debate over the course of this summer illustrate that the fight for equality,
opportunity, and justice is not yet over. These issues have not yet been relegated to the pages of
history. And although this is a struggle that predates our Republic, it poses challenges as
contemporary as any others we currently face.
For over four decades, the HNBA has stood at the forefront of national efforts to confront these
challenges by working to increase diversity on the bench and bar. By helping to educate the
leaders of tomorrow. By empowering members of Americas Latino communities. And by fostering
new opportunities for legal professionals of Hispanic heritage and particularly Latinas in the law
Report a Crime
Get a Job
Locate a Prison, Inmate,
or Sex Offender
Apply for a Grant
Submit a Complaint
Report Waste, Fraud,
Abuse or Misconduct to
the Inspector General
Find Sales of Seized
Property
Find Help and
Information for Crime
Victims
Register, Apply for
Permits, or Request
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(33 of 105)
so we can grow their ranks and ensure that their voices are heard from the chambers of our
courts to the halls of Congress.
For me and for my colleagues at every level of todays Department of Justice this work is also a
personal and professional priority. More than ten years ago, during my service as Deputy Attorney
General, I worked hard to strengthen the Justice Departments internal efforts to build a diverse
and effective workforce. When I returned to the Department as Attorney General, in 2009, I
significantly expanded this work because it not only improves our ability to draw on the skills
and talents of everyone ; it also makes the Justice Department both more credible and more
effective. In fact, since I understand this convention includes a job fair, I cant pass up the chance
to urge all of the young and aspiring attorneys in this crowd to consider a career in public service
and coming to work for me.
Beyond the institution itself, my colleagues and I also are striving to bolster the legal profession at
large by opening its doors to women and men from every race, background, ethnicity, and walk
of life. According to the Pew Research Center, the Hispanic population in the United States
currently exceeds 53 million people. It has increased almost sixfold since around the time the
HNBA was founded. Its doubled since the year 2000. Yet statistics show that, of the approximately
1.2 million attorneys working in the U.S. today, fewer than 50,000 thats less than four percent
identify as Hispanic.
Although women and people of color have made up an increasing percentage of both licensed
lawyers and law students in recent years, the law continues to lag far behind many other
professions. So we need to do everything in our power to ensure that the coming decades witness
an uptick in the number of people of color, women, people with disabilities and new immigrants
6
who find productive avenues into the legal field and the American workforce as a whole. And14, 201
r
e
b
tem and
once they have fair opportunities to compete for these jobs, we need to close the pay
pgap
n Se
o
d
e
make sure every worker is compensated according to their skills and experience,
not simply their
rchiv
38 a
7
5
gender or gender identity.
3
o. 15
h, N
c
n
y
. v. L all of us both collectively and as individuals
As the HNBA has made clear throughout its
F.Mhistory,
.
J
n
i
have more work to do: to tear cdown
ited persistent barriers, to combat discrimination, and to uphold
the civil rights to which every person is entitled. In our comprehensive work to advance equality,
we need to look far beyond law school campuses and workplaces. We need to keep building upon
the exemplary record of civil rights enforcement that the Justice Department has established over
the last five and a half years. We need to keep striving through programs such as President
Obamas My Brothers Keeper initiative to address persistent opportunity gaps and ensure that
all people can reach their full potential. And we need to summon our collective experience as legal
professionals and our shared commitment as a nation to tackle the urgent challenges faced by
millions of people every day: from Americas immigrant communities to our military bases; from
our places of worship to our financial markets; and from our voting booths to our border areas
where, as you know, a critical situation is unfolding as we speak.
Among the most pressing of our domestic challenges is the problem of unaccompanied young
people traveling to the United States and entering the country illegally. I know this is an issue with
which we are all too familiar, and which has provoked intense discussion throughout the summer
both within, and far beyond, the United States. In fact, earlier this week, I traveled to Mexico City
to hold meetings with my counterparts from Mexico, Guatemala, El Salvador, and Honduras. And
this was among the major items on our agenda.
As the chief law enforcement officials for each of the nations we serve, my colleagues and I agreed
to create a high-level working group, staffed by representatives from each of our offices, to develop
an integrated strategy to deal with this situation. This working group will hold its first meeting in
the coming weeks. And they will help us formulate a coordinated plan of action.
But another potential solution to this problem is obvious: fixing our broken immigration system.
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(34 of 105)
The Senate, on a bipartisan basis, has already passed a bill that would go a long way to doing just
that. The issue is compelling, the solution is present and the need to reaffirm our commitment to
remaining a nation of immigrants is critical. This is who we are as an exceptional nation. If we are
to remain true to our heritage, we must fix our immigration system, bring people out of the
shadows and establish a path to citizenship. There are a variety of ways in which much of this can
be done and in the face of House inaction this Administration will proceed. It will do so lawfully
and in a manner that is consistent with our values. We will, as Americans always have, seek to
make our Union more perfect.
In the meantime within Americas borders the increasing numbers of unaccompanied children
appearing in our immigration courts present an urgent challenge: how to conduct immigration
proceedings in an efficient manner while any claims for relief are presented as clearly as possible.
One way to address that challenge is to facilitate access to legal representation for these children.
Though these children may not have a Constitutional right to a lawyer, we have policy reasons and
a moral obligation to insure the presence of counsel. And thats why the Justice Department began
planning a legal aid program well before the recent surge of unaccompanied children.
Last July, President Obama announced the creation of a task force to expand national service,
calling on federal agencies to meet that goal by creating volunteer opportunities that are aligned
with agency priorities. The Justice Departments response to that call was clear. By partnering with
the Corporation for National and Community Service to design and implement a new legal aid
program, the Department is protecting vulnerable populations while improving our operations and
strengthening the delivery of Department services in their communities.
The first phase of this new program known as justice AmeriCorps was announced in June. It
6
will provide legal aid to children who make the long and often dangerous journey to the U.S. 14, 201
r
e
b
without a parent or legal guardian. And this week, we are taking the next step in this
work
ptem by
n Se
o
d
e
announcing approximately $1.8 million in grant awards to legal aid organizations
in more than 15
rchiv
38 a
7
5
cities around the country.
3
o. 15
h, N
c
n
y
. v. L
These grants will enable recipients to enroll
approximately
100 lawyers and paralegals as justice
F.M
.
J
n
i
d
AmeriCorps members, who after
extensive
training
in
December
will begin to represent these
e
cit
children in our immigration courts in early 2015. The justice AmeriCorps members will also help to
identify children who have been victims of human trafficking or abuse and, as appropriate, will
refer them to support services and authorities responsible for investigating and prosecuting those
who perpetrate such crimes.
This initiative reaffirms our allegiance to the values that have always shaped our pursuit of justice.
It will bolster the efficacy and efficiency of our immigration courts, empower new generations of
aspiring attorneys and paralegals to serve their country, and provide important legal aid to some of
the most vulnerable individuals who interact with our immigration system. Most importantly, it
will bring our system closer to our highest ideals because the way we treat those in need, and
particularly young people who may be fleeing from abuse, persecution, and violence, goes to the
core of who we are as a nation.
Fortunately, thanks to the work thats underway; the leadership of President Obama and other
Administration officials; and the tireless efforts of nonpartisan groups like the Hispanic National
Bar Association, its clear that we stand together this week in defiance of gridlock and the narrow
politics of the moment truly Unidos en Washington. We stand together in our assertion that
civil rights are human rights and they must be extended to all. We stand together in our demand
that equal work should be performed for equal pay and our daughters deserve the same
opportunities as our sons. And we stand together in our conviction that it is both the right and
the responsibility of every American to forge his or her own future; to build on the progress
weve seen in recent decades; and to extend the promise of our great country until it includes every
single person who dares, and dreams, to call this nation their home.
(35 of 105)
As we carry this work into the future, I want you to know how proud I am to count you as
colleagues and partners. Always remember that positive change is not inevitable. It is a function of
hard work and resilience. I am confident that - together - we will make our great nation even more
great, more just. I look forward to everything we will achieve together in the months and years
ahead. And I thank you, once again, for all that you do.
Topic:
Access to Justice
Access to Justice
Office of the Attorney General
Speaker:
Speeches of Attorney General Eric H. Holder, Jr.
Updated April 28, 2016
| 950 Pennsylvania Avenue, NW Washington,

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(36 of 105)
Unaccompanied Alien Children: An Overview

William A. Kandel
Analyst in Immigration Policy
May 11, 2016
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Congressional Research Service

7-5700
www.crs.gov
R43599
(37 of 105)
Summary
In FY2014, the number of unaccompanied alien children (UAC, unaccompanied children) that
were apprehended at the Southwest border while attempting to enter the United States without
authorization reached a peak, straining the system put in place over the past decade to handle
such cases. Prior to FY2014, UAC apprehensions were steadily increasing. For example, in
FY2011, the Border Patrol apprehended 16,067 unaccompanied children at the Southwest border,
whereas in FY2014 more than 68,500 unaccompanied children were apprehended. In FY2015,
UAC apprehensions declined 42% to 39,970. In the first six months of FY2016 they stood at
27,754, a figure almost comparable to the same period for FY2014.
UAC are defined in statute as children who lack lawful immigration status in the United States,
who are under the age of 18, and who either are without a parent or legal guardian in the United
States or without a parent or legal guardian in the United States who is available to provide care
and physical custody. Two statutes and a legal settlement directly affect U.S. policy for the
treatment and administrative processing of UAC: the Trafficking Victims Protection
Reauthorization Act of 2008 (P.L. 110-457); the Homeland Security Act of 2002 (P.L. 107-296);
and the Flores Settlement Agreement of 1997.
Agencies in the Department of Homeland Security (DHS) and the Department of Health and
Human Services (HHS) share responsibility for the processing, treatment, and placement of UAC.
DHSs Customs and Border Protection (CBP) apprehends and detains unaccompanied children
arrested at the border. DHSs Immigration and Customs Enforcement (ICE)1handles
2016 custody
r 4,
e
b
transfer and repatriation responsibilities, apprehends UAC in the interior
ptem of the country, and
n Seof Refugee Resettlement
o
d
represents the government in removal proceedings. HHSs
Office
hive
arcunaccompanied
38 of
coordinates and implements the care and placement
children in appropriate
7
5
3
15.
o
custody.
ch, N
n
v. Ly
M.
Foreign nationals from
ElF.Salvador,
Guatemala, Honduras, and Mexico accounted for almost all
n J.
i
d
e
cit
UAC cases in recent
years, especially in FY2014. In FY2009, Mexico accounted for 82% of the
19,688 UAC apprehensions at the Southwest border, while the other three Central American
countries accounted for 17%. In FY2014, the proportions had almost reversed, with Mexican
nationals comprising 23% of UAC apprehensions and the three Central American countries
comprising 77%. For the first six months of FY2016, Mexican nationals made up 21% of total
UAC apprehensions.
To address the crisis at its peak in 2014, the Administration developed a working group to
coordinate the efforts of federal agencies involved. It also opened additional shelters and holding
facilities to accommodate the large number of UAC apprehended at the border. In June 2014, the
Administration announced plans to provide funding to the affected Central American countries
for a variety of programs and security-related initiatives in order to mitigate the flow of
unaccompanied migrant children. In July, the Administration requested, and Congress debated but
did not approve, $3.7 billion in FY2014 supplemental appropriations to address the crisis.
For FY2015, Congress appropriated nearly $1.6 billion for the Refugee and Entrant Assistance
Programs in ORR, most of which was directed toward the UAC program (P.L. 113-235). For
DHS agencies, Congress appropriated $3.4 billion for detection, enforcement, and removal
operations, including for the transport of unaccompanied children for CBP. The Department of
Homeland Security Appropriations Act, FY2015 (P.L. 114-4) also allowed the Secretary of
Homeland Security to reprogram funds within CBP and ICE and transfer such funds into the two
agencies Salaries and Expenses accounts for the care and transportation of unaccompanied
children. The act also allowed for several DHS grants awarded to states along the Southwest
(38 of 105)
border to be used by recipients for costs or reimbursement of costs related to providing

humanitarian relief to unaccompanied children. Congress continued to provide base funding at
comparable levels for FY2016, but did not appropriate funds for contingency funding that was
requested by the Administration to address potential surges in UAC flows.
In the 114th Congress, two bills (H.R. 1153 and H.R. 1149) related to UAC have seen activity.
Both would change current UAC policy, including amending the UAC definition, altering the
treatment for unaccompanied children from contiguous countries, and changing the processing for
unaccompanied children who claim asylum, among other provisions. Several bills were
introduced but have seen no legislative activity, including H.R. 191/S. 129, H.R. 1700, H.R.
2491, and S. 44.
CRS has published additional reports on this topic. For a discussion of select factors that may
have contributed to the recent surge in UAC migrating to the United States, see CRS Report
R43628, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration,
coordinated by William A. Kandel. For a report on answers to frequently asked questions, see
CRS Report R43623, Unaccompanied Alien ChildrenLegal Issues: Answers to Frequently
Asked Questions, by Kate M. Manuel and Michael John Garcia. For information on country
conditions, security conditions, and U.S. policy in Central America, see CRS Report R43702,
Unaccompanied Children from Central America: Foreign Policy Considerations, coordinated by
Peter J. Meyer.
16
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Contents
Background ..................................................................................................................................... 1
Scope of the Issue............................................................................................................................ 2
Current Policy.................................................................................................................................. 3
Processing and Treatment of Apprehended UAC............................................................................ 4
Customs and Border Protection ................................................................................................ 5
Immigration and Customs Enforcement ................................................................................... 6
Office of Refugee Resettlement ................................................................................................ 8
U.S. Citizenship and Immigration Services ............................................................................ 10
The Executive Office for Immigration Review........................................................................11
Administrative and Congressional Action..................................................................................... 12
Administrative Action ............................................................................................................. 12
Congressional Action .............................................................................................................. 14
Appropriations .................................................................................................................. 14
Legislation ........................................................................................................................ 16
Policy Challenges .......................................................................................................................... 17
Figures
16
4, 20
er 1
temb
Figure 1. UAC Apprehensions at the Southwest Border by Country

Sepof Origin, FY2008d on
e
v
i
h
FY2016.........................................................................................................................................
2
arc
5738
3ORR
5
1
Figure 2. UACs Apprehended and Referred
to
Custody,
FY2008
FY2016*.......................
9
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Author Contact Information .......................................................................................................... 18

Acknowledgments ......................................................................................................................... 18
(40 of 105)
Background
After several years of increases, the number of unaccompanied alien1 children (UAC)
apprehended at the Southwest border by the Department of Homeland Securitys (DHSs)
Customs and Border Protection (CBP) peaked at 68,541 in FY2014. During a June 2014 hearing,
some Members of Congress as well as the Administration characterized the issue as a
humanitarian crisis.2
In recent years, most unaccompanied children have originated from three Central American
countriesGuatemala, Honduras, and El Salvadorand Mexico. The reasons why they migrate
to the United States are often multifaceted and difficult to measure analytically. The
Congressional Research Service (CRS) has analyzed several out-migration-related factors, such
as violent crime rates, economic conditions, rates of poverty, and the presence of transnational
gangs.3 CRS also has analyzed in-migration-related factors, such as the search for economic
opportunity, the desire to reunite with family members, and U.S. immigration policies.
Critics of the Obama Administration assert that the sizable increase in UAC flows in recent years
results from a perception of relaxed U.S. immigration policies toward children.4 They also cite a
2008 law5 that treats UAC from contiguous countries differently than those from noncontiguous
countries (see Customs and Border Protection below).
Unaccompanied alien children are defined in statute as children who: lack lawful immigration
guardian in
status in the United States;6 are under the age of 18; and are without a parent or legal
2016
,
4
1
the United States or without a parent or legal guardian in the United States
who
is
available
to
er
emb
t
p
e
ports
of
entry
or
are
provide care and physical custody.7 They most often arrive atoU.S.
S
d n
hive
apprehended along the southwestern border with Mexico.
Less
frequently,
they are apprehended
c
r
a
8
8
73juveniles
35be
Although most
in the interior of the country and determined
to
and
unaccompanied.
5
1
o.
N
9
,
h
c
are age 14 or older, apprehensions
of
UAC
under
age
13
have
increased.
n
y
.L
in
cited
M. v
J. F.
1
Alien, a technical term appearing throughout the Immigration and Nationality Act (INA), refers to a foreign national
who is not a citizen or national of the United States.
2
Senate Judiciary Committee hearing on Oversight of the Department of Homeland Security, June 11, 2014
(hereinafter referred to as Senate Oversight Hearing).
3
See CRS Report R43628, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration,
coordinated by William A. Kandel.
4
These critics often cite the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744),
passed by the Senate in 2013, which would allow certain unlawfully present aliens to adjust to a lawful immigration
status; and the administrative policy entitled Deferred Action for Childhood Arrivals (DACA), which grants certain
aliens who arrived in the United States as children prior to a certain period some protection from removal for at least
two years. For an example of these arguments, see U.S. Congress, Senate Committee on the Judiciary, Oversight of the
Department of Homeland Security, 113th Cong., 2nd sess., June 11, 2014. For a discussion of S. 744, see CRS Report
R43099, Comprehensive Immigration Reform in the 113th Congress: Short Summary of Senate-Passed S. 744, by Ruth
Ellen Wasem. For a discussion of DACA, see CRS Report RL33863, Unauthorized Alien Students: Issues and
DREAM Act Legislation, by Andorra Bruno.
5
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457).
6
The child may have entered the country illegally or been admitted legally but overstayed his or her duration of
admittance (i.e., a visa overstay.)
7
6 U.S.C. 279(g)(2). Although these children may have a parent or guardian who lives in the United States, they are
classified as unaccompanied if the parent or guardian cannot provide immediate care.
8
A juvenile is classified as unaccompanied if neither a parent nor a legal guardian is with the juvenile alien at the time
of apprehension, or within a geographical proximity to quickly provide care for the juvenile. 8 CFR 236.3(b)(1).
9
White House, DHS and HHS, Press Call Regarding the Establishment of the Inter-Agency Unified Coordination
(continued...)
(41 of 105)
This report opens with an analysis of recent UAC apprehension data. It then discusses current
policy on the treatment, care, and custody of the population and describes the responsibilities of
each federal agency involved with the population. The report then discusses both administrative
and congressional actions to deal with the UAC surge in FY2014 and action since then to address
possible future surges.
Scope of the Issue

