Hundreds of undocumented immigrant teenagers who “age out” of government shelters are placed in jails for weeks or months by U.S. Immigration and Customs Enforcement – merely for turning 18 years old.
But an analysis of thousands of pages in federal court records nationwide by Univision 41 Investiga shows that ICE’s policy is haphazard and possibly violates rules that specifically protect these young men and women.
These kids fled violence in their home countries and are seeking safety in the United States, but they often end up spending months in local jails. They start out as asylum seekers and end up as prisoners forced to live alongside much older adults accused of violent crimes.
Our investigation identified at least four cases in the New York City area that serve as a window into how ICE conducts these arrests. (Univision 41 WXTV is withholding the last names of some of these undocumented immigrants to protect them from possible retribution. They currently have ongoing immigration cases and could be forced to return to their home countries, where they would have to face MS-13 gangs or abusive family members whom they had fled.)
Some of their stories are told in lawsuits that are quietly filed at the New York federal courthouse and are not publicly available outside of that building.
For example, law enforcement documents detail how two brothers from Guatemala arrived in the United States. They tell the story of Antonio, a teenager in Guatemala who painfully watched as neighbors threatened and abused his severely mentally disabled older brother, Felipe. In late October last year, the brothers fled their hometown and traveled north through the deserts of Mexico. They arrived at the official U.S. port of entry in El Paso, Texas, where Antonio presented his birth certificate. He had $11 in his pocket and told Border Patrol officers that he had come to provide his brother a safe place to live. Although Antonio made clear that he had a sister in Chicago with whom he could stay, he was transferred to the Lincoln Hall Boys' Haven north of New York City.
To his misfortune, he arrived there the night before his 18th birthday.
Antonio was woken up the next morning at 5 AM and placed under arrest, according to a lawsuit filed against ICE by public defense lawyers representing him. He was "not allowed to wash his face or brush his teeth and to his shock, he was placed in handcuffs," the lawsuit states. He spent the next four months at the Hudson County Correctional Facility in Kearny, New Jersey. He was eventually released and now lives in Chicago with his sister, he told Univision 41 Investiga. He declined to speak further out of fear.
Undocumented kids seeking the safety of asylum in the United States stay in shelters until the government approves a sponsor -- usually a family member. But shelters are only allowed to care for minors. If these young men and women don't get placed with a sponsor before they turn 18, they fall under ICE custody. Often, that means jail.
"The thing is, this doesn't need to happen. There's a law that protects these kids," said Michelle Quintero Millan, a lawyer who has represented unaccompanied children in Texas and now works at the public service group Brooklyn Defender Services.
She is referring to the Trafficking Victims Protection Reauthorization Act, which Congress passed in 2008 with wide, bipartisan support. That law says that an unaccompanied immigrant child in the custody of Health and Human Services, which runs shelters, remains protected when they reach 18 years old. DHS, which runs ICE, is supposed to "consider placement in the least restrictive setting available." If the person is at risk of disappearing to avoid court dates or they are a danger to the community, that could mean jail. But the law is supposed to make sure that children who "age out" of a government shelter at 18 do not end up in a place that will harm them.
In reality, ICE has even targeted teenagers who already had a potential sponsor in waiting.
For example, Edgar is another immigrant who fled Guatemala. According to a lawsuit reviewed by Univision, Edgar was 13 when his mother died and he was forced to quit school and start working in cardamom fields to support his younger brother and sister. After years of alleged abuse by his alcoholic father -- and facing threats from local gangs who targeted him because of his Christian beliefs -- he fled at 17 years old last fall. He too presented himself at the port of entry in El Paso, Texas. He was placed at The Children's Home in Kingston, New York.
Within a few weeks, he connected with a local pastor who agreed to sponsor him. But just a month later on his birthday, December 14, two ICE agents arrested him and took him to New York City. Edgar spent the next three months at the Bergen County Jail in New Jersey. After a public defense lawyer filed a lawsuit on his behalf, Edgar was released. He now lives with the pastor, Erick Mercado, who declined to speak about the case with Univision 41 Investiga.
It’s unclear how many teenagers ICE has jailed under this policy. However, testimony by the ICE employee who oversees the agency’s detention program reveals that the practice is widespread. According to a deposition of Mellissa Harper, chief of ICE’s juvenile and family residential management unit, since 2016 the agency has jailed “around 60 percent or so” of the teenagers who “age out” while at a government shelter.
