By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
While the post-9-11 roundup of Arab and Muslim immigrants has put INS detention in the spotlight in recent months, the plight of the nearly 5000 children locked up by the system each year remains one of America's ugliest secrets. Their average age is 15; the vast majority are boys. Senate subcommittee hearings on a proposed bill to take the responsibility for such children away from the INS are scheduled for Thursday.
According to INS spokesperson Karen Kraushaar, when minors enter the U.S. illegallyusually for the same reasons as adults, seeking democratic freedoms and opportunity, fleeing persecution or warthe government takes great pains to locate U.S. relatives and usually manages to turn kids over to them within three days. In the thousands of instances in which such efforts fail, though, the agency places children into custody in one of some 90 facilities around the countryusually campus-like shelters run by nonprofit agencies, but sometimes high-security prisons that incarcerate U.S.-citizen juvenile offenders. Meanwhile the immigration courts consider whether the child can stay in the country or must be deported. Typically, the process averages a little over a month, says Kraushaar, but it can drag on much longer if there's trouble finding a sponsor or the agency fears that the purported "relatives" are really "snakeheads," smugglers who will sell the kids into indentured servitude or prostitution.
But the system often breaks down, immigrant advocates charge. More than a third of the detained youngsters wind up like Jimmy, languishing in untenable situations for months, and sometimes for more than a year. Many of these children, already lonely and fearful, are further isolated because there's nobody around who speaks their language. During most of his detention, Jimmy communicated in Punjabi only during the two five-minute phone calls he was allowed to make to his relatives each week. Worse, more than half the kids don't have attorneys, despite the labors of pro bono projects around the country, so they often go into hearings with little understanding of what is happening and no knowledge of their legal options. Those with counsel are often transferred to facilities far away from their lawyers.
In one of the most egregious cases currently, Alfredo López Sánchez, a 16-year-old Mayan from Guatemala, has been shuttled from one facility to another seven times over the last two months, sometimes with his ankles shackled and his wrists handcuffed to a chain around his waist. Alfredo arrived in June, seeking asylum from domestic abuse so severe that a psychologist has diagnosed him with post-traumatic stress disorder. He was placed in a 56-bed shelter in Miami popularly known as Boystown. Operated by Catholic Charities under contract with the INS (to the tune of $1.9 million a year), the residence looks like a low-rent boarding school. (Indeed, kids attend school there and begin each day reciting the Pledge of Allegiance.)
Claiming that Alfredo might be planning to run away, in November the INS transferred him to Monroe County Jail for "his own safety," though the jail's contract with the INS to hold immigrant detainees explicitly excludes juveniles. After Alfredo's attorney, Christina Kleiser of the Florida Immigrant Advocacy Center, complained, the INS moved him to a juvenile shelter in Leesport, Pennsylvania, 1200 miles away from one of the few interpreters of his rare native dialect, Southern Low Mam. In December, the INS transferred Alfredo back to Boystown for a day, then moved him to a Miami hotel, then back to the Monroe County Jail, which refused to house him, and then back to the hotel, where for about three weeks he sat in a guarded room all day in a weird sort of house arrest. In early January, the INS brought him back to Pennsylvania, then early this month back to another Miami hotel so he could attend a scheduled hearing there. It took a federal restraining order to keep him in Miami as his case goes forward.
Complaints about such seemingly arbitrary and pitiless actions on the part of the INS have been leveled for years by children's advocates, human rights groups, and internal government reports. A 1985 class-action suit, Flores v. Reno, challenged, among other things, the often lengthy terms and harsh conditions of minors' confinement; its settlement in 1997 after 12 circuitous years of appeals that went all the way to the Supreme Court established national guidelines, requiring, for instance, that children be detained in the least restrictive settings possible.
