Judge: ICE violated federal law by holding migrant teens in adult custody
Following a ruling that transferring migrant kids to adult detention centers just as they turned age 18 was illegal, a federal judge approved a settlement in a 2018 lawsuit this week.
The practice, known as "age-outs" meant immigrant teens were not released to sponsors or family members in the U.S., but were instead transferred to adult facilities by U.S. Immigration and Customs Enforcement, sometimes "automatically" by busy field offices.
The lawsuit involved a 17-year-old boy who crossed into the U.S. in March 2017, and was transferred to a facility for unaccompanied minors—children who traveled to the U.S. without parents or guardians—while he sought protection in the U.S. On his 18th birthday, ICE officials moved him from a facility designed for children in Glendale, Ariz. to an adult detention center in Eloy, Ariz. where he was held for months until a federal judge demanded his release as part of the lawsuit.
Following the boy's treatment by ICE, the National Immigrant Justice Center and the American Immigration Council—backed by lawyers with Kirkland & Ellis LLP—filed a lawsuit arguing the practice violated federal law because ICE failed to place the teenage immigrants in "the least restrictive setting available" and provide "meaningful alternatives to detention."
The class-action lawsuit went to trial in December 2020, and after 18 days of hearings, U.S. District Court Judge Rudolph Contreras ruled that ICE repeatedly violated the 2013 Trafficking Victims Protection Re-authorization Act, as well as the Administrative Procedure Act.
The law "requires the Secretary of DHS—acting through ICE officers in the field—to take into account the statutory risk factors as they consider placing each age-out in the least restrictive setting available," Contreras wrote. "Doing this necessarily requires making an inquiry aimed at determining what settings are available and which of these is the least restrictive."
"As was clear from the testimony presented at trial, ICE officers are consistently failing to take either of these steps," he said, adding training by ICE "does not emphasize the proper considerations or decision-making processes and, in fact, gives instructions that are contrary to the statute."
"Field officers are left with nearly unbridled discretion to make age-out custody determinations however they would like, and this discretion is exercised in ways that does not comply with the agency’s statutory obligations," he said.
The lawsuit was originally filed against then-Homeland Security Secretary Kirstjen Nielsen, who led the agency from 2017 to 2019 until she was sacked by President Trump as he sought to clamp down on the increasing number of unaccompanied children and families who sought asylum in the U.S. through 2018 and 2019.
During Nielsen's tenure, multiple children died in Border Patrol custody—including 7-year-old Jakelin Amei Rosmery Caal Maquin. Caal, a Qʼeqchi' girl who traveled to Antelope Wells, New Mexico died in her fathers arms at the remote Border Patrol station, and her death prompted an investigation by a federal watchdog.
Under federal law, ICE field officers must "take into account the statutory risk factors of danger to self, danger to community, and risk of flight, and that they consider placing age-outs in the least restrictive setting available," wrote Conteras. "To consider placing an age-out in the least restrictive setting available, ICE officers must be able to identify what available setting would be least restrictive. This requires making an inquiry into available placements for age-outs that ICE officers throughout the country frequently do not undertake."
He noted that while the law requires ICE to seek out less restrictive settings, "many officers choose not to take these steps, with the result that in many of ICE’s largest field offices, age-outs are detained nearly automatically."
"In the most extreme cases," he wrote, this means that ICE field officers "refuse to release age-outs" to sponsors. "These are not the decision-making processes that Congress required," he wrote, adding that by failing to make decisions in the way Congress dictated, and based on the factors Congress identified as relevant, ICE fails to fulfill its obligations under the statute and therefore violates the APA."
A year later, Contreras issued a permanent injunction against ICE, sharply-criticizing the agency.
"An agency that had shown a responsiveness to prior decisions more proactively and not attempted to shirk its legal obligations could perhaps be counted on to effectively implement remedial measures and police itself without the specter of a formal injunction," Contreras wrote in Sept. 2021. "But … the court continues to harbor doubts about ICE's ability to do so here."
ICE officials did not respond to a request for comment following the settlement.
Among the teens transferred over to adult custody was Wilmer Garcia Ramirez.
Ramirez was just 17 when he left Guatemala and traveled to the U.S., crossing the border on March 26, 2017. Ramirez was taken into custody by federal officials, and handed over to a facility in Glendale, Ariz. managed by the Office of Refugee and Resettlement, a part of U.S. Health and Human Services, where he stayed until Sept. 19 when a state court granted his petition declaring him a dependent of the state due to "neglect" by his parents in Guatemala.
As his eighteenth birthday approached, an attorney for Ramirez sought to get the boy permanent residency under the Special Immigrant Juvenile Status program, and also asked federal officials to release the teen to a family friend in Pennsylvania. However, ICE officials denied the petition, and instead moved to reopen his deportation case, picking up from ORR and taking the teenager to ICE's adult detention facility in Eloy, Ariz.
"ICE did not explain why it rejected the possibility of his living with the family friend, nor did it discuss any alternative sponsors or other alternatives to detention with Mr. Ramirez," Conteras wrote. By January, an attorney for Ramirez sought less-restrictive custody, and Albert Carter, the ICE Deputy Field Office Director for the Phoenix Field Office, "denied the request," writing only that "I find the totality of circumstances do not support a favorable exercise of discretionary authority in this case."
As part of the class action lawsuit, Contreras ordered ICE to release Ramirez, and he went on to stay with family in Alabama pending the case.
Immigration advocates celebrated the court's order.
"We are very happy to see this years-long litigation come to a conclusion in such a way where its impact already is evident across the system we set out to change,” said Mark Fleming, associate director of litigation for the National Immigrant Justice Center. "This settlement secures valuable protections for unaccompanied immigrant youth who should not have to worry about being sent to an immigration jail on their 18th birthdays."
"It also provides for critical monitoring and accountability over ICE, an agency that too often has been allowed to operate with impunity as it violates U.S. laws and basic human rights," Fleming said. "We’ll continue to work with our partners to ensure that ICE abides by the court’s order.'
Kate Melloy Goettel, director of litigation for the American Immigration Council, said the settlement "secures and finalizes our previous victories for unaccompanied youth."
This requires ICE to address "systemic violations of our laws governing the detention of migrant teens, including overhauling its training and procedures and providing monthly reports to class counsel on their compliance with the injunction."
"We are thrilled that this lawsuit has already helped so many young people avoid detention, and yesterday’s settlement assures that the lawsuit will continue to help future unaccompanied teens," Goettel said.