The California legislature has passed a bill that seeks to halt the disclosure of confidential information about undocumented juveniles to federal immigration authorities without a court order.
For years, legal scholars and immigrant youth advocates have clashed with probation departments that notify immigration authorities when a juvenile suspected of being undocumented is in custody. They say the practice violates the state’s current law protecting juvenile confidentiality as well as the constitutional rights of vulnerable youth in the juvenile justice system, including minors with mental health and developmental issues.
Probation officials from Orange County to Santa Barbara to San Mateo contend the referrals are legally sound and that federal law protects their right to communicate with immigration officials, leaving the two sides at an impasse.
The bill, AB-899, authored by state Assemblyman Marc Levine, D-San Rafael, and now making its way to Gov. Jerry Brown’s desk, clarifies that juvenile court records should remain confidential regardless of the minor’s immigration status.
While some probation agencies have referred youth to federal immigration authorities for decades, the practice drew the attention of legal scholars and immigration attorneys as the referral numbers statewide trended upward starting around 2008. The referral trend was particularly evident in Orange County, where data shows the probation department enforced the practice aggressively from 2008 to 2012.
Some probation agencies, including Orange County, altered their procedures over the last three years and limited the circumstances under which youth could be referred to Immigration and Customs Enforcement (ICE), which investigates immigration law violations.
But youth advocates and immigration attorneys representing these minors say the changes have not gone far enough as existing procedures still give probation officials the discretion to refer minors and release their confidential information to ICE, and the agencies have continued to do so albeit in significantly smaller numbers.
“When these laws were passed they were clear as to who would get access. There was nothing contemplating that any federal agency would get that information,” said San Francisco attorney Angie Junck, one of the state’s leading experts on the issue of juveniles turned over to immigration authorities.
“We believe the law says what we’re already saying, that it is illegal for [probation departments] to report minors.”
Legal scholars from the Immigrant Rights Clinic at the University of California Irvine School of Law who scrutinized the Orange County Probation Department’s past and current procedures concluded that the referrals violate California’s juvenile confidentiality law, and trigger a series of actions that violate due process and other constitutional rights of these juveniles.
The consequences of the ICE referrals are far-reaching.
Lives in Limbo
Youth advocates, immigration attorneys and legal scholars have cited the following issues with the procedures followed by the Orange County Probation Department and the actions triggered as a result.
• When notifying ICE, OC Probation turns over a case file document with the juvenile’s personal information. State law does not grant ICE access to these confidential files, so the federal agency must receive a juvenile court order.
• Orange County’s probation department allows ICE agents to enter juvenile hall to interrogate minors who are suspected of being undocumented without a parent or attorney present.
• Juveniles interrogated by ICE do not receive a notice, informing the minor of the right to legal counsel, use of a telephone to contact family, and a trial before a judge, until after the interrogation has taken place.
• Department of Homeland Security attorneys use the interrogation statement as factual evidence against the minor in immigration removal proceedings.
• Minors placed in removal proceedings are sent to live in facilities across the state and nation, disrupting probation services and behavioral treatment, and separating the youth from their families, schools and communities.
As a result of these practices, hundreds, possibly thousands, of minors statewide have been turned over to ICE, dispersed to federally contracted group homes and detention centers across the country, and placed in deportation proceedings that leave the youth in a legal limbo that can last for years.
The practice runs contrary to the rehabilitative objectives of the state’s Welfare and Institutions Code, which governs the juvenile justice system and seeks to preserve a minor’s family ties and offer care that’s in a juvenile’s best interest, say immigration attorneys and legal scholars.
The Code’s 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. Those include, for example, 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 officials from ICE, and those who violate the law can be fined up to $500 and charged with a misdemeanor.
“The whole point of keeping things confidential and treating [youth] differently is the idea that kids can change and they should be given a chance to [change],” said Kristen Jackson, a senior staff attorney who specializes in children’s immigration issues at Public Counsel, a Los Angeles-based pro bono law firm.
Part of the reason the state’s juvenile confidentiality provisions exist is that minors are at a developmental stage where their judgment may not be fully formed, Jackson said.
“When you take a system and treat these youth as miniature adults – and you also in some cases see deportation as an additional punishment for them – it really runs counter to the goals and the aims of the juvenile justice system,” said Jackson, who has represented Orange County juveniles turned over to immigration authorities.
The minors released to ICE often have mental health or developmental issues or a combination of both. Some come from unstable homes or have had troubled childhoods, including witnessing violence or experiencing other trauma. Others are neglected, abused or abandoned.
