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D.C. Judge Knocks ICE For Detaining Teens, Altering Evidence

A D.C. federal judge on Thursday found that U.S. Immigration and Customs Enforcement broke the law by not considering less restrictive housing options for migrant teenagers who turn 18 in government custody, and knocked the agency for altering evidence before trial.

Following an 18-day bench trial, U.S. District Judge Rudolph Contreras concluded that ICE "frequently" fails to ask about alternative housing for these teenagers, such as group homes and sponsors, before transferring them to adult detention facilities and instead gives officers "unbridled discretion to make age-out custody determinations however they would like."

The agency also "does not train officers on proper decision-making" and instead gives them guidance "that is contrary to the statute in several ways," the judge said in an 180-page opinion.

Anti-trafficking laws that protect migrant children require officers to release teenagers into the least-restrictive setting unless they are a flight risk or a danger to themselves or the public, but the training sheet "downplays the statute" and doesn't highlight the three legal factors to consider, the judge said.

"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," Judge Contreras wrote.

In the "most extreme cases," he added, ICE has even refused to release teenagers to sponsors who want to take them in, "when nothing in the age-outs' records indicated they posed a flight risk or a danger to themselves or to the public."

ICE's failure to consider all housing options before detaining a teenager was like ordering the cheapest wine at a restaurant when the waiter hasn't looked at the menu, the judge said.

"The diner does not have to be familiar with the full list of wines and their prices in order to give this instruction, but the waiter must be, or must review the list and identify the cheapest bottle in order to carry out the instruction," he wrote. "The secretary could not consider placing the age-out in the least restrictive setting available without determining what available setting is least restrictive. And the secretary cannot determine that without evaluating the range of available settings."

Judge Contreras' order only included his legal and factual findings; he says he will order the remedy "in the near future."

"This is a great victory for thousands of current and future unaccompanied immigrant children who turned 18 in government custody. We could not be happier with the court's thorough and well-reasoned decision," said Steve Patton of Kirkland & Ellis, who litigated the case pro bono with the National Immigrant Justice Center, in a statement on Thursday.

Kate Melloy Goettel, legal director at the American Immigration Council, also praised the decision for "holding ICE accountable for failing these children" and "insisting on oversight that we hope will prevent more youth from unnecessarily being subject to the abusive ICE detention system when they turn 18."

The suit was filed in March 2018 on behalf of two foreign-born teenagers, Wilmer Garcia Ramirez from Guatemala and Sulma Hernandez Alfaro from Honduras, who claimed the federal government did not consider safer options as required before transferring them to adult detention upon turning 18.

Garcia Ramirez, born in 1999, entered the U.S. without inspection in March 2017, and he was transferred to an Arizona detention facility after his 18th birthday, even though he had a pending application for special immigrant juvenile status, according to the complaint.

Hernandez Alfaro, who was abused by relatives in Honduras, according to the complaint, crossed into Texas in September 2016. She was moved into a Texas detention center on her 18th birthday and was awaiting a decision on her asylum application at the time the complaint was filed.

A third plaintiff, Ana P., who said she fled El Salvador with her toddler son under the threat of gang violence, was added to the lawsuit. She was separated from her son, who remained in government custody for minors, and moved to Bergen County Jail when she turned 18, according to court documents.

Judge Contreras had certified the class action in August, covering all teens who entered the U.S. as unaccompanied minors without authorization, and then were transferred to an immigration detention center after they aged out of the Office of Refugee Resettlement's custody, the agency that cares for migrant kids.

The three named plaintiffs have since been released from government custody.

In Thursday's opinion, in addition to concluding ICE's age-out protocols were illegal, Judge Contreras detailed at length the "incorrect" representations made by ICE to the court during discovery.

E-mails showed that certain documents explaining custody decisions for teenagers who age out of the refugee office's custody were missing, and some documents "were created or updated shortly before depositions were taken in connection with this litigation."

One field officer instructed other offices to revise forms to "make sure" that the rationale behind a teenager's detention or release was included on the custody form. The federal government then turned over "revised or altered versions" of the custody forms to the plaintiffs in the case.

Those revisions were substantive, Judge Contreras said, including in one instance indicating that a teenager was a flight risk when the original form said they were not.

Field officers also testified that their names had been placed onto forms they had not filled out, and that they had filled out forms and written others' names. Others offered testimony that was "evasive" and "inconsistent," the opinion says.

ICE ultimately disclosed to the court last year that it had failed to record the custody determinations for more than 1,400 teenagers who turned 18 in custody in a five-month span — a "significant upward revision" from earlier figures provided by the agency, the opinion says.

A spokesperson for ICE didn't respond to a request for comment on Thursday.

The teenagers are represented by Stephen R. Patton and Tia T. Trout Perez of Kirkland & Ellis LLP, Katherine Melloy Goettel of the American Immigration Council, and Gianna Borroto and Ruben Loyo of the National Immigrant Justice Center.

The federal government is represented by Christina Parascandola of the U.S. Department of Justice's Civil Division.

The case is Garcia Ramirez et al. v. ICE et al., case number 1:18-cv-00508, in the U.S. District Court for the District of Columbia.