As the number of California juveniles reported to immigration authorities began to surge seven years ago, attorneys representing the minors started to see immigration court judges acknowledge problems with this practice.
In some cases, judges refused to allow evidence in deportation proceedings for juveniles whose confidentiality had been breached by probation departments that had turned the minors’ personal files over to Immigration and Customs Enforcement (ICE), which investigates immigration law violations.
At the county level, some juvenile court judges are also raising the issue of these confidentiality breaches and questioning the value of placing the minors in deportation proceedings that end up sending them to holding facilities far from home.
In 2013, Adam Ely, a former San Mateo County juvenile private defender - similar to a public defender - said he began to see juvenile court judges questioning why the minors had been turned over to ICE in this county just south of San Francisco.
“The judges have said ‘If all ICE is going to do is show up, pick these kids up, take them on a tour of the United States for six months and then bring them home, we would rather that they just not pick them up in the first place,’” Ely said.
The confidentiality of juvenile court records is ensured by state law, in the Welfare and Institutions Code section 827, which outlines what agencies and individuals can access juvenile files without a court order. Federal immigration authorities are not on that list.
Juveniles placed in deportation proceedings by ICE are turned over to the Office of Refugee Resettlement, the federal agency that oversees their care and places the youth in facilities throughout the country. The federal government contracts these facilities, including group homes and detention centers, to house these minors at taxpayer expense.
Immigration attorneys representing the juveniles report that while a portion of California’s minors land in state facilities, a sizable number are scattered much farther from home in states such as Washington and Texas based on the availability of beds in the facilities where the minor needs to be placed.
Stays in ORR custody can vary widely. The average length of stay for children released to sponsors such as family members or guardians is 45 days, according to the latest ORR figures. But immigration attorneys in California report that their clients have stayed in custody for a far longer period of time: from eight to 10 months, or sometimes more than a year.
It’s a process that’s been questioned by attorneys, mental health experts and youth advocates. Pulling the minors out of their communities and into facilities across the country, has an “out of sight, out of mind” effect, said Kristen Jackson, a senior staff attorney who specializes in children’s immigration issues at Public Counsel, a pro bono law firm in Los Angeles.
Some facilities are located in isolated areas, far from legal organizations or nonprofits that would typically try to provide these youth with legal aid. Often even nonprofits that serve the youth are limited because of a lack of resources, and can provide direct representation to only a small percentage of the minors.
For the most part, the juveniles go before immigration judges without legal counsel – access to legal representation at government expense is not a right in federal immigration courts – and face a legal process that can take years to resolve.
The Women’s Refugee Commission in Washington, D.C. estimates that at least 60 percent of all children in immigration proceedings are not represented by an attorney and must appear before an immigration judge on their own.
From 2008 to 2012, immigration attorney Manoj Govindaiah represented minors sent to one of these remote facilities, a juvenile detention center in Vincennes, Indiana.
At the time, Govindaiah worked for a Chicago nonprofit that was funded by the ORR to provide the youth in this facility with counseling on legal options, pro-bono referrals, and legal rights education - essentially everything but legal representation.
It would take Govindaiah five hours to drive to Vincennes from his office at the nonprofit National Immigrant Justice Center in Chicago.
“It’s like the middle of nowhere. There’s nothing,” he said.
The ORR minors arrived from across the country, including Arizona and Missouri, but starting in 2009 Govindaiah said he began to see an overwhelming number of minors from Southern California.
That year, of the approximately four dozen beds dedicated to minors in ORR custody, easily 90 percent were from Southern California, he said.
“It was starting to become alarming - just the number of kids we kept seeing who appeared,” Govindaiah said. “We could never confirm it for certain, but it appeared they had gotten to the immigration authorities as a result of their criminal issues.”
With limited resources, Govindaiah and his staff narrowed their focus primarily on youth who were likely to remain in the Midwest where he could represent them in court in Chicago.
