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DHS: Our Policies Result in Torture of Immigrant Children in Border Patrol Custody

A typical border patrol holding cell, commonly known as an

A typical border patrol holding cell, commonly known as an “hielera” or “Icebox” in English.

In a sworn affidavit dated February 27, 2015, Chief Border Patrol Agent for the Rio Grande Valley in South Texas, Kevin W. Oaks,  admitted to several policies that result in torture of children in border patrol’s holding cells.

The affidavit was filed by DHS in defense of Plaintiffs’ motion to enforce the Flores Settlement, which is close to a resolution in favor of all of the children victims.

In a separate filing, DHS admitted that the average time unaccompanied children spent in Border Patrol custody from March 1, 2014 to July 31, 2014 was 112 hours, or 4.6 days:

The Oaks affidavit fully corroborates the stories of hundreds of our unaccompanied minors, who suffered unspeakable horrors due to their detention in border patrols holding cells. Here are links to two accounts of our clients.

The worst is that of our 8 year old client, who was detained extremely cold holding rooms for 15 days with nothing to sleep on but the concrete floor.

An analysis of the actual conditions in border patrol holding cells compared to Oaks declaration and its own internal policy reveals that DHS has  intentionally created extreme conditions where virtually all children held in custody are deprived of fundamental constitutional rights such as food, clothing, water, and sleep.

In a policy memorandum dated June 2, 2008, the Chief of border patrol at the time, David V. Aguilar, issued a series of directives related to juvenile hold rooms. Section 6.24.6 states that all juveniles detained longer than 24 hours will be given access to basic hygiene services, a blanket, and mattress.The following section, 6.24.7, states that all hold room used for unaccompanied children must provide access to mattresses and a blanket, as well as adequate temperature control and ventilation; and meals which must be offered every six hours. 

Oaks declared stated in his affidavit that “In certain circumstances, aliens who are in Border Patrol custody may require some form of bedding” and that in the summer of 2014, mylar blankets were provided in “certain circumstances.” Oaks does not claim that children in border patrol custody are provided with mattresses. In fact, the vast majority of our children clients who have been in the holding cells have stated that there were no mattresses and that they had to try to sleep on the concrete floor. A small minority of our children clients reported than thin foam cushions were available to lay down on.

As such, Oaks admits that border patrol has and continues to blatantly ignore the directive that all children be provided with mattresses.

Oaks also stated in paragraph 20 that “In general the temperature in a Border Patrol station is maintained at a comfortable temperature, although, in my experience, those who are not accustomed to air conditioning at times find it cooler than they are accustomed to.”

In response to our freedom of information request, the Office of Inspector General (“OIG”) of DHS, released the recorded temperatures at border patrol stations in the Rio Grand Valley from visits in July of 2014. At one station, Fort Brown, the temperature in the holding rooms for juveniles was recorded at 50 and 56 degrees fahrenheit on two separate occasions. 50 degrees in air conditioning cannot be comfortable.

Again, the vast majority of our clients report that the holding cells were so cold that they were constantly shivering. Some children report that the temperatures are so low that their lips turn blue. Oaks is outright misrepresents the accounts of hundreds of our unaccompanied children clients and thousands more across the country: the temperatures in border patrol cells are far from comfortable: they are bone-chilling.

Another common horror experienced by children in border patrol detention is that the cells are so packed with people that there is not even enough room to lay down and that there was only one toilet for 100 plus individuals.

Oaks claimed that “hold room capacity for any room requires sufficient space and the appropriate number of toilets for the occupants it is designed to accommodate.”

Not surprisingly, the category “Staff-to-Uac ratio”–which would provide a concrete number of how many children were placed in each border patrol station on the day of inspection–on the OIG checklists were redacted. Oaks evaded the obvious: border patrol holding cells are often so overcrowded that the depravity of the cells is exacerbated even more by preventing children from even being able to lay down on the concrete floor.

Lastly, the OIG checklists itself raises troubling questions as to whether the OIG is wholly beholden to the leadership at DHS and at the White House.

Why does the checklist omit crucial requirements that border patrol must follow according to its own internal policy, such as mattresses and basic hygiene articles?

How does the OIG affirm that each border patrol is providing meals every six hours when the agent only visited at one specified hour in the day? Did the OIG agents spend 24 hours or longer at each inspection? Were border patrol stations given any advanced notice of the OIG’s inspections?

Why did the OIG only begin to inspect border patrol stations after the surge of children was already declining? The highest volume months in 2014 for unaccompanied minors were April, May, and June, in which 7,709; 10,585; and 10,631 unaccompanied minors were apprehended. In July, the month of the OIG inspections, the number dropped precipitously to 5,515.

When accountability was needed most, the OIG was a no show.

Whatever the final outcome of the Flores litigation is, all the parties involved need to implement siginificant reforms to the settlement to prevent DHS from its decades-long violations of childrens’  fundamental Constitutional rights.

When the agency in charge of preventing DHS misconduct is beholden to the leaders that are responsible for the misconduct, punitive measures for violation of the settlement–including a right to an aggrieved juvenile to termination of removal proceedings with prejudice–must be part of any eventual agreement.

