This document is scheduled to be published in the Federal Register on 10/04/2023
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Kemokai v. Atty. Gen.
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EOIR provided these slides in response to my FOIA request.
EOIR, Sept. 28, 2023
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NIJC, July 2, 2020
"A federal court has ruled that the failure of U.S. Immigration and Customs Enforcement (ICE) officers to consider less restrictive settings before transferring unaccompanied immigrant youth to ICE detention on their 18th birthdays violates U.S. immigration laws.
The ruling in Garcia Ramirez et al. v. ICE was the result of more than two years of litigation in the U.S. District Court for the District of Columbia by the National Immigrant Justice Center (NIJC) and Kirkland & Ellis LLP, culminating in an 18-day bench trial in which the plaintiffs presented testimony from over 20 witnesses. The lawsuit challenged ICE’s practice of transferring unaccompanied minors who turn 18 years old to adult custody in the agency’s contracted jails and prisons, without considering less-restrictive placements, like releasing them to family members or youth shelters. In many cases, youth were sent to ICE detention even if they had sponsors waiting to take them in.
In its ruling, the district court found that the U.S. government routinely and systematically fails to adhere to the statutory provisions that require them to consider placement in the least restrictive setting available, and to provide meaningful alternatives to detention as required by amendments to the Trafficking Victims Protection Reauthorization Act (TVPRA). The court stated it will issue an order directing ICE on how to remedy these violations in the near future.
“We were pleased to see that the district court upheld the law and is holding the government agency accountable to apply the law correctly,” said Mary Meg McCarthy, executive director of NIJC.
Data obtained over the course of the lawsuit showed that within months of the federal court certifying the national class action in August 2018, the rate at which ICE transferred 18-year-olds to adult detention centers dropped by half — from 83% at its highest point to about 35%. Decisions about whether youth would be sent to ICE custody or placed in a less-restrictive setting largely depended on which ICE field office was making the decision. No data has been shared in recent months, however, during which the Trump administration has used the COVID-19 pandemic to delay the release of unaccompanied children from Office of Refugee Resettlement (ORR) custody. Advocates worry that more children are again reaching their 18th birthdays in ORR custody, only to be transferred to ICE detention.
Attorneys in the case responded to the court’s ruling:
“This is a great victory for thousands of current and future unaccompanied immigrant children who turned 18 in government custody. We could not be happier with the court’s thorough and well-reasoned decision,” said Kirkland lawyer Steve Patton, who was lead counsel pro bono on this case. “At bottom, this case was about the rule of law. In 2013, Congress enacted a statute requiring that ICE shall consider placement of unaccompanied teenagers in the least restrictive setting available, and that ICE shall make available to them alternatives to adult detention. Our suit asked the court to enforce these statutory directives, and it did exactly that.”
“We’re ecstatic that the court is holding ICE accountable for failing these children, and is insisting on oversight that we hope will prevent more youth from unnecessarily being subject to the abusive ICE detention system when they turn 18,” said Kate Melloy Goettel, legal director, litigation at the American Immigration Council, who litigated the case as an attorney at the National Immigrant Justice Center. “Based on ICE’s own data and testimony, we proved at trial that ICE field offices were automatically sending kids to ICE jail without even considering safer and more appropriate options.”
“Today’s decision affirms that unaccompanied immigrant children are a uniquely vulnerable group that Congress sought to protect,” said Gianna Borroto, senior attorney at NIJC and co-counsel in the case. “As the court recognized, ICE’s practice of systematically jailing children on their 18th birthday violates these important protections under the law.”
The case’s lead plaintiffs are Wilmer Garcia Ramirez, who fled to the United States alone in 2017 when he was 17 years old to escape forced labor, and Sulma Hernandez Alfaro, who fled to the United States as a minor to seek asylum. In the United States, Wilmer was placed into ORR custody, where he applied for a special visa for immigrant children. Later that year, when Wilmer turned 18, ICE took him into custody and sent him to the Eloy Detention Center in Arizona for eight months, even though a family friend was willing to sponsor him upon his release. Similarly, Sulma was initially placed into ORR custody upon her arrival to the United States but was transferred to an ICE detention center upon turning 18, even though a group shelter was willing to accept her."