Senate Committee Investigates Department of Health and Human Services Placement and Care of Unaccompanied Minors by Sadie Weller, Law Student
In an effort to protect the vulnerable population of unaccompanied children coming into the United States, the U.S. Department of Health and Human Services has in place a variety of policies and procedures for their placement and care. In 2002, the care and custody of unaccompanied children (UACs) was transferred from the Immigration and Nationalization Service to the Office of Refugee Resettlement (ORR), under the supervision of the Secretary of Health and Human Services, by the Homeland Security Act. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 put in place additional safeguards to protect UACs from the dangers of human smuggling and trafficking. However, in 2014, it was discovered that multiple unaccompanied children in the custody of Health and Human Services had been placed in the hands of human traffickers. Following this discovery, a U.S. Senate Subcommittee within the Committee on Homeland Security and Governmental Affairs launched an investigation into HHS’s placement system. The Subcommittee found that this failure was the result of systemic flaws in the policies and procedures of HHS.
The placement process of a UAC begins when the child is apprehended by the Department of Homeland Security (DHS) and transferred to the custody of HHS. Because UACs are not normally held in detention pending their immigration proceedings, ORR tries to place them with someone who can care for them and ensure their appearance at immigration court. The first step is to interview each child regarding his or her personal background, family situation, and journey to, and apprehension in, the United States. This helps identify the proper placement for a UAC and helps identify factors that may provide temporary or permanent relief from removal, such as being the victim of trafficking or substantial abuse. The next step involves identifying, through the child and/or his or her family, potential “sponsors” for the child. This process is handled by a contracted care provider (such as the Lutheran Immigration and Refugee Service) under the supervision of HHS. The care provider interviews potential sponsors and requests a Family Reunification Application with proof of identity and relationship to the UAC from a sponsor who wishes to care for the child. Next comes a background check of the potential sponsor. These background checks vary in depth, but at the very least involve a public records check. Potential sponsors who are not parents or legal guardians also undergo an immigration status and FBI fingerprint check. The care provider then must determine whether a home study of the sponsor is necessary. The TVPRA mandates home studies in four categorical situations (generally involving especially vulnerable children) and HHS policy requires home studies in some additional situations. The care provider then, if appropriate, submits a release recommendation to the case coordinator. If the case coordinator, after conducting an independent review, recommends release to the HHS field specialist, the field specialist may either approve the release (outright or conditionally), remand to the care provider for further consideration, deny release, or order a home study of the prospective sponsor. If release is approved, the sponsor enters into a Sponsorship Agreement, promising, among other things, to ensure the UACs appearance at immigration proceedings. Once the sponsor has been placed, HHS provides post-release services (some mandatory, some discretionary), unless the sponsor exercises his or right to refuse these services for the UAC.
A failure of the system came to light in 2014 when it was discovered that traffickers running an egg farm in Marion, Ohio, had obtained custody of UACs through HHS’s placement process. The traffickers had smuggled in a multitude of minors, promising them access to education upon arrival. These traffickers had obtained deeds to the real property of the UACs’ families living in the United States. The understanding was that once the child was placed with the sponsor, the child could work off the family’s debt incurred by the child’s journey to the United States. The traffickers falsely complied with every step of the HHS placement process. For “Category 3” sponsors, meaning distant or non-related individuals, the UAC or his or her family must verify some sort of relationship or connection between the sponsor and the UAC. In these cases, the traffickers used the families’ property deeds as collateral to influence them to cooperate with the assessment. So, although the sponsor and the UAC had no relationship, the parents verified the sponsors’ stories to HHS and submitted the required Letter of Designation to HHS as their form of approval of the sponsor. Once placed, the UACs were forced to work in hard, manual labor and lived in substandard living conditions, and were withheld payment for their work and threatened with physical harm and death.
Following this disturbing and tragic discovery, a U.S. Senate Subcommittee of Investigations within the Department of Homeland Security and Governmental Affairs, headed by Senators Robert Portman and Claire McCaskill, promptly launched in investigation into the policies of HHS’s placement system. They found inadequacies within HHS policies themselves, as well as systemic under-compliance with the policies in place.