Since FY2011, UAC apprehensions have increased each year through FY2014: from 16,067 in
FY2011 to 24,481 in FY2012 to 38,759 in FY2013 and 68,541 in FY2014 (Figure 1). At the
close of FY2014, the Border Patrol had apprehended more UAC than in any of the previous six
years and close to four times as many UAC as in FY2011. In FY2015, apprehensions numbered
39,970, a 42% drop from FY2014 apprehensions.10 In the first six months of FY2016,
apprehensions numbered 27,754, a figure almost comparable to the first six months of FY2014.11
Figure 1. UAC Apprehensions at the Southwest Border by Country of Origin,
FY2008-FY2016
16
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Sources: For FY2008-FY2013: U.S. Department of Homeland Security, United States Border Patrol, Juvenile and
Adult ApprehensionsFiscal Year 2013. For FY2014-FY2016, Customs and Border Protection, Southwest Border
Unaccompanied Alien Children, http://www.cbp.gov/newsroom/stats/southwest-border-unaccompaniedchildren.
Notes: FY2016 figures represent six months, from October 1, 2015, through March 31, 2016.
(...continued)
Group on Unaccompanied Alien Children, press release, June 3, 2014.
10
Customs and Border Protection, Southwest Border Unaccompanied Alien Children, http://www.cbp.gov/
newsroom/stats/southwest-border-unaccompanied-children.
11
To compare, 28,579 unaccompanied children were apprehended at the Southwest border during the first six months
of FY2014 and 15,616 during the first six months of FY2015.
(42 of 105)
Nationals of Guatemala, Honduras, El Salvador, and Mexico account for the majority of
unaccompanied alien children apprehended at the Mexico-U.S. border (Figure 1). Flows of UAC
from Mexico rose substantially in FY2009 and have remained relatively steady. In contrast, UAC
from Guatemala, Honduras, and El Salvador increased sizably starting in FY2011. In FY2009,
Mexican UAC accounted for 82% of 19,668 UAC apprehensions, while the other three Central
American countries accounted for 17%. By September 30, 2014, those proportions had almost
reversed, with Mexican UAC comprising 23% of the 68,541 UAC apprehensions and UAC from
the three Central American countries comprising 75%.12 In FY2015 and the first six months of
FY2016, the percentages of unaccompanied children originating from Mexico were 28% and
21%, respectively.
The majority of UAC apprehensions have occurred within the Rio Grande and Tucson border
sectors (59% and 13%, respectively, in the first six months of FY2016).13 The proportions of
UAC who were female or who were under the age of 13 also increased in FY2014.
Apprehensions of family units (unaccompanied children with a related adult) increased from
14,855 in FY2013 to 68,445 in FY2014 before declining to 39,838 in FY2015. In the first six
months of FY2016, family unit apprehensions totaled 32,117.14 Of these apprehended family
units, almost 90% originated from Guatemala, El Salvador, and Honduras.
Current Policy
Two laws and a settlement, discussed below, most directly affect U.S. policy for the
treatment and
2016
,
4
1
administrative processing of UAC: the Flores Settlement Agreement of 1997;
the
Homeland
r
mbe
epte
Security Act of 2002; and the Trafficking Victims Protection Reauthorization
Act of 2008.
S
n
o
d
chive
ar the former Immigration and

8 by
During the 1980s, allegations of UAC mistreatment
3573
5
15
1
o.
of lawsuits against the government that eventually
Naturalization Service (INS) causedh,aNseries
nc
y
L
.
resulted in the Flores Settlement
Agreement
(Flores
Agreement) in 1997.16 The Flores Agreement
M. v
.
F
.
in J policy for the detention, treatment, and release of UAC and recognized
established a nationwide
cited
the particular vulnerability of UAC as minors while detained without a parent or legal guardian
present.17 It required that immigration officials detaining minors provide (1) food and drinking
water; (2) medical assistance in emergencies; (3) toilets and sinks; (4) adequate temperature
control and ventilation; (5) adequate supervision to protect minors from others; and (6) separation
12
The surge in the number of children migrating to the United States mirrors a similar increase among adults. From
FY2011 through FY2015, the number of Border Patrol apprehensions of third-country nationals increased almost
threefold from 54,098 to 148,995. Over the same period, those apprehended from Mexico decreased from 286,154 to
188,122. United States Border Patrol, Total Illegal Alien Apprehensions by Fiscal Year, FY2000-FY2015, accessed by
CRS on April 26, 2016 at http://www.cbp.gov/sites/default/files/documents/BP%20Total%20Apps%2C%20
Mexico%2C%20OTM%20FY2000-FY2015.pdf.
13
Customs and Border Protection, Southwest Border Unaccompanied Alien Children, http://www.cbp.gov/
newsroom/stats/southwest-border-unaccompanied-children/fy-2016.
14
As a basis for comparison, CBP apprehended 19,830 family units at the Southwest border during the first six months
of FY2014 and 13,911 during the first six months of FY2015.
15
The Homeland Security Act of 2002 dissolved the Immigration and Naturalization Service (INS) and its functions
were split in the Departments of Homeland Security, Justice, and Health and Human Services.
16
Flores v. MeeseStipulated Settlement Agreement (U.S. District Court, Central District of California, 1997). Many
of the agreements terms have been codified at 8 CFR 236.3, 1236.3.
17
See DHS Office of Inspector General, CBPs Handling of Unaccompanied Alien Children, OIG-10-117,
Washington, DC, September 2010.
(43 of 105)
from unrelated adults whenever possible. For several years following the Flores Agreement,
criticism continued over whether the INS had fully implemented the drafted regulations.18
Five years later, the Homeland Security Act of 2002 (HSA; P.L. 107-296) divided responsibilities
for the processing and treatment of UAC between the newly created Department of Homeland
Security (DHS) and the Department of Health and Human Services (HHSs) Office of Refugee
Resettlement (ORR). To DHS, the law assigned responsibility for the apprehension, transfer, and
repatriation of UAC. To HHS, the law assigned responsibility for coordinating and implementing
the care and placement of UAC in appropriate custody; reunifying UAC with their parents abroad
if appropriate; maintaining and publishing a list of legal services available to UAC; and collecting
statistical information on UAC, among other responsibilities.19 The HSA also established a
statutory definition of UAC as unauthorized minors not accompanied by a parent or legal
guardian. Despite these developments, criticism continued that the Flores Agreement had not
been fully implemented.
In response to ongoing concerns that UAC apprehended by the Border Patrol were not being
adequately screened for reasons they should not be returned to their home country, Congress
passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA, P.L. 110-457). The TVPRA directed the Secretary of DHS, in conjunction with other
federal agencies, to develop policies and procedures to ensure that UAC in the United States are
safely repatriated to their country of nationality or of last habitual residence. The section set forth
special rules for UAC from contiguous countries (i.e., Mexico and Canada), allowing such
children, under certain circumstances, to return to Mexico or Canada without additional
penalties,
2016
r 14,Canada to manage
and directing the Secretary of State to negotiate agreements with Mexico
and
e
b
ptem
the repatriation process. The TVPRA mandated that unaccompanied
n Se alien children from countries
o
d
e
rchiv
other than Mexico or Canadaalong with UAC from
38 a those countries who are apprehended away
7
5
3
from the borderare to be transferred toothe
. 15-care and custody of HHS and placed in formal
h, N
c
n
removal proceedings. The TVPRA
required
that children from contiguous countries be screened
y
. v. L
M
.
F
.
within 48 hours of being
in J apprehended to determine whether they should be returned to their
cited to HHS and placed in removal proceedings.
country or transferred
Processing and Treatment of Apprehended UAC

Several DHS agencies handle the apprehension, processing, and repatriation of UAC, while HHS
handles the care and custody of UAC. The Executive Office for Immigration Review (EOIR) in
the U.S. Department of Justice conducts immigration removal proceedings.
DHSs Customs and Border Protection (CBP) apprehends, processes, and detains the majority of
UAC arrested along U.S. borders. DHSs Immigration and Customs Enforcement (ICE)
physically transports UAC from CBP to HHSs Office of Refugee Resettlement (HHS-ORR)
custody. HHS-ORR is responsible for detaining and sheltering UAC who are from noncontiguous
countries and those from contiguous countries (i.e., Canada and Mexico) who may be victims of
trafficking or have an asylum claim, while they await an immigration hearing. DHSs U.S.
Citizenship and Immigration Services (USCIS) is responsible for the initial adjudication of
asylum applications filed by UAC. DOJs EOIR conducts immigration proceedings that
18
See U.S. Department of Justice, Office of the Inspector General, Unaccompanied Juveniles in INS Custody,
Executive Summary, Report no. I-2001-009, September 28, 2001.
19
ORR assumed care of UAC on March 1, 2003, and created the Division of Unaccompanied Childrens Services
(DUCS) for addressing the requirements of this population. P.L. 107-296, Section 462.
(44 of 105)
determine whether UAC may be allowed to remain in the United States or must be deported to
their home countries. ICE is responsible for returning UAC who are ordered removed from the
United States to their home countries. The following sections discuss the role of each of these
federal agencies in more detail.
Customs and Border Protection

The Office of Border Patrol (OBP)20 and the Office of Field Operations (OFO)21 are responsible
for apprehending and processing UAC that come through a port of entry (POE) or are found at or
near the border.22 UAC that are apprehended between POEs are transported to Border Patrol
stations, and if they are apprehended at POEs, they are escorted to CBP secondary screening
areas. In both cases, when CBP confirms a juvenile has entered the country illegally and
unaccompanied, he or she is classified as a UAC and processed for immigration violations, and
the appropriate consulate is notified that the juvenile is being detained by DHS.
The Border Patrol apprehends the majority of UAC at or near the border. They also process
UAC.23 With the exception of Mexican and Canadian UAC who meet the criteria discussed
below, the Border Patrol has to turn UAC over to ICE for transport to HHS-ORR within 72 hours
of determining that the children are UAC.24 Until 2008, the Border Patrol, as a matter of practice,
returned Mexican UAC to Mexico. Under this practice, Mexican UAC were removed through the
nearest POE and turned over to a Mexican official within 24 hours and during daylight.
As mentioned, the TVPRA required the Secretary of Homeland Security, in conjunction
with the
2016
,
4
1
Secretary of State, the Attorney General, and the Secretary of Health and
Human
Services,
to
er
emb
t
p
e
S
develop policies and procedures to ensure that UAC are safelyonrepatriated
to their country of
ed
nationality or last habitual residence. Of particular 8significance,
the TVPRA required CBP to
rchiv
a
573
follow certain criteria for UAC who are onationals
15-3 or habitual residents from a contiguous country
.
h, N
(i.e., Canada and Mexico).25 In. these
Lync cases, CBP personnel must screen each UAC within 48
v
.
M
.
hours of apprehension
toFdetermine
the following:
in J.
x
x
x
cited
the UAC has not been a victim of a severe form of trafficking in persons and
there is no credible evidence that the minor is at risk should the minor be
returned to his/her country of nationality or last habitual residence;
the UAC does not have a possible claim to asylum; and
the UAC is able to make an independent decision to voluntarily return to his/her
country of nationality or last habitual residence.26
20
OBP includes the Border Patrol. OBP and the Border Patrol are used interchangeably throughout this section. OBP is
responsible for immigration and customs enforcement between ports of entry.
21
The OFO oversees CBP officers who inspect travelers and goods at ports of entry.
22
When OBP and OFO are both referenced together in this section, CBP is used.
23
The processing of UAC includes gathering biographic information such as their name and age as well as their
citizenship and whether they are unaccompanied. Border Patrol agents also collect biometrics on UAC and query
relevant immigration, terrorist, and criminal databases.
24
The 72-hour time period was established in statute by the TVPRA.
25
8 U.S.C. 1101 et seq. Although the screening provision only applies to UAC from contiguous countries, in March
2009 DHS issued a policy that, in essence, made the screening provisions applicable to all UAC. Testimony of Office
of Immigration and Border Security Acting Deputy Assistant Secretary Kelly Ryan, in U.S. Congress, Senate
Committee on the Judiciary, Trafficking Victims Protection Reauthorization Act: Renewing the Commitment to Victims
of Human Trafficking, 112th Cong.,1st sess., September 13, 2011.
26
P.L. 110-457, 235(a)(2)(A).
(45 of 105)
If CBP personnel determine the minor to be inadmissible under the Immigration and Nationality
Act, they can permit the minor to withdraw his/her application for admission27 and the minor can
voluntarily return to his/her country of nationality or last habitual residence.
The TVPRA contains specific safeguards for the treatment of UAC while in the care and custody
of CBP, and it provides guidance for CBP personnel on returning a minor to his/her country of
nationality or last habitual residence. It also requires the Secretary of State to negotiate
agreements with contiguous countries for the repatriation of their UAC. The agreements serve to
protect children from trafficking and, at minimum, must include provisions that (1) ensure the
handoff of the minor children to an appropriate government official; (2) prohibit returning UAC
outside of reasonable business hours; and (3) require border personnel of the contiguous
countries to be trained in the terms of the agreements.
As mentioned, UAC apprehended by the Border Patrol are brought to a Border Patrol facility,
where they are processed. In 2008, the agency issued a memorandum entitled Hold Rooms and
Short Term Custody.28 Since the issuance of this policy, non-governmental organizations
(NGOs) have criticized the Border Patrol for failing to fully uphold provisions in current law and
the Flores Agreement.29 Indeed, the DHS Office of Inspector General (OIG) issued a report in
2010 concluding that while CBP was in general compliance with the Flores Agreement, it needed
to improve its handling of UAC.30
The 2010 OIG report, however, did not address whether CBP was in compliance with the
TVPRA. As highlighted above, the TVPRA requires CBP personnel to screen UAC from
2016
contiguous countries for severe forms of trafficking in persons and for fear 1of4,persecution
if they
r
e
b
m
e
are returned to their country of nationality or last habitual residence.
At
least
one
NGO
that
t
Sep
on CBP
dthat
does not adequately do this
conducted a two-year study on UAC31 asserted in its report
e
v
i
h
32
arc
8
3
nor has established related training for their Border
-357 Patrol agents.
. 15
, No
nch
v. Ly
.M.
Immigration and
Enforcement
FCustoms
in J.
cited
ICE is responsible for physically transferring UAC from CBP to HHS-ORR custody. ICE also
may apprehend UAC in the U.S. interior during immigration enforcement actions. In addition,
ICE represents the government in removal procedures before EOIR. Unaccompanied alien
27
Under the INA, apprehension at the border constitutes an application for admission to the United States. In this case,
the UAC is permitted to return immediately to Mexico or Canada, and does not face administrative or other penalties.
INA 235(a)(4); 8 U.S.C. 1225(a)(4).
28
UAC are held in hold rooms at Border Patrol stations. The 2008 memorandum, which is publicly available but
redacted, outlines agency policy on the care and treatment of individuals in CBP care and custody. See U.S. Customs
and Border Patrol, Memorandum on Hold Rooms and Short Term Custody, June 2, 2008, http://foiarr.cbp.gov/
streamingWord.asp?i=378.
29
See for example, Children at the Border: The Screening, Protection and Repatriation of Unaccompanied Mexican
Minors, by Betsy Cavendish and Maru Cortazar, Appleseed, Washington DC, 2011 (hereinafter referred to as Children
at the Border).
30
Department of Homeland Security, Office of Inspector General, CBPs Handling of Unaccompanied Alien Children,
OIG-10-117, Washington, DC, September 2010.
31
Children at the Border.
32
Relatedly, the 2010 OIG study was unable to determine whether CBP personnel had sufficient training to comply
with the provisions in the Flores Agreement. Notably, the Appleseed study (Children at the Border) included site visits
to ten Border Patrol facilities as well as site visits to locales in Mexico and interviews with government officials in both
countries and minors in custody and who have been repatriated. Whether this limited site visit sample is sufficiently
varied to be adequately generalizable to all Border Patrol facilities on the U.S.-Mexico border is unclear.
(46 of 105)
children who are not subject to TVPRAs special repatriation procedures for some children from
Mexico or Canada (i.e., voluntary departure) may be placed in standard removal proceedings
pursuant to INA Section 240. The TVPRA specifies that in standard removal proceedings, UAC
are eligible for voluntary departure under INA Section 240B at no cost to the child.
ICE is also responsible for the physical removal of all foreign nationals, including UAC who have
final orders of removal or who have elected voluntary departure while in removal proceedings. To
safeguard the welfare of all UAC, ICE has established policies for repatriating UAC, including
x
x
x
x
x
returning UAC only during daylight hours;

recording transfers by ensuring that receiving government officials or designees
sign for custody;
returning UAC through a port designated for repatriation;
providing UAC the opportunity to communicate with a consular official prior to
departure for the home country; and
preserving the unity of families during removal.33
ICE notifies the country of every foreign national being removed from the United States.34
Implementing a removal order depends on whether the U.S. government can secure travel
documents for the alien being removed from the country in question.35 As such, the United States
depends on the willingness of foreign governments to accept the return of their nationals. Each
country sets its own documentary requirements for repatriation of their nationals.366While some
01
allow ICE to use a valid passport to remove an alien (if the alien possesses
14, 2 others require
r one),
e
b
37 tem
p
ICE to obtain a travel document specifically for the repatriation.
n SeAccording to one report, the
o
d
e
v
i
process of obtaining travel documents can become problematic,
because
countries often change
h
rc
38toa a juveniles return.38
7
5
their documentary requirements or raise objections
3
. 15o
h, N
c
Once the foreign country has. vissued
. Lyn travel documents, ICE arranges the UACs transport. If the
M
.
F
.
return involves flying,
in JICE personnel accompany the UAC to his or her home country. ICE uses
cited for most UAC removals. ICE provides two escort officers for each UAC.39
commercial airlines
Mexican UAC are repatriated in accordance with Local Repatriation Agreements (LRA), which
require that ICE notify the Mexican Consulate for each UAC repatriated. Additional specific
requirements apply to each LRA (e.g., specific hours of repatriation).40
33
Email from ICE Congressional Relations, May 16, 2014.