But a report this past September by the Office of the Inspector General found that the INS was placing too many kids in high-security juvenile prisons, needlessly using restraints on them, and in other ways failing to live up to the 1997 settlement. While the report noted "significant progress," it found persistent problems that could have "serious consequences for the well-being of the juveniles." Of the 4136 unaccompanied minors held for more than 72 hours in fiscal year 2000, the report detailed, more than a third did at least some portion of their detention in "secure" facilitiesthat is, in prisons. Having committed no offense other than to seek refuge in the U.S., they were locked in behind bars and razor-wire fences, under the control of guards trained to take charge of criminals.
Now, as the INS considers an agency-wide structural overhaul, separating its service and enforcement branches, plans to completely revamp its juvenile department are on the table at last. In a speech in early February, INS commissioner James Ziglar asserted, "We need to do better protecting unaccompanied minors," a sentiment advocates regarded as sincere, if a massive understatement. Ziglar announced the creation of a special Office of Juvenile Affairs that will report directly to him instead of being housed in the division of detention and deportation.
The bill scheduled for hearings Thursday, the Unaccompanied Minor Protection Act, introduced by California Democrat Diane Feinstein, is far tougher. First, it would guarantee children attorneys and guardians. What's more, it would place the care of these kids in a new office outside the INS, staffed by child welfare professionals. Indeed, some advocates wonder whether Ziglar's administrative reform is a preemptive dodge to keep undocumented children in the INS's control.
Supporters of the Feinstein legislation say it goes a long way toward resolving what they have long regarded as a damaging conflict of interest in the agency: "The INS is both prosecutor and protector," explains Wendy Young of the Women's Commission for Refugee Women and Children. "They have custody of the children and must serve their best interests; at the same time it is their job to deport them." The INS's Kraushaar rejects this logic: "We don't have an interest in any of the outcomes other than to make sure the juvenile enjoys the full consideration under the law and arrives in a timely fashion for his or her hearings."
Official policy, perhaps. But kids don't see it that way. Those who spoke to the Voice might have expressed appreciation for "one nice guard" or "a lady who helped me in the shelter," but all said they felt intimidated, punished, confused, and upset, or "treated like a criminal." And there's little claim of neutrality from INS employees in the field. A deportation officer in the mid-Atlantic region, speaking on condition of anonymity, expressed pride in being able to "help America keep liars who aren't supposed to be here out of the country." At JFK airport, the dentist who administers a controversial X-ray test to determine the age of those it doesn't believe to be under 18 regards himself as defending the border against "drug dealers, human traffickers, and terrorists." He relishes what he calls "the forensic chess game. People come in with false documents, and I have the dental X rays to checkmate them."
While some migrants may indeed come under false pretenses, they can also get caught up as pawns in a larger game. The supervisor of the juvenile division in Florida, for instance, brazenly told a judge at a hearing in Alfredo's case two weeks ago that he would not release the boy to any foster care programs because he was waiting for Alfredo's brother, living illegally in the U.S., to come claim him and be put into deportation proceedings himself.
In a more alarming example, zealous INS officers recently deported 13-year-old Isau Flores-Portillo, a street kid from Honduras, even though his asylum appeal was still pending. Though the INS won't comment on specific cases, attorneys for Isau believe he faced torture or even death back home. They cite the reputation of Central American police for clearing the streets of homeless kids by simply murdering them in a process known as limpieza socialsocial cleansing. According to a U.S. State Department human rights report, in 2000, "Honduran security forces were suspected of an estimated 200 extrajudicial killings, many involving persons under 18." The INS has moved to dismiss Isau's asylum case because the applicant is no longer in the country.
Jimmy was luckier. During his 18 months in detention, his case was picked up by a special pro bono project at the tony D.C. firm Latham and Watkins, which has an attorney who speaks Punjabi. The lawyers managed to get affidavits from neighbors in his village who testified to the relentless abuse Jimmy suffered at the hands of his stepmother, and in December, his asylum request was granted. Not only is the INS appealing the decision, it wanted to keep Jimmy in detention during the appeals process. Attorneys won his release earlier this month.
