Criminal Defense of Immigrants


§ 15.44 C. Accompanied v. Unaccompanied Minors

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When a minor is apprehended by the DHS, the first steps taken are to determine the age of the minor (i.e., whether the noncitizen should be categorized as a minor),[530] and to categorize the minor as accompanied or unaccompanied. 


                The term “unaccompanied minor” is defined as a child who:

(A)      has no lawful immigration status in the United States;

(B)      has not attained 18 years of age; and

(C)      with respect to whom –

(i)                   there is no parent or legal guardian in the United States; or

(ii)                 no parent or legal guardian in the United States is available to provide care and physical custody.[531]


Juveniles categorized as “unaccompanied” may include minors who were apprehended with their parents or guardian in some cases, such as when the noncitizen parent has been deemed a “criminal alien” and must therefore be detained in a facility that does not allow juveniles, or simply where the DHS cannot find space in a family detention facility.[532]  It may also be that the juvenile noncitizen has a parent or guardian in the United States, but that adult fears contacting the DHS.


Much attention has been paid recently to the increasing numbers of unaccompanied minors who are arrested by the immigration authorities.[533]  On November 1, 2006, the Congressional Research Service issued a memorandum to the House Judiciary Committee regarding criticisms of how and when the DHS chooses to categorize a minor as “unaccompanied.”[534]  A more comprehensive report was issued on March 1, 2007.[535]


                In 2005, the DHS classified over 7,000 minors as “unaccompanied,”[536] in a year in which the Customs and Border Patrol apprehended more than 114,000 minors.[537]  The total number of unaccompanied minors in 2006 was similar, with  approximately 80% of those minors being between 15 and 18 years old, and approximately 75% male.[538] 

[530] See Jennifer Smythe, Age Determination Authority of Unaccompanied Alien Children and the Demand for Legislative Reform,  81 Interpreter Releases, 754-763 (June 7, 2004).

[531] 6 U.S.C. § 279(g)(2).

[532] U.S. Dept. of Homeland Security, Office of the Inspector General, Open Inspector General Recommendations Concerning the Former Immigration and Naturalization Service from Unaccompanied Juveniles in INS Custody, a Report by the Department of Justice Inspector General, Report no. OID-04-18,(Mar. 2004).

[533] See, e.g., Christopher Nugent, Symposium on Children and Immigration: Article: Whose Children are These? Towards Ensuring the Best Interests and Empowerment of Unaccompanied Alien Children, 15 B.U. Pub. Int. L.J. 219 (Spring, 2006).

[534] Chad C. Haddal, Memorandum: Procedural Definition of “Unaccompanied” for Unauthorized Alien Children, Congressional Research Service (November 1, 2006).  Available at (last visited April 14, 2007).

[535] Chad C. Haddal, Report: Unaccompanied Alien Children: Policies and Issues (March 1, 2007).  Available at (last visited April 14, 2006).

[536] See Amanda Levinson, Alone in America (Aug. 23, 2005), available at (last visited Apr. 16, 2007).

[537] Chad C. Haddal, Report: Unaccompanied Alien Children: Policies and Issues, supra.

[538] Id.




On May 22, 2007, the EOIR issued new guidelines on the appearance of unaccompanied minors in the immigration courts: