JUVENILE IMMIGRANTS IN DETENTION: Punishing the Most Innocent

Markus’s grandfather was killed for organizing an opposition political party. His mother was killed too, and several of his cousins were arrested and beaten. Then the same thing happened to Markus: When he tried to express his political opinions he was arrested and tortured, in the east African country that was his home. At the time, Markus (not his real name) was seventeen years of age.

When Markus was released from prison after six months, he decided to flee his country by stowing away on a ship -- any ship. He found his way into the hold of a big boat and hid there. When he crept out five days later, starving, and announced himself to the captain, he learned that he was on a United States Navy vessel. The captain threatened to dump Markus in South Korea. After Markus pleaded to be taken to America, the captain relented and brought him to Seattle, Washington. There, Markus became an “unaccompanied alien child” in the custody of the U.S. Immigration and Naturalization Service (INS), with all the woes that that status entails.

Each year, around 200,000 would-be immigrants are detained by the INS on suspicion of illegal entry to the United States. Of these, approximately 5,000 are minors, many of whom entered the country alone. Their average age is 16, but there are cases of children as young as 18 months being held. There is a consistent pattern of abuse of the right of these minors to legal counsel and to the treatment guaranteed them under U.S. law, including free public education. Very often, with no criminal offense on their record, these young immigrants are thrown into county jails with juveniles convicted of violent offenses.

Markus had a watertight case for political asylum, but the INS authorities did not advise him of this. Nor did they tell him that, as a juvenile, he may be eligible for “Special Immigrant Juvenile Status” (SIJS) which can be available to abused or neglected immigrant children. Instead, they locked him up in Martin Hall, a juvenile detention center near Spokane in Eastern Washington, and waited until he turned eighteen, when he “aged out” -- could no longer apply for SIJS.

Markus’s story is a classic example of the problems facing immigrant children in INS custody. The greatest problem is that of lack of legal representation. People involved in criminal cases are required to have counsel, but those in civil cases are not. Immigration offenses are covered by civil law. While juveniles in custody are entitled to representation if they can afford it and take the initiative to obtain it, it is very rare that the INS authorities who literally hold the keys to their destiny will inform them of their rights.

There are various ways that a minor may legitimize residence status in the United States; besides the asylum and SIJS grounds that Markus had, one may also have close family in the country, be eligible for certain immigration amnesties, or even already be a citizen without knowing it. However, as noted by Atieno Odhiambo, attorney for the Washington State-based Columbia Legal Services, “Every time I talk to INS representatives, they remind me that they are in the business of deporting people.

The problem of legal representation is exacerbated by the common INS practice of sudden transferal of children detainees without notification of their families or their attorneys, if they are lucky enough to have legal counsel. Ms. Odhiambo said, “The INS has a bad habit of shipping kids off.” When Columbia Legal Services first went to advise children at Martin Hall, there were 20 children there, but then within two weeks many of them were removed to facilities in Arizona and California. The practice of transferal without notice is so common that legal activists suspect there is an unwritten retaliatory policy at play.

A second outstanding issue regarding such children is the question of their detention in the first place. The Flores v. Reno nationwide class-action lawsuit filed against the INS led to a 1998 settlement that established policy for the detention, release, and treatment of minors held by the INS. Under the Flores settlement, the INS is prohibited from locking up minors together with juvenile criminals for longer than 72 hours, unless the child has been convicted of a crime. However, under an “emergency influx” loophole, the INS has for many years incarcerated at least a third of the several thousand minors it detains each year.

The emphasis by INS enforcement officials on deportation while disregarding the rights and needs of juvenile immigrants in detention has led many legal activists to level the charge that there is a serious conflict of interest between the two functions the INS is performing. The imperative to deport is not compatible with the requirement to protect the child. It is not unusual to hear activists use the word “schizophrenia” with regard to this conflict.

Chris Nugent of the American Bar Association Immigration Project, says, “The enforcement mentality means that the children [detainees] are not being treated as clients but prisoners. There are people in service branch with a very prosecutorial approach to providing benefits. So there needs to be greater professionalization.”

The INS’s drive to deport leads it to employ trickery to achieve its goals. It is common for a child in custody to be told, “Tell us how to get in touch with your family, and we’ll release you to them. Nothing will happen to you.” Then, typically, an unsuspecting mother will come to pick up the child, be detained, and the entire family deported.

In one such case in Washington State, a family living in the state for around ten years was given a deportation order after a detained child was used as bait to lead authorities to his mother. The case was further complicated because the mother is developmentally disabled, and was not aware that she had to appear in court. Upon her failure to appear in court, her family was given a deportation order.

Such abuses led attorney Amy Kratz of the Northwest Immigrant Rights Project to say, “The INS is an absolutely renegade agency...There’s such impunity, violations of due process, and no effective way to hold them to the law.” This impunity is reinforced by the fact that in 1996, the U.S. Congress took significant jurisdiction in the process for appealing immigration case decisions away from the Federal court system, making it impossible to appeal many case decisions. This rendered a similarity between “INS justice” and “military justice.”