ICE uses a country clearance to notify a foreign country, through a U.S. Embassy abroad, that a foreign national is
being repatriated. In addition, when ICE personnel escort the alien during his or her repatriation, the country clearance
process notifies the U.S. Ambassador abroad that U.S. government employees will be travelling to the country.
35
Conversation with Doug Henkel, Associate Director, ICE Removal and Management Division, February 20, 2012.
36
Depending on the country and depending on where the UAC is housed, the consular officers will conduct in-person
or phone interviews. Olga Byrne and Elise Miller, The Flow of Unaccompanied Children Through the Immigration
System, Vera Institute of Justice, Washington, DC, March 2012, p. 27 (hereinafter referred to as The Flow of
Unaccompanied Children).
37
Annex 9 of the Civil Aviation Convention requires that countries issue travel documents, but the convention lacks an
enforcement mechanism.
38
The Flow of Unaccompanied Children, p. 27.
39
An additional officer is added for each group that exceeds five UAC. The gender of the officers corresponds to the
gender of the children repatriated. Email from ICE Congressional Relations, May 16, 2014.
40
Ibid.
34
(47 of 105)
Office of Refugee Resettlement

The Unaccompanied Alien Children Program in ORR/HHS provides for the custody and care of
unaccompanied alien minors who have been apprehended by ICE or CBP or referred by other
federal agencies. The TVPRA directed that HHS ensure that UAC be promptly placed in the
least restrictive setting that is in the best interest of the child.41 The HSA requires that ORR
develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the
interests of the child are considered in decisions and actions relating to the care and custody of a
UAC, and oversee the infrastructure and personnel of UAC residential facilities, among other
responsibilities.42 ORR also screens each UAC to determine if the child has been a victim of a
severe form of trafficking in persons, if there is credible evidence that the child would be at risk if
he or she were returned to his/her country of nationality or last habitual residence, and if the child
has a possible claim to asylum.43
ORR arranges to house the child either in one of its shelters or in foster care; or the UAC program
reunites the child with a family member. According to ORR, the majority of the youth are cared
for initially through a network of state-licensed, ORR-funded care providers that offer classroom
education, mental and medical health services, case management, and socialization and recreation.
ORR oversees different types of shelters to accommodate unaccompanied children with different
circumstances, including nonsecure shelter care, secure care, and transitional foster care
facilities.44 A juvenile may be held in a secure facility only if he or she is charged with criminal or
delinquent actions, threatens or commits violence, displays unacceptably disruptive conduct in a
16
shelter, presents an escape risk, is in danger and is detained for his/her ownr 1safety,
4, 20 or is part of an
e
b
emergency or influx of minors that results in insufficient bed space
atem
nonsecure facilities.45
Sept
n
ed o
rchiv to family members or other sponsors

The same care providers also facilitate the release3of
8 aUAC
7
46
5
3
5who are able to care for them. The Flores
outlines the following preference ranking
. 1Agreement
, No
hlegal
c
n
for sponsor types: (1) a parent,v. (2)
a
guardian,
(3)
an adult relative, (4) an adult individual or
y
L
M. parent or legal guardian, (5) a licensed program willing to accept
.
F
entity designated byinthe
childs
.
J
d
cite
legal custody, or
(6) an adult or entity approved by ORR.47
In making these placement determinations, ORR conducts a background investigation to ensure

the identity of the adult assuming legal guardianship for the UAC and that the adult does not have
a record of abusive behavior. ORR may consult with the consulate of the UACs country of origin
as well as interview the UAC to ensure he or she also agrees with the proposed placement. If such
background checks reveal evidence of actual or potential abuse or trafficking, ORR may require a
41
235(a)-235(d) of TVPRA; 8 U.S.C. 1232(b)(2).

Section 235(c) of the TVPRA and Section 462(b) of the Homeland Security Act of 2002 (HSA, P.L. 107-296)
describe conditions for the care and placement of UAC in federal custody.
43
As noted previously, all UAC are initially screened by CBP for trafficking victimization or risk as well as possible
claims to asylum, regardless of country of origin.
44
Shelter care refers to a minimally restrictive level of care, for most UAC without special needs. Secure care facilities
are generally reserved for children with behavioral issues, a history of violent offenses, or who pose a threat to
themselves or others. Transitional foster care, which involves placement with families, is prioritized for children under
age 13, sibling groups with one child younger than 13, pregnant and parenting teens, and children with special needs,
including mental health needs. CRS briefing on unaccompanied children with HHS-ORR, May 5, 2014.
45
Flores v. MeeseStipulated Settlement Agreement (U.S. District Court, Central District of California, 1997), Exhibit 2.
46
Administration for Children and Families, Office of Refugee Resettlement, Unaccompanied Alien Children Program,
U.S. Department of Health and Human Services, Fact Sheet, January 2016, (hereinafter referred to as ORR UAC Fact
Sheet, January 2016.)
47
Flores v. MeeseStipulated Settlement Agreement (U.S. District Court, Central District of California, 1997), p. 10.
42
(48 of 105)
home study as an additional precaution.48 In addition, the parent or guardian is required to

complete a Parent Reunification Packet to attest that they agree to take responsibility for the UAC
and provide him/her with proper care.49
Figure 2 shows both annual UAC apprehensions and annual referrals of unaccompanied children
to HHS-ORR since FY2008. As expected, a positive relationship exists between the two measures;
but in recent years, as children from non-contiguous countries have dominated the share of all
UAC apprehensions, the correspondence between apprehensions and referrals has increased. In
FY2009, when unaccompanied children from the three Northern Triangle countries comprised
17% of all UAC apprehensions, the proportion of children referred to HHS-ORR was 34% of total
apprehensions. In the first six months of FY2016, when unaccompanied children from those
countries dominated the flow with 78% of all UAC apprehensions, that same proportion was 94%.
Figure 2. UACs Apprehended and Referred to ORR Custody, FY2008-FY2016*
16
4, 20
d on
38
-357
cited
Sep
ch
. Lyn
.v
. F.M
. 15
, No
ive
arch
er 1
temb
in J
Source: Apprehensions: See sources for Figure 1 above; Referrals: FY2008-FY2015: HHS-ORR, Fiscal Year
2017, Administration for Children and Families, Justification of Estimates for Appropriations Committees, p. 243;
FY2016: CRS presentation of unpublished data from the HHS Office of Refugee Resettlement.
Notes: Figures for FY2016 include only the first six months, one half of a fiscal year.
ORR reports that most children served are reunified with family members.50 Between FY2008
and FY2010, the length of stay in ORR care averaged 61 days and total time in custody ranged
48
A home study is an in-depth investigation of the potential sponsors ability to ensure the childs safety and wellbeing and involves background checks of both the sponsor and any adult household members, one or more home visits,
a face-to-face interview with the sponsor and potentially with other household members, and post-release services.
Pursuant to the TVPRA of 2008, home studies are required for certain UAC considered especially vulnerable.
49
Office of Refugee Resettlement, Unaccompanied Childrens Services, ORR/DCS Family Reunification Packet for
Sponsors (English/Espaol), http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrensservices#Family%20Reunification%20Packet%20for%20Sponsors, accessed by CRS on April 27, 2016.
50
In FY2014, 96% of discharged UAC were released to a sponsoring family member. Of this group 58% were parents
or legal guardians, 29% were other relatives, and 9% were non-relatives. The remaining 4% of UAC were discharged
(continued...)
(49 of 105)
from less than 1 day to 710 days.51 ORR reported that children spent about 34 days on average in
the program as of January 2016.52 Removal proceedings continue even when UAC are placed
with parents or other relatives.53 As noted above, not all UAC are referred to ORR; for instance,
many UAC from contiguous countries voluntarily return home.
The sizable increases in UAC referrals since FY2008 have challenged ORR to meet the demand
for its services while maintaining related child welfare protocols and administrative standards.54
These challenges reached a crescendo in January 2016 when a Senate investigation indicated that
in FY2014, some UAC who had originally been placed with distant relatives and parentallyapproved guardians ended up being forced to work in oppressive conditions on an Ohio farm.55
The report outlined a range of what it characterized as serious deficiencies related to the safe
placement of children with distant relatives and unrelated adults as well as post-placement
follow-up. During the Senate Homeland Security Committee hearing that followed, HHS officials
acknowledged limitations of their screening and post-placement follow-up procedures for such
sponsors. They also reiterated the legal basis for the termination of UAC custody and HHS
liability once custody of the unaccompanied minor was handed over to the sponsor.56
U.S. Citizenship and Immigration Services

As mentioned, U.S. Citizenship and Immigration Services (USCIS) is responsible for the initial
adjudication of asylum applications filed by UAC.57 If either CBP or ICE finds that the child is a
UAC and transfers him/her to ORR custody, USCIS generally will take jurisdiction over any
2016 or legal
asylum application, even where evidence shows that the child reunited with1a4,parent
r
e
b
guardian after CBP or ICE made the UAC determination. USCIS ealso
has initial jurisdiction over
em
S pt
d on
asylum applications filed by UAC with pending claims hiniveimmigration
court, with cases on
rc
a
8
3
appeal before the Board of Immigration Appeals,
or
with
petitions
under
review with federal
-357
. 15
, No
M.
J. F.
nch
v. Ly
in
(...continued)
cited
for other reasons, such as a transfer to DHS due to aging-out of UAC status. Source: unpublished data provided to CRS
by Office of Legislative Affairs, Administration for Children and Families, Office of Refugee Resettlement, U.S.
Department of Health and Human Services, March 20, 2015.
51
The Flow of Unaccompanied Children, p. 17.
52
ORR UAC Fact Sheet, January 2016. An earlier May 2014 version of this fact sheet cited an average of 35 days.
53
Some communities and states have objected to unaccompanied children being located in their jurisdictions (either in
shelters or in family placements) as well as the lack of notification by HHS-ORR. For more information, see U.S.
Congress, House Committee on the Judiciary, Subcommittee on Immigration and Border Security, Impact on Local
Communities of the Release of Unaccompanied Alien Minors and the Need for Consultation and Notification, 113th
Cong., 2nd sess., December 10, 2014.
54
A recent report by the Government Accountability Office (GAO) raised concerns about ORRs lack of a planning
process for its capacity needs, inconsistent monitoring of service provision by its nonprofit grantee organizations that
provide shelter services, limited contact with children following their placement, and administrative recording of postplacement follow-up procedures. See U.S. Government Accountability Office, Unaccompanied Children: HHS Can
Take Futher Actions to Monitor Their Care, GAO-16-180, February 2016.
55
United States Senate, Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on
Investigations, Protecting Unaccompanied Alien Children from Trafficking and Other Abuses: The Role of the Office of
Refugee Resettlement, January 28, 2016.
56
U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on
Investigations, Adequacy of the Department of Health and Human Services Efforts to Protect Unaccompanied Alien
Children From Human Trafficking, 114th Cong., 2nd sess., January 28, 2016.
57
For information on UAC and asylum, see CRS Report R43664, Asylum Policies for Unaccompanied Children
Compared with Expedited Removal Policies for Unauthorized Adults: In Brief, by Ruth Ellen Wasem.
10
(50 of 105)
courts as of enactment of the TVPRA (December 23, 2008). UAC must appear at any hearings
scheduled in immigration court, even after petitioning for asylum with USCIS.
The Executive Office for Immigration Review

The Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice is
responsible for adjudicating immigration cases and conducting removal proceedings. Generally,
during an immigration removal proceeding, the foreign national and the U.S. government present
testimony so that the immigration judge can make a determination on whether the foreign
national is removable or qualifies for some type of relief from removal (i.e., the alien is permitted
to remain in the United States either permanently or temporarily). The TVPRA requires that HHS
ensure, to the greatest extent possible, that UAC have access to legal counsel, and it also permits
HHS to appoint independent child advocates for child trafficking victims and other vulnerable
unaccompanied alien children.
EOIR has specific policies for conducting removal hearings of UAC to ensure that UAC
understand the nature of the proceedings, can effectively present evidence about their cases, and
have appropriate assistance. The policy guidelines discuss possible adjustments to create an
atmosphere in which the child is better able to present a claim and to participate more fully in the
proceedings. Under these guidelines, immigration judges should:
x
x
x
x
x
x
x
establish special dockets for UAC that are separated from the general population;
allow child-friendly courtroom modifications (e.g., judges not wearing
robes,
016
14, 2
r
e
b
allowing the child to have a toy, permitting the child to testify
mfrom a seat rather
epte
n Sproceedings);
o
than the witness stand, allowing more breaks during
the
d
e
rchiv
38 a the child with the court;
7
provide courtroom orientations to familiarize
5
3
15No.
h, outset;
c
explain the proceedings
at
the
n
y
.L
.M. v
Fto
.
J
prepare the
child
testify;
n
i
cited
employ child-sensitive questioning; and,
strongly encourage the use of pro bono legal representation if the child is not
represented.
On July 9, 2014, in response to the UAC surge, EOIR issued new guidelines that prioritized
unaccompanied children and non-detained families above other cases in the immigration courts
and on the same level as detained aliens.58 On July 18, 2014, EOIR initiated a new case recording
system that coincided with its announcement of its revised adjudication priorities.59 The new
system allows EOIR to track legal outcomes of UAC with greater precision.60
58
Immigration and childrens advocacy groups have criticized these policies for rushing the adjudication process. See
for example, Wendy Feliz, Immigration Courts Are Ordering Unrepresented Children Deported, Immigration Impact,
March 10, 2015; and Walter Ewing, Why More Immigration Judges Are Needed, Immigration Impact, May 11,
2015. See also U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration and Border Security,
Oversight of the Executive Office for Immigration Review, statement of Ranking Member Zoe Lofgren, 114th Cong., 1st
sess., December 3, 2015, pp. 34-35.
59
The four priority categories are: (1) unaccompanied child; (2) adults with a child or children detained; (3) adults with
a child or children released on alternatives to detention; and (4) recently detained border crossers. See statement of Juan
P. Osuna, Director of Executive Office of Immigration Review, U.S. Department of Justice, The Presidents
Emergency Supplemental Request for Unaccompanied Children and Related Matters, in U.S. Congress, Senate
Committee on Appropriations, hearings, 113th Cong., 2nd sess., July 10, 2014.
60
Prior to this system, EOIR tracked only the number of juveniles it processed and could not distinguish between UAC
(continued...)
11
(51 of 105)
CRS reviewed 17 months of these EOIR data covering July 18, 2014, through December 29,
2015.61 Of the 49,965 UAC who were given Notices to Appear (NTA) by DHS, 41,792 had been
scheduled to appear for their first hearing. Of those scheduled, 14,750 were adjourned, and 6,240
had changes of venues or were transferred. Of the remaining 20,802 initial cases that EOIR
classified as completed, 9,695 (47%) resulted in removal decisions. Of these removal decisions,
8,510 (88%) were rendered in absentia, meaning that the UAC had not shown up to the hearing.
Of the other completed initial cases that did not result in a decision, 4,390 were terminated,62 660
resulted in voluntary departure, 5,944 were administratively closed,63 and 73 resulted in other
administrative outcomes. In 40 cases, children received some form of immigration relief. The
most usual forms of immigration relief for UAC include asylum, special immigrant juvenile
status for abused, neglected, or abandoned children who are declared dependent by state juvenile
courts 64 and T nonimmigrant status for victims of trafficking.65
Administrative and Congressional Action

The Administration and Congress have both taken action since 2014 to respond to the UAC surge.
The Administration: developed a working group to coordinate the efforts of the various agencies
involved in responding to the issue; temporarily opened additional shelters and holding facilities
to accommodate the large number of UAC apprehended at the border; initiated programs to
address root causes of child migration in Central America; and requested funding from Congress
to deal with the crisis. In turn, Congress considered supplemental appropriations for FY2014 and
increased funding for UAC-related activities in HHS/ORR and DHS appropriations
2016 for
r 14,
e
b
m
subsequent fiscal years.
epte
ived
Administrative Action
on S
-357
o. 15
,N
ynch
rch
38 a
L Administration announced in June 2014 that it had developed a

In response to the UAC surge,
v.the
F.M.
.
J
n
Unified Coordination
i Group comprised of representatives from key agencies and headed by
cited
Federal Emergency Management Agency (FEMA) Administrator Craig Fugate.66 The FEMA
administrators role was to lead and coordinate Federal response efforts to ensure that Federal
agency authorities and the resources granted to the departments and agencies under Federal law
(...continued)
and other minors.
61
Executive Office for Immigration Review, Unaccompanied Children Priority Code Adjudication, July 18, 2014December 29, 2015, unpublished data provided to CRS, January 11, 2016.
62
A case termination refers to a decision by an immigration judge to dismiss the case related to a particular charging
document. The charging document for UAC is the Notice to Appear. If a case is terminated in this situation, the child is
not subject to removal related to the dismissed charging document. If DHS choses to pursue the case, it must issue a
new charging document.
63
An administrative closing refers to a temporary removal of a case from an immigration judges calendar or docket. If
DHS choses to pursue the case, the case may ultimately be placed back on the judges calendar or docket.
64
For more information, see CRS Report R43703, Special Immigrant Juveniles: In Brief, by Ruth Ellen Wasem.
65
For more information, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress, by
Alison Siskin and Liana W. Rosen.
66
Department of Homeland Security, Statement by Secretary Johnson on Increased Influx of Unaccompanied
Immigrant Children at the Border, press release, June 2, 2014, http://www.dhs.gov/news/2014/06/02/statementsecretary-johnson-increased-influx-unaccompanied-immigrant-children-border; and Alejandro Mayorkas, Deputy
Secretary of the Department of Homeland Security, Press Call Regarding the Establishment of the Inter-Agency
Unified Coordination Group on Unaccompanied Alien Children, press release, June 3, 2014.
12
(52 of 105)
are unified in providing humanitarian relief to the affected children, including housing, care,
medical treatment, and transportation.67
From the outset, CBP maintained primary responsibility for border security operations at and
between ports of entry and, working with ICE, provided for the care of unaccompanied children
in temporary DHS custody.68 DHS coordinated with the Departments of Health and Human
Services, State, and Defense, as well as the General Services Administration and other agencies,
to ensure a coordinated and prompt response within the United States in the short term, and in the
longer term to work with migrant-sending countries to undertake reforms to address the causes
behind the recent flows.69 In June 2014, DHS initiated a program to work with the Central
American countries on a public education campaign to dissuade UAC from attempting to migrate
illegally to the United States.70
To manage the influx of UAC, HHS/ORR used group homes operated by nonprofit organizations
with experience providing UAC-oriented services (e.g., medical attention, education). HHS also
coordinated with the Department of Defense (DOD), which temporarily made facilities available
for UAC housing at Lackland Air Force Base in San Antonio, Texas, and at Naval Base Ventura
County in Oxnard, California. Arrangements at both sites ended August 2014.71
To address the legal needs of large numbers of children entering the immigration court system,
the Corporation for National and Community Service (CNCS), which administers AmeriCorps,72
partnered with EOIR to create Justice AmeriCorps, a grant program that enrolled approximately
100 lawyers and paralegals as AmeriCorps members to provide UAC with legal representation
016
during removal proceedings.73
14, 2
er
emb
pt
DOJs Office of Legal Access Programs established the LegaloOrientation
Program for
n Se
d
hive of which are to improve the
c
Custodians of Unaccompanied Children (LOPC),3the
goals
r
a
8
-357 immigration court hearings, and to protect
appearance rates of non-detained children
at
15their
.
o
ch, N and trafficking by increasing access to legal and other
children from mistreatment, exploitation,
. Lyn
v
.
M
.
services. In FY2014
the
served over 12,000 custodians for children released from ORR
J. FLOPC
d in
74
e
t
i
c
custody. The LOPC operates a national call center that provides scheduling assistance and basic
67
The White House, Office of the Press Secretary, Presidential Memorandum Response to the Influx of
Unaccompanied Alien Children Across the Southwest Border press release, June 2, 2014.
68
As one of its missions, ICE works to dismantle organizations that smuggle UAC into the United States.
69
Department of Homeland Security, Statement by Secretary Johnson on Increased Influx of Unaccompanied
Immigrant Children at the Border, press release, June 2, 2014, http://www.dhs.gov/news/2014/06/02/statementsecretary-johnson-increased-influx-unaccompanied-immigrant-children-border.
70
Alejandro Mayorkas, Deputy Secretary of the Department of Homeland Security, Press Call Regarding the
Establishment of the Inter-Agency Unified Coordination Group on Unaccompanied Alien Children, press release,
June 3, 2014.
71
Leslie Berestein Rojas, Emergency Shelter for Unaccompanied Migrant Kids Opening in Ventura County, 89.3
KPCC, Southern California Public Radio, June 5, 2014, http://www.scpr.org/blogs/multiamerican/2014/06/05/16777/
emergency-shelter-for-unaccompanied-migrant-kids-o/.
72
For more information on the CNCS and AmeriCorps, see CRS Report RL33931, The Corporation for National and
Community Service: Overview of Programs and Funding, by Abigail R. Overbay and Benjamin Collins.
73
Department of Justice and the Corporation for National and Community Service, Justice Department and CNCS
Announce New Partnership to Enhance Immigration Courts and Provide Critical Legal Assistance to Unaccompanied
Minors, press release, June 6, 2014, http://www.nationalservice.gov/newsroom/press-releases/2014/justicedepartment-and-cncs-announce-new-partnership-enhance.
74
FY2014 information is the most recent available as of April 29, 2016. See United States Department of Justice,
Administrative Review and Appeals, FY 2017 Performance Budget Congressional Budget Submission, p.4.
13
(53 of 105)
legal information to UAC custodians.75Additional Administration initiatives include partnering

