This year, Dennis Cruz-Aguilar has powerful cause to celebrate the holiday season: At 17, he is spending his first Christmas in safety and freedom.
After fleeing an abusive mother at the age of 6, Cruz-Aguilar ended up like so many Honduran children — living on the streets of the country’s seamy capital, Tegucigalpa. For years, he begged, foraged and, when possible, worked for food, all the while trying to make his way between criminal street gangs. “Wherever I went in the city, (a gang) would try to force me to join — to sell drugs, to steal, rob people, even kill people,” he says.
Finally, at 15, when a gang member tried to kill him over a girlfriend, he decided to flee the country altogether. He crossed into Mexico and then in mid-2000 made his way across the U.S. border on foot.
Cruz-Aguilar now lives with a foster family in Centralia in western Washington. Rhonda and Larry Hewitt’s expansive Tudor home is also the temporary home of another Honduran teen, a Guatemalan, and two boys from Sudan. Though Cruz-Aguilar quips that he doesn’t like to attend his classes, he is an honor-roll student in Centralia High School’s ninth grade.
This outcome was far from certain. Cruz-Aguilar was arrested in Arizona shortly after his arrival, turned over to immigration officials, and sent to Southwest Key Shelter, a detention center for unaccompanied minors, where he spent 10 months. For Cruz-Aguilar, it was the first time in his memory that he was not free to come and go.
Breaching discipline had harsh consequences: Some of Cruz-Aguilar’s fellow detainees were transferred to Arizona’s Gila County Juvenile Detention Center, a tough, high-security juvenile jail where there are only a few Spanish-speaking staff members. “When they first enter, they are put into 24-hour solitary confinement and then only offered privileges a little at a time,” says Shuiming Cheer, a children’s attorney at the Florence Immigrant and Refugee Rights Project in Arizona. Two of her other teenaged clients were sent to Gila after “acting up,” she says. “They were very despondent.”
“Those 10 months were so long,” says Cruz-Aguilar of his time at Key. “But if you’re sent to Gila, you die of loneliness.
Things changed suddenly. In June, Cruz-Aguilar was transferred to the Hewitt home. And his story was being played out around the nation as dozens of foreign children were transferred from high-security facilities to low-security youth centers or foster homes, some of them after spending many months, or even years, in detention.
Controversy over detention and harsh treatment of children like Cruz-Aguilar under the Immigration and Naturalization Service surfaced in the 1990s, and the INS made some reforms in the late 1990s.
But with the Homeland Security Act of 2002, which went into effect March 1, immigration enforcement was transferred to the new Department of Homeland Security. Care of unaccompanied children was for the first time separated from enforcement, and handed to Health and Human Services.
Children’s advocates say the law change has vastly improved a system that further traumatized children from troubled backgrounds and penalized them instead of aiding their search for safe haven. But there remains a struggle to clarify the gray areas in the law and some children continue to slip through the cracks.
"Things don’t change overnight, but we’ve seen a lot of improvements,” says Elizabeth Dallam, a protection officer at the United Nations High Commission on Refugees, which has long registered concerns about U.S. handling of child asylum-seekers. "We were very pleased to see the custody and care of children transferred to a federal agency with extensive child welfare experience. (Now) kids are being sent to foster care, kids with special needs are having those needs addressed, there's less use of restrictive facilities."
But, she adds, it is still early. "There are years of the system having huge deficiencies." She stresses the need for additional legislation, now pending in Congress that would ensure legal assistance for unaccompanied children, and attempt to clear up other pitfalls for kids.
Revamping the system
Some 80,000 to 90,000 unaccompanied minors try to enter the country each year and the number is on the rise. They come from all over — Guatemala, Honduras, China, India, Haiti. They may be fleeing chaos, abandonment, abuse or simple poverty. They arrive as stowaways on ships, surface after escaping modern-day slave traffickers or after sneaking across the border on trains. Many are teenagers, but some are small children or even toddlers. Most of those who arrive are deported within 72 hours.
But some 5,000 to 6,000 unaccompanied minors each year are allowed to enter the United States, and pursue asylum or a protective status for children. Though many of these fail in their bids to stay and ultimately are deported, those who are able to prove that they have been abandoned, abused, or face persecution back home may stay, and begin on the path to citizenship.
It is their treatment while they await a decision on their cases — which can take months or years — that has changed.
Under the supervision of the INS, most of these children were held in detention, many in high-security facilities, and some of them in adult jails. These mostly non-English speaking kids, often without any legal representation, were left to face the immigration courts and wade through the complex asylum procedures on their own.
“Unaccompanied children in the U.S. immigration system are routinely deprived of their rights in contravention of international and U.S. standards,” said a report published in early 2003 by the non-profit human rights group Amnesty USA. “Unaccompanied children are not only detained but are often held in facilities that routinely fail to adhere to both international and U.S. standards governing the detention of children.”
Delivered to HHS
So with the changes afoot with the creation of the Department of Homeland Security, children's advocates pulled together and fought for care of unaccompanied children to be cleaved away, and handed over to the Office of Refugee Resettlement (ORR) under HHS.
"The INS was in the business of law enforcement ... not in the business of trying to take care of kids," says Wade Horn, assistant secretary for Children and Families at ORR. "It’s not what they are about. That’s what we are about."
With the hasty transfer of responsibilities, ORR suddenly had more than 500 of these cases to handle, and new ones coming in all the time. The agency scrambled to increase the number of available foster care beds to accommodate new arrivals, and created a new category of low-security facilities that offer services for children who may be runaway risks. The goal is to end the use of secure facilities in most cases.
The office has decreased the number of undocumented children in secure facilities to 28 from 74. Those who remain are minors who need to be there, according to Horn — kids who are there because of gang involvement, or committing serious crimes.
Since March, ORR has placed 26 unaccompanied migrant children in foster homes while setting up foster care openings for dozens more kids while they proceed through the immigration system.
The gray areas
The battle is not over. While most child advocates say the way the children are handled is markedly improved, there are still significant holes in protections. And there are areas where responsibilities were left poorly defined.
A new bill, the Immigrant Children Protection Act of 2003, introduced in May in the House and Senate, attempts to solidify ORR’s mandate and delineate responsibilities that were left unclear in the hasty creation of the Homeland Security Act.
One key component addresses the shortage of pro-bono attorneys to represent the children.
ORR, too, is already facing legal challenges. One is a class action law suit, filed in November, that alleges failure to provide mental health care for children held in detention at Martin Hall, a privately run juvenile detention facility near Spokane, Wash., which houses young immigrants on a contract with the U.S. government.
The complaint says that following several suicide attempts at the facility, the children in question were placed in isolation on “suicide watch” but that the federal officials responsible for their care did not send in qualified professionals to aid them.
A question of age
One of the biggest remaining controversies is over whether DHS, the immigration enforcement side, or HHS, are more apt to be sympathetic with the migrants, should determine the ages of immigrants who have no documentation of their births.
DHS took over that function from the INS, and continues to rule in cases where a child may be near the age of 18, using dental and bone assessments to make the determination. By law, minors are not supposed to be intermingled with adults in detention.
But the method has proved flawed, say child advocates, perhaps in no case more than that of Malik Jarno.
Jarno is an orphan from Guinea, whose father was murdered for political reasons. His mother had died some time earlier. When he arrived, the INS dental assessment suggested he was about 18, and he subsequently spent nearly three years in adult prisons, for the most part without access to legal representation.
He was only 16
When attorneys finally picked up his case, obtaining both his birth certificate and verification of his parents’ deaths, those documents showed Jarno had been only 16 upon entering the United States. Moreover, Jarno is mentally retarded and has a mental capacity of about a normal 10-year-old, says Chris Nugent, an attorney who is working on Jarno’s behalf. Assuming the documents are correct, Jarno, who remains in prison, turned 18 in January.
As the government prepares to deport Jarno to Guinea, his case has been bumped up to the highest immigration authorities. On Dec. 15, 24 members of Congress signed a letter to Under Secretary for Border and Transportation Asa Hutchinson, pleading with him to reopen the case, rather than sending Jarno back to likely homelessness and life-threatening circumstances. Based on this new evidence, the letter says, “it would be unconscionable to deport Malik (Jarno) to these circumstances."
Questions of age are a persistent problem in the system.
Lisa Frydman of the Florida Immigrant Advocacy Center has two clients who have been judged adults by forensic exams, and are being held in Orleans Parish Prison for adults, despite documentation from the government of their homeland, Haiti, that they remain under age.
A third client, Ernso Joseph, whose age is also disputed, was moved from an adult detention facility to a motel in Miami, where he has lived in virtual isolation for about 10 months.
“What we’re seeing in different ways is that they (DHS) do not want to give up power,” says Frydman.
“There’s a lot of confusion,” says Cheer, of the Florence, Arizona project who says there are delays after ORR orders the release of child detainees. “The shelter still acts as if DHS is in charge. Things are stalled … and it’s hard to pinpoint the problem or delay.”
While these advocates see foot-dragging on the part of DHS, others say that situation is simply the inevitable part of the transition. “A lot of these things are kind of ‘tweeners,’” says Mike Milan, a public affairs officer at DHS. The challenge is not to lose children in the muddle.