The backgrounds of the juveniles often qualify them to apply for legal residency in the United States or a temporary reprieve from deportation through such programs as Deferred Action for Childhood Arrivals (DACA), launched by the Obama administration in 2012.
But instead of a pathway to legal residency, undocumented juveniles find themselves on the road to deportation.
In the aftermath of the tough-on-crime movement that began more than two decades ago, a more punitive juvenile justice model emerged along with zero-tolerance policies in schools. The result is that behavior that once would have landed students in detention hall, today delivers them to juvenile hall.
But as undocumented juveniles have discovered, the consequences of misbehaving and getting entangled in the juvenile justice system are harsher when county probation officials report them to ICE.
An investigation by Voice of OC, as well as independent studies and research done by legal scholars across California, show that the juvenile justice system created to rehabilitate these youth and provide help for behavioral issues had instead systematically handed these minors over to federal immigration authorities.
An Orange County Lost Boy
One young man who is part of this generation of boys agreed to share his story, and with his mother’s consent and participation allowed a Voice of OC reporter to follow his case over nearly a three-year-period as it proceeded in immigration court. Since he is a minor in the juvenile justice system, the Voice of OC is using the pseudonym of Alex, for the minor, and Marisa for his mother to protect the minor’s privacy.
In the summer of 2012, immigration authorities entered Orange County’s juvenile hall and took Alex, then a 14-year-old, into federal custody and allowed him to make one phone call to his mother, Marisa.
The ICE agents told him he might be sent to a Texas facility, but Alex told Marisa over the phone that he knew little else about where he was headed.
She was in disbelief.
Her son had landed in juvenile hall after bringing a pocket knife to school, but she couldn’t understand how Alex ended up in the hands of immigration authorities.
She feared the worst — that Alex would be immediately deported to Mexico, where he was born.
A native of Mexico, Marisa, who is now 36, was 17 when she became pregnant with Alex. But at the time her relationship with her boyfriend had turned so violent, she almost miscarried. When Alex was nearly three-years-old, she took him and fled her physically abusive partner and crossed illegally into the United States.
She was determined to create a new life in California, but ended up falling into two other abusive relationships.
Alex witnessed his mother being abused, and experienced physical abuse at the hands of his mother’s partners as well. The consequences of his turbulent childhood would emerge early on, but Marisa never imagined when Alex began acting out in school that it would one day lead to his possible deportation.
When ICE agents placed Alex in custody in August 2012, Marisa was still undocumented, without a driver’s license and fearful that any contact with federal immigration authorities would lead to her own deportation.
“I felt awful,” she said in Spanish, pausing to catch her breath as the upsetting memory of that day washed over her. “I knew I wouldn’t be able to go see him in Texas.”
Immediately after the call from Alex, Marisa began to scour the Internet, searching for group homes that house refugee immigrant children and those in deportation proceedings. But she could not find him. She called an ICE facility in Los Angeles – only to learn that Alex was no longer there.
“Nobody would tell me where my son was,” said Marisa, wiping away tears. “It was horrible. I stayed up all night asking myself, ‘Where can he be?’”
Marisa’s struggle to find her son was the beginning of a much more difficult ordeal: Trying to keep federal immigration authorities from deporting him so that he could return home to Orange County, where he had spent the majority of his childhood.
When Alex was placed in juvenile hall in March 2012 for taking the pocket knife to school, the Orange County District Attorney’s office initially filed a petition charging Alex with possession of a weapon on school grounds, a felony, and brandishing a deadly weapon, a misdemeanor.
Alex said another student spotted the pocketknife, which he had tucked into his waistband as he was undressing for his physical education class. He never threatened anyone with the knife, he said.
The court found Alex delinquent for possession of a weapon on school grounds and exhibiting a non-firearm weapon, but reduced the first count to a misdemeanor and ordered him to serve 60 days in the probation department’s accountability commitment program. The program allowed him to be released for electronic confinement at home, and to serve on a work crew doing community service.
But after violating the home supervision terms of his probation, authorities sent Alex back to Orange County juvenile hall in July 2012. That’s when two ICE agents interrogated him, he said.
In small room near the intake area, Alex sat handcuffed while the agents asked him questions, including where he was born and whether he was a U.S. citizen.
At the end of the interrogation, the agents informed him that ICE would likely take him into custody the following month upon his release from juvenile hall. Alex, an eighth-grader at the time, said he was worried and felt powerless.
“There was nothing I could do about it,” he said.