Here is the affidavit:

1. I am the Chief Patrol Agent for the Rio Grande Valley Sector of the U.S. Border Patrol (USBP), U.S. Customs and Border Protection (CBP). I have been employed in this capacity since April 6, 2014. I have been a Border Patrol agent for 30 years. In my capacity as Chief of the Rio Grande Valley Sector, I am responsible for executing the mission of the Department of Homeland Security (DHS), CBP as a whole, and also that of the Border Patrol within the Rio Grande Valley Sector. Our mission includes facilitating the flow of legal immigration and trade while preventing the illegal trafficking of people and contraband.

2. I make this declaration on the basis of my own knowledge, as well as the documents and the information made available to me in my position.

3. The Rio Grande Valley (RGV) Sector is comprised of nine Border Patrol stations: Brownsville, Fort Brown Station, Weslaco, Harlingen, McAllen, Rio Grande City, Falfurrias, Kingsville, and Corpus Christi, Texas. I oversee all nine stations within the RGV Sector and am responsible for the oversight of more than 3,000 agents and support personnel combined, who work to secure 316 borderlzone miles and 317 coastal miles. I have oversight of the day-to-day law enforcement operations of U.S. Border Patrol in the RGV Sector including the apprehension and processing of aliens.

4. As part of my responsibilities, I also oversee the RGV Centralized Processing Center (CPC). The RGV CPC consists ofCPC-Ursula (short-term holding only), CPC-McAllen (McAllen Station processing area), and Weslaco Station (Weslaco Station processing area when operationally required). The CPC is an integral part of the RGV Sector’s strategy to develop a more efficient way to process all categories of aliens. CPC-Ursula currently has the ability to hold 1,000 detainees, with the ability to provide services associated with the care and temporary custody of children and families. These services include hot meals, showers, child monitors, and laundry services, among others.

5. I am familiar with the policies and procedures that govern the apprehension, processing, and temporary detention of aliens. As Chief, I am responsible for ensuring that those policies and procedures are implemented and adhered to on a daily basis.

6. Although I am the Sector Chief for the RGV, the policies and procedures discussed are implemented nationwide, and are not generally limited to the RGV.

7. Statistically, the RGV Sector sees more unaccompanied alien children and family units than any other Border Patrol sector.

8. Once a Border Patrol Agent encounters an individual the agent believes to be an illegal alien, the agent will first establish alienage and determine if the alien is a minor. Once the initial questioning is completed in the field, the alien is brought to a Border Patrol station for further processing.

9. If a Border Patrol Agent encounters an individual, regardless of alienage, who presents signs of an emergent medical issue, the Border Patrol Agent will render first aid if necessary and coordinate transportation of that individual to the appropriate medical center.

10. Once at the station, an agent or a medical contractor (depending on availability of contract medical personnel) will conduct a preliminary health screening. The purpose of the preliminary health screening is to determine if the alien has any serious contagious diseases, outward signs of illness, or complains of any illness or discomfort. If the alien displays any symptoms of illness/serious contagious disease, or complains of illness that may require medical care, the alien is taken to the appropriate medical facility, normally the local emergency department. However, if the alien is at a Cl’C facility the alien may be seen by a contract medical provider for an initial screening to determine if additional/emergent medical care is required.

II. If the medical issue presented at a Cl’C facility is one that can be addressed by a contract medical provider, such as lice, scabies, insect bites, fever, upper respiratory infections, ear and eye infections, minor scrapes/cutslbruises, body aches, or pregnancy testing, those issues will normally be addressed by the contract medical provider. Any medical issues that cannot be addressed by the contract medical provider at a Cl’C facility are still treated by the appropriate medical facility, normally the local emergency department.

12. After the initial health screening, aliens are normally separated by age and gender. However, every effort is made to keep young children with their parents. Moreover, Border Patrol Agents provide any reasonable opportunity for contact between family members who may be separated based on age or gender. Separation of family units is sometimes required in order to ensure the safety and security of all of those who are being held by Border Patrol.

13. Once in custody, aliens’ biographic information and biometrics are collected and record checks are run through eBP and other law enforcement systems. In connection with processing, aliens are questioned individually by a Border Patrol Agent on issues related, for instance, to their biometric and biographic results, ability to lawfully enter or remain in the United States, as well any fear of returning to their country of origin. Ultimately, aliens are then classified and processed consistent with DHS’s priorities and the governing legal framework.

14. Border Patrol stations are not designed for long-term care and detention. Every effort is made to promptly process, transfer, or remove those in custody as appropriate and as operationally feasible. As such, Border Patrol policy requires agents to seek to process and transfer all aliens within twelve (12) hours.

15. Border Patrol policy mandates that each facility be kept safe, secure, and clean. The size of hold rooms at Border Patrol stations varies. However, hold room capacity for any room requires sufficient space and the appropriate number of toilets for the occupants it is designed to accommodate. Typically a hold room is constructed of impervious materials that can be easily cleaned and are hygienic. Supervisors are required to ensure that each cell is regularly cleaned and sanitized.

16. In order to ensure the safety of detainees, there are cameras that monitor each hold room. These cameras provide agents the ability to visually inspect the hold rooms, although they do not provide sight lines to the toilet facilities. The agents will also visually check each hold room approximately every 15 minutes. There are no trashcans in the hold rooms for safety reasons. Trashcans are considered to be safety hazards, as they may be used as a weapon.

