In December 2010, Washington attorney Jennifer Podkul received a call from the Department of Homeland Security inspector general’s office, asking to speak with one of her clients.
The client was a minor, 17, when Podkul, a legal aid group attorney, happened to meet him during a routine visit to a Virginia juvenile jail. The boy had been sent to the Northern Virginia Juvenile Detention Center, which has an immigration wing, after U.S. Border Patrol agents caught him, unaccompanied by any family members, crossing into Texas from Mexico for the third time.
The first time the boy had crossed into the United States was in 2009, he was 16, with a backpack of marijuana a gang told him to carry. He told Podkul he had asked agents then if he could stay and offered to give them information about smuggling routes.
Instead, the boy told the lawyer, the agents had their own proposal: They told him to go back to Mexico and get more information, including names of smugglers. The request was a direct violation of the intent of 2008 federal legislation designed to help stop abuse of minors by human traffickers, Podkul told iWatch News.
Now it appeared that the IG’s office wanted the boy to cooperate in their own investigation of how the agents had treated him.
“They wanted to show him photos of the agents,” Podkul said, “and to talk to him.” The boy, she said, had been “terrified of the Border Patrol,” but he had also been terrified of not making his delivery of drugs for the gang that an uncle had allegedly forced him to enter into at 14.
Border Patrol spokesman Bill Brooks, who is based in Marfa, Texas, said he wasn’t aware of the inquiry into Border Patrol agents in Texas that Podkul described. He added that he couldn’t comment on pending legislation affecting the Border Patrol.
“Our agents are trained, and they’re going to be on the side of the juvenile during the process,” he said. “If we find signs of trafficking, we turn the case over right away to investigators at Immigration and Customs Enforcement.”
But the inquiry by Homeland Security’s inspector general serves to illuminate other, broader concerns about having Board Patrol agents undertake the sensitive interviews, or screenings, that Congress has mandated of unaccompanied minors, specifically Mexicans, who cross illegally into the United States.
Congress added the provision for screening youths from Mexico and Canada to the Trafficking Victims Protection and Reauthorization Act in 2008 as a way to identify minors who may be under the control of drug or sex traffickers or who may face other threats if sent home. But its effectiveness has been questionable and child-welfare advocates say better screening and more reforms are needed to dissuade minors from repeat crossings, and prevent them from becoming prey of violent criminal gangs on the border.
Border agents are supposed to ask unaccompanied minors if they fear being returned to their country, tell them that they have a right to an immigration hearing to try to stay in the United States, and inform them of their right to go to a shelter for minors. Reading the minors their “rights” is supposed to occur before the minors are offered a consent form to go back to their home countries voluntarily.
Two recent reports examining the treatment of unaccompanied minors, including Mexicans, caught at the border – and two bills introduced during the summer – question agents’ effectiveness at conducting these sensitive screenings and how well the minors are being treated overall.
One of the bills (H.R. 2235), introduced June 16 by Rep. Lucille Roybal-Allard, (D-Calif.), calls for licensed social workers to assist Border Patrol agents in the mandatory interviews of minors caught crossing the border to clarify their individual circumstances.
Senate bill 1301 (which would reauthorize existing anti-human trafficking laws) was introduced June 29 by Sens. Patrick Leahy (D-Vt.), John Kerry (D-Mass.) and Scott Brown (R-Mass.). It also calls for a Government Accountability Office study of Border Patrol agents’ effectiveness in carrying out the screening of vulnerable minors.
Last year, Border Patrol agents detained about 30,000 minors, more than half of them unaccompanied by parents. More than 80 percent of minors overall and unaccompanied were Mexican, and the rest were Central American, Chinese or nationals of other countries. Mexican and U.S. law enforcement officials report finding people from all over the world, including children, who have paid transnational smugglers to get them into Mexico and over the U.S. border.
Most minors found crossing the border, regardless of nationality, appear to be trying to join parents or other relatives in the United States, or to find work, according to counselors and lawyers who aid these children. Many are found among adults who are not family members, and some have been pulled into criminal rings either as victims, participants, or both.
