Third in a four-part series. Read parts one, two and four.
Two years ago, attorney Sameer Ashar, a UC Irvine law professor, represented a juvenile who was referred to federal immigration authorities by the Orange County Probation Department.
In immigration court, Ashar argued to have his client’s case terminated and asked the judge to exclude the government’s evidence showing that the minor was in the United States without legal status.
While in juvenile hall detention, the boy was interrogated by agents from Immigration and Customs and Enforcement (ICE), the federal agency that investigates immigration law violations.
Ashar argued in court that the information was obtained illegally, in violation of the minor’s constitutional rights and his right to privacy based on a California law that protects a minor’s confidentiality in the juvenile justice system.
“The state explicitly says that the details of his case are to be kept private and his files are to be kept confidential,” said Ashar.
By disclosing his name when the department referred him to ICE and turned over case file information, the Probation Department violated his confidentiality, Ashar told the court.
In addition, he contended that ICE did not provide his client with the Department of Homeland Security’s “Notice of Rights and Request for Disposition,” or I-770 form, a document informing the minor of his right to legal counsel, use of a telephone to contact family, and a trial before a judge.
This notification is required by federal regulation, and was put in place as a safeguard for minors interrogated by immigration authorities.
“These protections seem especially important if they are putting kids into deportation proceedings,” said Ashar. “But the fundamental violation is the county even asking about immigration status…and then calling ICE and referring kids into ICE’s authority.”
In juvenile hall, the minors are without their families and without attorneys when they are questioned about their legal status by probation officers, he said.
“Here this system is rife with coercion and duress,” said Ashar, who is co-director of Immigrant Rights Clinic at UCI law school.
The judge subsequently terminated the minor’s deportation proceedings after the government failed to comply with the judge’s orders to turn over the boy’s immigration file to the court, said Ashar.
While the decision halted the minor’s deportation, it did not grant him legal status and left the boy in limbo, Ashar said.
Also, the deportation proceedings ended before the judge could issue a decision on the issues surrounding the confidentiality and constitutional violations, Ashar said.
Yet even if the judge had ruled on the confidentiality breach or the constitutional violations, immigration court decisions are not precedent setting.
And the higher courts, such as the U.S. Court of Appeals and the Board of Immigration Appeals – the appellate arm of the immigration court system – have yet to publish a precedent setting decision, which would be binding on all immigration courts.
Ashar, who co-edited a 2013 UCI law school report examining the issue of how Orange County juveniles are referred to immigration authorities, said ICE should be held accountable for what he says is a violation of the constitutional rights of juveniles who are interrogated in juvenile detention before being informed of their rights.
Specifically, Ashar cites the minor’s Fifth Amendment constitutional right to due process, their right to remain silent and have an attorney present during questioning, as well as their right against self-incrimination.
Similar to the way a Miranda Warning protects a criminal suspect from a violation of his or her Fifth Amendment right against self-incrimination, the federal regulations require that the rights in the I-770 form be explained in a language the minor understands in order to waive his or her rights, said attorney M. Aryah Somers during a 2013 interview when she was working as an independent consultant on children and migration issues.
If the form is properly delivered and the minor waives his/her rights, an ICE agent can then ask a series of questions that become part of the factual allegations that can lead to deportation, said Somers, who wrote a 2010 report examining the legal hurdles faced by undocumented youth in the U.S. immigration system.
“Every child they [ICE agents] interview in the system should have an I-770 and should have voluntarily waived their rights before they do the interview,” said Somers.
She recommends that juveniles invoke their Fifth Amendment right to remain silent. Doing so prevents the ICE agent from eliciting the factual elements used to charge the minor with being in the country illegally, she said.
But within the confines of the juvenile halls where they are being detained undocumented youth from California are answering questions during ICE interrogations without first understanding their rights, say immigration attorneys interviewed for this series.
Read About One Lost Boy’s Journey Here.
Since government-appointed counsel is not a right in immigration court, most juveniles face deportation proceedings without an attorney to defend their rights and challenge their deportations, said Somers.
Youth labeled as lawbreakers face an uphill battle in trying to secure pro bono legal representation as well, said Somers.
“They aren’t being defended because they are incorrectly judged as not empathic,” said Somers.
