FOIA Library: Unaccompanied Children and Non-Parental Family Members

Overview:

This page serves as a directory of the most significant documents produced by the federal government in response to a Freedom of Information Act (FOIA) request by Justice Action Center (JAC) & Immigrant Defenders Law Center (ImmDef) on July 16, 2021. The request sought information as to how the following federal agencies were treating children arriving with non-nuclear family members at the US.-Mexico border:

U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), U.S. Office of Refugee Resettlement (ORR), U.S. Department of Health and Human Services (HHS), and U.S. Centers for Disease Control and Prevention

This FOIA library adds context to the measures the administration is now taking to prolong unaccompanied children’s stay in ORR custody, encourage voluntary repatriation, and prevent unaccompanied children from accessing counsel in their immigration court proceedings.

Background

In early 2021, ImmDef attorneys started seeing children who were designated as “unaccompanied children” (“UC” in file names) and placed in federal custody — after they were separated at the U.S.-Mexico border from non-nuclear family members who had been turned away or put into detention. Much like the “zero tolerance” family separation policy weaponized under Trump 1.0, this policy of separating children from their family members violated familial integrity rights and inflicted long-lasting trauma.

In June 2021, JAC and ImmDef filed a Freedom of Information (FOIA) request with the federal government seeking more information about this practice and how policies like Title 42 expulsions—affected family separation, child welfare, and reunification outcomes.

Because of the timing of the request, some of the documents received also show efforts during the early Biden administration to reunite separated family members and create procedures in response to litigation, specifically Ms. L. v. ICE, No. 18-cv-00428 (S.D. Cal. Feb. 26, 2018). Documents also foreshadowed many of the attacks against unaccompanied children and family members today under Trump 2.0.

This FOIA library adds context to the measures being taken now to prolong unaccompanied children staying in ORR custody, encourage voluntary repatriation, and prevent unaccompanied children from accessing counsel in their immigration court proceedings. The documents are broken into five buckets.

Documents Produced

Homeland Security Investigations (HSI) “Wellness Checks” – 4 files

The documents received describe efforts during Trump 1.0 to monitor children after release from ORR custody, including follow-up calls and increased data sharing between agencies like HHS, DHS, CBP, and ICE. The materials also note plans to expand detention capacity by evaluating military bases for housing unaccompanied children.

Wellness checks and home studies are described as safeguards to assess a sponsor’s ability to provide a safe environment. According to the reports, the Trafficking Victims Protection Reauthorization Act (TVPRA) requires home studies in specific high-risk cases, such as when a child has experienced trafficking, abuse, or has special needs, or when the sponsor may pose a risk. Additional HHS policies extend these requirements to younger children placed with non-relative sponsors or sponsors taking multiple children.

At the same time, the documents critique gaps in these protections, arguing that existing home study practices may be insufficient—particularly due to limited background checks and challenges in monitoring sponsors who take in multiple children.

Finally, the production refers to a 2020 ICE report detailing standards for wellness checks and medical and behavioral health services for children held in immigration detention, including those in family detention settings.

Re-Defining “Unaccompanied Children” – 6 files

These documents focus on proposed policy and legal changes affecting unaccompanied children (UC) in the U.S. immigration system. A Senate Judiciary Committee hearing transcript calls for partially repealing the Flores Agreement, arguing that changes are needed to prevent mishandled family separations.

Policy proposals outlined in “Emergency Legislative Recommendations” aim to significantly tighten immigration procedures for children. These include narrowing the definition of who qualifies as an unaccompanied child under Flores, requiring asylum claims to be made at ports of entry, allowing repatriation of children to their home countries, expanding DHS discretion to keep certain family units together in detention, and permitting CBP to collect biometric data (including photos and DNA) from children of all ages.

Several internal ICE and CBP documents clarify how unaccompanied children are defined and processed under existing law. A 2020 ICE directive emphasizes strict application of the statutory definition of an unaccompanied child, while related materials detail procedures for reassessing a child’s unaccompanied status. Guidance from CBP (based on the 2008 TVPRA) explains how officers determine whether a child is unaccompanied, what counts as valid guardianship, and when a child must enter removal proceedings.

Finally, ICE policy guidance highlights reliance on CBP’s initial determination of unaccompanied status within the first 72 hours of encounter, noting that maintaining this process helps avoid legal and operational delays. Overall, the documents show a push to redefine eligibility, streamline enforcement, and expand agency discretion in handling unaccompanied children.

Mental Health Services for Unaccompanied Children – 6 files

These documents show that unaccompanied children face significant barriers to receiving adequate mental health care in detention, including trauma-related treatment challenges, high clinician caseloads due to staffing shortages, limited access to specialized services, and difficulties transferring children to appropriate care facilities. Prolonged detention and family separation significantly harms unaccompanied children’s mental health.

Related CBP and ICE directives outline enhanced medical screening and care procedures for children in custody, but provide limited clarity and consistency regarding the scope and delivery of mental and behavioral health services.

Family Rights & Separation – 46 files

These documents outline CBP policies and practices on family separation, including definitions, procedures, and recognized legal constraints. They describe evolving guidance following the Ms. L v. ICE court injunction, which generally prohibits separating parents and children except for specific reasons such as safety, fraud, or inability to verify relationships, while emphasizing that family unity should be maintained whenever possible.

Operationally, CBP formalized separation procedures through Form 0852, replacing earlier informal “tear sheet” practices to document separations and provide parents with contact information for their children. Internal guidance details how officers determine family relationships, process family units, and record separations, including categories like unaccompanied children (referred to by the U.S. government as UACs) and family unit aliens (FMUs).

Additional materials include data and internal communications showing that most family units were released rather than detained under policies like Title 42, alongside examples of separations for reasons such as criminal history, suspected fraud, or medical needs.

Other – 3 files

The documents describe Trump 1.0 immigration policy proposals and agency practices focused on enforcement through the guise of child protection. Proposed measures include expanding DNA testing at the border to identify individuals with convictions and prevent trafficking, increasing prosecution of families accused of smuggling, and ending programs like Central American Minors (CAM) to deter migration.

The proposed changes are framed as necessary to address deficiencies in HHS screening of sponsors for unaccompanied children, including weak verification of relationships, failure to detect sponsors taking multiple unrelated children, and inadequate background checks.

Additional materials outline ICE’s behavioral health service policies for detainees and clarify processing procedures for children: unaccompanied children are typically placed in removal proceedings and transferred to ORR custody, while accompanied children follow a different detention pathway.