“A Failure on All Our Parts.” Thousands of Immigrant Children Wait in Government Shelters.

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The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.

But the shelter system remains in place under President Joe Biden. The numbers can fluctuate but, as of earlier this week, more than 9,000 unaccompanied immigrant children were in custody, according to data from the federal Office of Refugee Resettlement, which oversees the privately run shelters.

The vast majority are children and teens from Central America who entered the country through the U.S.-Mexico border without a parent or legal guardian. The shelter system is designed to house these children temporarily — the average length of stay is about a month — until they can be placed with a relative or family friend or, in some cases, in foster care.

Last fall, ProPublica reported on one Chicago shelter’s failure to meet the language and mental health needs of dozens of traumatized Afghan children and teens who’d been brought to the country without family by the U.S. during its widely criticized military pullout from Afghanistan. Many of them had no one who could take them in; some tried to kill themselves, harmed others or ran away.

Months later, we saw those problems repeat themselves as the youths were transferred to other facilities. Office of Refugee Resettlement officials have said they’re doing their best to support the Afghan children by providing interpreters, mental health services and additional staffing. As of this week, some 84 unaccompanied Afghan minors remain in ORR custody, federal officials said. Some have been in custody for a year.

Another issue we’ve come across in our reporting is ORR’s system of “significant incident reports.” Shelter staff are required to report to ORR any “significant incidents” that affect children’s health, well-being or safety.

The system is intended to elevate serious concerns and protect children, but over the years, dozens of shelter staffers, advocates and children have told ProPublica that it has been overused and negatively affects children. For example, Afghan youth have expressed “extreme distress around how SIRs will be used against them,” said Neha Desai, senior director of immigration for the National Center for Youth Law, which is authorized to interview children in U.S. immigration custody.

“They’ve asked whether these reports will impact if or when their parents are evacuated” from Afghanistan, Desai said in an email. Some children “have been told by staff that SIRs will delay their release from custody.”

Last month, two prominent immigrant rights organizations that work with children in ORR custody issued a report calling for an overhaul of the incident reporting system. The report, “Punishing trauma: Incident Reporting and Immigrant Children in Government Custody,” is based on surveys last year of staff at ORR facilities and of attorneys and social workers who work with unaccompanied children.

An ORR official did not respond to the report’s specific findings. But, in a statement, the official said significant incident reports are primarily meant as internal records to document and communicate incidents for the agency’s awareness and follow-up. Last year, ORR revised its policies to limit the sharing and misuse of confidential and mental health information contained in SIRs. (For example, U.S. Immigration and Customs Enforcement was previously using notes taken during therapy sessions inside shelters against children in immigation court, The Washington Post reported.)

“ORR continues to clarify through technical assistance to care providers and ongoing policy development that SIRs should never be used by care provider staff as a form of discipline or punishment of the child,” the ORR official said.

I spoke with the primary authors of the report that calls for the overhaul of the incident reporting system. Jane Liu is senior litigation attorney for the Young Center for Immigrant Children’s Rights, and Azadeh Erfani is a senior policy analyst at the National Immigrant Justice Center. We discussed how significant incident reports are used inside shelters and the authors’ ideas for reform.

This is a condensed, edited version of that conversation.

Jane Liu: Children do best in a family-based setting, but the large majority of the children in government custody are in large congregate care settings, where they often face a lot of restrictions on their movement, monitoring and supervision. They’ve also likely just navigated a very difficult migration journey that may have included exposure to violence and traumatic experiences. They may have suffered traumatic experiences in their home country. They may have been separated from their families at the border. Then they go into custody and they’re navigating this completely unfamiliar environment in a large-scale setting where they often aren’t receiving the individualized care that they need. They may also be facing language barriers. And so it’s extremely stressful for them and disorienting.

Azadeh Erfani: They have been on both of our radars for some time now. They are a really central facet for children’s legal cases. A child’s placement level — where they end up within the security hierarchy of ORR — is greatly impacted by the number and the type of SIRs that they have.

On a personal level, I’ve represented kids with dozens of SIRs. I’ve seen up close how they really have widespread impact for kids who end up being branded as “problem children” and basically are stuck in the system with very little recourse.

Erfani: It could be sharing food. It could be getting up and going to the bathroom at the wrong time. It can also be a child acting out, testing boundaries. It could be a child simply disclosing something about their past. If they disclose that they’ve survived trafficking, abuse or neglect, or have been preyed upon by gangs in their home country, those kinds of things can trigger an SIR. So the scope is really broad, which really leads to overreporting.

