Immigration Law

Battle Over the Constitutional Rights of Undocumented Minors

"Two years ago, attorney Sameer Ashar, a UC Irvine law professor, represented a juvenile who was referred to federal immigration authorities by the Orange County Probation Department.

In immigration court, Ashar argued to have his client’s case terminated and asked the judge to exclude the government’s evidence showing that the minor was in the United States without legal status.

While in juvenile hall detention, the boy was interrogated by agents from Immigration and Customs and Enforcement (ICE), the federal agency that investigates immigration law violations.

Ashar argued in court that the information was obtained illegally, in violation of the minor’s constitutional rights and his right to privacy based on a California law that protects a minor’s confidentiality in the juvenile justice system.

“The state explicitly says that the details of his case are to be kept private and his files are to be kept confidential,” said Ashar.

By disclosing his name when the department referred him to ICE and turned over case file information, the Probation Department violated his confidentiality, Ashar told the court.

In addition, he contended that ICE did not provide his client with the Department of Homeland Security’s “Notice of Rights and Request for Disposition," or I-770 form, a document informing the minor of his right to legal counsel, use of a telephone to contact family, and a trial before a judge.

This notification is required by federal regulation, and was put in place as a safeguard for minors interrogated by immigration authorities.

“These protections seem especially important if they are putting kids into deportation proceedings,” said Ashar. “But the fundamental violation is the county even asking about immigration status…and then calling ICE and referring kids into ICE’s authority.”

In juvenile hall, the minors are without their families and without attorneys when they are questioned about their legal status by probation officers, he said.

“Here this system is rife with coercion and duress,” said Ashar, who is co-director of Immigrant Rights Clinic at UCI law school.

The judge subsequently terminated the minor’s deportation proceedings after the government failed to comply with the judge’s orders to turn over the boy’s immigration file to the court, said Ashar.

While the decision halted the minor’s deportation, it did not grant him legal status and left the boy in limbo, Ashar said.

Also, the deportation proceedings ended before the judge could issue a decision on the issues surrounding the confidentiality and constitutional violations, Ashar said.

Yet even if the judge had ruled on the confidentiality breach or the constitutional violations, immigration court decisions are not precedent setting.

And the higher courts, such as the U.S. Court of Appeals and the Board of Immigration Appeals - the appellate arm of the immigration court system - have yet to publish a precedent setting decision, which would be binding on all immigration courts.

Ashar, who co-edited a 2013 UCI law school report examining the issue of how Orange County juveniles are referred to immigration authorities, said ICE should be held accountable for what he says is a violation of the constitutional rights of juveniles who are interrogated in juvenile detention before being informed of their rights.

Specifically, Ashar cites the minor’s Fifth Amendment constitutional right to due process, their right to remain silent and have an attorney present during questioning, as well as their right against self-incrimination." - Yvette Cabrera, Aug. 27, 2015.