Over the past several years, probation departments across California, from Orange County to Sacramento, have significantly overhauled the process used to determine when and if the agency should contact immigration authorities if a juvenile in custody is suspected of being undocumented.
The changes have come in the wake of a growing movement across the state, led by legal scholars, immigration attorneys and youth advocates who have contended for years that these referrals to the U.S. Immigration and Customs Enforcement (ICE) agency violate a state law created to protect a juvenile’s privacy, as well as the constitutional rights of these minors.
At the center of the debate over the ICE referrals is whether these probation agencies are overstepping their authority by proactively alerting federal authorities when a minor is suspected of being in the United States in violation of immigration laws.
Some probation departments have for decades readily cooperated with ICE by, for example, complying with detainers, which are requests by the federal government that ask law enforcement agencies to notify ICE prior to releasing a detainee.
Locally, the Orange County Probation Department has made revisions to its ICE notification procedures over the last two and half years and as a result has significantly reduced the number of ICE referrals of minors suspected of being undocumented.
But the agency’s procedures still allow for the notifications under certain circumstances, and probation officials say their procedures are legally justified under a federal law that allows the agency to cooperate and communicate with federal authorities regarding the legal status of juveniles in the agency’s custody.
But the referrals have continued to draw the criticism of legal scholars, youth advocates and immigration attorneys who contend these policies usurp the authority of the federal government in addition to violating the state’s juvenile confidentiality law.
The law, California’s Welfare and Institution Code section 827, states that unless special permission from a juvenile court is granted, only a limited and specified group of individuals from the state’s juvenile justice system is given authority to inspect a minor’s case files. Among those authorized are the district attorney, child protective agencies, or law enforcement officers who are “actively participating in criminal or juvenile proceedings involving the minor.”
Section 827 does not include ICE or any other federal immigration authorities.
The Orange County Probation Department cites the federal law, Section 1373 of Title 8 in the U.S. Code, as its legal authority to communicate with immigration authorities.
According to the law, state and local entities can’t prohibit or restrict communication with ICE, nor prohibit or restrict any government entity or official from sending information to ICE or receiving information from ICE regarding the citizenship or immigration status of an individual.
Catherine E. Stiver, Orange County Probation Department’s division director for juvenile court services, oversaw the most recent revisions to the department’s ICE referrals, including changes in 2012 that cited the federal law for the first time.
Under the authority of Section 1373, Stiver said there is no need for immigration authorities to request a special juvenile court order to grant ICE access to a juvenile’s court files or personal information.
“The [juvenile] court cannot dictate what we release and receive from ICE,” said Stiver.
Probation spokesman Edward Harrison added that the federal law supersedes state laws, including the provisions in the Welfare and Institutions Code regarding juvenile confidentiality.
“The U.S. code, like the Constitution, supersedes state code and local ordinances. That’s the law over the land,” said Harrison, who also serves as the agency’s director of communications and research.
But some legal scholars and immigration attorneys throughout California disagree that federal immigration law preempts California’s juvenile confidentiality laws. On the contrary, they say, federal law recognizes the importance of protecting the privacy of juvenile court records, including from other federal agencies.
“Neither Congress nor the Supreme Court has ever recognized any broad exception that would allow state and local agencies to breach confidentiality to share information with federal immigration authorities, particularly when such information sharing would pose a detriment to the child,” stated a 2013 report published by UC Irvine School of Law’s Immigrant Rights Clinic on this issue.
The agency is overstepping its authority by directing officers to ascertain the immigration status of minors, an exclusive right of the federal government, concluded the report titled “Second Chances for All: Why Orange County Probation Should Stop Choosing Deportation over Rehabilitation for Immigrant Youth.”
The report called on the county’s probation department to rescind its referral policy and to prohibit probation officers from referring juveniles to ICE, investigating their immigration status or responding to ICE detainers placed on the youth.
Federal law does not require probation departments or other local law enforcement agencies to communicate with ICE either, said Lucero Chavez, a staff attorney with the Public Counsel, a Los Angeles pro bono law firm.
“The federal law says you cannot prohibit communication between a local law enforcement agency and immigration [authorities] or the federal government – that’s the law,” Chavez said. “But a lot of law enforcement agencies are interpreting the inverse – that you have to, in the affirmative – that you have to communicate any contact, any suspicion that you have with immigration specifically.”
East Palo Alto attorney Helen Beasley agreed and said it is a misinterpretation of the statute, given that the federal government cannot require state or local law enforcement to use their resources to enforce federal laws.
“You can’t have an outright prohibition on communication regarding immigration status for government officials, but that in no way requires government officials to go out and affirmatively report these youth to ICE,” said Beasley, an immigration attorney for Community Legal Services, an East Palo Alto nonprofit.
The agency is part of a Bay Area coalition that challenged the San Mateo County Probation Department’s referral procedures, resulting in major revisions that limited the circumstances under which juveniles could be referred to ICE.
Critics of these ICE referrals say that some probation departments, including Orange County’s, have gone far beyond communicating with federal authorities regarding immigration status by divulging juvenile court documents.
In one Orange County case that UCI Law School’s Immigrant Rights Clinic followed, an entire file on the juvenile was sent to immigration authorities.
“There’s no federal law that would supersede state law on the sharing of the entire file,” said Sameer Ashar, a UC Irvine clinical professor of law and co-director of the UC Irvine School of Law’s Immigrant Rights Clinic.
The ramifications of sharing these juvenile files are significant. Government attorneys use this information against the minor in deportation proceedings, which in turn can prevent the minor from qualifying for visas or programs that can offer a pathway to legal residency, he said.
Like Ashar, Los Angeles immigration attorney Kristen Jackson of the Public Counsel pro bono law firm said she discovered in some of her Orange County cases that her clients’ immigration court files were “chock full” of confidential juvenile court documents.
In those cases, Jackson sent ICE letters warning the agency that the documents were released in violation of California law, and as result the government did not submit the documents in immigration court. The issue, she pointed out, is that the documents will remain a part of the individual’s immigration file for the rest of his or her life.
“So it may start with this, but it doesn’t end with this,” said Jackson.
Congress has been clear in giving the federal government “exclusive authority” over immigration enforcement. Guidelines issued by the Department of Homeland Security (DHS) state that local law enforcement agencies must not “systematically act in a way that conflicts with the policies and priorities set by the federal government.”
The Department of Homeland Security, under which ICE falls, has clarified that cooperation does not encompass investigating an individual’s legal status and that communicating encompasses only the specific act of exchanging information with the agency.
Also, over the last five years ICE has issued its own memos clarifying where its priorities are focused. Citing limited resources, the agency has directed its employees to focus apprehension, detention and removal efforts first on individuals who are a danger to national security, border security or are a public safety risk, such as those convicted of serious crimes, including murder, rape, drug trafficking.
Last year, the Department of Homeland Security issued new civil immigration enforcement guidelines directing employees to prioritize suspected terrorists and spies, felons, active gang members, including those 16 and older, and individuals apprehended at the border while trying to enter the country unlawfully.
The Orange County Probation Department has for decades referred juveniles suspected of being undocumented to immigration authorities, and probation records reviewed by Voice of OC show that the criteria used to refer these juveniles changed numerous times during that time. What has remained consistent is the department’s directive that its officers determine the minor’s legal status.
This has been done without clear criteria or training in federal immigration enforcement, noted the UC Irvine report.
The department provided Voice of OC nearly a dozen of its guidelines, known as procedural manual items, from 1984 to 2014. The documents show that under directives published in the department’s procedures from 2008 to 2012, officers were instructed to identify a minor’s citizenship status during the custody intake process at the juvenile hall, and verify the minor’s legal entry “if there is reason to believe that the minor may be a foreign national…”
The intake officer was also instructed to immediately notify the ICE Liaison deputy probation officer if the minor “claims citizenship in another country or is a suspected foreign national.”
Some procedures included slight variations, such as the 2012 guidelines, which instructed juvenile hall intake officers to classify the legal status of each minor based on seven possible categories, including pending documentation, resident alien, undocumented alien, unknown and work permit.
Not only were some of these categories inconsistent with federal standards, but the practice exceeded the authority of local enforcement under the U.S. constitution, the UC Irvine report found, citing a federal court decision that concluded local government may not adopt a “set of criteria by which to classify individuals based on immigration status” independently of federal standards.
“The reason that probation officers are not trained in immigration law is that the law is so complicated. They’re not trained or equipped to do this type of examination of documentation and assessment of citizenship,” said Annie Lai, a UCI Law School assistant clinical professor who co-edited the report.
In 2014, the county’s probation department again revised its procedures for determining legal status by instructing intake officers to obtain “a variety of documents,” including a birth certificate to “ascertain the identity of the youth.” The officer is also instructed to gather information regarding the minor’s birthplace and to note whether U.S. citizenship has been determined.
Nearly all of the guidelines from 1984 to 2014 instruct officers to provide immigration authorities with pertinent information about the referred juvenile to assist the federal government’s investigation.
In some cases, the department was specific and instructed officers to supply names, police case numbers, and green cards or permanent resident cards.
Despite revisions the agency has made since the release of the UC Irvine report, Lai said the issues raised in the report have not been addressed given that the agency still allows for juvenile referrals to ICE. In addition, she said, the current procedures use the same language in instructing officers to provide pertinent juvenile information to ICE.
“So long as youth are being questioned about their citizenship or legal status I think the due process issues that we identified in the report are still present,” said Lai. “As long as kids are still being referred and as long as information is still being shared without the section 827 order, we still have concerns that it’s violating California law and confidentiality.”
The state’s Welfare and Institutions Code section 827 states that any agency outside of those listed in the law must request a special court order to access information in a juvenile court file.
Juvenile court judges contacted in San Mateo, Santa Barbara and Orange counties declined to comment for this story.
At the request of Voice of OC, the Orange County Superior Court searched its juvenile court records for any requests filed by ICE or the Department of Homeland Security for a court order to access juvenile records.
The court’s General Counsel Jeff Wertheimer could not state for certain whether the juvenile court had received any requests because the court doesn’t track the identities of requestors. But after informally researching the issue, Wertheimer said the court is not aware of having received any requests from ICE in recent years.
San Francisco immigration attorney Angie Junck, of the Immigrant Legal Resource Center, who has met with Orange County probation officials and reviewed the agency’s referral procedures, said that the combination of California law prohibiting disclosure of juvenile case information, along with other factors such as juveniles themselves being uncertain of their own status, continues to make it a liability for probation departments to require their staff to inquire about complex immigration matters that are beyond their area of expertise.
“For those who lack any such training, these determinations are all too often based on uninformed hunches or ethnic and racial stereotyping,” wrote Junck in an email. “This in turn risks inappropriate apprehension of youth with legal immigration status, and subjects the city to potential liability.”
She cited one lawsuit in which county and federal officials paid $100,000 to settle a case involving a San Joaquin County probation officer who erroneously referred a legal resident to immigration authorities for deportation.
That is one of reasons why immigrant youth advocates, such as Abraham Medina with Santa Ana Boys and Men of Color, have called for an end to all ICE referrals.
“We saw the referral numbers drop, but the specific thing that we were concerned about is that they’re still requiring intake officers to inquire about the immigration status of the minor,” said Medina.
He is youth engagement coordinator for the organization, which aims keep youth in school, out of the juvenile justice system and out of the hands of immigration authorities.
Medina and others have pressed county probation officials to explain why the agency inquires about a juvenile’s immigration status in the first place. In an interview with Voice of OC, Stiver explained that inquiring about a minor’s birth certificate is standard procedure for all youth booked into juvenile hall regardless of their race or ethnicity.
“So we’re not asking for their immigration card, we’re not asking for their legal status, but we are collecting their place of birth, the documentation of their place of birth, which we collect because that’s within our right,” said Stiver, noting that the information helps prevent identity fraud and confirms ages for the purpose of housing minors apart from adults.
Stiver said she could not address the agency’s referral practices prior to 2012 when she became division director for juvenile court services.
Meanwhile, she criticized the UC Irvine law school report, describing it as a “misinterpretation of the law” with inaccurate information. When asked to elaborate on any inaccuracies, Stiver declined to specify.
Harrison said the UC Irvine report was reviewed by the county counsel’s office and the department stands by its conclusion that the agency is not violating any laws.
“Our county counsel is saying that we’re not going to argue over the points of that report. They have their legal beliefs. Our counsel has a different legal belief and, based on advice of our counsel, what we’re doing is lawful and appropriate,” said Harrison.
Stiver pointed out that since November 2013, her agency has notified the appropriate consulate for all minors who are foreign nationals, a change from the previous practice under which minors were just notified that they had a right to contact their consulate as required by the Vienna Convention on Consular Relations.
She noted that some immigration attorneys have asked her why the department doesn’t inform the juveniles about pathways to legal residency. She said she has explained that it is not the agency’s role to do so.
“We can’t give them an immigrant rights attorney, but we refer them out to the consulate and that’s their role. So sometimes, like I said, there’s this misrepresentation of what our responsibility is,” said Stiver.
Stiver praised other groups, including the Mexican consulate and Santa Ana Boys and Men of Color, for being willing to work on the issue.
“We want community involvement. What isn’t beneficial is community uproar without the willingness to engage and work alongside us. It’s useless,” she said.
The probation department has taken other steps as a result of community dialogues and input. One example is a new position within the department: a deputy probation officer dedicated to parent engagement and education and who works with families after a minor is arrested.
More broadly, over the last seven years the agency has pursued strategies to try to reduce the disproportionately high number of youth of color in detention, namely Latinos who represent nearly 80 percent of the minors in juvenile hall according to the latest annual total in 2014.
“We’ve made a lot of changes in the probation department,” said Stiver. “We’ve come a long way in looking at this issue. At some point that has to be recognized.”
California is not alone in referring youth to ICE. State juvenile justice systems in Arizona, Florida, Pennsylvania, New York and Texas, to name a few, have routinely referred minors to federal authorities.
Michelle Brané, director of the Migrant Rights and Justice Program at the Women’s Refugee Commission in Washington, D.C., has been investigating the issue of juvenile ICE referrals since 2007. Initially, she said, federal immigration officials at the highest levels denied that ICE issued detainers on minors in the juvenile justice system.
“High-level people within the Department of Homeland Security often don’t even realize that they have juveniles in custody. They say, ‘We don’t apprehend kids, we don’t go to juvenile halls,’” said Brané.
So in 2012, with the help of a network of attorneys across the country who represented undocumented minors, Brané compiled a list of 100 cases involving juveniles who had been detained by ICE, placed in deportation proceedings, and then transferred to the custody of the Office of Refugee Resettlement, the federal agency charged with the care and custody of juveniles detained by ICE.
The agency places the youth in contracted facilities, such as group homes or detention centers, where they attend classes and receive therapy and counseling, while the ORR works to reunite the minor with a family member or guardian.
Brané said ICE finally acknowledged that some field offices were detaining the juveniles and others weren’t. But when the commission asked the government to clarify to its field offices that they should not be detaining the youth, the government responded that it could not.
“The explanation was that there are cases of very serious offenses where juveniles may be charged and convicted as adults in which they felt it was appropriate to issue detainers and they refused to tie agents’ hands in that way,” Brané said.
ICE declined Voice of OC’s interview requests to talk to ICE officials for this story.