It wasn’t the first time an ICE agent had interrogated Alex. In 2010, when Alex was only 12 and in juvenile hall after getting into an argument with his mom and hitting her, he said an ICE agent questioned him for the first time while he was in custody. The agent asked him similar questions, including whether he had any “papers.”
During that ICE interrogation, Alex was also alone, handcuffed, without his mother or his public defender, and he answered the agent’s questions not realizing that he had a right to refuse to respond.
A 2010 probation department report to the juvenile court notes that Alex had received a “warning” from ICE “advising him if he continued to get into trouble he risked being deported the next time.”
Both the 2010 and 2012 interrogations took place without Marisa’s knowledge or consent but were in keeping with the Orange County Probation Department’s long-standing practice of notifying ICE of juveniles in custody whom probation officers suspected were in the country illegally.
Probation department spokesman Edward Harrison emphasized that the department’s procedures don’t ascertain a minor’s legal status, and that the department notifies ICE so that the federal agency can determine whether it wants to conduct an investigation.
“We are part of a criminal justice system, and Immigration and Customs Enforcement is also part of a criminal justice system, and there are areas where they overlap,” said Harrison, who also serves as the agency’s director of communications and research.
“What we’re doing is saying, ‘You guys investigate the citizenship issues. Here’s a case that is worthy of you looking at, because we have this person in our custody for criminal behavior and we can’t verify their status in this nation. So therefore should you wish to investigate this youthful offender we’ve got them right here,’” said Harrison.
When Alex first told Marisa about the ICE interrogation in 2010, she thought he had made a mistake.
“I didn’t believe him. The truth is I didn’t believe that immigration authorities had shown up at the juvenile hall,” Marisa said.
Read more about Alex’s journey here.
Getting her son home safely was her first priority, but Marisa was also determined to find answers to the question that had baffled her from the beginning: Why had the Orange County Probation Department notified federal immigration authorities that her son was in the Orange County’s juvenile hall?
Immigration attorneys, legal scholars and youth advocates across the state and nation have been asking the same question for years.
Legal experts who have studied the issue say no federal law requires probation officers to determine the immigration status of juveniles, and that even just referring a minor to ICE violates the state’s juvenile confidentiality law.
Yet some probation departments go far beyond even the referrals, handing over personal information and entire case files to ICE, according to attorneys representing youth in deportation proceedings.
“I think the spirit of that law, in addition to the actual provisions in the law, make it clear that disclosing this information in a completely different system that could result in completely harsh circumstances for kids who don’t deserve it, is a violation of the whole purpose of confidentiality in the juvenile justice system,” said San Francisco attorney Shannan Wilber.
Wilber has done extensive research on the state’s Welfare and Institutions Code section 827 and co-authored a report released last year that examines how undocumented youth are treated in the juvenile justice system.
More Aggressive Enforcement
The increase in juvenile referrals to ICE that immigration attorneys representing these youth began to notice in 2008 coincided with the federal government’s expansion of immigration enforcement collaborations with local law enforcement agencies.
Prior to 2008, the federal government focused on apprehending individuals in adult jails and prisons, but a shift in federal priorities occurred when the Department of Homeland Security prioritized the removal of undocumented criminal immigrants using controversial programs such as Secure Communities, a database fingerprint-sharing program that was launched in 2008 and ended last year.
The federal government didn’t classify minors as a deportation priority, but local probation agencies erroneously believed that federal immigration enforcement efforts equally targeted adults and children, noted a 2013 report: “Children in Harm’s Way: Criminal Justice, Immigration Enforcement and Child Welfare.”
The report was co-authored by attorney Angie Junck of the Immigrant Legal Resource Center in San Francisco.
“Consequently, some juvenile justice personnel report youth whom they suspect of lacking legal immigration status to immigration authorities and permit ICE officials to enter juvenile facilities to interview suspect youth,” the report found. “Even departments and staff that would prefer to stay out of immigration enforcement sometimes believe they are legally obligated to cooperate with federal immigration officials to facilitate apprehension of juveniles suspected of violating immigration laws.”
These ICE referrals were methodically enforced in some counties, including Orange County, over the past decade even as youth crime rates plunged to all-time lows statewide.
Data obtained from the Orange County Probation Department by Voice of OC through Public Records Act requests shows that from 2008 to 2012, the five-year-period leading up to the department’s 2012 revisions of its procedures, Orange County Probation referred 849 juveniles to ICE.
For that same five-year period, ICE took 592 juveniles into custody.
The department referred the highest number of juveniles – 248 — in 2008. Since then, the number of ICE notifications has decreased year to year. In 2013, the number of juvenile referrals dropped dramatically for a total of 38, and only two referrals in 2014.