with Central American governments to combat gang violence, strengthen citizen security, spur
economic development, and support the reintegration and repatriation of returned citizens.76 The
Administration also initiated a collaborative information campaign with Central American
governments to inform would-be migrants on a variety of issues.77
Congressional Action
As the UAC crisis unfolded in 2014, congressional attention initially focused on whether the
various agencies responding to it had adequate funding. As the crisis began to wane,
congressional attention shifted to mechanisms to prevent such a surge from reoccurring.
Appropriations
In the Presidents original FY2015 budget that was released in March 2014 for the agencies
directly responsible for the UAC population (i.e., within HHS/ORR and DHS budgets), the
Administration did not request funding increases to help address the UAC surge. However, on
May 30, 2014, the Office of Management and Budget updated its cost projections for dealing
with the growing UAC population and requested $2.28 billion for FY2015 for ORRs UAC
program and $166 million for DHS for CBP overtime, contract services for care and support of
UAC, and transportation costs.78
On July 8, 2014, the Administration requested $3.7 billion in emergency appropriations,
almost
2016
r 14, million for CBP,
e
all of which was directly related to addressing the UAC surge, including
$433
b
ptem
n Se
$1.1 billion for ICE, $1.8 billion for HHS, $64 million for ethe
of Justice (DOJ), and
oDepartment
d
iv
79
h
c
r
a
23, 2014, Senator Mikulski introduced the
$300 million for the Department of State. On July
5738
15-3 which would have funded HHSs Administration
Emergency Supplemental Act, 2014 (S.
2648),
.
o
ch, N
for Children and Families Refugee
. Lyn and Entrant Assistance Program for $1.2 billion, CBP and the
v
.
M
F.
Office of Air and Marine
in J. for $320.5 million and $22.1 million, respectively, and ICE for $762.8
ited
c
million for transportation and enforcement and removal costs. S. 2648 would have appropriated
$124.5 million to DOJ for court activities related to UAC processing, and the Department of
States and the U.S. Agency for International Developments (USAIDs) unaccompanied alienrelated activities would have received $300 million, the same amount the Administration
requested. Congress did not pass S. 2648.
In December 2014, the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113235) provided nearly $1.6 billion for Refugee and Entrant Assistance Programs for FY2015, with
the expectation that most these funds would be directed toward the UAC program.80 In addition,
75
Ibid, pp. 3-4.

White House, Office of the Press Secretary, Fact Sheet: Unaccompanied Children from Central America,
http://www.whitehouse.gov/the-press-office/2014/06/20/fact-sheet-unaccompanied-children-central-america.
77
Ibid.
78
Executive Office of the President, Office of Management and Budget, Memorandum to Representative Nita Lowey,
May 30, 2014.
79
The White House, Fact Sheet: Emergency Supplemental Request to Address the Increase in Child and Adult
Migration from Central America in the Rio Grande Valley Areas of the Southwest Border, press release, July 8, 2014.
80
In addition to the UAC program, the Refugee and Entrant Assistance Program administers the following programs:
Transitional/Cash and Medical Services, Victims of Trafficking, Social Services, Victims of Torture, Preventive
Health, and Targeted Assistance. For additional information, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy.
76
14
(54 of 105)
P.L. 113-235 included a new provision allowing HHS to augment appropriations for the Refugee
and Entrant Assistance account by up to 10% through transfers from other discretionary HHS
funds.81
In March 2015, the Department of Homeland Security Appropriations Act, 2015 (P.L. 114-4)
provided $3.4 billion to ICE for detection, enforcement, and removal operations, including for the
transport of unaccompanied children for CBP. The act required that DHS estimate FY2015 UAC
apprehensions and the number of necessary agent or officer hours and related costs. It also
provided for some budgetary flexibility through the optional reprogramming of funds.82
In its FY2016 budget, the Administration requested contingency funding as well as base funding
for several agencies in the event of another surge of unaccompanied children. For HHS, the
Administration requested $948 million for base funding (the same as FY2015) and $19 million
for contingency funding for ORRs Unaccompanied Children Program (within the Refugee and
Entrant Assistance Program).83 Congress met the base funding request but appropriated no monies
for contingency funding.
For DHS, the Administration requested $203.2 million in base funding and $24.4 million in
contingency funding for CBP to be used for costs associated with the apprehension and care of
unaccompanied children.84 The Administration requested $2.6 million in contingency funding for
ICE to be used for transportation costs associated with UAC apprehensions if such apprehensions
exceeded those in FY2015.85 Neither the Senate86 nor the House87 appropriated monies for such
funds in FY2016. For DOJ, the Administration requested an additional $50 million (two-year
016
funding) for EOIR to process UAC.88
14, 2
er
emb
pt
For FY2017, the Administration has requested $1,321 milliononforSeORRs
Refugee and Entrant
d
ve
hifunding
c
Assistance Program that includes $1,226 million in
base
and
contingency
funding which,
r
a
5738 start at $95 million and could expand up to
3would
5
if triggered by larger than expected caseloads,
1
o.
ch, N
requested $13.2 million for ICEs Transportation
$400 million.89 For DHS, the vAdministration
. Lyn
in
cited
M.
J. F.
81
This paragraph was excerpted from CRS Report R43967, Labor, Health and Human Services, and Education:
FY2015 Appropriations.
82
Section 571 of the act permits the Secretary to reprogram funds within CBP and ICE and transfer such funds into the
two agencies Salaries and Expenses accounts for the care and transportation of UAC. Section 572 of the act allows
for State Homeland Security Program and Urban Area Security Initiative grants that are awarded to states along the
Southwest border to be used by recipients for costs or reimbursement of costs for providing humanitarian relief to
unaccompanied children.
83
Department of Health and Human Services, Administration for Children and Families, Fiscal Year 2016,
Justification of Estimates for Appropriations Committees, p. 21.
84
The total CBP contingency request was for $134.5 million for costs associated with the apprehension and care of up
to 104,000 UAC. Based on the anticipated low probability of such a high number of UAC apprehensions, the FY2016
budget scored the requested increase at $24.4 million.
85
Base funding for ICE to transport UAC was not separated out from other transportation activities within the budget.
The total ICE contingency request was for $27.6 million for costs associated with transportation of up to 104,000 UAC.
Based on the anticipated low probability of such a high number of UAC requiring such transportation, the FY2016
budget scored the requested increase at $2.6 million.
86
S. 1619, S.Rept. 114-68.
87
H.R. 3128, H.Rept. 114-215.
88
See U.S. Department of Homeland Security, FY2016 Congressional Budget Justification, U.S. Department of
Justice, Administrative Review and Appeals, Executive Office for Immigration Review (EOIR), FY2016
Congressional Budget Justification; Department of Health and Human Services, Administration for Children and
Families, Fiscal Year 2016, Justification of Estimates for Appropriations Committees.
89
Department of Health and Human Services, Administration for Children and Families, Fiscal Year 2017,
(continued...)
15
(55 of 105)
and Removal Program, including $3 million in contingency funding; and $217.4 million for CBP,
including $5.4 million in contingency funding.
Legislation
Several pieces of legislation addressing the UAC situation have been introduced in the current
Congress; two have seen legislative activity. On March 18, 2015, the House Judiciary Committee
marked up the Asylum Reform and Border Protection Act of 2015 (H.R. 1153); and on March
4, 2015, the House Subcommittee on Immigration and Border Security marked up the Protection
of Children Act of 2015 (H.R. 1149).
The Asylum Reform and Border Protection Act of 2015 (H.R. 1153)
The Asylum Reform and Border Protection Act of 2005 (H.R. 1153) would make several changes
to current UAC policy. Among them, H.R. 1153 would amend the definition of UAC.90 The
current UAC definition requires that in order for a minor to be deemed unaccompanied, he or she
must have no parent or legal guardian available to provide care and physical custody to the minor.
H.R. 1153 would amend the language to require as well that no siblings, aunts, uncles,
grandparents, or cousins over age 18 are available to provide such care and physical custody. The
act would also provide that the term unaccompanied alien child would cease if any person in the
aforementioned category is found in the United States and is available to provide care and
physical custody to the minor.
2016
,
H.R. 1153 would amend asylum provisions by treating unaccompaniedmbchildren
er 14 who may be
e
t
p
Seseekers.
seeking asylum in another country similar to other (adult) asylum
The so-called Safe
d on
e
v
i
h
c
Third Country provision requires aliens seeking asylum
to
make
such
a
claim
in the first country
r
a
8
573not
3are
in which they arrive. Under current law, oUAC
subject
to
the
Safe
Third
Country
5
1
.
h, N
c
n
requirement. H.R. 1153 also would
require,
under
most
circumstances,
UAC
to
file their asylum
y
. v. L
Marriving
.
F
claim within one year
after
in
the
United
States.
Under
the
bill,
USCIS
would no longer
.
J
d in
e
t
i
c
be given initial jurisdiction over UAC asylum petitions.
H.R. 1153 would require agencies to notify HHS within seven days of the apprehension or
discovery of unaccompanied children instead of within 48 hours as under current law. It also
would require the transfer of custody of unaccompanied children to HHS no later than 30 days
after determining that the minor is a UAC, instead of no later than 72 hours as under current law.
The Protection of Children Act of 2015 (H.R. 1149)

The Protection of Children Act of 2015 (H.R. 1149) would amend current law91 by requiring
unaccompanied children from noncontiguous countries to be returned immediately to their
country of origin if they are deemed not to be a victim of or at risk of being a victim of
trafficking, or they do not have a fear of returning. Under current law, this immediate repatriation
requirement only applies to unaccompanied children from contiguous countries. The act also
(...continued)
Justification of Estimates for Appropriations Committee, p. 240.
90
6 U.S.C. (g)(2)
91
8 U.S.C. 1232.
16
(56 of 105)
would amend current law by removing language that requires unaccompanied children to
independently decide if they want to withdraw their application for admission.92
H.R. 1149 would amend current law to require the Secretary of State to negotiate repatriation
agreements between the United States and any foreign country the Secretary deems appropriate.
Under current law, the Secretary is able to negotiate such agreements only with contiguous
countries.
H.R. 1149 sets forth a time period for unaccompanied children who do not meet the screening
requirements93 to be placed in removal proceedings. It also differentiates between UAC who did
not meet the screening requirements and those that did meet such requirements, mandating the
former to be transferred to HHS no later than 30 days after failing to meet such requirements. The
bill does not specify a time period for the transfer of UAC who met the screening requirements.
Like H.R. 1153, H.R. 1149 would no longer give USCIS initial jurisdiction over the asylum
petitions of unaccompanied children.
H.R. 1149 would require HHS to provide DHS with identifying information of the individual
with whom the unaccompanied children will be placed. For unaccompanied children who were
apprehended on or after June 12, 2012, and before the enactment of the act, H.R. 1149 would
require HHS to provide such information to DHS within 90 days of the acts enactment.
In addition, H.R. 1149 would require DHS to investigate any unknown immigration status of the
individuals with whom unaccompanied children are placed. If the individual is unlawfully present
in the country, the act would require DHS to initiate removal proceedings.
016
r 14,
mbe
H.R. 1149 would also amend current law to clarify that unaccompanied
epte children should have
S
n
access to counsel to the greatest extent practicable, but
ed oat the governments expense.
hivnot
5738
-3
o. 15
arc
ch, N
Policy Challenges
. Lyn
v
.
M
.
in J.
In response to the
citedUAC surge in the spring and summer of 2014, the Administration announced
initiatives to unify efforts among federal agencies with UAC responsibilities and to address the
situation with programs geared toward unaccompanied children from several Central American
countries. Additionally, Congress increased funding for the HHS program responsible for the care
of unaccompanied children, and permitted the Secretary of DHS to transfer funds from within a
specific CBP and ICE account for the care and transportation of unaccompanied children, among
other actions taken. Since FY2014, the Administration has continued to request additional
funding for programs geared toward unaccompanied children, and Congress has appropriated for
some but not all such requests.
The most recent apprehension data for FY2016 suggest that the flow of unaccompanied children
to the United States has not abated, although it was over 40% lower in FY2015 than in FY2014.
Once in the United States, the number of unaccompanied children who will ultimately qualify for
asylum or other forms of immigration relief that may allow them to remain in the United States
92
By withdrawing his or her application for admission, the alien would not be subject to enforcement action.
Under current law, contiguous-country unaccompanied children must be screened for whether they have been victims
of a severe form of trafficking in persons and there is no credible evidence that the minor is at risk should the minor be
returned to his/her country of nationality or last habitual residence; a possible claim to asylum; and whether they can
independently decide to voluntarily return to his/her country of nationality or last habitual residence. P.L. 110-457,
235(a)(2)(A).
93
17
(57 of 105)
remains unclear. Many unaccompanied children have family members in the United States, many
of whom may not be legally present. Such circumstances raise challenging policy questions that
may pit what is in the best interests of the child against what is permissible under the
Immigration and Nationality Act and other relevant laws.
Author Contact Information

William A. Kandel
Analyst in Immigration Policy
[email protected], 7-4703
Acknowledgments
This report was originally authored by Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem.
16
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U.S.
U.S. Setting Up Emergency Shelter in

Texas as Youths Cross Border Alone
By JULIA PRESTON
MAY 16, 2014
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With border authorities in South Texas overwhelmed by a surge
ofepyoung
d on
e
v
i
h
8 arc of Homeland
illegal migrants traveling by themselves, the Department
3573
5
1
o.
Security declared a crisis this week and
ch, N to set up an emergency
nmoved
y
L
.
v
F.M.
shelter for the youths at and Air
n J. Force base in San Antonio, officials said
i
e
cit
Friday.
After seeing children packed in a Border Patrol station in McAllen, Tex.,

during a visit last Sunday, Homeland Security Secretary Jeh Johnson on
Monday declared a level-four condition of readiness in the Rio Grande
Valley. The alert was an official recognition that federal agencies overseeing
borders, immigration enforcement and child welfare had been outstripped
by a sudden increase in unaccompanied minors in recent weeks.
On Sunday, Department of Health and Human Services officials will open a
shelter for up to 1,000 minors at Lackland Air Force Base in Texas,
authorities said, and will begin transferring youths there by land and air.
The level-four alert is the highest for agencies handling children crossing the
border illegally, and allows Homeland Security officials to call on emergency
resources from other agencies, officials said.
In an interview on Friday, Mr. Johnson said the influx of unaccompanied
youths had zoomed to the top of my agenda after his encounters at the
McAllen Border Patrol station with small children, one of whom was 3.
(59 of 105)
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A child from Honduras was among the youths from Central America being processed at the Border Patrol station in
Brownsville, Tex., in March. Todd Heisler/The New York Times
The children are coming primarily from El Salvador, Guatemala and