ICE started a new, more accurate tracking program at the end of 2018, allowing them to more closely record actions. In just over three months, from October 17, 2018 until January 30, 2019, ICE recorded that 581 kids "aged out," and 154 of them were "detained." However, these numbers are confusing, because ICE also claims that it "released" 419 teenagers. The agency did not explain to Univision how it could release someone who had not been detained.
Before placing someone in jail, the agency is supposed to consider a person's criminal history and the likelihood that they will disappear from law enforcement's radar to avoid immigration deportation hearings. But the ICE unit chief's testimony revealed how the agency will jail teenagers who have not committed a crime and are actively trying to seek a family member or sponsor with whom they can stay. In court documents, Harper gave 19 examples of teenagers who remained in jail at the end of March. But nine of them had committed no crime. Four of them had only days to find a sponsor before they turned 18 and were arrested. And one of these teenagers was put in jail because he was deemed to be suicidal. ICE determined that the least restrictive and most appropriate place for him was a jail in Washington State.
Univision 41 Investiga has also discovered at least one instance in which ICE jailed an "age out" who had long been with his family already. Ramon Alberto Arevalo Lopez fled gangs in El Salvador at 17 and reached the U.S. border a few weeks before Christmas 2016, according to a lawsuit he later filed. He was quickly released to his mother on Long Island, and he spent the next 10 months with her at home. He was a ninth grade high school student when ICE decided to jail him on October 24, 2017. He spent the next seven months at Bergen County jail until U.S. District Judge Robert W. Sweet issued a sternly worded opinion that put it clearly: "A birthday shall not result in detention."
He "has suffered constitutional and statutory violations as a result of his prolonged re-detention without process," the judge wrote.
However, that opinion happened at the trial court level and does not create precedent in the area or nationwide, explained Alexandra Lampert, another immigrant-representing lawyer at Brooklyn Defender Services. She did not work on Lopez's case, but does have similar cases in the district.
Univision asked ICE why it continues making birthday arrests in New York months after this opinion, but the agency did not respond to that question. Instead, ICE acknowledged to us that the law indeed states that the agency "is required to consider the least restrictive setting available and to consider alternatives to detention." It did not, however, explain why it so frequently sends teenagers to jail.
"I don't know what the purpose is. But it appears that the idea is to detain as many kids as possible to punish them," said Quintero Millan.
She and five other attorneys who represent "age outs" say ICE is neglecting its responsibility to review each case individually and place the teenagers in "the least restrictive setting available."
Some cities are worse than others for these teenagers. Information obtained by lawyers who have filed a class action lawsuit against ICE and represent these jailed immigrants describes how ICE action varies wildly by city. Agents in San Antonio, Texas have jailed 4% of those who "age out" of a shelter. The figure is remarkably higher at 97% in Houston, Texas, and 95% in Miami, Florida. In these and other cities, almost every undocumented person at a shelter is arrested merely for turning 18. In court documents, ICE provided no explanation why immigrants in one city are treated so differently from those in another.
And if this policy were the right one, it would be consistent across time. But in reality, it's not. After a lawsuit was filed demanding answers from ICE, Chicago went from jailing 90% to jailing only 10%. A small town in Texas went from jailing almost all teenagers to jailing none. In court documents, attorneys representing these kids said they were told by local ICE operations that arrests decreased merely as a response to the lawsuit.
ICE relies on local jails to detain these young men and women, and these detention centers get reimbursed for that service. In the New York area, at least three jails receive this revenue. Univision 41 Investiga received copies of the contracts between counties and the U.S. Marshals, even though one county refused to share this document and another did not respond to our inquiry. The Orange County Correctional Facility in New York State earns $134 per day for each prisoner. Hudson County in New Jersey earns $120. And though Bergen earns $110, the least of the three, it managed to make $16 million dollars last year and is on track to make the same again this year. (The Bergen County Sheriff was the only one willing to provide transparent information.)
Pro-immigrant protesters in New Jersey have rallied against these contracts, arguing that local government should not profit from the suffering of incarcerated individuals -- especially when these local governments are run by seemingly progressive Democrat politicians.
But the attorneys representing these detained teenagers warn that stopping these jails from detaining undocumented immigrants will only make things worse for them, because it could delay their release. Teenagers arrested on their birthdays in New York shelters typically file their lawsuits in the city and are represented by the many defense lawyers available here. If nearby jails stop housing them, they may get transferred far away -- and forced to stay in jail longer.