The debate over how to best handle minors once agents detain them goes back a couple of decades, and laws affecting them have changed incrementally.
Because of concerns about keeping children in immigration detention with adults, the Homeland Security Act of 2002 transferred responsibility for long-term custody of all unaccompanied minors to the U.S. Department of Health and Human Services (HHS).
To ensure that children don’t remain in lockup, federal law requires that within 72 hours Border Patrol agents transfer children to the HHS Office of Refugee Resettlement, which supervises shelters and foster care for them. Minors are sheltered pending immigration hearings, temporary release to U.S. relatives or a return to home countries.
Non-Mexican children are routinely transferred to shelters because sending them back home takes so long. Even if, after being caught, they say they want to return home, journeys to Central America or more distant regions usually take longer than 72 hours, or three days, to arrange.
Because of Mexico’s proximity, however, Mexican minors can be sent back relatively quickly. If they agree to leave the United States voluntarily, they rarely reach U.S. shelters. They are taken to the border and released to the custody of Mexican social workers within a matter of hours.
Before the 2008 authorization, child-welfare advocates pressed Congress to address this discrepancy, arguing that too many Mexican minors were not being afforded the counseling available only in shelters that could help reveal criminal threats the youths might face. The Border Patrol screenings were designed as a step toward getting more information from Mexican minors and giving them a chance to disclose any fears.
But advocates say the interviews by Border Patrol agents, in holding areas, lack the sensitivity that professionals trained in questioning children can provide.
Once minors are away from uniformed, armed Border Patrol agents, advocates contend, they are more likely to open up to counselors in shelters who speak the minors’ languages and are adept at finding out more about children’s experiences. Minors in shelters are also formally interviewed, or screened, by licensed social workers who ask them about fears and other circumstances.
In the 2008 reauthorization, lawmakers ordered Border Patrol agents to present Mexican minors a similar set of questions and information, within 48 hours, and before offering them voluntary return consent forms.
A flawed system
Over the past year, studies of current procedures have raised questions about whether the required policies and protocols are working.
In September 2010, the Department of Homeland Security inspector general’s office issued a report focusing on agents’ compliance with terms of a 1996 legal settlement that set minimum standards in regard to food and water and the provision of shelter for minors apart from adults.
While the office found most Border Patrol holding areas in general compliance with the settlement requirements, inspectors also found that many agents hadn’t received updated training regarding minors or couldn’t prove they had. Some agents who had little experience with minors said they applied their station’s own “internal detention policies.” The report urged the Border Patrol to document that all agents were appropriately trained.
In April, a national nonprofit legal aid organization, Appleseed, issued its own report, “Children at the Border,” that concluded the Border Patrol agents’ screenings of Mexican minors remain flawed.
Appleseed reported that in some Border Patrol stations, “children are held in cells within sight or hearing of adults, possibly including traffickers.” The report said the centers “provide no environment for a child to feel safe and secure enough to divulge sensitive information about trafficking or other abuse.”
Freedom Network USA, a coalition of 27 non-government organizations that helps trafficking victims, said minors from various countries who have received counseling after being rescued from human smugglers have recounted being sexually assaulted, forced to work for gangs as domestic servants, or pressed into service as “mules” to carry drugs over the border. Others have been smuggled through the border only to become indentured workers at U.S. farms or restaurants, or have become involved in prostitution, according to allegations the network has collected.
In its report, prepared with its counterpart Appleseed Mexico, Appleseed criticized Mexican authorities for placing too much emphasis on swiftly releasing minors to family members after Border Patrol agents delivered children to Mexican social workers. Appleseed and Appleseed Mexico urged Mexican authorities to carry out more thorough investigations of the risks children face at home and what led them to cross the border.
Mexican minors, according to Appleseed’s report, are “an especially attractive recruiting target” for gangs because they are usually released so quickly and few incentives exist on either side of the border to help them sever ties to gangs.
