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On April 22, 2020, three youth currently incarcerated at Cowlitz County Youth Services Center were included in a federal lawsuit seeking the release of migrant children held in US government custody in congregate settings, due to concerns for their safety in light of the COVID-19 pandemic. Click here to review a brief submitted in federal district court by the attorneys appointed to defend the interests of detained minors under the Flores Agreement.

In the Pacific Northwest, two county-run juvenile jails have been reaping revenue from the Trump administration’s family separation practices for years, while mounting an unusual effort to conceal these practices from the public. The Cowlitz County Youth Services Center in Longview, Washington, and the juvenile Northern Oregon Regional Correctional Facility (NORCOR), in The Dalles, Oregon, are two of only three facilities in the nation where immigrant children who are taken from their families by Immigration and Customs Enforcement (ICE) are detained, without access to due process or the protections mandated for migrant youth under the 1997 Flores Agreement. In many ways, the secrecy surrounding these facilities has allowed them to hold children indefinitely in administrative detention far from their communities—and to plump county coffers with the proceeds from family separation and child detention practices that physicians and human rights experts consider torture.

This report, a joint publication of the University of Washington Center for Human Rights (UWCHR) and the Transformative Immigration Law course at Lewis and Clark Law School taught by Professor Juliet Stumpf,[1] shares the results of our ongoing research on the detention of noncitizen children in these jails. Much remains unknown about these facilities, and one of this report’s authors is currently being sued in federal court for merely inquiring about them. Our research suggests, however, that in facilitating family separation and the indefinite detention of children without access to due process protections these facilities and ICE violate international human rights standards, the U.S. Constitution, and Washington and Oregon state law.

In light of the urgent threat to public health caused by the COVID-19 pandemic—a situation that has already led Cowlitz County to release all but one of the U.S. citizen youth in its custody—we are publishing this report as part of a broader effort to call for the immediate release of the three migrant children currently detained in Cowlitz County[2] and the termination of these contracts to prevent further separation and unlawful detentions from occurring in the future.

Both Cowlitz County’s Youth Services Center and NORCOR Juvenile Detention[3] are primarily detention centers for U.S. citizen youth who have run afoul of the criminal justice system. However, since 2001, in the case of Cowlitz County, and 1999, in the case of NORCOR, both facilities have also housed immigrant juveniles for the federal government, under the terms of contracts signed with ICE’s predecessor agency, the Immigration and Naturalization Service (INS). In exchange, Cowlitz county receives payment of $170 per day per child,[4] and NORCOR receives $165.[5]

These arrangements first came to the attention of UWCHR researchers in 2018 when reviewing a spreadsheet listing all 1,685 ICE detention facilities in the United States, provided to the Immigrant Legal Resource Center pursuant to a FOIA request.[6] Researchers noticed that two of only three[7] facilities in the nation that held unaccompanied immigrant minors[8] for ICE for a period of over 72 hours were here in the Pacific Northwest—and began to seek more information about them.

Under state public records laws, UWCHR researchers requested all three facilities’ contracts with the federal government, and the number of children held in recent years. Only Cowlitz and NORCOR responded, as the third facility, the Abraxas Academy in Morgantown, PA, is run by GEO Group, Inc., which takes the position that it is exempt from public records requests. Under the federal Freedom of Information Act (FOIA), UWCHR researchers also requested information about those imprisoned in the facilities from ICE; but the agency rejected the request, citing concerns about the children’s privacy, despite the fact that UWCHR requested records redacted to protect any identifying information.

Cowlitz County officials provided a table showing fifteen children had been held in the facility from June 2013 to June 2018. The table revealed that while one child stayed in the facility for less than a day in 2015, some children stayed hundreds of days in the facility; one child had already been incarcerated for 297 days and was still being detained at the time the document was produced. The contract between ICE and Cowlitz County stipulates that youth to be held under the contract, called “List 1 detainees,” include “(1) juveniles classified as criminal, chargeable as a criminal, and/or subject to extant criminal proceeding, (2) escape risks, (3) adjudicated delinquents, (4) juveniles who have committed a violent and/or threatening act toward self or another, and (5) juveniles who engaged in disruptive behavior while in a licensed shelter program.”