17. eBP’s Facilities Management and Engineering (FM&E) and the General Services Administration (GSA) fund custodial staff to regularly address sanitation needs and any required maintenance of the holding areas.

18. As for privacy concerns, and like any other detention-like setting, Border Patrol cannot guarantee absolute privacy. Hold rooms are designed to have no exterior windows. But, allowing locked or closed doors would be a safety and security concern. The hold rooms instead employ screen walls by the bathroom to address privacy needs. These screen walls allow for an environment in which detainees, especially children, can be monitored and protected.

19. Similarly, the lights remain on at all the time while detainees are in Border Patrol custody for security reasons and due to operational necessity. Border Patrol stations are 24/7 facilities, and there may be agents arriving with newly apprehended aliens at all hours of the night. The agents must be able to maintain visual control over the holding cells to ensure the safety and security of the detainees.

20. In general the temperature in a Border Patrol station is maintained at a comfortable temperature, although, in my experience, those who are not accustomed to air conditioning at times find it cooler than they are accustomed to.

21. In certain circumstances, aliens who are in Border Patrol’s custody may require some form of bedding. During the summer of2014, Border Patrol began using, in certain circumstances, mylar blankets. In the RGV sector, as well as in certain other localities, the use of these blankets was necessary in order to provide cost effective bedding which did not require routine laundering (which can be operationally challenging) and did not transmit communicable diseases such as lice or scabies.

22. Processed unaccompanied alien children who are not placed locally in the Rio Grande Valley by the Department of Health and Human Service’s Office of Refugee Resettlement, as well as individuals who are part of family units that have completed their Border Patrol processing but are pending a determination on whether detention is appropriate, made by Immigration and Customs Enforcement, may be transferred to CPC-Ursula. This transfer is intended to segregate this population from the large population of Border Patrol detainees that may include criminal aliens. At CPC-Ursula Border Patrol provides additional services including showers, clothing, hot meals, medical, laundry, television, and age appropriate toys. CPC-Ursula also serves as a centralized collection point for the transfer of this population to ORR and ICE.

23. CPC-Ursula is a facility designed for the short-term detention of aliens and is not intended to provide long-term care. However, where individuals may need to be held for a period between 12 – 72 hours, it provides additional services as noted in paragraph 22.

24. At CPC-Ursula, all of the policies and procedures for Border Patrol, including for treatment of those detained by Border Patrol, continue to apply.

25. I have learned, based on information and documents available to me in my position, that prior to the increase in family residential facilities for detention by ICE, family units apprehended by Border Patrol, particularly those by Border Patrol in the RGY, claimed that a principal motive for entering the United States was to take advantage of the “permisos” that the United States was granting to family units. The term “permiso” in this context is used to refer to a Notice to Appear which permits aliens to depart the Border Patrol station without detention.

26. Based on information and documents available to me in my position as Sector Chief, I understand that aliens who have been apprehended by RGY Border Patrol Agents since the availability of family unit detention by ICE increased in July 2014 have indicated that they learned from family members, media, and other means that the United States was no longer providing “permisos.” Family units apprehended by RGY Border Patrol have indicated that others of whom they are aware in their home countries have chosen not to come to the United States because “permisos” are no longer being issued.

27. I have also learned that family units who have been apprehended by Border Patrol Agents in the RGY Sector in July 2014 were under the impression that the United States government was only going to issue “permisos” to individuals prior to some end date of June or July 2014. While this impression was incorrect, it speaks to the understanding of the family units that detention, and the ability to simply depart a Border Patrol station, factor strongly into their determination on when and whether to attempt to cross into the United States.

28. Based on my experience as a Border Patrol Agent, the use of detention has historically been effective at deterring aliens (specifically aliens from countries other than Mexico) from entering the United States through the South Texas region. For example, in 1989 when there was a dramatic increase of Central American aliens illegally entering the United States, the former Immigration and Naturalization Service detailed staff to South Texas, opened temporary detention camps, and instituted a one-day expedited review of asylum applications, which dramatically reduced the average daily apprehensions of non-Mexicans along the Texas border. Similarly, in 2005, when the RGV Sector was experiencing an influx of Brazilian nationals, the implementation of expedited removal with detention quickly and significantly reduced the number of Brazilian nationals illegally entering the United States.

29. Consistent with the information contained in paragraphs 26 and 27, Border Patrol apprehension statistics demonstrate that, year-over-year, there has been an approximate 16% reduction in family units apprehended in the RGV Border Patrol Sector. Moreover, from July 10,2014 until the present, there has been an approximate 63% reduction in family units apprehended in the RGV Border Patrol Sector as compared to the period between December 1,2013 to July 9,2014.

Pennsylvania Governor: Children free to leave Berks County Residential Center

This letter below is in response to a letter we wrote requesting the Pennsylvania (“PA”) State government to revoke the license it issued for the Berks County Residential Center (“BCRC”) given that it detains children in violation of numerous sections of the Pennsylvania law regarding child welfare.

As you can see, the PA government clearly states that there is nothing that should prohibit children and their families from freely leaving the BCRC.

As such, it is a mystery that no children or mothers have been allowed to leave the BCRC freely. It may have something to do with all of the locked doors and guards preventing the children and mothers from leaving the BCRC.