On the U.S. side, authorities rarely prosecute minors who are carrying drugs for smuggling offenses. In Mexico, children released at the border are usually placed in shelters run by Mexican government social workers, who are supposed to identify family members in Mexico to come retrieve the children.
Appleseed researchers said that minors involved in gangs, once repatriated, often run away from shelters run by Mexican social workers. Researchers also heard from some Mexican social workers that armed gangsters have entered shelters in Mexico and demanded that certain minors be released to them.
‘Romancing’ for prostitution
Podkul, who represented the Mexican minor sent to Virginia, said she’s also represented Mexican girls who were detained by Border Patrol agents and sent back, but who eventually made it into the United States and were forced into prostitution. Podkul said 10 girls she represented were rescued after police broke up trafficking rings in Maryland, New Jersey and North Carolina in 2007.
Almost all the minors had a similar story, she said. They were “romanced” by men in Mexico who told them they could go north and work in restaurants to earn money. But when they arrived in this country, the men told them that no work was to be found, and that to survive they had to work as prostitutes.
Some of the girls told Podkul that they had been caught by the Border Patrol two or three times before getting over the border. But the girls were sent back to Mexico with the men they were traveling with after they all lied and said the girls were not minors.
“These are 15-year-old girls,” Podkul said.
At the time, Podkul worked for Ayuda, a Washington, D.C., immigrant rights group, and she represented minors she found in detention centers she visited or who were referred to her. She is now a detention and asylum program officer for the Women’s Refugee Commission, a non-governmental group that tries to help refugees worldwide.
Santa Monica, Calif., attorney Sandy Chung said her experience representing a Chinese girl detained along the Mexican border showed her it’s critical to have time and skilled professionals on hand to help win children’s confidence.
The girl, 16, was found traveling with a group of Chinese adults. Agents transferred her to a shelter, and she was subsequently placed in a foster care in Los Angeles.
Chung speaks Mandarin, and she was recruited by the nonprofit group Kids in Need of Defense (KIND), which finds lawyers willing to provide pro bono representation for unaccompanied children facing deportation.
It took weeks, Chung said, for her, the foster mother and others to coax information from the girl, and to piece together clues that suggested she was probably headed for forced prostitution in New York. In the end, Chung won the girl a special juvenile visa on the grounds that the girl’s parents had abandoned her by handing her over to human traffickers.
“It makes sense in some cases to send kids back” to home countries, Chung said. “But not when kids are being trafficked.”
Jose Cardona, a Honduran, also won a special juvenile visa after being detained and later meeting a pro bono attorney.
Cardona, at 17, was caught just inside the border in 2010, held in a Border Patrol cell for minors in Harlingen, Texas, but transferred to an Office of Refugee Resettlement shelter in less than two days.
While in Border Patrol custody, Cardona told iWatch News, agents never told him what his options were even when he asked them point blank. When he asked an agent if he might be able to stay because his mother had a visa, Cardona said, the agent was dismissive and told him he was probably too old.
“He told me, ‘Maybe next time,’ ”Cardona said. “He treated me with great sarcasm.”
Cardona had set out alone to try to reach his mother, a live-in maid in Boca Raton, Fla. He had lived with his grandmother since age 3, and after she died, he said, he had no family left and decided to take off on his own to find his mother. She has temporary protective status and a work visa granted to her after hurricanes devastated Honduras.
Cardona said he fell asleep on the floor of the Border Patrol cell the first night he was detained, and that the next morning an agent kicked his feet and told him it was time to fill out forms.
“I think they are completely focused on how you got over the border,” he said. “They don’t care about your past.”
Cardona said a Mexican minor he met while in Border Patrol custody said he had been returned to Mexico multiple times. The boy said he worked for human smugglers, and that being caught and released had become routine.
“This kid told me ‘I can’t get out of it (the smuggling gang). It’s too late,’ ” Cardona said.
