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Two Migrants Held for Months Say ICE Is Ignoring Evidence They’re Minors

Two 17-year-olds from Bangladesh are being improperly held with adult detainees at the Otay Mesa Detention Center, according to advocacy groups and court documents submitted on their behalf. Minors who arrive at the border without their parents are supposed to be funneled into an entirely different immigration process than adults.

The main hallway of the Otay Mesa Detention Center / Photo by Adriana Heldiz

Two 17-year-olds from Bangladesh are being improperly held with adult detainees at the Otay Mesa Detention Center, according to advocacy groups and court documents submitted on their behalf.

Minors who arrive at the border without their parents are supposed to be funneled into an entirely different immigration process than adults. They are handled by the Office of Refugee Resettlement, and either stay in a facility specifically for minors or are released to sponsors, who are often family members.

Unaccompanied minors also undergo different court proceedings and have different forms of immigration relief available to them, including protections for children who have been trafficked.

M.S.H. and S.R. have been detained in Otay Mesa since October, and are currently in immigration proceedings. (Voice of San Diego is referring to the two migrants by their initials because of the possibility that they are minors.) The two crossed into the United States illegally and turned themselves in to Border Patrol agents to request asylum.

Both told asylum officers that they had been threatened because of their fathers’ participation in certain political parties in Bangladesh, according to court documents. Both have extended family in New York, who they have submitted as potential sponsors.

Their lawyer has provided birth certificates, school records and affidavits from family members attesting to their ages. Immigration and Customs Enforcement conducted forensic dental examinations on M.S.H. and S.R., which concluded that they were somewhere between 17 and 23.

Both are still being treated as adults, according to a complaint filed to the Department of Homeland Security’s Office of Civil Rights and Civil Liberties by South Asian Americans Leading Together, a group that advocates for South Asian immigrants.

ICE declined to comment on the specifics of the case, citing privacy concerns. But it detailed in a statement how it determines and verifies the ages of detainees. ICE said that to determine migrants’ ages, its officers at detention facilities review documents that include biographical information provided by the detainee as well as any biometric information about the individual in Department of Homeland Security systems.

“When there is a question of age, and in accordance with ICE policy, [Enforcement and Removal Operations] officers seek to authenticate the biographical and biometric information in consultation with the officials at the appropriate foreign embassy,” said ICE spokeswoman Lauren Mack in a statement. “The review typically includes conducting a medical screening to assess age and confirmation of information/photos provided along with a passport and birth certificate.”

The Otay Mesa Detention Center is an adult-only immigration detention center where 810 adult male and 164 adult female detainees are currently housed pending the outcome of their immigration cases, Mack said.

According to the complaint filed by SAALT, an officer at the detention facility “denied that any minors are detained in the Otay Mesa Detention Center” when advocates called to ask about M.S.H. and S.R.

“These kids have families they could stay with, but instead ICE chose to lock them up with adults and throw away the key,” said Bardis Vakili, a senior staff attorney with the American Civil Liberties Union of San Diego and Imperial Counties, who is familiar with the cases but is not representing M.S.H. and S.R. in immigration court. “Steamrolling vulnerable children is now a near constant feature of our government’s inhumane immigration policies.”

On Oct. 25, 2018, M.S.H. and S.R. were first encountered by Border Patrol agents, according to a Department of Homeland Security document.

According to the document, both M.S.H. and S.R. told Border Patrol agents that they were minors.

The agents acknowledged as much, though they write that they believed those statements were a ploy.

“This is a recent trend with Bangladeshis,” agents wrote in S.R.’s form. “They do it in order to be released from DHS custody faster.”

Shortly after his intake, M.S.H. was segregated from the general population at Otay Mesa, according to court records. The justification for the move, according to the documents, is “Pending ICE investigation. Possibly underage.”

By keeping M.S.H. in adult custody, the court and ICE are forcing him to relinquish the forms of immigration relief available to him as an unaccompanied minor, his attorney argues in a court filing.

S.R., according to the birth records submitted as part of his immigration court records, will turn 18 in July. M.S.H. will turn 18 in June.

Reliance on Questionable Dental Exams

Both M.S.H. and S.R. underwent dental forensic exams to determine their ages.

The exams place special emphasis on the development of the third molars, which are used to estimate age, according to their dental records. Their information was then compared with data from three surveys – one of Japanese juveniles, one of the “North Texas Hispanic Population” and one of “American Blacks as Compared With Whites.”