Given that there are in fact locks and guards preventing children and their mothers from leaving BCRC, the PA government will have to revoke the BCRC’s license and shut it down.

“Dear Mr. Johnson:

Thank you for your March 23, 2015, letter to Ms. Roseann Perry and Governor Tom Wolf regarding children housed at the Berks County Residential Center (BCRC). My office regulates child residential facilities, and Governor Wolf has asked me to respond.

On February 18, 2015, the Bureau of Human Services Licensing conducted a full licensing inspection of BCRC. At that time, the center was in substantial compliance with regulatory requirements and met all conditions for licensing under 55 Pa. Code Chapter 3800 (relating to child residential and day treatment facilities). Consequently, a license was issued effective February 21, 2015 to February 21, 2016.

During the renewal inspection, our regulators confirmed that BCRC is not operating as a secure care facility and has no locks preventing resident children or their families from gaining egress from the building. In addition, there were no children present at the facility who were not accompanied by a parent or other adult guardian.

I appreciate your concern for the health, safety and well-being of these children and families, and I hope this information is helpful to you. If you have any additional questions or concerns, please feel free to contact Mr. Matthew J. Jones, Director, Bureau of Human Services Licensing, at…”

Obama’s Central American Refugee Program Is A Dangerous Fraud

Just in time for the peak season for migration to the United States, President Obama appears to be pushing his recently formed in-country refugee/parole program for Central American children.

The program is a fraud.

At the same time the administration is claiming that the program is “necessary to prevent children from risking their lives to cross the border and protect them from exploitation by smuggling networks”, it is working hard with the Mexican government to deport children caught in Mexico en masse back to harm in Central American

In 2014, Mexico deported 18,000 Central American children back to their native countries, a 55 % increase from the 8,350 deported in 2013, according to the Washington Office on Latin America (“WOLA”),

In January of 2015, President Obama applauded Mexico’s efforts, stating that:

“I very much appreciate Mexico’s efforts in addressing the unaccompanied children who we saw spiking during the summer. In part because of strong efforts by Mexico, including at its southern border, we’ve seen those numbers reduced back to much more manageable levels.”

In other words, the United States’ principal solution to prevent children from Central America from making the dangerous trip to to the United States is to make it even more dangerous through aggressive interdiction and deportation.

The Obama administration is using the Mexican government as a proxy to circumvent U.S. law so that it can advance its political agenda to not appear soft on illegal immigration. Worse, Obama is trying to muddy the waters by falsely asserting that the new in-country program will have a significant impact on ensuring the safety of children who desperately need to escape to the safety of the United States.

The maximum amount of children who will be allowed into the United States as refugees or as parolees is 4000 per year. How ironic that some of the children who request refugee status in-country will also have been deported from Mexico in the past.

Worse, the program has been 100 percent useless thus far. Although the State Department began accepting applications starting in December of 2014, not one child has been admitted to the United States to date.

The complete and utter failure of the program to address migration of children to the United States in 2015 and beyond was by design. In a November 2014 announcement detailing the procedures on how to apply, the State Department admitted only a small number of children would be admitted in FY 2015 because of how long the refugee process takes.

If the U.S. government was really concerned about the safety of children in the war-zones of Central America, it would have implemented an expedited parole system in which children are able to escape immediately. Instead, rigorous anti-fraud measures are taking precedence, such as DNA testing to ensure that the child really does have a biological parent living in the United States.

Even more disturbing is that the enhanced deportation efforts of Mexico have made the already-dangerous trip through Mexico even more dangerous.

WOLA reports that migrants are now less visible and further away from the few human rights activists in Mexico who provide support and protection from the criminals who prey upon the migrants.

Additionally, there are “concerns that enforcement operations are taking place with little regard for due process, that soldiers are participating in the operations, and that agents have used violence to detain migrants.”

Bill Frelick of Human Rights First said it best in an interview with NPR, stating that the program “is a pretext for denying asylum to those people who arrive irregularly. It’s a pretext for preventing them from leaving Honduras or El Salvador in the first place. It’s a pretext for interdicting them in Mexico and pushing them back with the idea that, oh, you know, there’s this legal mechanism here.”

What was the State Department officials response to Mr. Frelick’s concern that the program does not protect virtually any Central American children who face imminent harm or death in El Salvador or Honduras?

Even if a child is certain or likely to be killed, raped, or harmed in their home country,  the State Department official, Simon Henshaw, said: “Nothing is more dangerous than taking that illegal trip through Mexico – nothing.”

Tell that to our clients who have almost been killed in their country. Tell that to our clients that have been raped or sexually abused. Tell that to our clients who have witnessed multiple homicides in their country yet were not harmed at all on their trip through Mexico. 

Tell that to 13-year-old girl that was found strangled to death with signs of torture in March of this year in Honduras.

Tell that to 31 victims in El Salvador who were murdered just this past weekend, including a children of 16, 13, and 12 years old who were shot to death in El Salvador.

Tell that to the 148 Guatemalan children who were murdered in the first 2 months of 2015.

Request To Texas Rangers For Arrest of Persons Unlawfully Detaining Migrant Children in Dilley and Karnes City

Children Detention Camps in Texas violate section 54.011(f) of the Texas Family Code.