NORCOR provided a table showing that fifteen youth were held between July 15, 2013 and January 2018[9]; their lengths of detention ranged from a few days to many months. The table included their nationalities, showing that most, but not all, were Central American or Mexican, and a column titled “criminal charges,” though no explanation as to whether the individual was considered chargeable, had actually been charged, or had been convicted. For one youth, no charges were listed. NORCOR’s contract with ICE includes no description of the detainees to be held.[10]

Those who hold these children in detention have been inconsistent in reporting how many children they have detained, and exactly how many children have been detained remains unclear. While Cowlitz county officially acknowledged that it had held fifteen children for ICE between June 2013 and June 2018 in its response to UWCHR researchers, facility administrator Chad Connors told journalist Nina Shapiro that “roughly 30” had been there from 2013 to July 2019;[11] the spreadsheet of all detention facilities released under FOIA only registered three youth detained in Cowlitz as of November 2017;[12] and a spreadsheet of all ICE book-ins in the Seattle Area of Responsibility released to UWCHR under FOIA only registered two juveniles booked into Cowlitz County during the same period. One attorney described a “steady stream” of three to five youth at any given time in Cowlitz county; another estimated the average number in the facility might be five, though it varied. Formerly detained kids posited similar guesses based on their experience.

Figure 1 – Youth detained for ICE at Cowlitz County Youth Services Center and NORCOR since 2013 by date of admission and length of detention[13]

According to the data disclosed by the counties, the use of both facilities has become more pronounced starting in 2017 and 2018. (Since 2018, no further information has been provided regarding the detained youth, as the fulfillment of UWCHR’s 2018 public records request to Cowlitz County has been stalled by ongoing litigation brought by the county against the university at ICE’s instigation.)

In an effort to better understand the situation of the noncitizen children held in Cowlitz County and NORCOR, UWCHR researchers and Lewis and Clark law students conducted interviews with lawyers who represented youth detained there, and with youth formerly detained in these facilities; interviewees spoke under conditions of confidentiality so as not to prejudice ongoing proceedings in which they were involved. From these conversations, we have constructed a general picture of the circumstances that bring youth to these facilities, though much remains unknown.

Prior to their arrest, the youth had been living with their families,[14] most apparently on the East Coast. Many of the arrests took place in anti-gang operations like Operation Matador and Raging Bull[15] that targeted the MS-13 beginning in 2017 and 2018. Some had prior criminal histories, ranging from minor juvenile offenses (one attorney described a client who had been arrested for driving without a license[16]) to more serious, and in some cases violent, crimes.

Nonetheless, several attorneys cast doubt on the evidence linking their clients to such crimes. One noted that these anti-gang operations are notorious for criminalizing latinx youth; she said one of her clients had been “tailed for months before he had any charge” because “they just assumed he and his friends were in a gang.” Indeed, journalist Hannah Dreier has uncovered disturbing evidence that in their zeal to find and arrest gang members, ICE has at times targeted innocent high school students for deportation on the basis of evidence as flimsy as a sketch in a school notebook.[17] The New York Civil Liberties Union (NYCLU) has alleged that Operation Matador has led to the arrest of hundreds of migrant children detained in some cases “on the basis of such trivial things as possessing drawings of their high school mascot or the area code for their home country, both of which ICE characterized as ‘gang paraphernalia.’”[18] In these operations, the NYCLU asserts in a class action lawsuit, “authorities frequently detain children without any independent review of the allegations and without any opportunity for the teens to challenge the underlying evidence being used against them.”[19]

ICE’s own public statements about Matador[20] and Raging Bull[21] acknowledge that roughly half of those detained in these operations were arrested for administrative offenses, meaning that while these anti-gang crackdowns netted some suspects who would face criminal prosecution, they also swept up many who were only held on suspicion of immigration violations—a civil, not criminal, violation.

ICE, in fact, has no authority to punish migrants for criminal offenses; while some people detained by ICE may previously have been convicted of a crime, or may still face criminal charges in another jurisdiction, ICE detention is limited to administrative immigration violations.[22] The agency may assert that the people it detains are dangerous criminals, and county officials have on occasion repeated such allegations,[23] but the legal grounds for their detention by ICE in Cowlitz or NORCOR is purely civil (or administrative), not criminal.

The “ICE kids”

However, once the children arrive in Cowlitz or NORCOR, they are housed among the general population of incarcerated juveniles, as permitted under ICE’s contracts with the facilities. Cowlitz County Juvenile Court Administrator Chad Connors asserts that at Cowlitz, “They wake at the same time. They’re fed the same foods. They’re given the same access to medical care, counseling.”[24] In conversations with UWCHR researchers, formerly detained U.S. citizen youth confirmed that they regularly mingled with the “ICE kids.” Their immigrant peers, though, experienced a different reality: none were known to have family or a support network in the Pacific Northwest, and most had no idea why they had been flown across the country from their families or when they would ever get out.