Honduras, making the perilous journey north through Mexico to Texas
without parents or close adult relatives. Last weekend alone, more than
1,000 unaccompanied youths were being held at overflowing border stations
in South Texas, officials said.
The flow of child migrants has been building since 2011, when 4,059
unaccompanied youths were apprehended by border agents. Last year more
than 21,000 minors were caught, and Border Patrol officials had said they
were expecting more than 60,000 this year. But that projection has already
been exceeded.
By law, unaccompanied children caught crossing illegally from countries
other than Mexico are treated differently from other migrants. After being
(60 of 105)
apprehended by the Border Patrol, they must be turned over within 72 hours
to a refugee resettlement office that is part of the Health Department.
Health officials must try to find relatives or other adults in the United States
who can care for them while their immigration cases move through the
courts, a search that can take several weeks or more.
The Health Department maintains shelters for the youths, most run by
private contractors, in the border region. Health officials had begun several
months ago to add beds in the shelters anticipating a seasonal increase. But
the plans proved insufficient to handle a drastic increase of youths in recent
weeks, a senior administration official said.
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citeImages
Jeh Johnson Alex Wong/Getty
Mr. Johnson said Pentagon officials agreed this week to lend the space at
Lackland, where health officials will run a shelter for up to four months. The
base was also used as a temporary shelter for unaccompanied migrant
youths in 2012. It became the focus of controversy when Gov. Rick Perry of
Texas objected, accusing President Obama of encouraging illegal migration
by sheltering the young people there.
Mr. Johnson said the young migrants became a more vivid issue for him
after he persuaded his wife to spend Mothers Day with him at the station in
McAllen. He said he asked a 12-year-old girl where her mother was. She
responded tearfully that she did not have a mother, and was hoping to find
her father, who was living somewhere in the United States, Mr. Johnson
said.
Mr. Johnson said he had spoken on Monday with the ambassadors from
Mexico and the three Central American countries to seek their cooperation,
(61 of 105)
and had begun a publicity campaign to dissuade youths from embarking for
the United States.
We have to discourage parents from sending or sending for their children
to cross the Southwest border because of the risks involved, Mr. Johnson
said. A South Texas processing center is no place for a child.
Officials said many youths are fleeing gang violence at home, while some are
seeking to reunite with parents in the United States. A majority of
unaccompanied minors are not eligible to remain legally in the United
States and are eventually returned home.
A version of this article appears in print on May 17, 2014, on page A15 of the New York edition with the
headline: U.S. Setting Up Emergency Shelter in Texas as Youths Cross Border Alone.
Order Reprints | Today's Paper | Subscribe
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ABOUT NEW YORK
A 12-Year-Olds Trek of Despair Ends in a

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MAY 4, 2016
U.S. border apprehensions of families and

unaccompanied children jump dramatically
BY JENS MANUEL KROGSTAD
10 COMMENTS
Apprehensions of children and their families at the U.S.-Mexico border since October 2015 have
2016
14,unaccompanied children,
rof
more than doubled from a year ago and now outnumber apprehensions
mbe
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comparison, apprehensions of unaccompanied children totaled 27,754 over the same period. The
number of family apprehensions is more than double that of the previous year. The number of
apprehensions of unaccompanied children shot up by 78%.
(64 of 105)
The apprehension of more families than unaccompanied children is a reversal from summer 2014,
when thousands of children HGJDQJYLROHQFHDQGSRYHUW\ in Central America
016and migrated north to
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It remains to be seen whether apprehensions of unaccompanied children or families will surge this
VXPPHUDQGVXUSDVVWKHIXOO\HDUDSSUHKHQVLRQWRWDOVIURPWZR\HDUVDJR7KLVVFDO\HDUIDPLO\
and unaccompanied children apprehensions spiked in December 2015, and in January 2016 the
Department of Homeland Security launched immigration raids targeting families. Since then,
monthly border apprehensions have dropped below 2014 levels. For example, March 2016
apprehensions of children and their families (4,452) and unaccompanied children (4,240) are lower
than in March 2014, when authorities apprehended 5,752 children and their families and 7,176
%RUGHUDSSUHKHQVLRQVRIFKLOGUHQFRQVLGHUHGDQLQGLFDWRURIWKHRZVRIFKLOGPLJUDQWVHQWHULQJWKH
86LOOHJDOO\GURSSHGRIIVWHHSO\LQVFDODVMexico stepped up deportations of Central
American children and the U.S. government launched public information campaigns in Central
American countries to discourage children from making the trip north. The U.S. also sped up the
processing of immigration court cases, but a large backlog in cases still exists.
The surge in family apprehensions at
(65 of 105)
the U.S.-Mexico border in 2016 is
driven by migrants from El Salvador,
Guatemala and Honduras, who
together make up 90% of these
DSSUHKHQVLRQVVRIDUWKLVVFDO\HDU
The number of family apprehensions
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time period in 2015. Meanwhile,
among Mexicans, family
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the same period.
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When looking at where unaccompanied children are from, there have been substantially more
apprehensions among those from Guatemala (9,383) and El Salvador (7,914) than
Honduras (4,224)
6
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38
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.M. v
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i
ited example, the Department of Health and Human Services has requested
America this summer.cFor
additional contingency funding from Congress to shelter apprehended children. In addition, the
governor of Texas extended the deployment of the states National Guard at the border with Mexico
in December, which coincided with a spike that month in border apprehensions.
5RXJKO\WZRWKLUGVRIIDPLO\DSSUHKHQVLRQVLQWKLVVFDO\HDUKDYHFRPHDWWKH86&XVWRPVDQG
Border Protections Rio Grande sector, located along the southernmost tip of Texas and bounded by
Mexico and the Gulf of Mexico. (The sector accounted for a similar share of apprehensions during
WKHUVWVL[PRQWKVRIVFDODQGVFDO
1RWH7KLVSRVWDQGWKHWH[WRIWKHUVWFKDUWKDYHEHHQXSGDWHGWRUHHFWWKHIDFWWKDWWKHGDWD
refer to the number of apprehensions and not the number of unique individuals apprehended.
TOPICS: HISPANIC/LATINO DEMOGRAPHICS, IMMIGRATION, IMMIGRATION TRENDS, LATIN AMERICA,
MIGRATION, UNAUTHORIZED IMMIGRATION
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Jens Manuel Krogstad is a writer/editor focusing on Hispanics, immigration and
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10 Comments
Anonymous
4 months ago
People south of the U.S. Border are stopped because they are Indians indigenous
to the Americas.
16
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Anonymous
4 months ago
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Sep
-357
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yn
centers in southern
. v. L away from San Antonio in isolated land y buildings. Who
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are the stock
cited holders?
Anonymous
4 months ago
These people are refugees. What dont you explain why families and children are
crossing the border. They are not illegal immigrants but thats how we treat them.
Anonymous
4 months ago
,VXJJHVW\RXORRNXSWKHOHJDOGHQLWLRQRIUHIXJHHXQGHU86LPPLJUDWLRQ
law. <RXPD\EHXVLQJDPXFKEURDGHUGHQLWLRQWKDQWKHODZSHUPLWVFor
example, the law does NOT recognize people escaping hard economic
conditions as refugees. Nor, does it recognize people running away from
crime. People who have participated in organized crime, for instance by
paying a human smuggling operation, are ineligible based on poor character.
The US govt. tried to set refugee collection centers in 2014 in the Central
American capitals, but nobody showed up! Thats because the phenomenon is
run by organized crime gangs.they intimidate customers by issuing death
(67 of 105)
threats.they make $5K per smuggled person, the equivalent to the life
savings of the average Central American family. Pres. Obama and Secy.
Johnson and Sen. Sessions are trying to defeat the cruel business plan of the
gangs, but liberals in the US who lack street smarts are unwilling to look at
the big picture.
Anonymous
4 months ago
For all the folks wanting to build that wall, how much in taxes are you willing to
pay in your taxes. An engineer is estimated it will require $17,000.000.000. $17B
is approximately the cost of NASA. And that doesnt take into consideration the
Northern Border. The border between the US and Canada is the longest contiguous
border in the world and it has zero fences.
Anonymous
4 months ago
Is there a problem of millions of Canadians pouring across the border from

Canada that would necessitate a wall being built on the northern border?
16
4, 20
Anonymous
4 months ago 8
73
Anonymous
4 months ago
-35
o. 15
N
,
h
HardlycantLthink
of any.
c
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cited
d on
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arch
er 1
temb
Sep
maybe not as much as with Mexico but there is a large number
Anonymous
4 months ago
Is there any good guess as to the total number of people who arent caught when
crossing the U.S. border and where they go?
Anonymous
4 months ago
Id wager its at least 200% more than the ones the Border Patrol apprehend
and rapidly getting larger! Time to build THAT wall!!
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d on
38
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Reprints,
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Sep
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(70 of 105)
June 3, 2015
A Humanitarian Call to Action: Unaccompanied Children in Removal Proceedings
Present a Critical Need for Legal Representation
The American Bar Association (ABA) is gravely concerned about the lack of legal representation on
behalf of unaccompanied children in removal proceedings. The humanitarian crisis at the border
confronting the nation last summer has developed into a nationwide due process crisis in our countrys
immigration court system, a system that is already significantly overburdened and under-resourced.
These children, many of whom entered the United States during the unprecedented surge in 2014, are
now facing adversarial removal proceedings opposed by experienced government attorneys, with only
about 32% represented by counsel. 1 It is highly unlikely that an unrepresented child will prevail in
immigration court, even if he or she has a bona fide claim for protection. A recent study found that
represented children have a 73% success rate in immigration court, as compared to only 15% of
unrepresented children. 2 Furthermore, studies show that children who are represented have a much
6
, 201 children. 3
higher appearance rate in immigration court, 92.5%, versus 27.5% for unrepresented
er 14
b
ptem
Se
d on
Starting last summer, the Executive Office for Immigration

(EOIR) began to prioritize the cases of
ive
rchReview
38 a
7
5
3
children who entered the United States during
5- surge period. As a result, EOIR has expedited the
. 1the
, No
h
c
n
y
initial hearings after they reunify. vwith
. L sponsors, leaving very little time for the children and their families
F.M
.
J
n
to get oriented and find
counsel
before
appearing in court. 4 This perfect storm has resulted in a total
i
cited
of over 7,706 removal orders placed against unaccompanied children between October 2013 and
January 2015. 5 Until the government recognizes the need for universal representation and allocates
sufficient funding to make it a reality, it is up to the legal community to respond. The ABA has worked
on these issues for several years and continues to take action to address the current crisis through its
Commission on Immigration (Commission) and Working Group on Unaccompanied Minor Immigrants
(Working Group). The Working Group has set up a website for this purpose at www.ambar.org/ican.
Attorneys willing to volunteer to represent unaccompanied children can enroll directly at this website by
See, Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration
Court, Nov. 25, 2014, available here.
2
Id.
3
See, American Immigration Council, Taking Attendance: New Data Finds Majority of Children Appear in
Immigration Court, July 2014, available here.
4
Brian M. OLeary, Chief Immigration Judge, Executive Office for Immigration Review, Docketing Practices Relating
to Unaccompanied Children Cases and Adult with Children Released on Alternatives to Detention Cases in Light of
the New Priorities, Mar. 24, 2015 available here.
5
Kate Linthicum, 7,000 Immigrant Children Ordered Deported Without Going to Court, L.A. Times, Mar. 6, 2015,
available here.
(71 of 105)
signing up at the Volunteer Now link. Those who enroll will be matched with a legal service provider
in their area who will do their best to match the volunteer with a child in need of representation.
1. Background:
Who is an Unaccompanied Alien Child (UAC)?
The Homeland Security Act of 2002 transferred the responsibility for care and custody of
unaccompanied alien children from the enforcement-oriented (former) Immigration and
Naturalization Service (INS) to the welfare-based U.S. Department of Health and Human Services, Office
of Refugee Resettlement (DHHS, ORR). An unaccompanied alien child is defined as someone who has
(A) no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) who
has no parent or legal guardian in the United States; or, no parent or legal guardian in the United States
available to provide care and physical custody. 6 This major reform was applauded by national
advocates who had long criticized the government for placing children in the care and custody of the
same agency responsible for prosecuting their deportation cases and executing deportation orders.
Current Situation with Unaccompanied Children at the Border
While the number of children entering the United States at the southwest border has declined
2016
considerably since last summer, the overall number remains significant and twice
r 14, the number that
e
b
ptem
entered the country in 2011. From October 2014 through April 2015,
n Se 18,919 unaccompanied children
o
d
e
7
rchiv
have been processed at the border, a 48% decline from
38 athe same time last year. During the height of
7
5
3
the surge in June 2014, over 10,000 unaccompanied
children entered the United States in one month.
o. 15
h, N
c
n
y
L
.
v
The Obama Administration responded
with a multi-faceted approach to stopping this steady stream
F.M.
n J.
i
d
e
with cross-agency coordination,
additional enforcement resources, expedited child and family dockets in
cit
immigration court and intensive diplomacy efforts and concerted deterrent strategies in Mexico and
Central America, strategies that resulted in making it more difficult for children to reach the United
States. 8
The Department of Homeland Security (DHS), a successor to the former INS, reported that 68,541
unaccompanied children were processed by CBP in the United States between October 1, 2013 and
September 30, 2014, as compared to 38,759 in Fiscal Year (FY) 2013, a 77% increase. 9 Only two years
earlier, in FY 2011, CBP apprehended a total of 15,701 children, the vast majority of whom came from
Mexico. 10 Prior to FY 2012, an average of 7,000 to 8,000 unaccompanied children were detained and
6 U.S.C. 279(g).
See U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children, available here.
8
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: The Tensions Between Protection and
Prevention, Migration Policy Institute, April 2015, available here.
9
10
See id.
7
(72 of 105)
held in ORR shelters annually. 11 There has clearly been a marked increase over the past three years, and
especially over the early summer months of 2014. Statistics from FY 2014 show these children are
mostly from El Salvador (24%), Guatemala (25%), Honduras (28%) and Mexico (23%) and range in age
from infants to 17 years. 12 Historically, the majority of these children have been between the ages of 15
and 17 and about three quarters of them have been boys; more recently, however, the number of
younger children and girls has risen steadily. Statistics show that the recent drop in numbers reflect a
decrease in children entering the country from El Salvador and Honduras, while children from Mexico
and Guatemala continue to enter at the same rates as during the surge. 13
Once children are apprehended by Border Patrol agents they are transported to a CBP processing
station and held for hours or days in cells during processing. The Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) requires that CBP determine whether these children are
unaccompanied within 48 hours and if deemed to be unaccompanied, transferred to ORR custody within
72 hours. In practice, especially during the height of the surge in 2014, the children were often held
much longer, up to 15 days, or more, in multiple holding facilities. CBP communicates with ORR to
identify a short-term placement for the children. Once a placement is confirmed, officers from
Immigration and Customs Enforcement (ICE) transport the children from CBP stations to the ORR
shelters. At the shelters the children are finally able to shower, rest, eat hot food, make phone calls and
receive medical care, counseling, education and legal services. Legal service providers
meet with the
2016
,
4
1
r
children and provide a Know Your Rights presentation and perform individual
mbe screenings within days
epte
S
n
o
of their arrival to the shelter. The screenings are used to make
ivedreferrals to pro bono attorneys for
arch
8
3
7
children who are identified as eligible for legal relief.
5-35
.1
, No
nch
v. Ly
The TVPRA requires that children