Somers discovered through her extensive research on minors in deportation proceedings that ICE referrals don’t take into account the complicated childhoods that the juveniles have often experienced.
“They were kids…who were previously neglected, who grew up on their own without parental supervision, who suffered physical or sexual abuse and nobody intervened to protect them,” said Somers.
If a young boy steals a bag of candy, that should be a red flag, said Somers. It should also trigger a series of questions to help place the act in context: What is happening at home, in the neighborhood, or at school that might be driving this.
“Young people, children who have lost their way, end up paying this dramatic and traumatic cost for the mistakes they make,” said Somers. “To be permanently separated from your family because you painted graffiti on a wall is traumatic…”
Their complicated and impoverished backgrounds leave many of the youth on the margins and without representation, despite being eligible for legal residency, Somers found.
“There are children within this context who are deserving, and have due process rights, and should be fought for,” said Somers.
Yet for the most part this is a journey that the minors have faced on their own without legal representation.
At the federal level, immigration attorneys say that modifications to the regulations that dictate when juveniles are advised of their rights, such as the right to contact an attorney, could address some of the due process issues that are being raised in California’s immigration courts.
Specifically, modifying federal regulations so that minors interviewed by ICE in juvenile halls receive the Department of Homeland Security Form I-770 prior to being interrogated by ICE agents, would ensure their Fifth Amendment right to due process, say attorneys representing juveniles in court.
Voice of OC asked ICE whether the agency had any plans to revise or change the process, ICE’s response was “no.” The agency also denied Voice of OC’s request to interview officials for this article.
Immigration attorney Sabrina Rivera from Western State College of Law’s immigration clinic at Argosy University in Fullerton has worked with undocumented juveniles interrogated by ICE agents in juvenile hall.
One minor with mental health issues who was interviewed by an ICE agent told her he believed that he “had to answer all of his questions because he seemed like he was important.’”
During “know your rights” sessions, Rivera said she counsels minors to immediately ask for a parent or attorney and decline to answer any questions.
“The kids say, ‘Are you serious? Are you seriously telling me to tell an officer they can only speak to you,’” said Rivera. “Especially when they’re so vulnerable. Usually when they [the ICE agents] come to speak to these kids at juvenile hall, they’ve already been locked up for a while. They miss their parents.”
“They’re kids. They’re scared.”
Rivera described the Probation Department’s interview room as a small jail-like setting that’s cold and feels like an adult detention center. It’s understandable, she said, that a minor would feel intimidated and compelled to answer an ICE agent’s questions.
This is the case for most minors who have not developed the capacity to measure the consequences of speaking to an ICE agent, but particularly so for youth with mental health issues, said Rivera, an immigrants’ rights fellow at the clinic.
The law school’s immigration clinic began partnering with the Orange County Public Defender’s office about year ago in part because the clinic felt it was critical to identify youth eligible for legal residency in light of the probation department’s past and current immigration referral procedures.
Criminal defense attorneys are also ethically obligated to advise clients of the deportation consequences of any guilty plea, said Jennifer Koh, an associate professor of law at Western State College of Law.
Now, public defenders can direct juveniles to the clinic. There the minor is advised how a juvenile court hearing will impact their legal status, is advised of his/her rights during an ICE interrogation, and is assessed for immigration eligibility.
These are youth who might have made mistakes in their past, but for immigration purposes, they can make a viable argument that the law permits them to stay here and in some cases with a full pathway toward citizenship, said Koh, who is the founder and director of the immigration clinic.
“There’s a good reason why the law values those who have been victimized or marginalized or who are the most vulnerable in our communities,” said Koh.
More than a decade ago, immigration attorney Kristen Jackson began challenging evidence obtained by ICE agents from juveniles in probation custody that was used by the federal government to try to deport these minors.
Jackson is a senior staff attorney who specializes in children’s immigration issues at the Public Counsel pro bono law firm in Los Angeles.
She successfully challenged the reliability of this evidence – information about her client’s legal status – which was gathered by an ICE agent and which she said might have originated from the minor’s juvenile court or probation records.
In 2009, the judge ruled in favor of Jackson’s client on the basis that the government had not proven that her client wasn’t a U.S. citizen, and halted the deportation proceedings.
