immigration

The US Used Suspect Evidence to Push Young Bangladeshi Migrants Into Adult Detention

Immigration agencies moved dozens of people from children's facilities, sometimes using weak evidence, a VICE News investigation has found.

by Mimi Dwyer
06 May 2019, 3:34am

When I.H. arrived at the U.S.-Mexico border in September, he told immigration officials that he was 17. As a result, I.H. was sent to a shelter for migrant children in Tucson, Arizona, and for two months he was fed well, took classes, and played games.

But then one day in late October, shelter staff took him for a radiographic dental exam — a highly disputed way to estimate age. He didn’t know what it was for.

In early November the shelter manager brought I.H. to a classroom, along with the three other Bangladeshi migrants in the shelter. The teen was chained at the neck, legs, and hands, and, he said, all four migrants were transferred to adult detention facilities. Unbeknownst to I.H., the government had officially declared him an adult.

Adult migrants can spend months in detention — essentially jail — without ever seeing an attorney, and they can be subject to expedited deportation. Children, meanwhile, have special access to attorneys and are supposed to be released to the “least restrictive” environment possible. They can also qualify for special immigration status options.

The transfers were in response to a warning: An official in the U.S. government’s refugee resettlement office had told his staff that about 145 migrants from Bangladesh might be “posing” as minors, and directed them to scrutinize evidence of the migrants' age.


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The office sometimes requested Bangladeshi migrants be transferred to adult detention based on weak or conflicting evidence, a VICE News investigation has found. I.H. is among dozens the office requested to be transferred from juvenile custody to adult detention, according to documents obtained under the Freedom of Information Act and attorneys who witnessed the transfers.

The sweeping action against the group of Bangladeshis raises questions about the Office of Refugee Resettlement’s approach to determining migrants’ age — a decision that can gravely affect their immigration options.

“I can't recall in the six years or so that I’ve been practicing immigration law ever seeing such a large group at the same time or such a single focus on one nationality,” said Julie Pasch, a managing attorney at the immigration legal services nonprofit Deportation Defense Houston.

Pasch said her organization saw between 20 and 25 Bangladeshi juveniles transferred from the Office for Refugee Resettlement to Immigration and Customs Enforcement, which runs adult detention centers, over the course of a few days last October.

I.H. was sent to adult detention despite his birth certificate showing he was a minor and a dental exam indicating there was only a 56 percent change he was an adult — significantly below ORR’s 75 percent threshold to be used as evidence a person is of age. Later, in immigration court, the government claimed the teen had used an adult passport on his way to the U.S., according to his attorney. But it never produced those documents.

“I can't recall ... ever seeing such a large group at the same time or such a single focus on one nationality.”

I.H. stayed in adult detention for four months, where he was distraught and unable to communicate with anyone. He told VICE News that in his last few weeks in the facility, ICE sent him to solitary for seven days. The teen said the guards teased him and told him he’d been sent there because he had lied about his age.

The Florence Project, an Arizona legal organization that represents immigrants pro bono, filed a petition on February 20 and submitted school and immunization records that showed I.H. was under 18. ICE sent him back to a children’s facility. He has since been released and is seeking asylum, in part because he and his family have been targeted in Bangladesh for their political associations.

VICE News reviewed 11 “memos of age redetermination” submitted by ORR staff requesting the transfer of Bangladeshi migrants to adult facilities. All were processed in a two-month period after an October 9 email from senior federal field specialist supervisor James De La Cruz.

The documents shared by ORR aren’t exhaustive; five lawyers working with Bangladeshi migrants in Arizona, Texas, and Illinois told VICE News they witnessed dozens more transferred to adult facilities during the fall. Last week, an advocacy group filed a complaint to DHS alleging two Bangladeshi minors are being held in an adult facility in San Diego without proper evidence they are adults.

Some of the memos detail desperate and harrowing journeys to the U.S. In one, a migrant said he had flown from Dhaka, Bangladesh to Sao Paulo, Brazil, traveled for nine days on buses to reach Peru, taken a boat to Ecuador, and reached Colombia through a combination of walking and buses. He then swam across the Panama River — where he lost all of his documents and clothing and nearly drowned — traveled by bus to Costa Rica, took a taxi to Nicaragua, and finally traveled through Honduras and Guatemala and into Mexico.

Read more: Get ready for more tent cities at the border.

ORR and ICE declined to answer specific questions to VICE News. ORR did not allow De La Cruz to comment. The refugee office referred questions to the Department of Homeland Security, and ICE, the branch of DHS that manages adult immigration detention, said much of the information was “law enforcement sensitive.”

The Bangladesh project

It’s not clear why officials focused on Bangladesh, but illegal immigration from Bangladesh to the U.S. is increasing. In 2018, Customs and Border Patrol apprehended more than 1,200 Bangladeshi immigrants attempting to enter the United States illegally, more than double the 574 who entered in 2017, and an all-time high for illegal immigration from the country. Many cross the border in Mexico after traveling thousands of miles through South and Central America.

“It's really common for kids who are fleeing from desperate situations to use different documents that have different dates of birth.”