F.M. from non-contiguous countries be placed in removal proceedings
n J.
i
d
e
before an Immigration
cit Judge and provides that they have the right to apply for legal relief and receive
counsel to the greatest extent practicable. Children from contiguous countries (Mexico and Canada)
can be immediately returned to their countries after a cursory screening by a uniformed Border Patrol
agent. There have been proposals in Congress to extend this provision to children from non-contiguous
countries, a proposal which is of great concern to the ABA and violates long-standing ABA policy to the
contrary. 14 A confidential report from the United Nations High Commissioner for Refugees (UNHCR),
leaked to the media, found these Border Patrol screenings to be woefully inadequate and concluded
that they fail to protect Mexican children. 15 Furthermore, the UNHCR concluded that Border Patrol
agents should not be charged with screening children for risks of trafficking, persecution or
11
See U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee
Resettlement, Unaccompanied Alien Children Program, May 2014, available here.
12
13
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: the Tensions Between Protection and
Prevention, Migration Policy Institute, April 2015, p. 3, available here.
14
See Standards For the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied
Alien Children In the United States, Section VIII, A, Adjudication of Claims of Children, American Bar Association
Comm. on Immigration, Aug. 2004, available here.
15
Vox, The Process Congress Wants to Use for Child Migrants is a Disaster, July 15, 2014, available here.
(73 of 105)
voluntariness of return. 16 According to the report, Border Patrol agents simply dont know what to look
for to determine if a child is being victimized or what to do if he or she is being victimized. 17
Historically, about 85% of unaccompanied children have been reunified with approved sponsors within
an average of 35 days. 18 When the number of child migrants and refugees began to surge at the
southwest border, accelerated reunification in as little as 7 days without access to traditional legal
screenings began occurring. Children are released to sponsors within the United States. Some sponsors
are the parents of these children and others are extended family members or family friends. These
children are in removal proceedings and the government contends they have no right to appointed
counsel or guardians ad litem. They are reunifying in cities and states all over the United States.
According to a recent report from ORR analyzing data from January through July 2014, the top six states
for reunification include New York, Texas, California, Florida, Maryland and Virginia. 19 Looking more
closely at this information by county, it is appears that the top six cities for reunification include
Baltimore, Dallas, Houston, Miami, Los Angeles and New York. 20
Once the children are reunified, there is no one agency coordinating their legal representation although
a few non-profit groups run dedicated pro bono projects in some of the major cities. For example, Kids
in Need of Defense (KIND), has offices in eight major cities including Baltimore, Washington DC, Boston,
Houston, Seattle, Los Angeles, New York and Newark. 21 The Office of Refugee Resettlement recently
016 U.S. Conference
awarded two additional non-profit agencies, the U.S. Committee for Refugees
4, 2the
r 1and
e
b
ptem
of Catholic Bishops, with grants of over $2 million each for post-release
n Se legal services serving reunified
o
d
e
r22chiv
children in removal proceedings throughout the country.
38 a Additionally, in June 2014, the Department
7
5
3
o. 15
of Justice and the Corporation for National
h, Nand Community Service announced justice AmeriCorps a
c
n
y
v. L
grant program intended to .enroll
F.M. 100 lawyers and paralegals throughout the country to provide
J
n
i
23
additional legal services
cited to vulnerable children in removal proceedings who meet certain criteria. At a
February 2015 meeting between government officials, law firms and legal advocacy groups, the Deputy
Director of the Executive Office for Immigration Review, shared statistics reflecting immigration courts
with the highest number of UAC surge cases in the nation. The information revealed New York City as
the court with the largest number of pending UAC surge cases, over 2,000, with Baltimore, Arlington,
Miami, Houston and Los Angeles, following closely behind. 24 Again, only about one-third of these
16
Id.
Id.
18
See U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee
Resettlement, Unaccompanied Alien Children Program, Fact Sheet, May 2014, available here.
19
Unaccompanied Children Released to Sponsors by State, Office of Refugee Resettlement, available here.
20
Unaccompanied Children Released to Sponsors by County, Office of Refugee Resettlement, available here.
21
See KINDs website here.
22
See announcement here.
23
See, Department of Justice press release here.
24
White House meeting on February 3, 2015, information provided by EOIR Deputy Director Ana Kocur, courts
with the largest UAC surge dockets, pending cases, both represented and unrepresented: New York City (over
2,000); Baltimore & Arlington (over 1,500); Miami, Houston and Los Angeles (over 1,400); Charlotte, New Orleans,
17
(74 of 105)
children are represented by counsel. In July 2014, several groups headed by the American Civil Liberties
Union Foundation of Southern California came together to file a nationwide lawsuit challenging the lack
of government appointed counsel on behalf of children in removal proceedings. 25 The lawsuit is
currently pending. Legal representation and access to and by counsel are paramount issues of concern
for the American Bar Association.
In response to the surge last summer, the Administration became determined to stem the flow of
unaccompanied children and families entering the country from Central America and responded with a
multi-pronged approach which includes expediting the processing of these children and families through
the system; dedicating additional enforcement and detention resources; coordinating among all
relevant federal agencies and engaging with foreign governments to discourage and deter illegal
immigration to the United States. 26 American officials have been encouraging the Mexican and
Guatemalan authorities to interdict youth and return them swiftly to their countries of origin. These
efforts have apparently had a significant impact, since the number of unaccompanied children entering
the United States at the Southwest border dropped sharply last year from a high of 10,622 in June to
2,424 in September. 27
Current Situation of Detained Families at the Border
16
Beginning last year, the Administration also vastly changed the manner it treats4the
numbers
, 20increasing
28 ber 1
of families entering the United States, specifically women with children.
ptemDHS reported that between
n Se
o
d
e
October 1, 2013, and September 30, 2014, CBP apprehended
rchiv 68,445 family units of mainly women with
38 a
7
5
3
at least one child as compared to 14,855 in FY
a 361% increase. 29 During fiscal year 2015, this
5o. 12013,
N
,
h
c
number has also dropped significantly,
. Lyn by 30% compared to FY 2014. DHS reports that from October 1,
M. v
.
F
.
J
in2015,
2014 through Marchite31,
a total of 13,911 individuals in family groups entered the U.S. in
c d
comparison to 19,830 during the same period in FY 2014. Until last summer, these families would
generally be placed in removal proceedings, released on their own recognizance and directed to appear
in immigration court at a future date. In an effort to deter additional migration of family groups, in late
June 2014, the government opened a new family detention facility at a federal law enforcement training
center in Artesia, New Mexico, situated in a very remote and difficult-to-access area of the state, with
the closest lawyers who could represent the detainees more than a three-hour drive away. Due in part
Newark, Memphis, San Francisco (over 600); Boston and Orlando (over 500); Dallas (over 400); Atlanta and Chicago
(over 300); Cleveland, Omaha, San Antonio, Philadelphia and Kansas City (over 200).
25
See ACLU press release here.
26
Written testimony of FEMA Administrator Craig Fugate, CBP Commissioner Gil Kerlikowske, and ICE Principal
Deputy Assistant Secretary Thomas Winkowski for a Senate Committee on Homeland Security and Governmental
Affairs hearing titled Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in
Apprehensions at the Southern Border, July 9, 2014, available here.
27
See Marc R. Rosenblum, Unaccompanied Child Migration to the U.S.: The Tensions Between Protection and
Prevention, Migration Policy Institute, Executive Summary, April 2015, available here.
28
Julia Preston, As U.S. Speeds the Path to Deportation, Distress Fills New Family Detention Centers, N.Y. Times,
Aug. 5, 2014, available here.
29
(75 of 105)
to major problems with conditions at this facility, it was closed in December of 2014 and the mothers
and children were transferred to detention centers in South Texas.
In August 2014, ICE opened an additional family detention facility in Karnes City, Texas, and plane loads
of women and children have been deported to Central America from family detention facilities with
little or no due process. In December 2014, another family detention facility was opened in Dilley,
Texas, 70 miles southwest of San Antonio, Texas, with plans to reach 2,400 beds in the near future. This
would increase the number of newly-created beds for families to over 3,500 and require the
deployment of additional Asylum Officers and Immigration Judges. Hearings at these facilities are held
by videoconference presided over by judges in courtrooms who may be many hundreds of miles and
several time zones away. The government may be represented by counsel located in alternative
locations. The ABA expressly opposes video-conference hearings involving children and strenuously
opposes denial of access to counsel and deprivation of due process rights. 30 The Karnes facility and the
Dilley facility are both operated by private contractors, the GEO Group, Inc. and Corrections Corporation
of America, respectively. The ABA President recently wrote a letter to DHS Secretary Jeh Johnson
expressing concern over the recent expansion of immigration detention, including the detention of
women and children seeking asylum. 31
DHS initially insisted on continued mandatory detention even after the families were found to have
6
, 201
established a credible fear of return to their home countries, a determination
a significant
r 14indicating
e
b
em
t
p
e
possibility of qualifying for asylum or withholding of removal andonpermitting
them to proceed with
S
d
hive persists in its contention that there is no
c
r
a
seeking relief before the immigration court. 32 The government
5738
15-3
.
o
right to counsel at either the credible fear
interview
or at a hearing before the immigration judge to
N
nch,
y
L
.
v
review a negative credible. fear
F.M. finding. It also persists in its position that there is no right to
nJ
i
d
e
it any stage of the immigration removal process. 33 For several months the
appointed counsel cat
government also strenuously opposed release on bond/parole making arguments that these women and
children posed indirect national security risks by focusing enforcement resources away from more direct
threats at the border. The government also resorted to a no bond policy as a deterrent effect to other
potential migrant families. The ACLU Immigrant Rights Project and others filed a lawsuit challenging
these practices on behalf of detained women and children who had passed a credible fear interview.
On February 20, 2015, a U.S. District Court in the District of Columbia granted a preliminary injunction
against the government for denying bond based on deterrence arguments in RILR v. Johnson. Since the
issuance of this order, ICE has begun to issue bonds, generally set at $7,500 to $10,000, amounts the
families often cannot pay.
Reasons for the Recent Exodus
30
Standards For the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied
Alien Children In the United States, Section VIII (B)(2)(b), Adjudication of Claims of Children, ABA Comm. on
Immigration, Aug. 2004, available here.
31
ABA letter from President William Hubbard to DHS Secretary Jeh Johnson dated March 26, 2015, available here.
32
8 U.S.C. 1225(b)(1).
33
8 U.S.C. 1229(b)(3).
(76 of 105)
The vast majority of the children who arrived in the 2014 surge came from three countries: El Salvador,
Honduras and Guatemala, a region in Central America known as the Northern Triangle. In contrast, the
number of children entering from Nicaragua is minimal and the number from Mexico has remained
relatively constant over the past several years. Why have so many children left the Northern Triangle
countries of Central America and for what reasons? The answers are complicated and varied; although
there is no doubt that the extraordinarily high incidence of violence from gangs and international
criminal organizations is a major factor. 34 Sonia Nazario, an award-winning journalist who has
researched and written extensively on the conditions that spur Central American children to travel to
the United States, wrote an Op-ed piece published in the New York Times claiming that violence, not
poverty, is the main reason for the recent exodus of children. 35 When comparing the numbers of
children arriving annually by nationality, it is clear that the decrease in numbers in FY 2015 is made up
almost exclusively in a drop in arrivals of children from El Salvador and Honduras, but not Guatemala or
Mexico. 36 This is an interesting observation that most likely has more to do with effective prevention,
interdiction and deportation efforts in Central America and Mexico than any improvement in county
conditions in El Salvador and Honduras.
Since 1989 the ABA has operated a pro bono project on the Texas/Mexico border called ProBAR, the
South Texas Pro Bono Asylum Representation Project. ProBAR provides legal information and pro bono
representation to indigent, detained adults and unaccompanied children in the Rio 0Grande
Valley of
2 16
,
4
1
lower South Texas. Many of the children represented by ProBAR describe
been assaulted,
ber
mhaving
epte
S
n
o
threatened and recruited by gangs or drug cartels and ordered
ivedto participate with these groups under
arch
8
3
the threat of death. Others have been extorted5and
-357ordered to pay large sums of money or they or their
o. 1
N
,
h
family members will be harmed or killed.
c Young girls are claimed as girlfriends by gang members and
. Lyn
M. v surrender. Children describe how gang members wait for them
.
F
.
told they will be killed ifinthey
dont
J
cited in order to recruit new members and/or charge regular fees. Entire
outside of their schools
neighborhoods are controlled by rival gangs and innocent families and small business owners must pay a
war tax or rent to the controlling gang. The authorities either cannot or will not control the gang
violence and so the gangs have effectively gained control over large parts of these countries, especially
poor, urban areas. While large numbers of children are targeted personally for gang violence, even
those who have not been targeted fear they will be targeted in the future. Other children represented
by ProBAR describe being victims of domestic violence, trafficking, exploitation and neglect. Some
children leave their countries with the expectation of supporting their parents and siblings living in
abject poverty back home; families may even mortgage the only home or piece of land they have to
borrow the money for the childs trip. Currently, there are very few safety nets for vulnerable children
in Central America and traveling to the United States is perceived as one of the only ways to escape
danger, poverty and violence.
34
Frances Robles, Fleeing Gangs, Children Head to U.S. Border, N.Y. Times, July 9, 2014, available here:
Sonia Nazario, Op-Ed., A Refugee Crisis, Not an Immigration Crisis, N.Y. Times, July 11, 2014, available here.
36
Migration Policy Institute webinar March 31, 2015, ..
35
(77 of 105)
These Central American countries all were impacted by civil wars in the 1980s and 1990s and continue
to be plagued with insecurity, impunity, devastated economies and a weak and corrupt law enforcement
system. Honduras has one of the highest murder rates in the world, 90 murders per 100,000 residents,
as compared to 5 murders per 100,000 residents in the United States and 15 per 100,000 residents in
Chicago. 37 Hondurass second largest city, San Pedro Sula, where many unaccompanied children come
from, has been dubbed the worlds murder capital at 173 murders per 100,000 residents. 38
Meanwhile, in El Salvador, the two-year gang truce fell apart in 2014 and in March 2015 there were 481
reported homicides, more than 15 per day, positioning El Salvador to surpass Honduras as the deadliest
peace-time country in the world. 39 Furthermore, economic conditions are dismal and the average salary
for a professional is about $150 a month. As a result of these conditions and natural disasters including
Hurricane Mitch in 1998 and an earthquake in El Salvador in 2001, many adults including parents fled for
the United States seeking safety, protection and employment and have remained in the U.S. for 5, 10, or
15 years and more, working and sending money back home while their children are left behind, being
raised by aging grandparents and other extended family members.
The failure of comprehensive immigration reform is another factor that has led to increased migration of
children. Many Central American parents who came to the United States five, ten or fifteen years ago
continue to live in the United States without legal status. The failed effort at immigration reform has
caused some parents to lose hope that they will ever be able to travel back to their0countries
legally and
2 16
,
4
1
er children to the United
out of desperation some have paid smugglers thousands of dollars to bring
mbtheir
epte
S
n
o
States. Sometimes elderly caregivers in the home country can
ivedno longer properly care for the children
arch
8
3
7
or have passed away. Children without adequate
supervision are often targets for gangs and drug
-35adult
o. 15
N
,
h
cartels. In other cases, children decide
yncit is time to leave on their own, determined to join their parents
. v. L
M
.
F
.
and U.S.-born siblings ininthe
J United States.
cited
The fact that it has become easier and quicker to reunify with family members is another factor that
relates to the increase in numbers. Human smuggling is a lucrative business and smugglers are quick to
recognize the patterns in detention and reunification policies and use them to their advantage. They
portray release on recognizance or reunification as a permiso, or permit to enter the United
States, although the reunification process is only a temporary authorization to allow children to
remain in the United States during the pendency of their removal proceedings. The children have no
right to work and no automatic right to any permanent status. Children, like adults, who fail to appear
for their removal proceedings will receive an in absentia removal order and eventually ICE will process
their removal.
Access to Counsel and Due Process Concerns
37
Danny Vinik, Hondurass Murder Rate is Six Times Worse Than Chicagos. How Can We Send Children Back to
That? New Republic, July 10, 2014, available here.
38
Id.
39
Marcos Aleman and Alberto Arce, Homicides in El Salvador Reach Record as Gang Violence Grows, Yahoo.com,
April 9, 2015, available here.
(78 of 105)
While there are limited options for people to remain legally in the United States when they enter
without authorization, it is widely understood that an individual is much more likely to prevail in
immigration court if he or she is represented. 40 A recent study focusing on the success rates of children
in removal proceedings demonstrated that 73% of represented children were granted the right to
remain in the United States as compared to 15% of unrepresented children. 41 On the other hand, the
Immigration Court system is so severely backlogged and under-resourced that it often takes years to
complete a single case. Immigration Judges can carry a 2000+ annual case docket. Congress has
continually funded increased enforcement efforts but has failed to increase resources needed to
adequately adjudicate these cases in a timely and efficient manner. Currently, the adjudication system
receives a paltry 2% of the resources dedicated to the national immigration enforcement budget.
Recently, as an additional effort to prioritize the processing of childrens cases, the Executive Office for
Immigration Review began to expedite the cases of unaccompanied children who were released from
detention and reunified beginning in May 2014. These rocket dockets require childrens cases to be
set for an initial master calendar hearing within 21 days of release from detention. These expedited
proceedings raise significant due process concerns and have resulted in confusion for the children and
their families and problems related to proper notice and lack of access to counsel in immigration court. 42
While the initial master calendar hearings are required to be expedited, the Chief Immigration Judge
recently clarified that the Immigration Judges are free to use their discretion to allow
adjournments in
2016
,
4
43
1
er
subsequent hearings as necessary.
temb
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Legal Relief: Refugee or Immigrant?
38
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Sep
ync about whether these individuals are refugees or simply

There has been much debate in .the
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F
.
in J
migrants. A refugeeiteisdsomeone
who is outside of his or her country of nationality and is unable or
c
unwilling to return because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion. 44 An immigrant
generally migrates for economic, family or other reasons. This distinction makes a difference because
someone who meets the definition of refugee qualifies to be granted asylum, but besides asylum, there
is very limited legal relief for migrants who enter the country without authorization.
40
See New York Immigrant Representation Study, Accessing Justice the Availability and Adequacy of Counsel in
Immigration Proceedings, Dec. 2011, available here.
41
See, Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration
Court, Nov. 25, 2014, available here.
42
John Fritze, Immigration Court Speeds Review of Cases Involving Children, The Baltimore Sun, August 20, 2014,
available here.
43
See, Brian M. OLeary, Chief Immigration Judge, Executive Office for Immigration Review, Docketing Practices
Relating to Unaccompanied Children Cases and Adult with Children Released on Alternatives to Detention Cases in
Light of the New Priorities, Mar. 24, 2015 available here
44
8 U.S.C. 1101(a)(42)(A).
(79 of 105)
The UNHCR, in a recent report, found that 58% of the children interviewed in a 2013 study raised actual
or potential legal protection concerns. 45 This signifies that more than half of the children have personal
situations of danger, abuse or neglect that may make them eligible to apply for asylum or another form
of relief such as the Special Immigrant Juvenile visa. This does not mean that 58% of the children will
ultimately win legal relief. The United States does not always interpret its asylum laws as broadly as
recommended by the UNHCR. It is difficult to win an asylum case, especially in the adversarial
Immigration Court system (unaccompanied children have the right to apply for asylum before the
Asylum Office in a non-adversarial process). Many of the gang cases are ultimately denied by
Immigration Judges and Courts of Appeal, finding that they do not meet the legal standard for asylum.
Again, in order to qualify for asylum an applicant must show that he or she suffered past persecution or
has a well-founded fear of future persecution based on race, religion, nationality, political opinion or
social group. 46 If someone presents a fear that is not based on one of these five protected grounds, it
will be denied, even if credible. That is often what happens with many of the gang-based cases; they are
found credible, but the judges hold that the fear is not based on one of the five protected grounds.
Some advocates have called for the granting of Temporary Protected Status (TPS) for Central Americans
who are in the United States without authorization. TPS is a status designated by the executive branch
to authorize a temporary stay in the United States due to ongoing armed conflict, a natural disaster or
47
other extraordinary conditions that temporarily prevent foreign nationals from returning
16 safely. This
0
2
,
er 14
would be one way to relieve the courts of having to adjudicate the majority
emb of these cases and give
t
p
e
people the opportunity to support themselves while they remain
inSthe United States. Other advocates
d on
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a
have argued for the creation of legal vehicles including
5738humanitarian visas that would allow imperiled
15-3
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48
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children with family in the United States
Lync to travel legally to the United States.
J.
ed in
F.M.
v.
2. ABA Response:
Past and Present
cit
Establishment of ABA Working Group on Unaccompanied Minor Immigrants
In response to the increasingly compelling humanitarian situation occurring at the southwest border, in
July 2014, the Commission on Immigration organized a tour for its members and ABA leadership to the
Lackland Air Force Base in San Antonio, Texas, where 1,200 children were being held and processed for
reunification. 49 ABA President William Hubbard and Past-President James R. Silkenat joined Commission
Chair Christina Fiflis, Commission Director Meredith Linsky and thirteen others to visit this emergency
facility as well as several traditional childrens shelters and the San Antonio Immigration Court.
Subsequently, in August 2014, President William Hubbard established a Working Group on
Unaccompanied Minor Immigrants to address the urgent crisis presented by these children and to
45
See United Nations High Commissioner for Refugees, Children on the Run, Mar. 2014, available here.
8 U.S.C. 1158(b)(1).
47
8 U.S. C. 1254a(b)(1).
48
Donald Kerwin, Why the Central American Child Migrants Need Full Adjudication of Their Protection Claims, The
Huffington Post, July 19, 2014, available here.
49
As of August 2014, this facility is no longer being used to detain unaccompanied children.
46
10
(80 of 105)
mobilize the full resources, talent and experience of ABA members to meet this challenge. The Working
Group is comprised of ABA members representing a broad cross-section of ABA sections, divisions,
committees and commissions who are working to address this crisis. The Working Group is tasked with
developing and implementing an immediate response to the need for trained lawyers to take on these
immigration cases on a pro bono basis, as well as developing a collaborative and effective plan for how
the ABA can contribute to coordination of the efforts among the various entities already committed to
this issue and developing new service opportunities and resources as needed.
ABA Background on Serving Immigrants and Asylum-Seekers on the Texas Border
In 1989, the ABA, in collaboration with the State Bar of Texas (SBOT) and the American Immigration
Lawyers Association (AILA), created ProBAR, the South Texas Pro Bono Asylum Representation Project,
in Harlingen, Texas. This effort arose out of a response to a similar crisis when there were over 5,000
Central American adults and families detained in South Texas fleeing from war-torn nations in Central
America and seeking safety and protection in the United States. At that time, the ABA, SBOT and AILA
joined forces in order to recruit and train pro bono lawyers to represent detained Central American
asylum-seekers in South Texas. Initially, the project was comprised of just one attorney and a volunteer
paralegal. Today, ProBAR has almost 40 staff members in two offices in Harlingen that focus on
providing Know Your Rights presentations, legal screening services and pro bono representation to
2016
adults and unaccompanied children in detention throughout the Rio GrandeeValley.
r 14,
b
ptem
Se
d on
In 2014, ProBAR served 10,403 detained unaccompaniedarchildren