Five years ago, prompted by the sharp increase in ICE detainers on juveniles, a coalition of more than 70 California legal and advocacy organizations made their case with then Homeland Security Secretary Janet Napolitano.
The coalition found that ICE detainers were “routinely issued” in cases involving young teens (some as young as 12), for abused and neglected children in state foster care, for youth with minor delinquency cases, or in cases where no delinquency charges were brought or were dismissed.
The group cited the concerns in a 2010 letter to Napolitano.
“We see juvenile law enforcement and ICE officers violating federal and state laws providing due process protections for youth for the purpose of having detainers lodged, thereby undermining federal goals of providing minors access to legal relief and the right to family reunification,” the coalition wrote.
An accompanying critique, written by a handful of the coalition’s legal and immigrant rights organizations, criticized the federal government for failing to address the “growing misuse” of detainers against youth in California. The group asked Homeland Security to exclude juveniles from the reach of immigration detainers because of their unique status and vulnerabilities.
The group provided an example in which ICE issued a detainer for a 13-year-old boy who allegedly took 46 cents from another youth in a first-time schoolyard bullying incident.
Napolitano never responded, the group said.
Meanwhile, ICE has consistently emphasized that the administration has fundamentally changed immigration enforcement policy, focusing its efforts on criminals convicted of felonies or misdemeanors that fall into one of ICE’s enforcement priorities.
ICE spokeswoman Virginia Kice confirmed that ICE officers do lodge detainers against youth in the state’s juvenile halls, but noted that this does not automatically mean the minor will be targeted for deportation.
Before a minor can be taken into federal custody for immigration violations, officers with ICE Enforcement and Removal Operations must first ensure that the minor isn’t eligible for a temporary reprieve from deportation through programs such as Deferred Action for Childhood Arrivals, according to ICE.
“Generally speaking, the juveniles whose cases are referred to the immigration courts are those who have violent criminal histories,” ICE communicated in a statement issued for this story.
Deportation data provided by ICE for “criminal alien juveniles” bears out what immigration experts say about the referral trend – that most juveniles referred are not deported, at least not while they are minors.
Because deportation hearings can take years to proceed through the immigration courts deportation statistics may not reflect juveniles who are eventually deported as adults. In the case involving an Orange County juvenile referred to ICE that Voice of OC has followed, the deportation proceedings have lasted three years and are still ongoing.
For ICE’s Los Angeles Enforcement and Removal Operations area of responsibility, (a seven-county jurisdiction comprised of Santa Barbara, Ventura, San Luis Obispo, Orange, Los Angeles, Riverside, and San Bernardino) a total of 49 juveniles were deported in the fiscal years from 2008 through 2013.
The annual totals trended upward year to year, from two juveniles deported in 2008 to a five-year high in 2012 of 13 juveniles deported. Then the annual number dropped by more than half in 2013 with a total of six deportations.
Meanwhile, the San Francisco ERO area of responsibility (which encompasses 49 counties) reached a peak of 17 juveniles deported in fiscal year 2011, and then dropped to 11 in 2012 and nine in 2013.
The San Diego ERO area of responsibility (a two county district) has deported about a dozen minors in the last six fiscal years and hit a peak of five juveniles deported in FY 2013.
Once in ICE custody, immigration officers determine whether to rescind a detainer, or place the individual in deportation proceedings.
“As ICE statistics make clear, the agency is both deliberate and judicious in determining whether to pursue the removal of a juvenile who engaged in criminal behavior,” ICE said in a written statement.
Immigrant youth advocates, however, say that for years, ICE referrals too often swept up juveniles who had committed minor offenses, not serious and violent crimes.
This was confirmed by data released in 2013 by the San Francisco-based Center on Juvenile and Criminal Justice, which analyzed ICE detainers placed on juveniles in California’s youth detention facilities.
The center examined federal data on detainers issued in California from Oct. 1, 2009 to Feb. 10, 2013. The highest number of ICE holds were placed on juveniles from Orange County, which represented 43 percent of the 697 ICE holds that were issued in 13 counties.