Community Activists and attorneys call for immediate enforcement of code and arrest of all individuals who are in direct violation of the code by detaining immigrant children in Texas

For immediate release:

Austin, TX – April 3, 2015  – A group of attorneys from various parts of the country who have represented or advocated for children detained by ICE submitted an arrest request to the Office of the Attorney General of Texas and the Headquarters of the Texas Rangers on April 2, 2015. The request calls for the immediate arrest of all individuals engaged in assisting and/or detaining children at the South Texas Family Residential Center (STFRC) and the Karnes County Residential Center (KCRC).

Section 54.011(f) of the Texas Family Code states that “any person who knowingly detains or assists in detaining a nonoffender – defined as any child who has been taken into custody as is being held solely for deportation out of the United States – commits a Class B Misdemeanor.”

The Government of the United States has made it a priority to detain asylum-seeking migrant children and their mothers. The newest detention facility was opened in Dilley, Texas in December of 2014 in order to increase the government’s capacity to detain and deport migrant children.

Recently, both STFRC and KCRC have been the focus of various investigations, neither of the centers are accredited and numerous reports of sexual abuse have emerged from KCRC. Two weeks ago, a detained mother attempted to commit suicide when she learned that her bond amount was too high and she would not be able to afford it.

Currently, 78 women detained at the KCRC are undergoing a hunger and work strike to call attention to the horrendous prison-like conditions under which they are forced to live with their children. One of the parents described Karnes as a “prison for children”. The mothers are asking for immediate release given that most of them have passed credible-fear interviews but have either been refused bond or given bond amounts that are too high.

This is the link to the request submitted by the group of attorneys who affirm that KCRC and STFRC are in direct violation of the Texas family Code and that all individual involved in running both of these detention centers must immediately be arrested and charged according to the law.

For more information contact: Bryan S. Johnson, Esq. Bryan@amjolaw.com, 631-647-9701.

Our Request to Chief Judge Lippman: Stop Partisan Politics Against Vulnerable Immigrant Children

Below is our request to Chief Judge of New York, Jonathan Lippman, demanding that the New York Court System cease its partisan efforts to weaken the federal law known as Special Immigrant Juvenile Status, which is designed to protect vulnerable immigrant children from being deported to harm in their native countries.

Instead of maintaining the best interests of the children that come before its courts, the New York Court System is currently focusing on how to make it more difficult for children with little resources to obtain desperately needed protection in the United States.

The best interests of children–not politics–should be the focus of New York State Family Courts.

RE: Request to Cease Partisan Political Activities To Weaken Federal Statutory Protections for Vulnerable Children Seeking Special Immigrant Juvenile Status

Dear Honorable Chief Judge Lippman:

We are attorneys who represent over 200 unaccompanied minors. We write to express our deep concern over the New York State Court System’s involvement in partisan politics by seeking to severely restrict or eliminate Special Immigrant Juvenile Status.

Pursuant to the Judicial Code of Conduct Section 100.5(A)(c), a sitting judge shall not directly or indirectly engage in any political activity, except for “measures to improve the law, the legal system or the administration of justice.” Prohibited political activity includes “engaging in any partisan political activity.” Recently, the court system has on numerous occasions engaged in partisan politics.

On March 4, 2015, NBC released an article detailing concerns that members of the Punjabi immigrant community brought fraudulent cases in the Queens County Family Court and abused a remedy called “Special Immigrant Juvenile Status,” which was designed for immigrant children who cannot be reunited with one or both of their parents due to abandonment, neglect, abuse or a similar basis.[1]

Despite no allegations of fraud outside of the Punjabi community, the Department of Homeland Security (“DHS”) began an investigation into the Queens, Nassau, and Suffolk Family Courts.  Incredulously, the New York State Court system has called for SIJS to be severely limited and/or eliminated, a political call-to-arms which threatens the best interests of hundreds of immigrant children who would be left without protection.

Specifically, on March 5, 2015, David Bookstaver, speaking on behalf of the Chief Judge of New York State, Jonathan Lippman, reached out directly to federal Congressional officials to modify the federal law regarding special immigrant juveniles by stating to NBC News Reporter Melissa Russo that “We’re looking to the federal government to help us out and to see if there is a way to close the loophole,” referring to SIJS as a “loophole” rather than a law designed to protect children victims of abuse, abandonment and neglect.[2]

On March 14, 2015, the New York Court System’s request was answered: Chairman of the House Judiciary Committee, Representative Bob Goodlatte, told NBC News that he would explore options of investigating the alleged conspiracy to commit fraud to obtain special immigrant juvenile status. Mr. Goodlatte stated that it was apparent that word had spread that it was easy to game the system.[3]

On March 19, 2015, Mr. Goodlatte directed Jeh Johnson, Secretary of the U.S. Department of Homeland Security (“DHS”) to “immediately direct the Fraud Detection and National Security Directorate at USCIS to conduct a Benefit Fraud Assessment of the current SIJ program and to determine what steps can be taken to prevent fraud in the program.”[4]

Mr. Goodlatte also asked DHS Secretary Johnson “What, if any, statutory changes do you suggest to give you additional tools to ensure that fraudulent SIJS petitions are not approved by USCIS adjudicators.”