From his new home in California, Jimmy said he would have run away from home no matter what, but, he added, "I would live on the streets in India rather than go through detention again." And that from a child who spent the bulk of his time in Berks County Youth Center in rural Pennsylvania, a low-security shelter without bars or barbed wire, where there are classes each day and soccer games. (Still, kids held there say they are threatened with being moved to the high-security prison wing down the road if they misbehave.)
But for an adolescent like Jimmy, such benefits were outweighed by the loneliness, boredom, and persistent nightmares. Only since arriving at his aunt and uncle's has he been enjoying what most teenagers take for granted: enough time in a shower to rinse off the soap, pouring himself a glass of juice when he feels thirsty, being allowed to take a pen and paper into his room.
After all, these are kids. The restrictions of detention present special emotional hardships for teenagers. In eastern Washington State, for instance, INS kids are held outside Spokane at Martin Hall, a maximum-security juvenile prison with strict rules that apply equally to the delinquent citizen kids and the INS detainees: No more than five sheets of paper and two family photos in a cell, the handbook asserts. When going to a meal or recreation, it instructs, "come out of your room, close your door, stand by your door facing forward with your hands behind your back until asked to step into the middle of the hallway. . . . Do not talk to anyone."
A Jamaican teen who didn't want her name used spent a month and a half in the high-security wing at Berks. She reports she saw kids thrown and pinned to the ground by guards for the crime of lifting an arm. But what was worse for her was suffering the acute adolescent embarrassment of having to dispose of sanitary napkins in full sight of the boys because there were no trashbins in the bathrooms. In Miami, FIAC attorneys wanted to give a donated Christmas present of a jigsaw puzzle and art set to Alfredo while he was confined to the hotel room with nothing to do and no one who spoke his language. According to the INS, such items are "contraband." Alfredo got no gifts.
The underlying trouble, says Chris Nugent, director of a pro bono immigrant project at the American Bar Association, is that the INS regards these kids "as detainees first and as children second. That's what needs to be reversed."
Yet sometimes the INS doesn't recognize them as juveniles at all. Adults have narrower avenues of relief and face more severe detention conditions than those under 18, so undocumented migrants have a good motive for trying to pass as a minor. The INS says that it must be especially vigilant to keep adults out of shelters that house children, so when people give birth dates that seem doubtful, they are sent for the X-rays that show wisdom teeth growth and whether the ulna and radius bones have fused in the wrist. Advocates say the tests are unreliable and given far too much weight over documents, psychiatric evaluations, and other evidence in cases against young people who genuinely need help.
According to Dr. Robert Trager, the dentist with offices at JFK and LaGuardia airports who has conducted some 1500 such tests for the INS, "[Undocumented travelers] try every trick in the book to get in here, and you've got to feel sorry for them, but I can't let personal feelings get in the way of science." In at least 90 cases out of 100, he finds the patient to be lying, and he claims the tests have an accuracy rate of more than 96 percent.
But Dr. Herbert Frommer, director of radiology at the New York University College of Dentistry, says that "Dr. Trager's position has no scientific validity." In an affidavit, Dr. Frommer cites a "wide variation in the age at which third molars erupt in the mouth" because of differences in "race, gender, and ethnic origin," among other factors. Orthopedists regard the wrist-bone test as equally imprecise. Still, these tests are the best scientific tools the INS has in its effort to piece together what Kraushaar calls the "mosaic" of a person's identity. "The INS is responsible for making sure we know exactly who is seeking entry to the U.S. and verifying their ID includes age," she explains. "What if a terrorist who was 19 said he was 16 and an orphan and the story didn't check out, but we released him and he went and blew up a building? Would it be his attorney that would take the fall? I don't think so."
Thus, Huai Chun Zhengor "Danny"has been sitting in an adult jail in Georgia for more than two years. The INS X rays pegged him as over 18, though he claims he was only 15 when he was apprehended at a port in Savannah after spending a week under the deck of a ship from China. He applied for asylum, and as his case inched along, he whiled away what should have been vital years "mostly just sitting in my room all day." Between his fear of being returned to China and the noise of the more than 20 men in his dorm, he barely sleeps, he said by phone through an interpreter last week.