Likewise, the number of juveniles taken into custody by ICE from Orange County has steadily declined from a high of 154 releases in 2009 to 31 in 2013, to two releases in 2014. So far this year, the department has referred one minor and released one minor to ICE.
The steep drop in the numbers was seen immediately in the months following modifications the department made in November 2012 to its procedures.
The modifications occurred after legal scholars and immigration attorneys began inquiring about the department’s referral practices earlier that year.
Today, based on revisions that Orange County Probation made last year, the procedures allow the department’s ICE liaison deputy probation officer to refer juveniles suspected of being undocumented to ICE based on four factors:
• If the minor has a previous or pending adjudication (similar to an adult conviction) for a serious offense under the state Welfare and Institutions Code that is also a serious or violent felony under the state’s penal code.
• If the minor has a conviction or pending case in adult court for a serious or violent offense.
• If the minor poses a danger to public safety.
• If contacting ICE serves the best interest of the minor.
For years, the department would notify ICE shortly after a minor was booked into juvenile hall and before a judge had determined whether the minor was delinquent. Now, the ICE notifications occur after a minor has had a juvenile court hearing to determine if the allegations are true, said Harrison.
When ICE agents interrogate the minors in juvenile hall, the department’s ICE liaison, a deputy probation officer, is present but doesn’t participate, according to Harrison.
Legal scholars from UC Irvine say that when ICE agents interrogate a detained juvenile without first explaining his or her rights, they are violating the minor’s Fifth Amendment due process rights and Fourth Amendment right against unreasonable searches and seizures.
Claims of Continued Violations
Until last year, the Probation Department would also keep minors, who had been released by the juvenile court, in custody up to 48 hours after their release date so that federal immigration authorities could detain them.
Legal experts had argued for years that this procedure, practiced by law enforcement agencies across the country, was unconstitutional because detainers are not warrants issued on evidence or with probable cause. Last year an Oregon federal court agreed.
In Maria Miranda-Olivares v. Clackamas County (Oregon), the court ruled that an undocumented immigrant’s constitutional rights were violated when a sheriff’s department kept her in custody on an ICE detainer after she was eligible for release. On the heels of that ruling last year, Orange County’s probation department revised its procedures to respond to detainers only if ICE takes juveniles into custody up to seven days prior to their release.
But legal scholars and youth advocates here in Orange County say the detainer policy changes and other revisions to the department’s procedures have not stopped the constitutional violations of undocumented juveniles, and they have continued to call for the agency to halt all ICE referrals, pointing to law school memorandums that outline how the policies harm the minors.
In response, Catherine E. Stiver, the Probation Department’s division director for juvenile court services, said that her agency is tasked not just with looking out for the best interest of the minor, but also ensuring the safety of the community.
“A lot of agencies have a singular focus. Education – they have a singular focus, and law enforcement has a singular focus, but we don’t,” said Stiver. “We have a bifurcated responsibility, and while some people don’t want to hear about the bifurcated responsibility, it’s what we’re tasked to do.”
Probation officials contend that federal law obliges them to refer potentially undocumented juveniles to immigration authorities and that federal regulations protect a probation department’s right to communicate with ICE.
“It’s the position of the probation department that we cooperate with our collaborative partners in assuring a safer Orange County. That’s part of our goal…,” said Harrison. “Anyone who has the mission to enforce laws in our jurisdiction, we’re going to cooperate with as is necessary to take care of our mission and vision. We believe based on the authorities citied in our procedural manual item and our policy that this serves that interest.”
But legal scholars, attorneys and juvenile justice advocates disagree and see a disconnect between what probation departments believe they are required to do and what federal immigration guidelines allow them to do with regard to undocumented minors in probation custody.
At their core, the actions of the probation departments have created a clash between two systems: A state juvenile justice system that is supposed to preserve a minor’s family ties and look out for the minor’s best interest; and a federal immigration agency that removes the youth from their communities, schools and families.
It’s a conflict that places the minors on a precarious path to adulthood.
“In absolute terms it seems there are many fewer children being turned over directly from juvenile hall, but the damage is still being done,” said Jackson, from the Public Counsel law firm in Los Angeles.
“The information is being shared and there’s nothing to prevent ICE from using that information in the future against these children, however they might get on the radar.”
Assembly Bill 899, the legislation introduced earlier this year by state 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, and that California’s Welfare and Institutions Code does not authorize the disclosure of any juvenile information to federal officials.
The original law was created to protect the confidentiality of juvenile records and ensures that youth are not punished throughout their lives for mistakes they made as minors. It’s a cornerstone of the juvenile justice system, said Junck, of the Immigrant Legal Resource Center, which helped draft AB 899.