On July 17, 2014, Congressman Goodlatte introduced H.R. 5137, the “Asylum Reform and Border Protection Act.” HR 5137 would gut the current SIJS status in place requiring that a child demonstrate that reunification with both parents is not viable to abuse, abandonment, neglect, or a similar basis under State law.  This would lead to mass deportations of children given the federal government’s prioritization of the juvenile docket.[5]

Family Court Judge John Hunt spoke on camera to NBC News reporter Melissa Russo and made several comments that demonstrate he wants a change in federal legislation to make it harder for children to obtain special immigrant juvenile status.

Judge Hunt said that the SIJS process is “faulty” because “It’s a one sided proceeding. There is no way to investigate it yourself. It makes us take what they say at face value.”  Judge Hunt went on to express concern that the SIJS statute “could result in children flocking here to get the benefit of it and at the same time expose themselves to danger and expose themselves to criminal elements.”[6]

Judge Hunt’s dehumanization of immigrant children, by comparing them to birds, and resort to the political “floodgates argument” is improper.  His statement shows that he is against the underlying policy of SIJS, not allegations of specific children or attorneys exploiting the existing SIJS statute.

In all cases in Family Court, the judge must rely heavily on sworn testimony of parties and witnesses.  Judge Hunt’s complaint against the one-sided proceeding, because the cases are often uncontested by the abandoning and/or abusive parents, would seem to prefer that there be an advocate against the children in Family Court.  This runs counter to the Family Court’s supreme duty to act in the best interests of the children.

Clearly, fraud is a very serious concern.  Judges in Family Court, like all judges, have the challenging tasks of assessing the credibility of litigants, through their testimony and demeanor.  In the Family Court context involving children, it is particularly difficult because children often cannot provide any documentary proof that they were abandoned or abused.  For that reason, an attorney for the child is often appointed, at times to perform a home investigation, look into the veracity of the case, and confer privately with the child.

Mr. Bookstaver, the New York Court Spokesperson, stated that Hunt “hit the nail on the head, we are not equipped to deal with this,” referring to special immigrant juvenile cases.  Bookstaver went on to state that the “additional caseload” caused by SIJS cases “does not belong in family court.”

The process of SIJS is currently in place precisely because the Family Court is best equipped to determine the best interests of a child, whether a child should be placed in a guardianship or custody situation, and to make findings of abuse, abandonment or neglect.  It is precisely because DHS is not the proper adjudicator of such issues, that it relies on determination of Family Court Judges who are specialized in dealing with such issues.  The federal government has no institutional expertise on child welfare issues.  There is no federal family court, or federal child protective services.  The Family Court’s caseloads, which increased due to the increase of children coming to the United States in 2014, do not eliminate their obligation to the children.

The New York State Family Court System has already concretely acted to weaken the due process protections for children with undocumented individuals in the household based on no evidence but hearsay to back its decision.

In a March 19, 2015 report from NBC News, the New York Court Spokesperson responded to allegations that the some guardians and household members were not providing sufficient identification to be fingerprinted. Instead of clarifying that the fingerprint process is not required, by law, for Letters of Guardianship to be issued, the New York Court System stated that although “we hoped to avoid turning away people who needed the court’s help. Now we are aware that there may be a scam and we need to raise the bar.”

As you may know, Section 205.56 of the administrative rules for New York Family Court authorizes—but does not mandate—family court judges to order the probation service or other disinterested person to conduct investigations to aid the Court in determining custody of minors and appointing guardians of minors.[7]

The fingerprinting procedure is part of the investigation as permitted by Section 205.56. As most Family Court judges affirmatively order investigations that include fingerprinting of household members.  The refusal of the Family Court to fingerprint members therein without sufficient identification would act as an absolute bar for that child from access to the court and would raise serious constitutional issues of due process and lack of access to justice based on national origin and race.

Chief Judge Lippman and Family Court Judge Hunt have asked for and received significant changes in the adjudication of special immigrant juvenile-based guardianship and custody petitions.  Without any evidence of fraud, the court system is now actively cooperating with DHS to allegedly investigate children committing fraud to obtain the protection of SIJS.

The Court system has not expressed any concern on whether its myopic focus on alleged fraud could result in the exclusion of children who do in fact qualify for SIJS and do in fact desperately need it.  We are unconditionally dedicated to maintaining the ethics of our profession and have obtained SIJS for hundreds of immigrant children, all of whom were neglected, abused or abandoned and who desperately needed the protection of an adult caregiver.

We respectfully request that the New York State Court System cease its involvement in partisan politics.  The official statements made by representatives of the NYS Court System have severely jeopardized SIJS, the purpose of which is to protect vulnerable children in the United States.  Such activity is prohibited under the New York Rule of Judicial Conduct Section 100.5, which is not designed to improve a law, but to move the government to repeal or several limit a statute that benefits children.

Thank you for your attention to this important and urgent request.