Statewide, almost half of the detainers (45.6 percent) were placed on youth with no documented criminal history, and of those youth with a criminal history approximately half were for “non-violent, non-serious crimes,” the center’s analysis found.
A vast majority of the detainers were placed on Mexican-born youth, who, combined with Central American youth, represented nearly 99 percent of the juveniles with ICE holds.
According to data provided to Voice of OC by the Orange County Probation Department, most of the minors in Orange County juvenile hall who were issued ICE detainers over a five-year-period from 2008 through 2012 ultimately were taken into custody by immigration authorities.
That data show that ICE placed 652 detainers on juveniles during that period, and of those, 592 minors (91 percent) were taken into custody.
In Orange County, an analysis of a small sampling of juveniles that the probation department released to ICE, shows that in some cases, minors who were not serious or violent offenders were turned over to immigration authorities.
The Orange County Probation Department could not provide information on offenses for all juveniles released to immigration authorities, but the Voice of OC reviewed the cases of 108 youth released to ICE from January 2008 to June 2012 and found that the top three offenses – probation violations followed by vandalism and petty theft – represented more than a third of the total.
Burglary, and weapons possession rounded out the top five offenses.
While a small portion of juveniles referred were suspected of committing serious crimes, some who ended up in ICE custody had been detained for less serious offenses such as fighting in public, purchasing tobacco, disorderly conduct, and trespassing.
Data from OC Probation show that this changed after the department modified its referral procedures in late 2012 and again in 2014, narrowing the circumstances and criteria for ICE referrals, for example, focusing on juveniles found delinquent of serious and violent felonies.
Of the 31 juveniles that OC Probation referred and released to ICE in 2013, a majority had committed serious or violent offenses, such as robbery, assault with a deadly weapon, sodomy, and sexual battery.
Voice of OC also closely followed three cases over the past three years involving juveniles all referred in 2012 to immigration authorities by probation departments in Southern California.
The incidents that led to the minors’ arrests and subsequent referrals to ICE included one juvenile who was caught with a pocket knife at school, another who was alleged to have stolen an energy drink at a corner grocery store by means of force, and another accused of throwing a brick at a group of people in a car. All three were originally filed as felonies by district attorneys offices in Orange County and Santa Barbara.
In the pocket knife incident, involving the Orange County minor, Alex, who is featured in this series, the juvenile court judge subsequently found the minor delinquent for possession of a weapon on school grounds and exhibiting a non-firearm weapon, but reduced the felony to a misdemeanor.
Read More About Alex’s Journey Here.
Last year, a state law in California went into effect that prevents undocumented immigrant detainees who commit minor offenses from being turned over to immigration authorities.
The California Trust Act prohibits local law enforcement from detaining an individual in custody, who is otherwise eligible for release, on an ICE hold, unless the individual has been convicted of a serious crime.
The law mandates that “any person or local agency authorized to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities” is expected to comply with the law.
The Trust Act, however, does not address the issue of probation agency referrals to immigration authorities, say legal scholars. It only addresses the question of how to treat individuals once they have an ICE hold.
“To really protect youth, you either need to have a local policy that’s more protective than the Trust Act or the California Legislature could add to the Trust Act something that protects all kids,” said Lai of the UC Irvine School of Law.
State assembly bill 899, introduced earlier this year by Assemblyman Marc Levine, D-San Rafael, is an attempt to clarify that juvenile court records should remain confidential regardless of the minor’s immigration status.
The bill is now making its way to Gov. Jerry Brown’s desk.
But for minors, such as Alex of Orange County who was referred to ICE in 2012 and is still in deportation proceedings, the state legislation come too late to change his course.
Coming Thursday: The consequences of ICE interrogations of minors in juvenile hall, and how attorneys are defending juveniles in immigration court.
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 firstname.lastname@example.org.