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Office of Refugee Resettlement Unlawfully Detaining and Endangering Unaccompanied Immigrant Children

The Office of Refugee Resettlement (“ORR”) , part of the Department of Health & Human Services, is illegally detaining my 14-year-old client as a material witness against the person who smuggled him into the United States.

The ORR is in charge of reuniting unaccompanied minor children with their closest relatives upon entering the United States.

When an unaccompanied minor enters the United States unlawfully, they are usually taken into custody by Customs and Border Protection or Border Patrol  (“DHS” for purposes herein) and then immediately transferred to the custody of the ORR,  as required under the Flores Settlement and under Section 462 of the Homeland Security Act.

When immigrant minors are placed in the custody of ORR, it is because of their immigration status. ORR is obligated, under Paragraph 14 of the Flores Settlement, to release the child within its custody without unnecessary delay, in the following order of preference, to:

A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt, uncle, or grandparent);

D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor’s well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish(es) to the satisfaction of the INS, in its discretion, the affiant’s paternity or guardianship;

E. a licensed program willing to accept legal custody; or

F. an adult individual or entity seeking custody, in the discretion of the INS, when it appears that there is no other likely alternative to long term detention and family reunification does not appear to be a reasonable possibility.

Section 462 of the Homeland Security Act, passed subsequently to the Flores Settlement, codifies much of what was included in Flores but also adds rules, such as 462(b)(2), which states that, when making custody determinations, ORR must ensure that unaccompanied immigrant children are likely to appear for all hearings or proceedings in which they are involved.

Additionally, Section (c)(1) of the TVPRA states that the ORR shall establish policies and programs to ensure that unaccompanied immigrantchildren in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity, including policies and programs reflecting best practices in witness security programs.

Despite the ORR’s obligations to reunite immigrant minors with their closest relatives, they are violating the Flores agreement by detaining my client, who is only 14, as a material witness against the individual who smuggled him into the United States.

Toby Biswas, an attorney for ORR who sets its legal policy regarding unaccompanied minors, stated that ORR is required to continue to detain my minor client until the criminal proceedings against the alleged smuggler are complete.

This policy means that minor child can be detained for the months of even years it takes to complete the criminal proceedings against the defendant. A minor child should not be coerced into testifying against an alleged felon.

Biswas is clearly wrong as well as disingenuous in his legal argument because nothing in the statute states that ORR is required to detain my client as a material witness. The determination on whether to continue to detain a minor is based on whether ORR believes the minor is “likely to appear for all hearings or proceedings in which they are involved.” This does not mean that ORR is required to detain my client as a material witness. If indefinite detention was what Congress intended, it would have said that the minor could not be released until he or she appeared for all hearings or proceedings in which they are involved.

In the majority of cases with minor immigrant children in ORR’s custody, the minor is released to their closest relative in the United States prior to the completion, or even the initiation, of their immigration court proceedings. The question of whether minors are likely to appear for their immigration court proceedings is the same as whether they are likely to appear as a material witness, if required.

Biswas also claimed that my client’s continued detention is required under Sectoin (c)(1) of the TVPRA to protect him from criminal, harmful, or exploitative activity. This also is disingenuous. THe mere fact that the federal government is using a 14-year-old as a material witness enhances the risk that he will be harmed. As a material witness, the smuggler or his or her associates are given a motivation to harm my minor client.

The protection of minor children is more important than the goal of securing a conviction of a human smuggler, or of protecting the rights of the defendant. My client does not desire to press charges. He just wants to be with his mother, where he belongs.

But for the fact that ORR is detaining my client as a material witness, he would have already been with his mother two weeks ago. Because of ORR’s unlawful actions, my client has been detained for a month now.

The Flores agreement requires that ORR release my client from detention to be reunited with his mother. The laws passed subsequently to Flores do nothing to change ORR’s obligation.

Again, the ORR’s policy of indefinite detention of unaccompanied minor children as material witnesses is an intentional evasion of its responsibilities under the Flores Settlement. I have been told by several officials within ORR that there have been many cases in which minor immigrant children have been detained for long periods of time because they are being held as material witnesses in federal criminal proceedings.

This practice must cease immediately because it is unlawful.

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