The analysis determined that the range of possible ages of a male with M.S.H.’s third molar development would be 17.10 to 23.80. The probability that M.S.H. was at least 18 was 89.65 percent, according to the report. S.R.’s exam produced similar results. His age range would be 17.03 to 23.76. The probability that he was at least 18 was 88.96 percent.

“They compare teeth of people from one part of the world with the teeth of people from another part of the world and that is wildly inaccurate,” Vakili said. “It can’t be used as a reason to stick a child in an adult facility.”

It’s difficult to determine someone’s age if they don’t have documentation, said Chris Fabricant, director of strategic litigation for the Innocence Project.

“You can’t cut humans in half like trees and count the tree rings, but this is not the answer,” Fabricant said. “The idea that somehow you are going to average all these things together and come up with valid statistics to the hundredth decimal point and that someone’s life or liberty is dependent on this … it’s absurd.”

In February, the Innocence Project produced a report on behalf of one respondent in immigration court in Chicago, criticizing the use of the examinations in eight separate cases. In each case, the dental examination concluded that the asylum applicant was over 18, and each was “scientifically indefensible,” the report reads.

“What is apparent from our review of these reports is that the dentists are each using the same software program to generate the reported statistics, as the statistics contain similar or identical errors, the reports use similar or identical language, and they utilize a common single-page template,” the report states. “What is equally apparent is that the dentists are simply assessing the individuals’ molars and entering that data into the program, which generates statistics using a method of analysis that they do not understand and which produces results that are, at best, misleading.  “

The Department of Homeland Security’s use of the exams has come under fire for at least a decade, Reveal has reported.

Reveal found that congressional committees in 2007 and 2008 directed ICE to stop using dental and bone scans, but the agency continued to use them. In 2009, a government watchdog audit criticized the practice again. In 2016, a federal judge even struck down the use of the dental radiographs to make an age determination in one case, noting that a 2009 human trafficking law requires the government to use multiple forms of evidence rather than solely dental and bone scans, Reveal reported.

ICE’s internal handbook says that immigration officers should use “multiple forms of evidence” including birth certificates, statements from the child’s parents and other records when trying to determine the age of unaccompanied minors,” Reveal reported in a separate story last year. Dental and skeletal tests should only be used as a last resort, but attorneys told Reveal that they’ve observed the agency rely on such examinations more heavily than they should.

In a motion, M.S.H.’s lawyer requested that the judge consider evidence aside from the dental exams as an indicator of his age.

His birth record from a Bangladeshi online government birth registry was provided, as were his school records and parents’ marriage records.

S.R. also submitted a birth record from the online registry. His mother also submitted an affidavit noting his date of birth.

In S.R.’s case, a DHS forensic document examiner said those documents couldn’t be authenticated “due to the lack of a comparable genuine People’s Republic of Bangladesh Birth and Marriage Certificate standards and reference material on file in the laboratory’s reference library.”

Cases Underscore Problems Faced by South Asian Detainees

Lakshmi Sridaran, SAALT’s interim co-executive director, said that in addition to being wrongly held in adult addition, the boys’ cases exemplify other challenges faced by South Asian detainees in ICE facilities across the country.

South Asian detainees tend to be denied access to adequate translation services, their bonds are set very high and their paroles are regularly denied, Sridaran said.

Court documents show M.S.H.’s February bond hearing took place via video conference.

“The interpreter was almost inaudible and, on several occasions, had to be prompted to repeat and often could not hear the Respondent,” M.S.H.’s lawyer wrote in the document.

“The language barrier issues are very difficult,” Sridaran said. “There isn’t support on ICE’s end on helping people know what their rights are.”

In its civil rights complaint regarding M.S.H. and S.R., SAALT expressed concerned that “respondents who are not yet adults and who do not read or write English, are not being treated in a manner consistent with their age and ability.”

Both S.R. and M.S.H. have been also denied bond, meaning they’re stuck in detention as their immigration proceedings move forward.

Sridaran said the bond and parole process is almost impossible for South Asians. She cited a group of Punjabi Sikhs in El Paso who went on a hunger strike to protest their prolonged detention and denial of bond after they passed preliminary asylum interviews. Despite the hunger strike, only two of the nine Punjabi asylum seekers were able to get bond – set at a steep $20,000 each.

“There is very little public awareness of what South Asians are facing in these detention facilities,” Sridaran said.

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