Erfani: ICE has the authority to review every single child’s case when they are about to turn 18. They make a decision to either take them into adult custody or release them on their own recognizance. At that juncture, SIRs play a pivotal role.

We’ve also seen SIRs getting used in immigration court or in asylum interviews to basically put the child on the spot to defend something that was written up about them that they may not even have known was written up.

Liu: It can create all sorts of barriers to release. It can lead to children getting “stepped up” [to more secure, restrictive facilities] and then it’s harder to step back down. Often a long-term foster care provider won’t accept a child unless they’ve had a period without behavioral SIRs. But even if a child has a potential sponsor, we’ve seen it lead to requirements for home studies where ORR will say that “These SIRs indicate that the child may have a need, and we need to investigate whether the sponsor can fill that need.” Ultimately, what that means is that it delays the release of the child to a family member.

Liu: It’s a much bigger problem than the public may be aware of. Often those children are not getting the services that they need, such as mental health support. And by that I mean holistic services tailored to the unique experiences of each child. They’re also usually facing prolonged periods of custody, so they’re also experiencing detention fatigue. And it’s not surprising that they can act out and that there can be these sorts of behavioral challenges. But what is extremely troubling is that when these behaviors are documented in SIRs, they can sometimes prompt ORR facilities to report the incident to police, leading to unnecessary interactions for children with law enforcement and even arrests.

Erfani: One of our recommendations to ORR is to actually train staff in crisis prevention. For the most part, there’s a very passive approach to incidents. There’s not a lot of scrutiny with respect to how to prevent these crises from erupting in the first place.

SIRs very much lack the context of the child. Being in a congregate setting indefinitely can be incredibly, incredibly aggravating. And of course, they are bringing tons of trauma because of their backgrounds. So oftentimes these triggers, this background, if they receive bad news from the home country, those kinds of things are absent from the SIR and make it look like this child is incredibly erratic. That’s also really alarming from a trauma-informed perspective.

Erfani: The Afghan kids walked into a really terribly broken system right after escaping a war zone. The fact that they may not have had a sponsor lined up meant that they had to spend more time in custody. And every day they kept seeing kids leaving while they had to stay. That’s heartbreaking. Then you pile on the language barriers, the cultural competency barriers. A lot of their behavior is a manifestation of trauma that staff isn’t equipped to understand. And it was much easier to write up reports, or call law enforcement, than it was to try to put the system on trial itself, to see what’s really missing within the facility and address those needs on a systemic level.

Erfani: I think it’s really hard on staff. The SIR system is incredibly time-consuming. They have to dedicate tons and tons of resources into it. The rules are really intricate. When there’s turnover, for the new staff a compliance mindset can settle in, where it becomes less about that child’s needs, less about these child welfare principles, and instead about, “Well, I should probably be writing this report.”

Liu: It’s really critical that the government provides more support for facility staff, whether it be ongoing training or more funding for more staff with expertise in child welfare, mental health and the needs of immigrant children. I think it’s really up to the government to understand that children’s time in custody can be very difficult for them and figure out ways to prevent situations from escalating and being extremely harmful for children.

Liu: We have shared the report with the government. It is not a new revelation to ORR that this is something of huge concern for those of us who advocate for children. We have been raising concerns about SIRs in particular with greater frequency in the last couple of years.

Erfani: We strongly believe that nothing short of a complete transformation of incident reporting is going to meet their duty to these children.

Erfani: That’s a tough one. We’re just trying to really put this problem on the map and then try to address it. And it’s not a Republican problem. It’s not a Democrat problem. It’s really something that’s in the system.

Liu: We know incident reporting is not a sexy topic. It’s not something flashy. It doesn’t involve Gov. Greg Abbott or Gov. Ron DeSantis. And so it’s hard to get people to see the urgency. But I think it sort of goes to the whole family separation thing. When that occurred, I think people could understand the humanity involved. That children are not being treated as children, and children are being traumatized by government actions.

I think a lot of people think of their own children. How would they want their own children to be treated? If your child was acting out or talking back to you, would you want a report written up and for that report to be used against your child for all sorts of purposes? The reality is that immigrant kids, particularly those in custody, are not treated like other kids. And that should be a concern to all of us. That’s a failure on all our parts.