The Border Patrol’s view
At a March 2009 hearing before the House Appropriations Subcommittee on Homeland Security, then- Border Patrol Chief David Aguilar defended his agents, saying that they were trained to handle children, and that stations have juvenile officers who specialize in dealing with minors. Now U.S. Customs and Border Protection Deputy Commissioner, Aguilar said agents try to ensure an effective “hand-off” process to transfer children to the custody of HHS.
When the Appleseed report was released in April, the Border Patrol released a statement saying that the Department of Homeland Security was “committed to upholding the law by ensuring a stringent screening process for unaccompanied alien children to help identify and protect victims of human trafficking.”
The agency statement also said it worked closely with HHS to “ensure the integrity of this process and provide for the care and custody of these minors,” the statement said.
Betsy Cavendish, Appleseed’s Washington, D.C.-based executive director, said Appleseed is urging Homeland Security to consider shifting responsibility for screening minors to asylum officers with another of its branches, the U.S. Citizenship and Immigration Services.
Appleseed believes asylum officers’ training makes them more suited to judge children’s stories.
“Our real goal is that the kids are interviewed by people who are trained at interviewing children,” Cavendish said. “There could be a win-win for the government interest in stopping the drug trade,” Cavendish said, while fulfilling the U.S. belief in helping children out of harm’s way.
Homeland Security media affairs representatives did not respond to requests to comment on Appleseed’s suggestion.
A new push in Congress
In the House, Roybal-Allard has tried before, as part of a comprehensive package, to have social workers assigned to interview minors caught on the border.
This time, her bill is narrowly focused on that goal. The bill also calls for providing minors with a video orientation produced in the five main languages they tend to speak. Allard hopes to generate support among Republicans who have strongly supported prior anti-trafficking legislation that included mandatory screening for all unaccompanied children.
Her bill has four Democratic co-sponsors, and has been referred to the House Judiciary Committee and the House Homeland Security Subcommittee on Border and Maritime Security. Supporters contend that the costs of contracting social workers in the busiest border ports to conduct screenings of minors could be paid for with the savings to the Border Patrol. The Congressional Budget Office has not yet produced cost estimates.
The Senate bill calling for a GAO study of the Border Patrol, in no later than two years, is part of a proposed comprehensive reauthorization of the Trafficking Victims Protection Act of 2000 and 2008. A House version of the reauthorization proposal has not been introduced yet.
Leahy, chairman of the Senate Judiciary Committee, to which the bill was referred, issued a statement about his proposed reauthorization, saying: “Thanks to the tools provided by the Trafficking Victims Protection Act, we have made progress in combating these reprehensible human rights abuses, but there is more work to be done.”
Judiciary committee staff members didn’t respond to requests to explain the reason for a GAO report on the Border Patrol is included in the Senate bill.
Podkul, who supports Roybal-Allard’s bill, said “to their credit,” Homeland Security investigators contacted her and seemed interested the allegations her Mexican client made about Border Patrol agents telling him to return to gather information from dangerous smugglers.
Minors seeking a stay on deportation have a right to counsel, but no right for it to be government-supplied, so for many pro bono counsel is their only hope.
Podkul met the boy, by chance, at the Virginia detention center, where she had gone to observe who was being held in a wing contracted out to federal immigration officials. Because of the youth’s story, Podkul said, she called in an investigator with U.S. Immigration and Customs Enforcement, who interviewed the teenager, found him credible and did not oppose Podkul’s attempts to protect him as a trafficking victim.
For a year, much of it while the boy remained in jail, Podkul shepherded the process of petitioning U.S. Citizenship and Immigration Services, and asking that the youth be granted a visa for trafficking victims who cooperate with law enforcement. The boy recounted, Podkul said, that “he had to sit and watch people being tortured as part of this ring in Mexico” if they displeased its leaders.
Podkul succeeded in convincing government officials to grant the youth a visa, and he now lives in a rural area of the United States that he chose because he felt he was less likely to encounter drug traffickers with border ties.
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