and 1,981 detained adults. In 2011,
chive
38
7
5
3
there were 369 beds for unaccompanied children
o. 15 in the Rio Grande Valley and each child was detained
h, N
c
n
y
an average of 45 to 60 days. Today
v. Lthere are over 1,600 beds in South Texas, and children rotate in and
F.M.
.
J
n
i7 to 30 days. ProBAR is charged with providing Know Your Rights
out an average of every
cited
presentations to detained children and adults, individual screenings and pro bono representation and
referrals for those with identifiable relief. Approximately 90% of the children will be reunified with
family or friends in the United States pending their hearings, but they must return to immigration court
and defend against a removal order. They travel all over the United States in order to reunify and
according to the government, have no right to appointed counsel in the immigration court process. If
they dont return to immigration court when scheduled, they will receive an in absentia removal order.
ABA Project Serving Immigrants and Asylum-Seekers on the California Border
In 2008, the ABA created the Immigrant Justice Project (IJP), a pro bono project located in San Diego,
California. The mission of the IJP is to promote due process and access to justice at all levels of the
immigration and appellate court system, through the provision of high-quality pro bono legal services
for those in immigration proceedings in San Diego. The IJP serves both detained and non-detained
individuals, and recruits, trains and mentors volunteer attorneys and law students to represent
individual clients. IJP does not focus specifically on unaccompanied children, but does specialize in
representing detainees with diminished mental capacity, asylum-seekers and others.
ProBAR Know Your Rights and Screening Video
11
(81 of 105)
The Commission, through the ProBAR project, has produced multiple training videos for attorneys and
paralegals who are serving unaccompanied children in the initial detention setting. Currently there are
approximately 100 shelters and foster care programs around the country with a total capacity of 7,284
beds where ORR holds children who are being processed for reunification. ProBAR staff members have
years of experience providing specialized Know Your Rights presentations and screening services to
detained children. In 2014, ProBAR staff filmed four videos related to working with Central American
children. These videos are currently available at the Commission on Immigration website. 50
ABA Advocacy Efforts
Additionally, the ABA is engaged in advocacy efforts with the Administration and Congress. The ABA has
adopted numerous policies that address unaccompanied alien children.
In 2001, the ABA adopted a policy that urges: 1) government appointed counsel for unaccompanied
children at all stages of immigration processes and proceedings: 2) creation within the Department of
Justice of an office with child welfare expertise that would have an oversight role and ensure that
childrens interests are respected at all times; 3) that children in immigration custody who cannot be
released to family or other sponsors should be housed in family-like settings, and not detained in
facilities with or for juvenile offenders.
6
, 201
4
In 2004, the ABA adopted the Standards for the Custody, Placement andem
Care;
ber 1Legal Representation; and
t
p
e
S
Adjudication of Unaccompanied Alien Children in the UnitedivStates.
d on These Standards were developed
h e
c
r
a
by the Commission on Immigrations predecessor-3entity
5738 and cover myriad issues related to specific
15
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rights of child respondents, representation
ch, Nof children, and the standards for the custody, placement
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v
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and care of unaccompanied
in J. alien children, rights of children in custody and adjudication of child claims.
cited
On June 25th, 2014, Past President Silkenat submitted a statement to the Judiciary Committee of the
U.S. House of Representatives regarding the surge of unaccompanied children.
On March 26, 2015, President William Hubbard sent a letter to DHS Secretary Jeh Johnson expressing
concern about expansion of immigration detention, including detention of women and children seeking
protection as refugees.
GPSolo/KIND Pro Bono Training Sessions
A significant effort to support legal representation of unaccompanied minors was commenced in June,
2011 when the ABA Board of Governors authorized GPSolo Division to partner with Kids in Need of
Defense (KIND), a private non-profit that helps provide competent and compassionate legal counsel to
unaccompanied minors in the US immigration system. The ABA-KIND partnership has developed over
the years, with the ABA providing training venues, on-line resource materials and a pool of volunteers,
and KIND matching up trained volunteers with cases, mentors and guidance.
50
The training videos are available here.
12
(82 of 105)
Since starting in 2011, the ABA-KIND partnership has trained lawyers in numerous cities, during standalone meetings conducted by ABA GPSolo, Tort Trial and Insurance Practice Section and Business Law
Section. The ABA-KIND partnership website is hosted by GPSolo but is open to all and includes a free
(open access) 2-hour CLE accredited webinar and 6 x hour podcasts, along with written training
materials: http://www.americanbar.org/groups/gpsolo/initiatives/kind.html. That site also has a short
information video about KIND and a direct link to volunteer with KIND to take on a case. This
partnership and more information from KIND is described in Laura Farbers January 2012 article for
GPSolo Magazine,
see:http://www.americanbar.org/publications/gp_solo/2012/january_february/chairs_corner_helping_
kids_need_defense.html
3. How to Help Now
For ABA members and others who want to help now, there are a number of options:
Volunteer to Represent an Unaccompanied Child through the ABA Immigrant Child Assistance
Network
If you would like to help by representing a child who is currently in removal proceedings, you can enroll
at the ABA website at: www.ambar.org/ican. Attorneys who register will be matched
with a legal
2016
,
4
1
service provider in their geographical area to be paired with a child client.
videos and other
er
mbTraining
epte
S
n
o
resources are available at this site and at the ABA partner site
www.UACresources.org.
ived
h
8 arc
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15-3
.
Volunteer with or Donate to ProBAR inhHarlingen,
Texas or the IJP in San Diego, California
, No
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F
.
ProBAR is in the process
inofJ hiring additional attorneys and paralegals for temporary and permanent
cited
assignments. If you or someone you know might be interested in a position, contact Kimi Jackson or
Meghan Johnson listed below. At this time, ProBARs Childrens Project can only accept volunteers who
are proficient in Spanish, can commit to staying at least one month and are available to help screen and
represent children at one of the 15 shelters in the area. To contact ProBAR you may e-mail the Director,
Kimi Jackson at [email protected] or the Manager of the Childrens Project, Meghan Johnson
at [email protected]. For more information visit ProBARs Childrens project website
link: www.ambar.org/probarchildren.
If you do not meet the criteria to volunteer, you may still support this work by making a contribution to
ProBAR or the IJP through the ABAs Fund for Justice and Education at the following link:
https://donate.americanbar.org/immigration
Attend Trainings on Representing Unaccompanied Minors Presented Throughout the Country
For a list of upcoming live trainings see the Training link at the Unaccompanied Children Resource
Center website here. You can watch a six-part training entitled The ABCs of Representing
Unaccompanied Children in Removal Proceedings at the Commission website here.
13
(83 of 105)
Volunteer to Represent Detained Families with the CARA Family Detention Pro Bono Project in San
Antonio, Texas
Four organizations have recently come together to develop a pro bono program to provide
representation to families detained by ICE in South Texas at the Dilley and Karnes family residential
centers. These organizations include the Catholic Legal Immigration Network, American Immigration
Council, Refugee and Immigrant Center for Education and Legal Services and American Immigration
Lawyers Association. The project asks volunteers to commit to a week-long stay from Sunday through
Friday. They are currently seeking volunteer attorneys through September 2015. For more information
on this program click here.
Donate Toward Social Service Efforts
If you would like to donate toward serving those who have been released you can review the following
websites of agencies that are providing support to newly arrived Central Americans in the Rio Grande
Valley, the area where ProBAR is located.
La Posada Providencia, a shelter run by the Sisters of Divine Providence:
http://lppshelter.org/
The Sacred Heart Church in McAllen is serving released families:
http://sacredheartchurch-mcallen.org/immigrant-assistance/
d on
Share Your Ideas
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The Commission and the Working
Group are interested in working collaboratively with ABA entities and
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in J.
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other stakeholders. Please feel free to contact us with your ideas and plans to address this compelling
situation.
For more information, contact:
Christina Fiflis, Chair, ABA Commission on Immigration, [email protected]
Meredith Linsky, Director, ABA Commission on Immigration, [email protected],
202-662-1006.
Mary Ryan and Christina Fiflis, Co-Chairs, Working Group on Unaccompanied Minor Immigrants,
[email protected]; [email protected].
14
(84 of 105)
N.Y. / REGION
Immigration Crisis Shifts From Border

to Courts
By LIZ ROBBINS
AUG. 23, 2015
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Brayan, 16, at the Central American
Center in Hempstead, N.Y. Brayan fled El Salvador and entered the United States
in Refugee
cited
last year. Andrew Renneisen for The New York Times
SEE MY OPTIONS
As low as 99 for 4
weeks.
Wearing Vans shoes and rubber-band bracelets, hair gel and shy smiles, the
brothers Brayan and Jos looked like typical teenagers.
But the story they told of their turbulent past year revealed just how far from
typical they have traveled.
In separate trips, the boys said, they left El Salvador to avoid being recruited
by violent gangs and trekked across two countries. They were caught by
United States Border Patrol agents in Texas in 2014 and sent to different
detention centers for several weeks before being reunited in Elmont, N.Y.,
with their father, Arturo. They had not seen him in 10 years.
Thats why I brought them one at a time, Arturo said in Spanish at the
Long Island offices of the boys immigration lawyer, because if something
happened to one, at least I would have the other. The family requested that
its last name not be used because of its legal status.
(86 of 105)
Like thousands of other children who fled the violence gripping several
Central American countries, Brayan, now 16, and Jos, 15, arrived safely in
the United States only to spend the next 13 months navigating the justice
system to prove they have a right to stay.
They have missed many days of school to appear in federal immigration
court and state family court, have helped their father complete a pile of
paperwork taller than they are and have contended with bureaucratic
requirements that seemed endless.
Last summer, President Obama declared a crisis along the border with
Mexico in response to the tens of thousands of unaccompanied children
coming into the country. Detention centers in Texas overflowed, prompting
the federal Department of Homeland Security to open emergency shelters.
Political tempers boiled over Rick Perry, who was the governor of Texas,
ordered 1,000 National Guard troops to defend the border. The Obama
administration created a priority juvenile docket in immigration courts to
speed up deportation proceedings.
One year later, the number of children arriving at the border has sharply
2016
r 14,
decreased, in part because Mexico has been returning children to their
home
e
b
ptem
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o
countries before they can reach the United States.
d
hive
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o. 15
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N
But the crisis has not ended. It has simply
It is playing out in
ch,shifted.
. Lyn
v
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F.
courtrooms crowded with dyoung
in J. defendants but lacking lawyers and judges
cite
to handle the sheer volume of cases. Thousands of children without lawyers
have been issued deportation orders, some because they never showed up in
court.
The situation last summer was characterized as part of the overall

immigration system being broken, and its taken us down the wrong policy
path, said Wendy Young, the president of Kids in Need of Defense, a
national legal advocacy group. This is not an immigration crisis; its a
refugee crisis.
About 84,000 children were apprehended at the Southwest border during
the 2014 fiscal year and the first six months of the 2015 fiscal year,
according to the Border Patrol. Of the 79,088 removal cases initiated by the
government, 15,207 children had been ordered deported as of June,
according to the Migration Policy Institute, a nonpartisan research group in
Washington.
While a small percentage of children have been granted asylum, most are
seeking relief from deportation by applying for special immigrant juvenile
(87 of 105)
status, federal officials said. And yet, rather than their claims being
expedited, 69 percent of the children on the priority docket still have cases
pending, statistics show.
The burden is far more difficult for children if they do not have a lawyer a
right not granted to defendants in immigration courts especially because
of the accelerated time frame the government established for their cases.
After being released to a sponsor, usually a relative, they are on the clock:
They are required to make their first court appearance within 21 days of the
courts receiving their case to contest their deportation.
New York Advantage
By all accounts, there are legal advantages for child immigrants in New York
City that do not exist in other parts of the country where they settled in large
numbers, including Los Angeles, South Florida and the Houston area. Last
summer, nonprofit agencies and pro bono lawyers formed a coalition at the
federal court in Lower Manhattan, backed by $1.9 million in financing from
the City Council and private philanthropy, to help those without lawyers.
16
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(88 of 105)
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in J. Elicia was scheduled to be deported last year, but a lawyer won her special juvenile
Elicia, 17, with her mother in the
Bronx.
cited
status. James Estrin/The New York Times
Although the Council said the coalition took on 648 cases of the 1,600
children screened at 26 Federal Plaza, not all were from the five boroughs
and only those children in New York City were eligible for free assistance.
Even then, only those who were most likely to win relief could be helped.
We may have it a little under control in New York City, said Jojo Annobil,
director of immigration for Legal Aid, but its not under control in Long
Island, where, along with Westchester County and the lower Hudson
Valley, large numbers of the children have also settled.
It is a disparity that underscores the contentious divide over what to do
about the countrys 11 million undocumented immigrants.
Federal officials defended their approach. Gillian Christensen, a
spokeswoman for United States Immigration and Customs Enforcement,
said the agencys lawyers work with advocates for the children, to ensure
(89 of 105)
that these cases are processed in as expeditious and fair a manner as
possible.
But Mark Krikorian, the executive director of the Center for Immigration
Studies, a Washington research institute that supports tighter controls on
immigration, said the process for asylum or special immigration status
served as a rationale for family reunification and is inherently flawed.
Its not that it should be more convoluted; its that the standards should be
higher, Mr. Krikorian said. Youve got family court judges deciding U.S.
immigration policy.
Winding Path in Courts
On a recent day on the 14th floor of 26 Federal Plaza, lawyers bustled
around with files, holding hushed and rushed conversations in Spanish with
their clients. Inside the courtrooms, the judges presided like school
principals; they praised some children for their good grades and implored
those without lawyers to seek help on the 12th floor.
More than a dozen of the teenagers who came to New York City and Long
2016
r 14,
e
b
Island recounted their hardships adjusting to living with estranged
ptem
n Se
o
d
ive their full
parents, learning English, taking tests. They asked not ato
rchhave
38
7
5
3
names published because of their undocumented
. 15- status.
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Of the two main paths to
relief from deportation, asylum is the
d in
citewinning
most straightforward, but also the most difficult to obtain. Children must
persuade a federal asylum officer that they face life-threatening persecution
based on race, religion, nationality or membership in a political or social
group.
Because those cases are difficult to prove, many children instead seek relief
under special immigrant juvenile status, provided they can show they were
abused, neglected or abandoned by one or both parents.
The process requires going through three entities for approval: federal
immigration court, state family court and the federal citizenship agency.
It means that no one entity in the process can crack the whip or control the
flow, said Lenni Benson, a professor and director of the Safe Passage
Project at New York Law School, which mentors volunteer lawyers working
on youth immigration cases.
Complex Journey
(90 of 105)
Brayan and Joss case shows just how complex the journey can be.
They must prove to the family court that they cannot return to El Salvador
because one parent abandoned them there. The court must also approve of
their guardian even if, as in the case of Brayan and Jos, the guardian is
their father.
Their father, Arturo, must try to get consent to be the guardian from the
boys mothers who he said each abandoned her son in El Salvador.
Different lawyers are handling different parts of the case. David Williams,
31, an immigration lawyer from the Central American Refugee Center, a
nonprofit legal provider in Hempstead, N.Y., is preparing their case for
federal court. He acted as a liaison for Janet Millman, who represented the
brothers in family court in Nassau County and was appointed by the states
Attorneys for Children panel, which provides legal services for children in
family courts.
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From left, Jos, Brayan and Arturo in their lawyers office in Hempstead, N.Y. Andrew Renneisen for The New York Times
(91 of 105)
Mr. Williams and Ms. Millman tried to notify both mothers of their sons
hearings. Neither woman responded from her last known address.
The judge then requested that they put advertisements in newspapers in the
United States and in El Salvador, and provide copies of the papers. Still,
there was no word from either mother.
Arturo, 44, also had to list every address he has had for the last 28 years so
New York State, according to immigration lawyers, can investigate whether
he has ever lived with a sex offender.
Although Arturo is an undocumented immigrant, the family court required
that he be fingerprinted, along with other members of the household. And
when one member moved, the entire household was required to be
fingerprinted again.
Its confusing, Arturo said, and there are times that Ive had to redo
paperwork.
016
4, 2
Finally, when the lawyers had submitted all of the documentation to the
ber 1
m
e
t
Sep
court and the family appeared in July, the judge postponediveher
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because she had an unusually full caseload. 15-35738
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Too Few Lawyers
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Arturo, a car washer, was lucky to get a lawyer at the Central American
Refugee Center. Had he arrived weeks later, the organization would have
turned the family away because all four of the groups immigration lawyers
had hit their maximum number of 40 cases.
I dont want to sound coldhearted, said Patrick Young, the program
director of the organization, but we cant handle it.
Atlas: DIY, a community-based group serving immigrant children in
Brooklyn, stopped taking clients three months ago. To make the most of her
resources, the one lawyer on staff, Rebecca McBride, 30, must turn away
children whose cases she deems too hard to win because they do not qualify
for relief.
She took the case of Elicia, a 17-year-old from Honduras, soon after she was
ordered deported in absentia last October.
For me, it was all over, Elicia said in Spanish. I didnt know if they were
going to get me at home or at school.
(92 of 105)
When she arrived in July 2014, Elicia did not go to her immigration
hearings because friends warned her she could be deported just by showing
up in court. But Ms. McBride reopened the case and argued for Elicia to get
special juvenile status because her father had neglected and abandoned her.
With three days to spare, the judge terminated Elicias deportation order.
For more than a year, Brayan and Jos lived in a similar limbo. It was still
better than living in El Salvador.
These two kids couldnt go to school, Ms. Millman said. They didnt know
whether they were going to be dead the next day. Their life was worth not a
whole lot. They came because they want to live.
Last week, a family court judge in Nassau County granted a special findings
order, determining that both boys were eligible to receive special immigrant
juvenile status.
But they are not in the clear. They still must submit an application for the
status to the United States Citizenship and Immigration Services, which, if
approved, would entitle them to permanent residency. On Sept. 9, an
2016
r 14,
e
b
immigration court judge in Manhattan will rule on whether to cancel
their
ptem
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ive
deportation orders.
arch
38
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. 15
, No
nch
It is still a case that is not 100 percent
Arturo said. We still have to
. Lywon,
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.
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.
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.
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give it a little more effort.
cited
Correction: August 25, 2015

An article on Monday about cases involving young immigrants and how
they have overwhelmed the court system misstated, in some copies, the
current status of two brothers who traveled from El Salvador to the United
States in 2014. A Nassau County family court judge found that the facts
were in order for the brothers, Brayan and Jos, to receive special
immigrant juvenile status, but their application must be approved by the
United States Citizenship and Immigration Services. The judge did not
grant them special immigrant status.
David Gonzalez and Isvett Verde contributed reporting.