In subsequent deportation proceedings involving Orange County youth, Jackson found that in the cases of juveniles held in custody by probation departments, much of the evidence used against them either originated from the ICE agent interviews with the minors in juvenile hall, or from documents from their juvenile court records.
When she investigated the point at which ICE agents delivered the form notifying her clients of their due process rights, she discovered that the ICE agents were informing juveniles of their rights after they had interrogated the minors, sometimes days, weeks or months after.
Federal regulations require that ICE provide the rights form when a minor is apprehended, but when exactly this “apprehension” occurs for a juvenile who is already detained by a probation department is unclear in the federal regulations, policies and the immigration court’s administrative decisions.
According to ICE, its enforcement agents issue the I-770 form to the juvenile once their legal status has been determined and the minor is physically taken into ICE custody.
But when the form is provided after the juvenile has already been questioned by an ICE agent in juvenile hall and after the minor has provided information related to his legal status, it defeats the purpose of the form, say immigration attorneys and legal scholars.
Once a minor makes any type of admission, this is used as evidence to detain, arrest, and subsequently for the government to make its case to deport the minor, said Jackson.
Jackson and Ashar are just two of a small group of attorneys in California who have argued in immigration court deportation proceedings that as a consequence of both the violation of the state’s confidentiality provision for juveniles as well as the coercive conditions experienced by the youth during the ICE interrogations, that the evidence has been unlawfully obtained.
“It’s a violation of due process to use this information that these children gave to ICE when there was a violation of California law in the procedure that resulted in the information,” said Jackson.
In the cases that Jackson has handled, the form was provided to the juvenile when the minor was taken into custody by ICE, and not during their initial interrogation with the ICE agent at the juvenile hall.
“My argument is that I-770 should be given to the child at the first contact,” said Jackson.
Jackson has argued in immigration court that Homeland Security is violating its own regulation by not issuing the rights form to the minor at the point of apprehension.
In one of her cases, Homeland Security’s attorney disagreed, contending that the minor, a boy, was not apprehended at the point when he was questioned by immigration officers in Orange County’s juvenile hall.
Juveniles are considered to be in the custody of immigration officials when they are served with the warrant of arrest by immigration officers, the assistant chief counsel for ICE wrote in a statement submitted to the court, and noted that the rights form was served on the minor on the same day as the warrant of arrest.
The government’s counsel also pointed out that individuals in removal proceedings aren’t entitled to Miranda warnings, and that under federal regulations, Homeland Security’s obligation to inform an undocumented immigrant of his or her procedural rights doesn’t commence until she or he is placed in deportation proceedings.
However, because federal regulations require that juveniles receive these rights when they are apprehended, attorneys have sought to clarify the definition of apprehension.
Jackson and other attorneys representing the minors have found that on some Homeland Security forms, ICE agents have noted the date of apprehension as the day when the agent first interviewed the minor.
Jackson also cites cases in the U.S. Court of Appeals for the Ninth Circuit and the Board of Immigration Appeals where the term apprehension is interpreted as being an act that occurs prior to arrest not the arrest itself.
The issue of when this rights form is delivered goes to the heart of the argument that Jackson has made in court: That without an understanding of their rights, the juveniles are unwitting participants in ICE interrogations, thus rendering the procedure itself unfair and the evidence inadmissible.
Jackson has argued that the Supreme Court has repeatedly recognized that the admissions of minors and their ability to make choices of their own free will is judged differently than those of adults.
Juveniles are questioned under the threat of deportation and feel that they have no choice but to answer an ICE agent’s questions, she said.
Also, the minors are detained in juvenile halls for extended periods and this impacts their state of mind and whether their statements are voluntary or not, she has argued in her cases.
Even when a minor is informed of his or her rights, by, for example a Miranda warning, they don’t understand the words or concepts and may need safeguards to protect them in the interrogation rooms, said University of Minnesota Law School Professor Barry C. Feld, a leading expert in juvenile justice issues and the interrogation of minors.
The U.S. Supreme Court has held that when giving an adolescent a Miranda warning police must take into account a minor’s age, schooling, maturity, and the understanding that the minor will feel restrained in certain circumstances, said Feld.
“Kids are different both in their criminal responsibility… and also in their competence to exercise legal rights,” said Feld.