Junck and other legal experts have pored through the legislative history of Welfare and Institutions Code Section 827, which was enacted in 1961. It clearly outlines which agencies can access juvenile files without a court order, said Junck.
Federal immigration authorities are not on that list.
Junck has met with county counsels throughout California to point out the lack of legal authority for the referrals, but those discussions have not led to a meaningful legal debate, she said.
Both sides disagree on whether the law has been violated.
“The law was meant to encompass all minors and offer protection from the federal government, and we’re just making it absolutely clear,” said Junck.
Over the past two years, changes in state law regarding who can be detained on an ICE hold have provided the impetus for probation departments to modify procedures on how undocumented youth are handled, said Junck.
The state’s Trust Act, which went into effect last year, in particular helped prevent the transfer of detained minors to ICE, she added.
The law prohibits local law enforcement from detaining an individual who is eligible for release from custody on an ICE hold, unless the individual has been convicted of a serious crime.
“I think the numbers are down overall, so I think we’re definitely seeing an impact statewide including Orange County…,” said Junck, who specializes in the immigration consequences of crime and delinquency, immigration enforcement, and immigrant youth issues.
But the action that lands the minors in the crosshairs of ICE in the first place – the sharing of their information by probation departments – has not been addressed, she said.
“The heart of this issue is largely unresolved at this point in time, which is why I think there has been dissatisfaction with community organizations such as Boys and Men of Color…,” said Junck.
“ I think the immigrant rights community will not be satisfied until those due process rights are upheld for all immigrant youth, not just some.”
In the past two years, the pressure on Orange County’s probation department has mounted as local youth advocates organized community meetings and vocalized their opposition to the department’s procedures.
“What our concern is that one [referral] is one too many,” said Abraham Medina, youth engagement coordinator for Santa Ana Boys and Men of Color.
The organization launched locally in 2012 to keep youth in school, out of the juvenile justice system and out of the hands of immigration authorities.
Medina has worked closely with the probation department on this issue. Despite the policy revisions, the current procedures are more harmful than helpful, he said.
“We just don’t find it logical to think that at any moment the best interest of the child is to be deported,” said Medina. “The probation department’s mission, because they’re working with juveniles, is to rehabilitate and we strongly feel that referring youth to ICE is against that mission statement.”
Like other youth advocates across the state, Medina has pressured the agency to follow the state law protecting a juvenile’s privacy. He said his organization will continue to campaign for that change.
“We believe this is an issue nationwide, so if we can set a precedent in Orange County hopefully we can also push for a national change in procedure and policy so that minors don’t have to fear being deported and parents don’t have to go through this unnecessary process,” said Medina.
Such practices have produced a generation of undocumented juveniles who form part of an invisible segment of incarcerated youth, primarily American-raised boys, but girls as well. In Orange County, where nearly 80 percent of minors in juvenile hall are Latino, a majority of the juveniles referred to ICE are Latino.
Torn from their families at a crucial time in their lives, the youth taken into federal custody are shuffled across the country from federal facilities to detention centers to group homes while the government determines what to do with them.
They are held for months at a time in facilities that are overseen and funded by the Office of Refugee Resettlement (ORR)— the federal agency responsible for the care and housing of unaccompanied minors who are detained by ICE.
Federal resources and taxpayer dollars are spent housing, schooling and treating the youth in these facilities.
However, the costs don’t reflect the price paid by the juveniles, most of whom the agency reunites with their families to await deportation proceedings after running the ICE and ORR gauntlet.
Cut off from their juvenile court-ordered rehabilitation programs, many return traumatized by the separation from their family and friends, and often feel a sense of displacement in their schools and neighborhoods, advocates say.
They are part of a lost generation of boys caught in a labyrinth of bureaucratic and legal uncertainty, living in limbo as they wait to return to their families or get deported.
Some probation officials with whom Junck has met have told her they weren’t aware that the youth they referred to ICE are often returned to their families and communities to await their fate.
Other probation agencies, such as Santa Clara County, have opted to implement starkly different practices by not referring any juveniles to ICE, she said, because it’s in the best interest of the youth.
“They just know that good juvenile justice practice means that you keep kids in the least restrictive environment, you keep them with their family and you focus on rehabilitation,” said Junck. “Everything about reporting to ICE and trying to deport kids contravenes that.”
Coming Wednesday: A clash between federal and state laws has created disagreement as to whether confidential juvenile information should be shared with federal immigration authorities.
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 [email protected].