Very Truly Yours,

Bryan S. Johnson, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Bryan@amjolaw.com

Ala Amoachi, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Ala@amjolaw.com

 

CC:

The Honorable Andrew M. Cuomo                NY State Commission on Judicial Conduct
Governor of New York State                         61 Broadway, Suite 1200
NYS State Capitol Building                           New York, NY 10006
Albany, NY 12224

The Honorable Eric T. Schneiderman

Office of the Attorney General

The Capitol

Albany, NY 12224

 

[1] See Family Court Exploited in Queens, Insiders Charge,  NBC News New York, March 4, 2015,

http://www.nbcnewyork.com/news/local/family-court-queens-immigration-cases-human-smuggling-green-card-295050931.html

[2] See Family Court Asks Feds for help after I-team Uncovers Immigration Exploitation, NBC News New York, March 5, 2015, http://www.nbcnewyork.com/video/#!/investigations/Family-Court-Asks-Feds-for-Help-After-I-Team-Uncovers-Immigration-Exploitation/295259431

[3] See Congressman Promises Fix After I-team Uncovers Family Court Immigration Scheme, NBC News New York, March 14, 2015, http://www.nbcnewyork.com/investigations/immigration-scheme-queens-family-court-green-cards.html

[4] See, Goodlatte to Secretary: Changes Needed To Reduce Fraud In  Immigration System, March 19, 2015, http://goodlatte.house.gov/press_releases/686

[5] See, Chaffetz And Goodlatte Introduce Bill To Stop Border Crisis, July 17, 2014 http://goodlatte.house.gov/press_releases/568

[6] See Footnote 1, supra.

[7] See Section 205.56 of the New York Family Court Administrative Rules, Investigation by disinterested person; custody; guardianship https://www.nycourts.gov/rules/trialcourts/205.shtml#56

Request to Shut Down Unlawful Berks County Children Jail and To Revoke Unlawfully Issued License

Below is a request we sent out today to Pennsylvania State Authorities to shut down the Berks County Residential Center (“BCRC”)

BCRC is a secure detention facility under Pennsylvanian law, which also states that children under the age of 10 cannot be detained in a secure detention facility.

Given that BCRC does in fact detain children as young as 14 days old, it is violating Pennsylvania law and must be shut down.

Below is our request:

March 23, 2015

Dear Ms. Perry:

I am an attorney in New York who has represented various children who have previously been detained at the Berks County Residential Center (“BCRC”) located in Leesport, Pennsylvania.

As you know, Pennsylvania Code § 3800 governs the standards for licensing and regulation over child residential centers.

On October 31, 2014, Pennsylvania’s Office of Children, Youth, and Families (“OCYF”) issued a Certificate of Compliance for the BCRC as “Child Residential and Day Treatment Facilities pursuant to PA  § 3800, renewing its license until February 21, 2016.

However, OCYF had no authority to issue a certificate of compliance for BCRC because the latter is a “secure detention facility” under PA Code § 3800.5, which is “…any 24-hour living setting to one or more children…from which voluntary egress is prohibited” through one of the following mechanisms:

(i)   Egress from the building, or a portion of the building, is prohibited through internal locks within the building or exterior locks.

(ii)   Egress from the premises is prohibited through secure fencing around the perimeter of the building.”

In BCRC children are prohibited from leaving because of locks and guards prohibit their egress.

Even a mother who desperately wants to protect her 14 day old baby–and thus, a baby without any immunities to viruses and bacteria–from contracting a potentially deadly infection by leaving is physically barred from doing so.

As such, the license issued by OCYF to the operators of BCRC–the Berks County Commissioners–is unlawful because BCRC does not comply with the licensing requirements for a secure detention facility for children as set forth by PA Code § 3800.283.

PA Code § 3800.283(7) prohibits the placement of children 9 years of age and younger in a secure detention facility. Subsection 8 further states that: “A child may not remain in the facility longer than is absolutely necessary.”

PA Code  § 6237(e) further clarifies that the only time a child under the age of 10 can be detained is if that child is a “dependent child.” If detained, that child must then be placed in a shelter care facility, which is far less restrictive than a secure detention facility.

A dependent child includes children under the age of 10 who have been abandoned by their parents or guardians; have no parents; or have committed a delinquent act.

None of the children detained in BCRC are “dependent children.” Further, even children under 10 who are classified as dependent would be barred from placement in BCRC because it is a secure detention facility.

The Standards for Governing The Use of Secure Detention Under The Juvenile Act, PA § 200, contains additional robust protections against the detaining children whenever possible.

For example, even children 10 years and older cannot be placed in a secure detention facility unless that child has also alleged or been found to be delinquent. See PA Code § 200.1(a)

When a child is eligible for secure detention, subsection b of the same code states that detention is not mandatory and “forms of control short of secure detention…shall be given preference.”

BCRC is detaining non-delinquent children–including babies just a few days old–for one sole purpose: to permit Immigration and Customs Enforcement (“ICE”) to deport them and their parents.

Since June of 2014, BCRC has been detaining children for several months and in some instances up to one year.

It is substantially less than “absolutely necessary” for the Berks County Commissioners to detain children under the age of 10 in a secure detention facility for as long as it takes to deport them.

In fact, detention of children in BCRC is directly against their best interests because it harms their physical and mental health. OCYF’s licensing of BCRC is an act directly against the best interests of the children it is bound by law to protect.

Given that the BCRC is in direct violation of PA Code § 3800(7)-(8); PA Code § 200.1(a)-(b), and that it violates the entire legal and regulatory framework for child welfare in Pennsylvania by detaining children directly against their best interests, BCRC’s license must be revoked and BCRC must be shut down immediately.