His asylum petition has been denied, and Danny has been issued a final order of deportation, but he is still holding out hope that, somehow, the INS will release him to his cousins in New York and that he'll be able to fulfill his dream of going to school. His lawyer, Rhonda Brownstein of the Southern Poverty Law Center, managed to track down a notarized birth certificate for Danny, but the INS doubts its authenticity because it lacks fingerprints. "Do your birth certificates in America have fingerprints?" Danny wants to know. Yet even by the birth certificate's count, Danny turned 18 last month, so the law that would permit him to be released to relatives no longer applies. To date, China has not produced the travel documents needed for his deportation, so Danny sits in limbo, waitingbut he's not sure for what.
Mohamed Boukrage has no relatives to claim him. Orphaned at age 10 in his native Algeria when a car bomb blew up his parents and sister, he says he went to live with an aunt who threw him out, concerned that his father's reputation as a "traitor" for dealing with French businessmen would harm her own family's standing. So Mohamed stowed away on a boat to France, then made his way to Italy, where, for about four years, he picked up menial jobs and squatted in abandoned buildings. In October 2000 he joined some other workers on a boat he thought was going to Canada, but he was snagged by the INS when it docked in Newark. They took him right to Dr. Trager's office at the airport, where he was pronounced to be at least 18 years old; Mohamed says he was 16.
In May an immigration judge rejected Mohamed's asylum claim, saying that his story lacked convincing detail. His pro bono lawyer, Erin Corcoran of the Hebrew Immigrant Aid Society, appealed, noting that Mohamed was only eight or nine when his family was killed: How much detail could he be expected to remember? Corcoran's final request for reconsideration was denied in January.
All the while, he has been held in an adult INS detention center in Elizabeth, New Jersey, the fluorescent-lit former warehouse near Newark Airport, where he told his story from a cold visitor's room in late January. He passes the interminable time sitting in his dorm reading the Koran, he said. He gets an hour's exercise each day in an enclosed courtyard, so he has not been outdoors in almost a year and a half. Acne runs rampant over his dimpled cheeks.
Speaking through an interpreter, Mohamed said he'd like to learn English, but unlike the juvenile shelters, the adult detention centers don't offer any classes. His vocabulary is limited to the phrases he hears from guards: "Get in line." "Do what I tell you." "No talking."
When he is perceived to have broken a rulelike when he got into a fight he says started when a larger, older detainee made a sexual advancehe is sent to solitary confinement, where he is denied the meager communal privileges of exercise and prayer.
According to a psychiatric evaluation by Dr. Alice Kross Frankel, Mohamed is "suffering from both depression and traumatic stress reactions" that are exacerbated by his imprisonment and "altogether inappropriate placement." He was wetting his bed when he first arrived at Elizabeth. He still has nightmares. Dr. Frankel recommended Mohamed's prompt release to the nonprofit youth home Covenant House, which has agreed to take him in.
Meanwhile, Corcoran is racing against the clock to try to win the only relief left: "special immigrant juvenile status," a sort of junior green card for youngsters who are abandoned, abused, or neglected. But even to be considered for this status, Mohamed has first to be recognized as a juvenile, so Latham and Watkins lawyers are preparing a federal suit claiming that the unreliable age determination test violates Mohamed's due process. A hearing is likely later this week.
If they prevail, the INS will have to let Mohamed's case be heard at family court, which has jurisdiction over who qualifies for this special status. But even if family court says yes, the INS has been known to take so long to process such claims that the young immigrants "age out"that is, they turn 21 and become ineligible before they can secure the benefit. Mohamed isn't thinking about these legalistic twists. But he is thinking about the future. "I'm still young and can be educated," he said, expressing an interest in architecture. He added, "And I want a place to belong to."
Research assistance: Xiaoqing Rong
This is the second of an ongoing series investigating the INS.