The Supreme Court has decided more juvenile interrogation cases than any other aspect of juvenile justice administration, and has cautioned trial judges that youthfulness can adversely affect young suspects’ ability to exercise Miranda or to make voluntary statements, noted Feld in his book “Kids, Cops, and Confessions Inside the Interrogation Room.”
But the court has not mandated special procedures to protect minors, such as having a parent or attorney present during any interrogation, said Feld.
On the question of what constitutes custody the Supreme Court has ruled that in determining whether someone is in custody, the issue hinges on whether the individual is at liberty to terminate the interrogation and leave.
The court recognized that youthfulness heightens vulnerability and therefore a minor might feel restrained under circumstances that an adult would not, said Feld.
“If you’re dealing with kids who are confined in a juvenile hall and who aren’t leaving, it’s just like if you are questioning somebody in jail,” said Feld. “… Custody just focuses on whether or not they’re free to leave.”
Thus, for youth who are detained in juvenile halls by probation departments, ICE’s definition of “custody” is not relevant, said Feld, because regardless of whether the minor is in ICE custody or not, they won’t feel at liberty to leave the ICE interrogation due to their circumstances.
“When you’re dealing with kids in juvenile hall and they’re being questioned in an interrogation room, that’s clearly custody,” said Feld.
It’s the same conclusion that Jackson has drawn and argued in immigration court on behalf of her clients.
A juvenile’s perceived or actual inability to leave an ICE interrogation in juvenile hall combined with ICE’s failure to inform a minor of his/her rights prior to that interrogation, contributes to the coercive nature of the process, said Jackson.
For more than 50 years, the U.S. Supreme Court has recognized that the likelihood that an interrogation is coercive substantially increases for a minor, Jackson wrote in an essay for the American Immigration Lawyers Association.
All of the circumstances that a minor faces in an interrogation must be taken into consideration: Whether they were interviewed in a room inside a locked facility, or the minor feared the ICE officer, or they failed to understand the purpose of the ICE interview, she wrote.
In Jackson’s cases involving Orange County minors, her clients became eligible to apply for legal residency, so she pursued this route because it was in the best interest of her clients. As a result the judge did not make a ruling on the confidentiality or constitutional violations in those cases.
Oakland-based immigration attorney Helen Lawrence said she’s heartened by decisions in her cases that show the immigration courts are more aware that confidentiality breaches of a juvenile’s court file are in violation of the state’s Welfare and Institutions Code.
In one of her cases, the government’s attorney tried to submit the minor’s juvenile probation report records as evidence in his case, but the judge did not allow the report into evidence.
“Now some judges are saying ‘I can’t accept that. I can’t accept those papers unless you have a juvenile court order,’” said Lawrence.
Though she described these decisions as significant, Lawrence pointed out that a favorable final decision in her clients’ cases does not set legal precedent nor is it citable in immigration court.
But it could help other attorneys argue their cases, said Lawrence.
Ultimately, Lawrence said the flaws in the system could be addressed through legislation at the state level, and by modifying the federal regulations to clarify when precisely an apprehension occurs so that minors receive their due process rights at the appropriate time.
A State assembly bill that clarifies that juvenile court records should remain confidential regardless of the minor’s immigration status is now making its way to Gov. Jerry Brown’s desk.
Meanwhile, Jackson’s Public Counsel law firm is part of a nationwide class-action lawsuit that was filed last year and is challenging the federal government for failing to provide minors with legal representation in deportation proceedings.
If more minors had legal representation, the immigration courts would address the due process and confidentiality issues on a wider scale, she said.
“That’s why so many of these issues are unanswered,” said Jackson. “If you had a public defender model and you had people filing these cases you would have decisions and you would have answers. But that’s not a model we have and so many of these claims go untested even though they may be legitimate and strong…”
Coming Friday: The consequences for undocumented juveniles placed in deportation proceedings, and what legal experts say should be done at the state and federal level to address potential constitutional and confidentiality violations.
This project was made possible with the generous support of a grant from the Fund for Investigative Journalism and through a H.F. Langeloth journalism fellowship with The John Jay College of Criminal Justice.
Yvette Cabrera is a long-time Orange County journalist and Voice of OC contributing writer. You can reach her directly at yvettecabreraoc@gmail.com.