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Contents © 1999
by Jim Holman.
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Robotic Injustice

IMMIGRATION SERVICE DETAINS CHILDREN

By Maggie Garcia

Though there have been many measures enacted to gain control of the borders and keep out illegal immigrants, immigrants continue to enter the United States. Because of the crackdown on illegal immigration by the Immigration and Naturalization Services (INS), often times whole immigrant families are caught in the immigration service's web. When this occurs, the families are then separated and children removed from their parents.

Children detained by the immigration service are housed in juvenile justice facilities, in spite of not being accused of a crime.

Because of the large number of children in INS detention and the conditions under which they are held, the Center for Human Rights and Constitutional Law brought a lawsuit against the U.S. Department of Justice -- Flores vs. Reno (1993). In Flores vs. Reno, a certified class action lawsuit, plaintiffs challenged the immigration service's practice of housing children in juvenile justice centers. Before the case could go to trial, the suit was settled by the immigration service. The settlement agreement stipulated that detained children would be placed in the "least restrictive environment."

In spite of the settlement agreement, however, the Center for Human Rights and Constitutional Law charges that the immigration service has not met all of the provisions of the Flores settlement agreement. In a September 16, 1998 letter to Arthur Strathern, general counsel of the Immigration and Naturalization Service, and John Pogash, the service's juvenile coordinator, the center outlined some alleged breeches in the settlement agreement. These include:

Discrepancies in the immigration service's figures that report the number of children housed at a juvenile detention center in Oregon. The juvenile facility states that many more children are housed there than is reported by the immigration service.

The housing of children at juvenile detention centers not due to their behavior, but because of an influx of immigrants. The Flores settlement allowed for children who are considered escape risks to be housed in medium security facilities, which emphasize close supervision, rather than in juvenile correction facilities.

The immigration service's proposed regulations setting forth standards for juvenile detention that would require a positive suitability assessment of an adult who seeks custody of a minor where it is apparent that the minor will not be reunited with his family. The center objects to the fact that the immigration service wants such an assessment to be conducted in all cases. In a letter to Arthur Strathern, General Counsel for the immigration service, the center points out that requiring such an assessment in all cases would impose an undue hardship. "There will be cases where an unrelated adult or entity proposing to care for a minor is unquestionably qualified to do so. Requiring a positive suitability assessment... will needlessly prolong the incarceration of children."

A 1997 juvenile detention report listing several children under the age of 12 who were held for long periods of time in juvenile justice centers. In essence these children where put in jail, in spite of their young age.

Following the Flores settlement agreement, in 1997 Human Rights Watch, an international advocacy group, released a report on the immigration service's detention of children. The report, Slipping through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service, documented the results of Human Rights Watch's investigation of children who are held in immigration service detention centers in California and Arizona. One of the report's authors, Michael Bochenek, told me that the immigration service typically picks up children through raids it conducts on work sites and on the street. Often times, the immigration service takes in children who are deemed neglected -- "the INS is the one to determine if a child has been neglected," said Bochenek. Because the immigration service is not a child welfare agency, the children are then held in immigration service facilities. But this is not without problems, Bochenek said. One of the concerns that Human Rights Watch has with the immigration service's detention of children is that the agency is charged with a conflict of interest because it is not only "charged with caring for them [the children] ... but [the children are] also arrested, imprisoned and frequently removed by the same agency."

Human Rights Watch and other advocates urge that the immigration service not be charged with caring for detained children but rather that the children be turned over to child welfare officials. In spite of the Flores lawsuit, Human Rights Watch and other groups contend that often children that are detained by the immigration service are still being housed in juvenile justice facilities.

Though there are a large number of children who are in detention, few groups are active in the issue of children in immigration service detention. Most of the time, families whose children are detained must contact private attorneys to help them resolve a problem with the immigration service. Even though a family may retain counsel, attorneys who represent immigrants find dealing with the immigration service frustrating. One immigration attorney who works in Los Angeles said that the immigration service's pursuit of immigrants is almost "robotic".

Andrew Vasquez, an attorney who works extensively with the immigrant community in Los Angeles and who does pro bono work for various immigrant rights groups told me about one particular case that he thought showed the rigidity of the immigration service. "There was this 15 year old kid who was on his way to Canada to see his uncle and the plane had a stop-over in Los Angeles. For whatever reason the immigration service decided to apprehend [the boy] and took him into detention. The boy's family hired counsel to rescue the boy. The boy's attorney argued that the boy had no desire to remain in the United States; if anything, this case should be Canada's problem. But the immigration service insisted on removing [deporting] the boy."

With the changes in immigration law, the need for advocacy groups who work on behalf of the rights of immigrants is growing tremendously. In response to this need, several Catholic groups are in the process of setting up projects that will aid children who are in immigration service detention. In Washington, D.C., the office of Jesuit Refugee Service told me in September that a children's rights project will be established in Los Angeles "in the next couple of weeks."

When asked for comment on the Human Rights Watch's report, Pogash referred me to the INS' public information office in Laguna Niguel. In response to questioning, the Public Information officer there, Bill Strassberger, faxed the 1998 statement that the immigration service had sent out when the report was first issued. This report states: "INS believes that the care of unaccompanied minor ... is one of the most sensitive and important of all its missions. We are committed to a juvenile detention program that provides a humane, safe and secure environment. In this instance, INS cooperated fully with Human Rights Watch ... regrettably, the report based on these visits does not accurately characterize the INS juvenile detention program..."

-- from the Los Angeles Lay Catholic Mission, November 1999

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