ABA releases updated standards for treatment of unaccompanied immigrant minors



The ABA’s Commission on Immigration on Friday released updated standards for the detention, care and legal representation of unaccompanied immigrant minors.

The standards
are an update to original standards issued in 2004 and reflect more than two years of collaboration between the Commission and a variety of outside immigrant advocates.

They lay out the ABA’s recommendations for rules that caretakers of unaccompanied minors should follow on matters such as custody and placement, representation by attorneys and child advocates, and other basic rights. They are not binding but offer guidance to federal agencies that handle immigrants and the many contractors hired to care for unaccompanied minors.

The standards were adopted at the 2018 ABA Annual Meeting with no audible dissent. Mary Meg McCarthy, then the chair of the Commission on Immigration, said they would help ensure that children would be treated with respect.

“Children, no matter where they are from, deserve to be treated as children,” said McCarthy, executive director of the National Immigrant Justice Center at the Heartland Alliance in Chicago.

The new document covers the basic rights that should be afforded to immigrant children, which it says should include the rights afforded to all children, as well as the rights that might normally apply to adults in their situations, such as refugees. It not only provides a right to an attorney but also outlines training and ethics standards for those attorneys.

The custody standards say there should be a legal presumption against detention and in favor of family reunification, both of which are assumed to be in the best interests of the child. When release is not possible, they call for children to be placed in the “least restrictive setting appropriate” for the situation, near any parent the child seeks to reunify with. They should not be placed with adults or in juvenile prisons. Release to legal guardians and adult family members who aren’t parents should be possible. Adult sponsors should have a background check. Legal proceedings on the child’s immigration status should be prompt, fair and ideally on a special docket for unaccompanied minors.

The preamble to the new version says a series of federal laws and regulations—in particular, the Violence Against Women Act and the Trafficking Victims Protection Reauthorization Act—have improved treatment of unaccompanied immigrant minors since the original standards were released in 2004.

However, it noted that the number of unaccompanied minors seeking protection in the United States has jumped substantially since those standards were published. In particular, large numbers of minors from Central America have begun arriving in the United States since the early 2010s, driven out of their home countries by—according to a recent report by the United Nations High Commissioner for Refugees—gang members who forcibly recruit the boys and force the girls to become gang leaders’ girlfriends.

U.S. immigration authorities detained about 5,000 minors in 2004, according to the ABA Commission on Immigration’s report; that number was just above 50,000 minors in the fiscal year that ended Sept. 30, according to U.S. Customs and Border Protection. That “has become the new normal at the southwest border,” the ABA’s updated standards say.

Despite improvements to children’s legal rights, the ABA report says, there are still major challenges, particularly the fact that about half of unaccompanied minor immigrants aren’t represented by counsels in immigration court. Like all immigrants, they have no right to court-appointed counsels; a lawsuit seeking such a right for children was rejected in 2016.

The ABA has repeatedly called for a right to court-appointed counsels in immigration court.

The association also has weighed in recently on standards for detention of all immigrants and opposed the federal government’s move to unilaterally change the terms of a 1997 legal settlement governing the rights of unaccompanied minors.