Early in the morning of Manoel’s 18th birthday in June, immigration agents came into his room, place shackles on his hands and feet, and put him in a van and then a plane, never explaining where they were taking him. Manoel, his lawyer told me, was “fleeing death threats from powerful drug trafficking organizations because he refused to join them due to his religious beliefs" when he presented himself at the US-Mexico border requesting asylum protection in May. He had spent the past month in the Southwest Key Shelter for unaccompanied minor immigrants in Tucson, Arizona, preparing his parole documents with the help of the Brazilian Consulate, so he could be released to his family friend awaiting him in Massachusetts.
Instead, Immigration and Customs Enforcement (ICE) transported Manoel (whose name has been changed to protect his ongoing case) to an adult immigration detention facility in Colorado, where he remains after ICE denied his parole request, his attorney told me.
“They transported him a very long way from Tucson to Denver shackled the whole time and he had no idea what was going on,” Manoel’s immigration attorney Karen Hoffmann told me. “This kid should have been released months ago to his sponsor who's waiting for him in Massachusetts. He has a US citizen sponsor.”
ICE has increasingly transferred unaccompanied minors like Manoel to adult jails on their 18th birthdays in recent months, according to immigration lawyers around the country, which they say violates a federal law designed to protect this vulnerable population.
“ICE is taking this approach where the default is detention,” said Kate Melloy Goettel, senior litigation attorney for the National Immigrant Justice Center (NIJC), which has filed a class-action lawsuit on behalf of the detained 18-year-olds. She explained that the Trafficking Victims Protection Reauthorization Act of 2013 (TVPRA) requires ICE to place teens who turn 18 in federal custody into the "least restrictive setting” after considering the individual’s flight risk and danger to self and the community.
“These kids should not be in adult immigration detention… and a lot of kids don't get a bond hearing for weeks or even months after being in detention and then they have to pay money to be released,” Melloy Goettel told me. “This is a class of unaccompanied immigrant children who have just turned 18—they don’t have money.”
An ICE spokesperson, however, said that the agency did comply with legal standards. “ICE makes arrest and custody determinations on an individual basis based on the totality of the circumstances and does so in compliance with federal law and agency policy,” the spokesperson told me via email. He declined to speak to the NIJC litigation because the agency does not comment on pending legal matters.
NIJC has already won release for three such detained teens, including Ana, an El Salvadorian asylum seeker who entered the US with her two-year-old son in January and was placed with him in an unaccompanied minor shelter in New York. On Ana’s 18th birthday in February she was told to report alone to a government office at 5 AM—and as soon as she arrived, two ICE officers arrested her and transferred her to New Jersey’s Bergen County Jail, court documents say.
“She didn't get to say goodbye to her two-year-old child,” said Melloy Goettel. "It took three months for her to get out of detention… Now she and her son are back together.”
Another of the teens, Wilmer Garcia of Guatemala, spent eight months in adult detention in Eloy, Arizona; ICE did not respond to his attorney’s letter requesting his transfer to an eligible sponsor in Pennsylvania, court documents show. NIJC won his release in April, and is still waiting for a federal judge’s response to certify their lawsuit as a class action on behalf of all similarly detained teens.
Meanwhile, ICE keeps picking up 18-year-olds from shelters, an uptick of detentions that some attorneys consider an unofficial policy change of the Trump administration.
"There is seemingly a new policy on a more broad scale," Gregory Copeland, supervising attorney for New York Legal Aid Society’s Immigration Law Unit, told me, noting that his organization had seen a pattern of 18-year-olds being detained just since spring.
This surge is particularly striking in South Florida, where ICE has been showing up at one of the nation’s largest unaccompanied minor shelters—a 1,300-bed facility in the town of Homestead—to handcuff youths on their 18th birthdays, Lisa Lehner, senior litigation attorney for the Miami-based Americans for Immigrant Justice, told me.
Since April AIJ has learned of 14 youths transferred from the Homestead shelter to detention, including one Guatemalan boy who was separated from his father under the administration’s “zero tolerance" policy.
“The boy entered in June with his father and on June 14 they were separated with no explanation of why… then he found out from his brother that his father had been deported,” Lehner said. “He turned 18 on July 4, and he was transferred to jail. He was pretty traumatized.”
“Before they turn 18 there’s supposed to be a ‘post-18 plan’ where they figure out the least restrictive setting to be placed in... That is something that hasn’t been followed recently.”
Lehner secured his release to go live with his brother weeks later, and has successfully won the release of five other youths by filing habeas petitions—claims of unlawful detention. But since then she has already learned of at least five other youths in jail, and is now working on those cases. Lehner said ICE is not only violating the TVPRA in these detentions, but also is denying the youths due process by taking them into custody without any judge making a determination that they are flight risks.
“Before they turn 18 there’s supposed to be a ‘post-18 plan’ where they figure out the least restrictive setting to be placed in,” Lehner said, explaining that the Office of Refugee Resettlement created the plan and then ICE was to adhere to it. “That is something that hasn’t been followed recently.”
ICE is not adhering to these post-18 plans partly because they have gotten stricter in what they require to release the youths, said Janet Gwilym, managing attorney for the Seattle branch of Kids in Need of Defense.
"It used to be that if we had a path for the child like a pending immigration application filed that usually was enough for ICE to give them release but now that’s not the case,” said Gwilym. “They don’t tell us until a few hours before what they plan to do… We’re playing this waiting game. In our facility they pick [the kids] up at midnight on their birthdays.”
John Sandweg, the former acting director of ICE under the Obama administration, said the agency previously did not focus on detaining 18-year-olds at ORR shelters because it seemed like a waste of resources that could be used to track down immigrants with criminal records.
"The idea we’d be using our time grabbing 18-year-olds who came across as unaccompanied minors—regardless of the TVPRA—was not something we should be doing," Sandweg told me. "I wanted the agency to be focused on promoting safety and border security and I don't think taking unaccompanied minors and putting them into ICE detention in any way helps… It’s an available population and easy to apprehend. It doesn't make it smart.”
Still, some ICE field offices—especially the Houston field office—have been picking up 18-year-olds for several years on a regular basis, said Diana Tafur, supervising attorney for the Corpus Christi, Texas, office of Refugee and Immigrant Center for Education and Legal Services.
“Even when a child has filed for relief, even when he has shown no harm to others and no flight risk, and even when there is family it doesn't matter,” Tafur said of the Houston field office's approach. “On their 18th birthday they're transferred to adult detention.”
One such youth, Maria (who requested I use a pseudonym), spent 11 months in Corpus Christi’s unaccompanied minor shelter before ICE agents arrested her on her 18th birthday last year.
“The night before my birthday staff at the shelter took me and put me in a separate room alone and told me I couldn’t be with the others anymore," Maria recalled to me on the phone. “At dawn ICE arrived and took me to jail in Houston.”
Maria had already been granted bond by an immigration judge, who had deemed she was not a flight risk or risk to the community, Tafur said.
“ICE disregarded the bond and re-detained her without a new finding in contradiction of the judge’s order," said Tafur, who after a few weeks was able to secure Maria’s release.
Maria, who fled Mexico alone after facing years of abuse and death threats, is now living with a family friend in Fort Worth, but she recalls her time in detention with sadness and shame.
“At the shelter I'd been in a place where they took care of us and treated us well, but here the officials yelled at us, got mad at us for not speaking English… and almost everyone else was older than 30,” she recalled of the jail. “The bathrooms didn’t have a separation, even to shower. I was embarrassed and uncomfortable.”