Trafficking Victims Protection Reauthorization Act

Tuesday, December 23, 2008 | 

Written by Matthew Mesa

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On December 23, 2008, President Bush signed into law the William Wilberforce Trafficking Victims Protection and Reauthorization Act of 2008 ("TVPRA") which had been passed earlier in the month by both the House and Senate¹. This bipartisan legislation contains a plethora of fundamental procedural and substantive provisions to protect unaccompanied children.

KIND applauds these provisions particularly as they promote and facilitate pro bono representation, full and fair adjudication of children's cases and humane treatment of children when deported. The legislation incorporates and builds upon key provisions found in the Unaccompanied Alien Child Protection Act (S. 844), which was championed by Senator Dianne Feinstein (D-CA) for the last eight years, and strongly supported by KIND co-founder and Board member, and United Nations High Commissioner for Refugees (UNHCR) Goodwill Ambassador, Angelina Jolie. Senator Feinstein has been a trailblazing advocate for reform in the treatment of unaccompanied children and, along with Senator Brownback (R-KS) in 2002, was responsible for ensuring the transfer of responsibility for the care, custody and placement of unaccompanied children from the former Immigration and Naturalization Service ("INS") to the Office of Refugee Resettlement ("ORR") within the Department of Health and Human Services ("HHS"). This was a particular recognition of ORR's expertise in working with this vulnerable constituency.

The key provisions of the law pertinent to unaccompanied children, and particularly relevant to KIND's mission to provide these children with pro bono representation, are contained in Sections 212 and 235 of the law respectively entitled "Interim Assistance for Children" and "Enhancing Efforts to Combat the Trafficking of Children". Section 212 confers exclusive authority to HHS, when credible information indicates that a child is a victim of trafficking, to provide eligibility for interim federal benefits during their stabilization and recovery as victims. Section 235 fundamentally reconfigures the treatment of unaccompanied children from arrest, detention, removal proceedings and repatriation. Highlights include:

• Mandating that HHS ensure to the greatest extent practicable that detained and released unaccompanied children have competent counsel to represent them in legal proceedings and protect them from mistreatment, exploitation and trafficking, and that HHS will make every effort to secure the services of pro bono counsel.
• Providing through HHS and EOIR for legal orientation presentations for all sponsors of released unaccompanied children as to the custodian's responsibilities to attempt to ensure the child's appearance at Immigration Court and to protect the child from mistreatment, exploitation and trafficking.
• Providing for non-adversarial DHS asylum interviews for unaccompanied children prior to pursuing asylum claims in EOIR removal proceedings which are adversarial. This provision may give rise to practitioners seeking to reopen children's asylum cases which were never heard by DHS in a non-adversarial process.
• Transferring authority from DHS to ORR for purposes of facilitating access for abused, abandoned and neglected children to pursue dependency proceedings for Special Immigrant Juvenile Status (SIJS) and permanent residence and requiring that SIJS be adjudicated within 6 months of filing to prevent children from aging out, and facilitating SIJS recipients' and others' access to federal foster care services and benefits as refugees. This provision may give rise to practitioners seeking to reopen and readjudicate SIJS cases.
• Ensuring the safe repatriation of children through a repatriation pilot program undertaken by the Department of State ("DOS") in conjunction with HHS, DHS and nongovermental organizations, including requiring that DHS consult DOS's Country Reports on Human Rights Practices and Trafficking in Persons Report when assessing whether to repatriate an unaccompanied child to a particular country, as well as reporting requirements to track repatriation.
• Facilitating federal personnel training, screening and thorough review by the Department of Homeland Security ("DHS") of unaccompanied children, particularly from contiguous countries (Mexico and Canada) as to whether they may be victims of trafficking, have a fear of return to their home countries triggering asylum relief or are incapable due to age or incompetency of making an independent decision to return. These children will be duly referred within 48 hours to HHS for placement and placed in immigration removal proceedings to consider their eligibility for relief from removal.
• Placing all unaccompanied children in removal proceedings before the Executive Office for Immigration Review ("EOIR", or Immigration Court), as opposed to any summary removal procedure such as expedited removal, except for those children from contiguous countries capable of returning to their countries without risk of harm.
• Requiring that unaccompanied children be transferred from any agency of the federal government to HHS within 72 hours, so that they do not languish in inappropriate conditions of confinement.
• Requiring improved age determination techniques for unaccompanied children by DHS and HHS, without relying solely on radiographs, to prevent children from being erroneously detained in adult custody.
• Mandating improved conditions of confinement, including the expanded use of non-governmental organization-administered foster care and expanded suitability assessments, to ensure that the child is housed with a safe sponsor.
• Providing HHS with the authority to appoint child advocates for child trafficking victims and other vulnerable unaccompanied alien children to advocate for their best interests.

These generous provisions take effect in late March, 2009, 90 days after enactment of the legislation, and apply to any unaccompanied children whose claim is pending at any stage of the litigation process, including at the federal courts of appeals. Pro bono volunteers should stay apprised of practice advisories on the implementation of the bill available at www.supportkind.org.

¹Public Law No: 110-457, available at http://thomas.loc.gov/cgi-bin/query/D?c110:12:./temp/%7Ec110WRamqo. The bill passed the House and Senate as HR 7311.