The Subcommittee found that HHS’s practice of accepting explanations of alleged relationships between the UAC and a “Category 3” sponsor was not sufficiently safeguarded. Category 3 sponsors are not required to provide official documentation of a relationship (birth certificates, marriage licenses, etc.), only an explanation from the child or his or her family that a relationship exists. In some cases, no such explanation was found in the child’s file, and in at least one case, there was no indication that HHS attempted to contact the UAC’s out-of-country family to verify the prospective sponsor’s identity and relationship to the child. These incomplete or inadequately verified explanations led, in many cases, to unsafe placements.
Additionally, the Subcommittee found that the database used to determine whether the applicant sponsor had previously sponsored other UACs is unreliable and not sufficiently comprehensive. The concern here is that sponsors seeking multiple UACs may be engaged in human trafficking. However, the database (called the “UAC Portal”) only goes back to 2014 and will not yield results unless the name or address of the potential sponsor is entered exactly as it was initially. In terms of background checks, the Subcommittee found that the current practice for “backup sponsors” and household adults not listed on the Family Reunification Application is insufficient for safeguarding against trafficking of UACs. Currently, backup sponsors are required to undergo background checks, and other adult household members are required to undergo public records checks and sex offender registry checks. However, HHS does not search for these persons in the UAC Portal. Without this additional safeguard, the risk remains that someone in the household other than the primary applicant is engaged in human trafficking or forced labor practices.
The Subcommittee also found that the policies regarding home studies does not adequately protect children from unsafe placements. In 2014, HHS performed home studies in only 2.5% of placement cases. The HHS policy of home studies for non-related sponsors seeking custody of children under 12 years or under, the Subcommittee found, misses the age group of 13 and older, which is arguably the group at highest risk of being used for forced labor. HHS acknowledged the conflict between delay, use of resources, and invasiveness of home studies and the inadequacy of purely telephonic or electronic assessment of a potential sponsor. Still, a recent HHS policy change has eliminated the use of discretionary home studies, which puts more children at risk of being placed with sponsors who cannot adequately care for them.
The Subcommittee was also concerned about the provision, or lack thereof, of post-release services. For example, HHS policy allows sponsors to refuse post-release services offered to a UAC. Despite being bound by the Flores settlement agreement, which allows HHS (vis-à-vis authority granted to INS) to terminate custody arrangements and re-assume legal custody of a minor whose sponsor fails to comply with the agreement to accept post-release services, HHS essentially relinquishes the responsibility for the care and custody of the child once that child is placed with a sponsor. The study found that post-release services are only offered in 10% of cases each year. However, the Subcommittee found that all of the six major post-release service providers they spoke with support expansion of post–release services, at least to all Category 3 cases. The Subcommittee believes this policy of allowing refusal of services played a role in the Marion cases discussed above; post-release interviews may have helped detect signs of trafficking in those and other cases.
Although sponsors are bound to ensure UACs’ appearance at immigration proceedings, the Subcommittee found that sponsors often fail to follow through on this promise. The concern here is that failure to attend hearings contributes to removal penalties of children; in absentia removal orders account for 87.7% of all removal orders against UACs, and UACs that appear in court are far more likely to obtain some kind of removal relief.
In conclusion, the Subcommittee noted that there is a general lack of transparency and understanding of HHS policies, and of which governmental agency is responsible for the care of UACs after they are released to sponsors. ORR has not codified their policies, so they have not benefitted from the public accountability of notice-and-comment rulemaking. Currently, ORR maintains a “policy guide” on their website, which is constantly being updated or revised without any record of previous versions. All in all, there is an absence of a “regularized, transparent body of policies and procedures” regarding the placement of vulnerable unaccompanied children.
The Subcommittee held a Committee Hearing on January 28, 2016, in which Senators Portman and McCaskill reported their findings. In addition, officers and directors within HHS, ORR, and Children’s Services provided testimony in response. Mark Greenberg, Acting Assistant Secretary of the Administration for Children and Families within HHS, and Robert Carey, Director of ORR, gave testimony regarding the influx of UACs from Central America in recent years and ORR’s policies and procedures for sponsor assessment and placement of UACs. They also addressed recent and ongoing policy enhancements in an effort to combat situations like the Marion cases. At this time, it does not appear that the Subcommittee has released any official recommendations for policy or procedural change within ORR or HHS more broadly.
The report of the Subcommittee’s findings, as well as a video recording and the transcripts of the testimonies given at the hearing, can be found here.
Sadie Weller is a law student at the University of California, Davis School of Law.
KJ