INS Advises on “Unaccompanied Minors” & Removal
To: Management Team
Regional Directors
District Directors
Officers-in-Charge
Chief Patrol Agents
Asylum Office Directors
Port Directors
Director, Policy Directives and Instructions
ODTF Glyncov ODTF Artesia
Subject: Unaccompanied Minors Subject to Expedited Removal
The expedited removal and mandatory detention provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) have generated concerns about the treatment of minors subject to expedited removal. This memorandum sets forth new policy for the charging of minors during inspection, procedures to be taken when permitting an unaccompanied minor to withdraw an application for admission, and detention of minors in expedited removal proceedings.
This policy guidance supersedes the previous direction concerning unaccompanied juveniles contained in the memorandum entitled Implementation of Expedited Removal issued March 31, 1997, by the Deputy Commissioner. Further instructions for processing, treatment, and placement of minors are contained in a memorandum dated July 18, 1997, entitled Settlement of Jenny Lisette Flores, et al. v. Janet Reno. All Service officers must comply with the terms of the settlement agreement in Flores v. Reno, as outlined in the July 18 memorandum and its attachments. The following revisions will be made in the next release of the Immigration and Naturalization Service Easy Research and Transmittal System (INSERTS). Chapter 17.15(f) is added to read as follows:
(f) Special Treatment of Minors.
(1) General Policy. When an unaccompanied minor (a person under the age of eighteen) appears to be inadmissible under section 212(a)(6)(C) or (7) of the Act, officers should first try to resolve the case under existing guidelines. Existing guidelines permit granting a waiver, deferring the inspection, or employing other discretionary means, if applicable, including withdrawal of an application for admission.
(2) Withdrawal of Application for Admission by Minors. Whenever appropriate, the INS should permit unaccompanied minors to withdraw their application for admission rather than placing them in formal removal proceedings. In deciding whether to permit an unaccompanied minor to withdraw his or her application for admission, every precaution should be taken to ensure the minor’s safety and well-being. Factors to be considered include the seriousness of the offense in seeking admission, previous findings of inadmissibility against the minor, and any intent by the minor to knowingly violate the law.
Before permitting a minor to withdraw his or her application for admission, the INS officer must be satisfied either that the minor is capable of understanding the withdrawal process, or that a responsible adult (relative, guardian, or in cases where a relative or guardian is not available, a consular officer) is aware of the actions taken and the minor’s impending return. Officers must attempt to contact a relative or guardian either in the United States or in another country regarding the minor’s inadmissibility whenever possible. A minor brought to the United States by a smuggler is to be considered an unaccompanied minor, unless the smuggler is an adult relative (parent, brother, sister, aunt, uncle, or grandparent) or legal guardian. If the smuggler is not a relative or guardian, he or she should not be consulted concerning the disposition of the minor’s case.
The true nationality of the minor must be ascertained before permitting the minor to withdraw. Another factor to consider is whether the port of embarkation to which the minor will be returned is the country of citizenship of the minor. A minor may not be returned to or be required to transit through a country which may not be willing or obligated to accept him or her. If the minor is being returned to a third country through a transit point, officers must ensure that an immediate and continuous transit will be permitted.
When deciding whether to permit the minor to withdraw his or her application for admission, officers must also make every effort to determine whether the minor has a fear of persecution or return to his or her country. If the minor indicates a fear of persecution or intention to apply for asylum, or if there is any doubt, especially in the case of countries with known human rights abuses or where turmoil exists, the minor should be placed in removal proceedings under section 240 of the Act. If there is no possibility of a fear of persecution or return and the INS permits the minor to withdraw his or her application for admission, the consular or diplomatic officials of the country to which the minor is being returned must be notified. Safe passage can then be arranged, and after all notification to family members and government officials have been made, the minor may be permitted to withdraw.
(3) Minors Referred for Section 240 Proceedings. Except as noted below, if a decision is made to pursue formal removal charges against the unaccompanied minor, the minor will normally be placed in removal proceedings under section 240 of the Act rather than expedited removal. The unaccompanied minor will be charged under both section 212(a)(7)A(i)(I) of the Act as an alien not in possession of proper entry documents and section 212(a)(4) of the Act as an alien likely to become a public charge. This additional charge renders the minor subject to removal proceedings under section 240 of the Act. Other charges may also be lodged, as appropriate. As a general rule, minors should not be charged with section 212(a)(6)(C) of the Act, unless circumstances indicate that the alien clearly understood that he or she was committing fraud or that the minor is knowingly involved in criminal activity relating to fraud.
Minors who are placed in section 240 proceedings and who are not in expedited removal may either be released in accordance with the parole provisions, or placed in a Service-approved juvenile facility, shelter, or foster care in accordance with existing juvenile detention policies and the Flores v. Reno settlement. At all stages of the inspection and removal process, officers should take every precaution to ensure that the minors rights are protected and that he or she is treated with respect and concern [See Appendix 17-4, policy memorandum discussing the Flores settlement.]
(4) Expedited Removal of Minors. Under limited circumstances, an unaccompanied minor may be placed in expedited removal proceedings. The minor may be removed under the expedited removal provisions only if the minor:
[Editor’s Note: The policy memorandum discussing Flores is not currently available to AILA.
- has, in the presence of an INS officer, engaged in criminal activity that would qualify as an aggravated felony if committed by an adult;
- has been convicted or adjudicated delinquent of an aggravated felony within the United States or another country, and the inspecting officer has confirmation of that order; or
- has previously been formally removed, excluded, or deported from the United States.
If an unaccompanied minor is placed in expedited removal proceedings, the removal order must be reviewed and approved by the district director or deputy district director, or person officially acting in that capacity, before the minor is removed from the United States. This is in addition to the normal supervisory approval required of all expedited removal cases.
(5) Treatment of Minors during Processing. Officers should treat all minors with dignity and sensitivity to their age and vulnerability. Processing of minors should be accomplished as quickly as possible. As with all persons being detained at ports-of-entry, officers must provide the minor access to toilets and sinks, drinking water and food, and assistance if needed. Minors may not be placed in short-term hold rooms, nor may they be restrained, unless they have shown or threatened violent behavior, they have a history of criminal activity, or there is a likelihood the juvenile will attempt to escape. Unaccompanied minors should not be held with unrelated adults. Any detention following processing at the port-of-entry must be in accordance with the Flores v. Reno removal proceedings.
(6) Minors Accompanied by Relatives or Guardians. If formal proceedings are initiated against an accompanying adult relative or legal guardian, the minor should be placed in the same type of proceeding (i.e. expedited removal or 240 proceedings) as the adult. However, withdrawal of application for admission by the minor should be considered whenever appropriate, even though the relative or guardian may remain subject to formal removal proceedings.
Issues concerning minors, both accompanied and unaccompanied, will continue to arise as the expedited removal program proceeds. Questions concerning treatment and detention of minors may be directed to John Pogash, Office of Detention and Deportation, at 202/307-6007, or Linda Loveless, Office of Inspections, at 202/616-7489.
Paul Virtue
Acting Executive Associate Commissioner, Programs