Thank you for your prompt attention to this matter. If you should have any questions, please call me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

CC:

Pennsylvania Office of Attorney General

Attorney General Kathleen Kane

16th Floor, Strawberry Square

Harrisburg, PA 17120

Commissioners Office

Berks County Services Center

633 Court Street, 13th Floor

Reading, PA 19601

Request to Texas to Shut Down Unlawful Dilley Children Jail

Below is a request we recently sent to Texas State authorities to shut down the secure detention facility for children known as the South Texas Family Residential Center (“STFRC.”)

In researching the law, it became clear that Texas prohibits the placement of children under the age of 10 in secure detention facilities. STFRC detains children ranging from a few months old and up.

STFRC is subject to the jurisdiction of child welfare authorities in Texas. Therefore, Texas authorities are obligated to shut down the STFRC.

We also intend to write similar requests to shut down the Karnes  County and Berks County Residential Centers.

Dear Sir/Madam:

I am an attorney who represents a mother and a child who were detained at the South Texas Family Residential Center (“STFRC”) located at 1925 West Highway 85, Dilley, Texas 78017, which is owned and operated by Corrections Corporation of America (“CCA.”)

CCA is contracted by Immigration and Customs Enforcement (“ICE”) to detain children as young as just a few months old to 17 years of age.

I respectfully request that the Texas Juvenile Justice Department (“TJJP”) and the Texas Department of Family and Protective Services (“DFPS”) immediately close the South Texas Family Residential Center because it is not licensed or certified to provide care and custody of children by Texas State authorities, or any other authority.

The STFRC is a secure detention facility, which is defined as “any public or private residential facility that: A. includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility.; and (B) is used for the temporary placement of any juvenile who is accused of having committed an offense, any nonoffender (emphasis added.)” See Texas Family Code § 51.02(14).

Pursuant to Texas Family Code § 51.03(e-1)(1), children under 10 years of age are prohibited from being placed in a secure detention facility.

STFRC is a secure detention facility because the facility is constructed to severely restrict the movements and activities of the children and adults held there. For example, guards and locked doors in the facility prohibit residents from leaving its premises.

Further, CCA and ICE control every aspect of a child’s life in its custody, including what a child eats; what, if any, medical care a child receives; what, if any, recreational activities the child partakes in; what hours the child is permitted to sleep; or what education the child is provided.

The fact that children in STFRC are accompanied by at least one parent does not negate the fact that CCA and ICE are the primary caregivers for the children in their custody.

A mother is completely stripped of her authority to make decisions in the care of her child. If a mother, for example, believes her child is depressed due to being detained, she is barred from making the clear decision that is in the child’s best interests—to have the child released from detention.

The South Texas Family Residential Facility Also Violates Section 4000 of the Texas Child Protective Services Handbook And 42  U.S.C. § 675

Although the STFRF is a secure detention facility, it also violates child protective services rules for the care and custody of children under the age of 10 in residential centers, which is any “facility that is licensed to provide foster care for 13 or more children at a time.”

Unless exceptional circumstances are present, residential centers are not recommended for placement of children. In fact, CPS “does not place children under five in group-care facilities unless doing so represents the only way to meet a particular child’s special needs.”

The Texas Family Code and CPS guidelines prohibit the placement of young children in severely restrictive settings because it is harmful to their physical and mental health. As evidence of this, all States in the United States prohibit the detention of children under a certain age in secure detention facilities.

Even when a child is placed in a more restrictive setting, such as a group home, federal law requires that “each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available… consistent with the best interest and special needs of the child…” See 42 U.S.C. 675 of the Social Security Act.

Given that STFRC is in violation of Texas Family Code § 51.03(e-1)(1),  Section 4000 of the CPS Handbook and 42 U.S.C. § 675, the State of Texas must close down the facility immediately. CCA and ICE cannot obtain licensing or certification for STFRC because its purpose—to detain children under the age of 10 directly and to detain all children against their best interests—is in clear violation of both Texas State Law and Federal Law on the custody and care of children.

Indefinite, Long-Term Detention of Children in an Unlicensed, Secure Detention Facility For Purposes of Deportation From The United States Is Harmful to The Physical and Mental Health of Children

The case of our client Bernice illustrates why the operation of STFRC is so harmful to the children detained there.

Bernice, a young mother, was detained with her 4-year-old daughter in STFRC since late December of 2014 until March of 2015.

Bernice was eligible for release upon payment of a $5000 bond issued by an immigration judge in mid-February. She did not have the funds to pay for the $5000 bond.

When she requested a redetermination of the bond with ICE, she hoped the bond would be lowered so that she could be released from detention with her young daughter.

When she learned that ICE would not lower her bond, she attempted suicide. Her daughter was then and placed in temporary foster care near San Antonio, Texas, and ICE transferred the mother to an adult detention center in Laredo, Texas.

The 4 year old girl’s best interests were severely compromised due to ICE detaining her and her mom for a prolonged period of time. Her mother would never have attempted suicide if it were not for the desperation she felt for herself and her daughter. She could have lost her mother forever.

The doctor at the hospital told Bernice that she was mentally healthy and that her attempted suicide was a result of a temporary shock.

The fact that ICE controls the custody determination of children detained in the facility does not make it exempt from Texas State Law. STFRC must comply with the laws of the State where it operates.

ICE cannot operate STFRC because it is prohibited by Texas law.

Thank you for your prompt attention to this matter. If you should have any questions, please contact me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

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