There was little Govindaiah could do for the California minors, who were often reunited by the ORR with their families and had their cases transferred to California’s immigration courts.
Like attorneys here in California have found, Govindaiah discovered that many of the minors qualified for immigration relief and protection from deportation.
Some minors simply didn’t want to fight their cases and would accept a removal order or voluntary departure from the court, he said. Others, who had served out their juvenile court-ordered confinement, were angry, upset and confused that the federal detention had placed them in what seemed like perpetual confinement.
Santa Barbara defense attorney J’Aimee L. Oxton, who specializes in juvenile law, has seen how the youth can be broken down by a system that not only isolates them from their support network at home, school and the community, but also diverts them from any court-ordered rehabilitation they might have underway.
Since 2011, she has represented about a dozen juveniles referred to ICE, and in the majority of these cases, she said the youth were raised for most of their lives in Santa Barbara County and had parents or guardians in the community. The trauma of the separation is often too much for the minors to handle, said Oxton who had one client who was kept in federal custody for three fourths of the year.
“To be separated from their family for that long, it made it very difficult for him to readjust back into society and to succeed on probation,” Oxton said. “It starts to get exhausting – it wears on them.”
One young boy that Oxton represented chose to be deported to Mexico after a prolonged detention in an ORR facility, not just because he felt isolated, but also because he was concerned about the financial and emotional toll on his mother.
Both the boy and his mother were victims of domestic violence, and qualified to apply for a visa for crime victims. Oxton had already spoken to an immigration attorney on behalf of her client and initiated the visa application process, but expected the wait to be lengthy. It ended up being too long for a boy who had already experienced a childhood of abuse, she said.
“He gave up. He didn’t want to fight,” said Oxton.
Over the past two years, the Santa Barbara Probation Department has significantly revised its procedures for referring juveniles suspected of being undocumented to ICE. The agency narrowed the circumstances under which ICE is contacted, for example, only after a judge has found the minor delinquent for a violent or serious felony, if the minor is on an arson or sex registry, or if the minor is tried or convicted as an adult.
Another key change made last year is that the probation officer who is assigned to the juvenile makes the ICE notifications. The prior policy allowed juvenile hall intake officers who book the minors into the facility to make the ICE notifications.
“Our goals are to follow the law and protect the community, but our mission and why we’re here is to help these youth, so we have to balance all those together and we think that (the policy) is reflective of where we are as a department at this time,” said Deputy Chief Probation Officer Lee A. Bethel, who oversees the department’s institutions, including the juvenile hall.
In 2012, before the agency made its policy revisions, Santa Barbara Probation referred 143 juveniles in its custody to ICE, the highest annual total in a five-year period from 2008 to 2012.
The referrals dropped dramatically with two ICE referrals, and no ICE releases in 2014. So far, this year, no juveniles have been referred or released to ICE by the agency.
Oxton praised the Santa Barbara probation officers she’s worked with in developing rehabilitation plans for her clients. That often means involving their parents who can report to probation if a child isn’t adhering to curfews or is misbehaving at home.
But Oxton said it’s difficult to convince parents to cooperate with the probation department when they discover the agency still notifies immigration authorities for some youth.
“It really puts the juveniles and their parents in a difficult place in terms of who to trust,” said Oxton.
The referrals also place the probation officers who work with these youth in a tough spot, she said. She said the officers she’s worked with have gone “above and beyond” to help the minors, but all of that is undermined by a procedure that sweeps these youth away from home.
At the end of the day, if a minor has been referred, said Oxton, “there’s only so much that we can do.”
Some probation agencies have gone beyond even the modifications made in counties such as Santa Barbara and Orange.
Last December, the Sacramento Probation Department also implemented changes to its ICE referral procedures, the most significant being that its probation officers are no longer required to investigate the immigration status of juveniles.
The new policy states that the probation staff does not have the ability or authority to determine if a juvenile is not legally present in the country.
“Such determination of a person’s citizenship or immigration status and whether to place immigration holds on a person is within the purview of ICE,” the new directive states.