It’s often difficult for U.S. authorities to conclusively determine young migrants’ ages. Many arrive in the U.S. with no documents at all, and minors often travel with fake passports that show they’re adults in order to be allowed to leave their home countries and travel through other countries without being directed into child welfare systems.

Adults will also sometimes travel with documents that say they’re minors to avoid being sent to adult detention — the concern flagged by De La Cruz. In his October email, the official wrote: “This weekend ORR was advised that some of the Bangladeshi UAC [unaccompanied alien children] referred by DHS may be fraudulently claiming to be UAC.”

In the weeks following the start of the Bangladeshi project, ORR field specialists passed around spreadsheets with names of individuals debating whether they are adults, in some cases requesting their transfer to adult detention facilities, emails received via FOIA show.

In one email, an ORR staffer highlights four Bangladeshis she suspected were adults “due to the discrepancy of information they have provided, their looks, and dental forensics.” She also mentions that she’s located one on Facebook and found he was enrolled in college — research not prescribed by the ORR age-determination guidelines.

The agency has strict rules for assessing age. Its guidance says employees should weigh the “totality of the evidence” and prioritize government documents like birth certificates and school records, as well as statements by the child, the child’s parents, and other government agencies.

“It's really common for kids who are fleeing from desperate situations to use different documents that have different dates of birth,” said Laura Belous, an attorney with the Florence Project, which is representing several Bangladeshis including I.H., who asked to be identified only by his initials. “If there is a verified birth certificate and other evidence of age, the balance of those determinations should be in the child's favor,” she added.

In one circulated list of 30 Bangladeshis held by ORR, at least 16 considered for age redetermination had birth certificates that indicated they were minors. Other minors said the adult passport they had used was fake, but they were judged by ORR to be adults anyway.

Belous said each of the six Bangladeshi migrants the organization has represented has a birth certificate indicating they are minors, and that several of those birth certificates had been verified as authentic by the Bangladeshi consulate. Some also received dental exams that suggested they were minors. ORR sent them to adult detention anyway.

ORR and ICE are allowed to use dental exams but are prohibited from using that evidence alone to determine age — a rule the agency has broken in the past. The exam is controversial, and even its proponents admit it’s imprecise; X-rays are sent to a forensic dentist, who examines the wisdom teeth and performs a statistical analysis of the patient’s likely age. Neither ORR nor ICE discloses how often they are used.

The memos show that in some cases, a dental exam came back below the agency-mandated 75 percent threshold — partial evidence that the Bangladeshi was a minor by the ORR’s standards — and specialists submitted it as part of ORR’s case. In one transfer request, the exam came back indicating a 28 percent chance the migrant was an adult.

Read more: The U.S. is checking immigrant kids’ teeth to see if they actually belong in adult detention.

They also indicate ORR relying significantly on minors using adult passports — whether they admitted it or ICE flagged it — as evidence of adulthood. Sometimes migrants said the passports provided to them were false, and ORR flagged this “misrepresentation” in the transfer memo.

One memo shows that a migrant in an Arizona shelter for minors was sent to adult detention despite his parents sending a birth certificate, which was verified with the Bangladeshi embassy, and a dental exam giving 59.92 percent odds that he was an adult. But because the teen admitted that a smuggler had provided him with a passport with a 1997 birth year, and ICE told ORR that he had used a passport with a 1998 birthdate, a transfer to ICE custody was requested.

In another, the memo says a Bangladeshi migrant’s “alleged mother” sent his case manager a birth certificate confirming he was a minor, which was verified. And his dental exam came back below the threshold to be used as evidence of adulthood.

The migrant explained a journey from Bangladesh to Ethiopia, Ecuador, Colombia, Panama, Nicaragua, Honduras, Guatemala, and Mexico, at a total cost of $17,000 to his family. He admitted he was given false documents by a smuggler showing that he was an adult. The ORR staffer noted that the migrant seemed “extremely nervous” when he explained his journey. She also wrote that he had misrepresented his identity, and that ICE had said he used a passport with a 1994 birthdate. She requested he be transferred to ICE.

In emails, ORR staff struggled with how to weigh conflicting evidence. In a few instances, staff determined their evidence suggested Bangladeshis were actually juveniles and did not transfer them, even though they had used false documents.

In two other cases, De La Cruz directed staff members to discount dental records indicating that Bangladeshis were minors because the migrants were said to possess adult passports, and affirmed a decision that they were adults.

He went on to relay a message from DHS: that Bangladeshi officials admit “a certain amount of fraud exists within their government” and that DHS had seen cases where a birth certificate and passport have both been verified by the Bangladeshi government for the same individual with different dates of birth. Bangladeshi officials, DHS said, “stand behind their passports.”

“I know this is not an easy process, but I, as does DHS, standby your decision,” he wrote.

Cover: A bunk bed and desks inside a cell are seen at the Caroline Detention Facility in Bowling Green, Virginia, on August 13, 2018. (Photo by SAUL LOEB / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images)

This article originally appeared on VICE News.