A version of this article appears in print on August 24, 2015, on page A13 of the New York edition with the
headline: Immigration Crisis Shifts From Border to Courts. Order Reprints | Today's Paper | Subscribe
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FOR IMMEDIATE RELEASE
Friday, September 12, 2014
Justice Department and CNCS Announce $1.8 Million in Grants

to Enhance Immigration Court Proceedings and Provide Legal
2016
Assistance to Unaccompanied Children
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epte
S
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The Department of Justice and the Corporation for National and Community
ivedService (CNCS),
arch
8
3
which administers AmeriCorps national service programs, has -awarded
$1.8 million in grants to
357
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N
increase the effective and efficient adjudication of immigration
,
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children who have crossed the U.S. border
without
M. v a parent or legal guardian. The grants will be
.
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disbursed through justice AmeriCorps
cited and will enable legal aid organizations to enroll
approximately 100 lawyers and paralegals to represent children in immigration proceedings. The
justice AmeriCorps members will also help to identify children who have been victims of human
trafficking or abuse and, as appropriate, refer them to support services and authorities responsible
for investigating and prosecuting the perpetrators of such crimes.
The increasing numbers of unaccompanied children appearing in our immigration courts present
an urgent challenge: how best to conduct immigration proceedings more efficiently while
maintaining our commitment to following the procedures required by law and protecting the rights
of these children. said Attorney General Eric Holder. We are addressing that challenge by using
these funds to facilitate access to legal representation for some of the most vulnerable of these
children. By increasing the number of represented children, we will enhance the resources
available to both the children and the courts to better serve the administration of justice in all
cases.
Young immigrant children often enter the U.S. after a long and dangerous journey, said CNCS
CEO Wendy Spencer. This funding will enable organizations to engage AmeriCorps members in
providing critical support for these children, many of whom are escaping abuse, persecution, or
violence. As a result of this partnership, AmeriCorps will play a role in improving the effective and
efficient adjudication of these very difficult cases.
Report a Crime
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(95 of 105)
The grants were awarded to Equal Justice Works, Casa Cornelia Law Center, Catholic Legal
Services of Miami, Legal Services of South Central Michigan, the Massachusetts Immigrant and
Refugee Advocacy Coalition, the New York Immigration Coalition, and the University of Nevada
Las Vegas. Their programs will serve children in immigration court locations in Atlanta,
Baltimore, Boston, Charlotte, Chicago, Cleveland, Dallas, Denver, Detroit, El Paso, Las Vegas,
Miami, New York, Phoenix, San Antonio, San Diego and Seattle after justice AmeriCorps members
attend a national training program later this year. The training will include immigration laws and
regulations applicable to unaccompanied children; immigration proceedings practice and
procedure; ethics for professionals working with children and youths; and trauma-informed and
culturally-appropriate models of interacting with unaccompanied children.
After more than a year of planning, we are pleased to see justice AmeriCorps taking flight, said
Associate Attorney General Tony West, who oversaw the development and implementation of the
program for the Department of Justice. The justice AmeriCorps program will address several
important goals: enhancing the efficacy and efficiency of our immigration courts; protecting
vulnerable populations; and increasing national service.
With the awarding of these grants, the Executive Office for Immigration Review (EOIR) will see
an increase in the representation of children in immigration court proceedings, said EOIR Deputy
Director Ana M. Kocur. This public-private partnership is the realization of creative government 16
4, 20
thinking to increase efficiencies in the immigration courts.
ber 1
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8 arc
3573
5
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o. please visit:
For more information about the justice AmeriCorpsnprogram
ch, N
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L
.
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http://www.nationalservice.gov/programs/americorps.
F.M.
n J.
i
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cit
The justice AmeriCorps program is a strategic partnership between the Department of Justice and
the Corporation for National and Community Service to provide legal aid to vulnerable
populations. This particular program responds to Congress direction to the Executive Office for
Immigration Review to better serve vulnerable populations such as children and improve court
efficiency through pilot efforts aimed at improving legal representation.
EOIR is an agency within the Department of Justice. Under delegated authority from the Attorney
General, immigration judges and the Board of Immigration Appeals interpret and adjudicate
immigration cases according to U.S. immigration laws. EOIRs immigration judges conduct
administrative court proceedings in immigration courts located throughout the nation. They
determine whether foreign-born individualswhom the Department of Homeland Security
charges with violating immigration lawshould be ordered removed from the United States or
should be granted relief from removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIRs Office
of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases.
EOIR is committed to ensuring fairness in all of the cases it adjudicates.
Identify Our Most Wanted

Fugitives
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(96 of 105)
The Corporation for National and Community Service is a federal agency that engages more than
five million Americans in service through its AmeriCorps, Senior Corps, Social Innovation Fund
and other programs, and leads the president's national call to service initiative United We Serve.
For more information, visit: www.nationalservice.gov.
14-979
Topic:
Access to Justice
Access to Justice
Office of the Attorney General
Updated April 28, 2016

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FOR IMMEDIATE RELEASE
Wednesday, October 22, 2014
EOIRs Office Of Legal Access Programs

2016
r 14,
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m
The Executive Office for Immigration Reviews (EOIR) Office of
Legal
pte
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o
d
Access Programs (OLAP), formerly known as the Legal
Orientation
and Pro
ive
arch
8
3
Bono Program, was established in April -2000
357 to improve access to legal
. 15
o
N
information and counseling and
to
increase
representation rates for foreign,
h
nc
. Lybefore
v
.
born individuals appearing
the
immigration
courts and Board of
M
F.
n J.
i
d
e
Immigration
cit Appeals (BIA). OLAP is responsible for administering the
Legal Orientation Program, the Legal Orientation Program for Custodians of
Unaccompanied Alien Children, and the BIA Pro Bono Project. OLAP also
coordinates EOIRs Committee on Pro Bono, the Model Hearing Program,
and other initiatives which improve access to legal services for individuals
appearing before EOIRs tribunals.
Legal Orientation Program
Since 2003, EOIR has carried out the LOP to improve judicial efficiency in
the immigration courts, and to assist detained individuals and others
involved in detained removal proceedings to make timely and informed
decisions. Under the LOP, EOIR contracts with non-profit organizations to
provide group and individual orientations, self-help workshops, and pro
bono referral services for detained individuals in removal proceedings. LOP
is operational mainly at detention sites, but it also serves certain sites with
non-detained individuals and certain family detention centers.
Independent analysis has shown that the LOP has positive effects on the
immigration court process: detained individuals make better informed and
more timely decisions and are more likely to obtain representation; and
cases are completed faster, resulting in fewer court hearings, less time spent
in detention and cost savings.
CAREERS
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(98 of 105)
Legal Orientation Program for Custodians of Unaccompanied

Alien Children
The Trafficking Victims Protection Reauthorization Act of 2009 tasked
EOIR and the Department of Health and Human Services' Office of Refugee
Resettlement to offer legal orientation presentations to the adult custodians
of unaccompanied alien children in EOIR removal proceedings. The goals of
the legal orientations include seeking to protect children from
mistreatment, exploitation and trafficking, as well as increasing the
appearance rates of these children in immigration court. In 2010, EOIR
launched the LOPC to meet these goals and to help increase pro bono
representation rates of unaccompanied alien children in immigration
proceedings.
EOIR has contracted with non-profit partners to carry out the LOPC at 14
sites nationwide. The LOPC providers offer services similar to those
provided under the LOP: general group orientations, individual
orientations, self-help workshops, and assistance with pro bono referrals.
Additionally, LOPC providers are able to assist with school enrollment and
make referrals to social services to help ensure the well-being of the child.
OLAP issues guidance to LOPC providers designed to assist them in
2016
identifying victims of mistreatment, exploitation, and trafficking; protecting
r 14,
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the victims from further harm; and connecting the victims to
needed
ptem social
n Se
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services.
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38 a
7
5
3
o. 15
In addition, since 2013, the LOPC
h, Nhas operated the LOPC National Call
c
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Center to assist in making
F.M. appointments for custodians at one of the LOPC
.
J
n
i
provider clocations,
and to provide telephonic assistance to custodians who
ited
live outside the geographic areas in which LOPC is currently available. This
telephonic assistance includes legal orientations on the immigration court
process, as well as guidance in filing basic court forms, such as the change of
address and motion to change venue.
BIA Pro Bono Project
In 2001, EOIR and non-profit agencies developed the BIA Pro Bono Project
(the "Project"). Individuals in removal proceedings are generally not
entitled to publicly-funded legal assistance and, as a result, many appear
before the immigration courts and BIA without counsel. Agencies that
provide legal services to immigrants can face many obstacles in identifying,
locating and communicating with unrepresented individuals in time to write
and file an appeal brief. The Project helps overcome such obstacles. Through
the Project, OLAP assists in identifying certain cases based upon predetermined criteria. Once cases are identified and reviewed, their
summaries are then distributed by a non-profit agency to pro bono
representatives throughout the United States. Volunteers who accept a case
under the Project receive a copy of the file, as well as additional time to file
the appeal brief.
A ten-year review of the BIA Pro Bono Project, completed in February 2014,
demonstrated that the Project found counsel willing to accept the case for
LEADERSHIP
Juan P. Osuna
Director, Executive Office
for Immigration Review
CONTACT
Office of
Communications and
Legislative Affairs
703-305-0289
CASE STATUS
Automated
Case Information
Hotline
240-314-1500 or 1-800898-7180
Case status information
available 24/7
BIA CLERK'S OFFICE
Filing Information
703-605-1007
OFFICE OF THE CHIEF
ADMINISTRATIVE
HEARING OFFICER
Filing Information for

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RECORDS
(99 of 105)
87% of cases screened between 2002 and 2011. Additionally, those who
were represented through the Project were more likely to have briefs filed
with their appeals than pro se respondents. Most significantly, an analysis of
the appeals before the Board between 2002 and 2011 showed those who
were represented through the Project were more likely to obtain a favorable
outcome in their cases than those who do not receive representation. This
was particularly the case for individuals who were detained. Since the
beginning of the Project, over 1,000 individuals have been represented by
pro bono counsel.
Model Hearing Program
The Model Hearing Program is an educational program developed to
improve the quality of advocacy before the court, as well as to increase levels
of pro bono representation. Model hearings consist of small-scale "mock"
trial training sessions held in immigration court and presented by
immigration judges. The training sessions, carried out in cooperation with
partnering bar associations and/or pro bono agencies, provide practical and
relevant "hands-on" immigration court training to small groups of
attorneys/law students with an emphasis on practice, procedure and
advocacy skills. Participants receive training materials, may obtain
Continuing Legal Education credit from the partnering organization, and
commit to a minimal level of pro bono representation. Since June 2001,
more than 60 model hearing training sessions have been held in
immigration courts nationwide. The Model Hearing Program Training , 2016
er 14
Manual contains detailed information on the content and structure
embof this
t
p
e
S
program, as well as samples of past training sessions.
d on
hive
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r
a
5738
15-3
.
o
Other Initiatives
ch, N
. Lyn
v
.
M
J. F.
Drawing con
pamphlets developed by non-profit partners,
d in
iteinformational
throughout the nation's detention facilities, OLAP makes available 11 selfhelp guides. These guides, posted in English and Spanish, cover the most
common forms of relief, as well as information about bond and an overview
of immigration proceedings. The guides are generally accessible to detainees
in the facility libraries and are available on the OLAP website as well.
Additional resources:
American Bar Association Know Your Rights video
LOP Cost Saving Analysis report
- EOIR The Executive Office for Immigration Review (EOIR) is an agency within
the Department of Justice. Under delegated authority from the Attorney
General, immigration judges and the Board of Immigration Appeals
interpret and adjudicate immigration cases according to United States
immigration laws. EOIRs immigration judges conduct administrative
court proceedings in immigration courts located throughout the nation.
They determine whether foreign-born individualswhom the Department
of Homeland Security charges with violating immigration lawshould be
FOIA Service Center

703-605-1297
(100 of 105)
ordered removed from the United States or should be granted relief from
removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by
immigration judges. EOIRs Office of the Chief Administrative Hearing
Officer adjudicates immigration-related employment cases. EOIR is
committed to ensuring fairness in all of the cases it adjudicates.
Executive Office for Immigration Review
Updated February 13, 2015

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United States Court of Appeals for the Ninth Circuit

Office of the Clerk
95 Seventh Street
San Francisco, CA 94103
Information Regarding Judgment and Post-Judgment Proceedings
Judgment
This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
B.
Purpose (Panel Rehearing):

A party should seek panel rehearing only if one or more of the following
grounds exist:
A material point of fact or law was overlooked in the decision;
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
An apparent conflict with another decision of the Court was not

addressed in the opinion.
Do not file a petition for panel rehearing merely to reargue the case.
Purpose (Rehearing En Banc)
A party should seek en banc rehearing only if one or more of the following
grounds exist:
Post Judgment Form - Rev. 08/2013
(102 of 105)
Consideration by the full Court is necessary to secure or maintain

uniformity of the Courts decisions; or
The proceeding involves a question of exceptional importance; or
The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.
(2)
Deadlines for Filing:
A petition for rehearing may be filed within 14 days after entry of

judgment. Fed. R. App. P. 40(a)(1).
If the United States or an agency or officer thereof is a party in a civil case,

the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(a)(1).
If the mandate has issued, the petition for rehearing should be

accompanied by a motion to recall the mandate.
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
An order to publish a previously unpublished memorandum disposition

extends the time to file a petition for rehearing to 14 days after the date of
the order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-2.
(3)
Statement of Counsel
A petition should contain an introduction stating that, in counsels

judgment, one or more of the situations described in the purpose section
above exist. The points to be raised must be stated clearly.
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
The petition must be accompanied by a copy of the panels decision being

challenged.
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
(103 of 105)
The petition or answer must be accompanied by a Certificate of Compliance

found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
You may file a petition electronically via the appellate ECF system. No paper copies are
required unless the Court orders otherwise. If you are a pro se litigant or an attorney
exempted from using the appellate ECF system, file one original petition on paper. No
additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
The Bill of Costs must be filed within 14 days after entry of judgment.
See Form 10 for additional information, available on our website at

www.ca9.uscourts.gov under Forms.
Attorneys Fees
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
Please refer to the Rules of the United States Supreme Court at

www.supremecourt.gov
Counsel Listing in Published Opinions
Please check counsel listing on the attached decision.
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
(104 of 105)
Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
United States Court of Appeals for the Ninth Circuit

BILL OF COSTS
This form is available as a fillable version at:
http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf .
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of
service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A
late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28
U.S.C. 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.
9th Cir. No.
v.
The Clerk is requested to tax the following costs against:
Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1
REQUESTED
(Each Column Must Be Completed)
No. of
Docs.
Pages per
Doc.
TOTAL
COST
Cost per
Page*
ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.
Cost per
Page*
Pages per
Doc.
TOTAL
COST
Excerpt of Record
Opening Brief
Answering Brief
Reply Brief
Other**
TOTAL: $
TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page
(105 of 105)
Form 10. Bill of Costs - Continued
I,
, swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
(To Be Completed by the Clerk)

Date
Costs are taxed in the amount of $

Clerk of Court
By:
, Deputy Clerk

JEFM v. Lynch

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What is the subject matter of the court case?

What is the subject matter of the court case?

What is the ruling of the panel regarding the minors' statutory claims?

What is the ruling of the panel regarding the minors' statutory claims?

(1 of 105)

Case: 15-35738, 09/20/2016, ID: 10129075, DktEntry: 100-1, Page 1 of 31

UNITED STATES COURT OF APPEALS

J. E. F.M., a minor, by and

J.E. F.M. V. LYNCH

Appeal from the United States District Court

J.E. F.M. V. LYNCH

This summary constitutes no part of the opinion of the court. It has

J.E. F.M. V. LYNCH

Specially concurring, Judge McKeown, joined by Judge

J.E. F.M. V. LYNCH

Marsha Chien, Assistant Attorney General; Colleen Melody,

J.E. F.M. V. LYNCH

Columbia Law School, New York, New York; for Amicus

J.E. F.M. V. LYNCH

Immigration proceedings are civil, not criminal, in nature. Thus, the

J.E. F.M. V. LYNCH

effectively raise right-to-counsel claims through the PFR

J.E. F.M. V. LYNCH

Despite the statutory strictures, the district court identified

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This appeal turns on our interpretation of two provisions

Section 1252(b)(9) encompasses both the statutory and

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Although 1252(a)(5) and 1252(b)(9) might seem

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within the scope of 1252(b)(9). See Torres-Tristan v.

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Similarly, in the unique situation in Singh v. Gonzales, we

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to consider whether a right-to-counsel claim falls outside the

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district courts. Consolidation of the review process for

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8 U.S.C. 1252. AAADC, 525 U.S. at 475. The new

In the REAL ID ACT of 2005, Congress amended 1252(b)(9) to

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and policies adopted by the INS in its administration of the

The operative language in the statute at issue in McNary provided

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claim. As a practical matter, children who lack counsel will

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Because this case turns on the interpretation of the statute, the

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In providing two alternative formulations of channeling

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relative, legal guardian, or friend, the immigration judge

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ordered the petitioner removed, and the Board of Immigration

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entitled to government-provided counsel as a matter of

The Friend of the Court Model for Unaccompanied Minors can

Under the statute, immigrants in removal proceedings have the

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1128 (9th Cir. 2014) (second quotation; quotation marks and