Now, Sacramento Probation only notifies ICE of juveniles “who are known or suspected foreign nationals” and who have been found delinquent of a serious or violent crime.
The new policy is anticipated to affect only a small number of juveniles, said Lee Seale, Sacramento County’s chief probation officer.
Seale, who became probation chief in April 2013, said the ICE referral issue landed on his radar early on in his tenure after the county Public Defender’s office reached out to the agency and expressed concern about the procedures.
“We saw a couple of examples in which kids were not being helped, and public safety was not being served by referring them to ICE,” said Seale. “All it ended up doing was destabilizing their family life, which in fact leads to greater crime. We wanted to avoid that kind of outcome.”
Seale said his agency still cooperates with federal immigration authorities, but his goal is to ensure the agency cooperates on the “right kinds of cases.”
“On those cases where we knew that the federal government was not going to deport the young people we wanted to make sure we did everything we could do protect their environment,” said Seale.
Despite the overhaul of ICE referral procedures that have significantly reduced the number of juveniles turned over to ICE, probation departments across the state still maintain procedures that allow for the notifications under certain circumstances.
These departments, including Orange County, say that the referrals are legally justified under the authority of a federal law that allows the agencies to communicate and cooperate with ICE.
(Read about one Lost Boy's journey here.)
Critics of the practice say it’s time to take the battle over the ICE referrals from the negotiating table to the courtroom.
Some legal scholars and immigration advocates have suggested litigation. Others are seeking changes to the federal regulations that would address the due process and other constitutional rights violations they contend occurs after a juvenile is referred to ICE.
Specifically, immigration attorneys in California have called on the federal government to provide juveniles with a federal form that explains their rights, for example, the right to an attorney, before the minors are interrogated by ICE agents while in juvenile detention.
It’s also important that probation department procedures address a minor’s right to have their parents present during any ICE interrogations, said Lucero Chavez, a Public Counsel staff attorney.
“We’re dealing with minors, no matter what sort of law enforcement agency is involved, and the parents have a right … to be present in those instances when their children are being questioned,” said Chavez.
The law schools at Stanford University and UC Irvine have played an active and important role in documenting constitutional violations, collecting evidence, and reviewing the ICE referral practices, she said.
If any litigation is pursued, the work done by this group of legal scholars will establish patterns and practices, Lucero said.
Any legislative fix at the state level would need to focus on privacy rights for undocumented juveniles and also ensure that confidentiality protections currently in place via the state law are actually enforced, she said.
“I think we have strong protections. I don’t think they’re followed necessarily,” said Chavez.
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.
Beyond that, enforcing the current law also requires an examination of how the juvenile courts are protecting minors if a violation of the existing state confidentiality law occurs, said Chavez.
“If a violation occurs, but…they’re still allowing it to be shared with these other agencies then that’s an acquiescence on their part,” said Chavez.
Because of the clash between California’s state law protecting juvenile confidentiality and federal laws that allow probation agencies to communicate and cooperate with ICE, UC Berkeley criminologist Barry Krisberg expects that ultimately the issue will be litigated by the federal courts.
“Whenever you have a situation like this, you have a conflict of laws that’s often pretty hard to resolve. I think if you read most juvenile statutes in California there’s no reason they (probation departments) ought to be able to do this,” said Krisberg, an expert in juvenile justice issues.
The core of the issue is that all of the protections offered by the U.S. Constitution, including due process, apply to everyone in the United States, not just U.S. citizens, he said. So being notified of the right to attorney before being questioned applies to everyone, including undocumented juveniles, he said.
With 58 California counties and juvenile justice systems that enforce different procedures, there is no consistency on the issue of ICE referrals, he said.
Aside from the federal courts addressing the issue, he said the conflict could also be resolved if the California legislature clarifies its intent in the Welfare and Institutions Code.
“That could, for all intents and purposes, end this practice,” said Krisberg.
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.