In justification of this system the INS, according to Ms. Kratz, says that deportation is not punishment. Ms. Kratz hopes that this “legal fiction,” as she calls it, is nearing the end of its credibility.

REMEDIES ON THE WAY

While immigrant rights activists in Washington State lament that fact that little is being done about the plight of juvenile immigrants in custody, in fact there are attempts on several levels to improve their situation. Members of the Washington Defender Association have formed a Special Immigrant Juvenile Task Force to press for the funding of a task force to support advocacy for SIJS-eligible non-citizen children. SIJS, as mentioned above, is the special status available to immigrant minors who have been abused or abandoned. The Task Force estimates that between one and two hundred minors are available for SIJ status. A large part of the problem preventing them from getting this status is that the care-givers with whom they come in contact are simply unaware of the availability of the status. The SIJ Task Force would like to create funding for an attorney and a social worker who would create a project to educate public officials regarding the SIJ status.

Columbia Legal Services, a statewide non-profit legal aid organization, is working to gain regular access to detained juvenile immigrants at Martin Hall. Presently, legal activists are only able to learn of the existence of detainees there through word of mouth, or if one of them succeeds in getting a phone call through to the outside world. CLS is hoping to make monthly visits to immigrants held at Martin Hall in order to give presentations on the rights of these detainees:

The rights that Columbia Legal Services hopes to educate immigrant children about include the following: The right to speak privately to an attorney; the right to be silent; the right to know one’s legal status; the right to privacy; the right not to sign anything; and the right in some cases to various forms of immigration relief. CLS has presented its educational material to the INS and is awaiting approval.

Ms. Odhiambo of Columbia Legal Services said that the workshops, which she hopes will be able to begin in July, would make it possible for her organization to better access to the detainees. Expressing the common reservation about INS retaliation, she said, “We might decide do the workshops, but the INS might decide that we are too much of a thorn in their side, and close off the contract with the facility. In that sense, we won’t have been successful. Right now, we will jump every hoop they tell us to jump...We have to play the good guys, play their game, because the kids are at their mercy.”

Further afield, the American Bar Association Immigration Pro Bono Development and Bar Activation Project has awarded more than $100,000 in grants to projects that provide legal services to newcomers to the  United States, including detained immigrant and refugee children.  The  grants will support free or  reduced-fee representation for immigrant  and refugee children detained separately from their families by the INS, as well as new U.S.  immigrants in need of legal services.

Perhaps the most hopeful and far-reaching development of all is the bill sponsored by Diane Feinstein in the U.S. Senate, S.121 or the Unaccompanied Alien Child Protection Act of 2001. This bill would go a long way towards solving the ills described above. First, it would separate the functions of care-giver and prosecutor by creating a new division under the Department of Justice, an Office of Children’s Services. This office would ensure that unaccompanied immigrant  children have the same access to legal counsel and court-appointed guardians  that U.S. children have.

Feinstein’s bill, due for deliberation in July, would also establish new minimum standards for the treatment of children in detention, provide immigration-related training for social  service workers and juvenile court officials, and expand shelter facilities and foster care programs for detained children. Immigrant children in custody would be allowed to submit evidence that shows they are minors, and they could appeal if the INS decides they are  adults. The bill’s provisions attempt to re-orient the emphasis of treatment of minors from detention to alternative placement.

PROTECTING THE CHILDREN

Negrete, director of the Washington Alliance for Immigrant & Refugee Justice, criticized the criminalization of juvenile immigrants in this country: “People have a sense that if you’ve come across the border as an undocumented person, you’ve committed a crime. But more and more, children are coming to the United States by themselves, as unaccompanied minors. It has become a question of survival. If they are from Central or South America, they are escaping poverty, natural disasters, or genocide. There are a lot of reasons, none of which is that they’re coming to take advantage of our welfare system.”

According to the American Bar Association, the highest number of undocumented juveniles who came to this country last year came from Honduras, followed by Mexico and El Salvador. Children left these and many other countries because of family abuse or neglect, child  prostitution, bonded labor, female genital mutilation or forced recruitment as child soldiers.

Besides United States law requiring their protection, international agreements also safeguard the rights of such children. Prominently,  Article 37 the U.N. Convention on the Rights of the Child (signed by the United States but not ratified) states that detention of children (whether asylum-seekers or migrants) should be used only as a measure of last resort. The United States did ratify treaties protecting the rights of detainees: the International Covenant on Civil and Political Rights (1992), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1994). Both of these treaties prohibit arbitrary detention.

Finally, the Child Rights Caucus’s Outcome Document, “A World Fit for Children,” calls for the “rehabilitation and social reintegration of the child are the primary focus,”  and provide special protection for, among others, refugee and displaced children. The United States Immigration and Naturalization Service is behind the times in its treatment of undocumented immigrant children. The best thing for these children would be for the United States to ratify the Child Rights Convention and implement it.