Perhaps the most important difference is that kids administratively detained for ICE stay markedly longer than the kids incarcerated for juvenile offenses. According to one study, the average length of detention at NORCOR for all youth was just over 21 days in 2017, whereas the average length of detention for those detained for ICE was nearly 109 days.[25] Because of the secrecy surrounding the detention of these children, it is unclear whether the confinement of individual children is much shorter or much longer than this 109 day average.

Even more significantly, perhaps, immigrant youth are granted dramatically fewer due process protections. Because they are held in civil detention, they are not provided access to court-appointed lawyers; it’s up to the children themselves to find an attorney willing to represent them. Attorneys report that typically youth find representation through word of mouth, by speaking to other children in the facility; it is unknown how many kids remain unrepresented. Multiple attorneys said they knew of cases where children became tired of being locked up and accepted “voluntary” removal to their countries of origin, likely without legal guidance as to whether or not they were eligible for any forms of relief from deportation.[26]

One attorney, for example, described a boy from Guatemala who had come to the United States seeking protection from gang violence. While at Cowlitz County, this boy was informed that a family member of his had been shot likely by the very gang he fled from. Because of the emotional toll that months in detention had taken on him, he asked ICE to deport him, despite the dangers that might await him in Guatemala.[27]

A U.S. citizen formerly detained in Cowlitz County recalled a Salvadoran girl she had gotten to know while in the facility. Short, bubbly, with long thick wavy black hair, the Salvadoran girl was seventeen years old and was a mother to a twelve-month-old child of her own back in Virginia, where she had been living with her parents. Her boyfriend had been accused of gang membership. The girl said she had no idea why she was in Cowlitz County, and missed her family. In all the months she was incarcerated there, she never received a single visitor.[28]

Another U.S. citizen who had been detained at Cowlitz shared stories of several boys he had met. He had been assigned to the At Risk program, so would cycle in and out of the facility depending on his adherence to certain rules while outside, but he felt badly to always see the immigrant children languishing there, unable to see family and typically unaware of why they had been sent there or when they would get out.[29]

Inside the Cowlitz County facility, migrant children are not allowed any outdoor recreation; all sports and activities are indoors. According to their attorneys, migrant youth do not have access to notebooks or pens, and are only allowed to keep legal documents—no books—in their cells. The kids themselves spoke of punishment that includes being strapped to a restraint chair in an isolated room,[30] though administrator Chad Connors insists such treatment is used only sparingly, for the children’s own safety when acting out.[31] Similar restraint chairs have been at issue in recent lawsuits alleging abuse of immigrant children in facilities elsewhere in the country.[32]

In 2018, under the Trump administration’s “zero tolerance” policy, federal agents were instructed to separate all family units crossing the border, including many doing so lawfully to seek asylum, and to prosecute all adults for unlawful entry. This resulted in the separation of still untold numbers of families, generating widespread outrage and eventually, a rare policy reversal.

Yet family separation continues—not only at the U.S./Mexico border, but also in interior enforcement practices like those that funnel children into Cowlitz County’s and NORCOR’s juvenile jails. Whatever allegations ICE may make surrounding the alleged criminality of these youth, some core facts are beyond dispute: these are children who were originally living in family units when ICE detained them, and they are currently held by ICE on the suspicion of violating U.S. immigration law—a civil transgression. In separating these children from their families, ICE violates the fundamental right to family integrity embedded in the U.S. Constitution.

In defying protections for family integrity and safeguards against arbitrary arrests and detention, ICE’s practices strike at the most essential concepts underlying international and domestic systems of rights protection. And they do so while targeting children, a population widely recognized as particularly vulnerable. ICE’s practice of removing children from families, refusing to transfer children to the agency legally responsible for their care and reunification, and maintaining the children in ICE custody violates their families’ rights to family integrity, the statutory rights of the children, and the protections of the Flores Settlement Agreement.

The United States today runs the world’s largest system of immigrant detention, in clear violation of international human rights standards which mandate the use of civil detention only as a last resort for adults, and prohibit it altogether for children. Yet in 2019 alone, a staggering 69,550 migrant children were in U.S. government custody.[33] Multiple human rights instruments prohibit this practice as a grave violation.[34] The Committee on the Rights of the Child has declared that, “children should never be detained for reasons related to their or their parents’ migration status, and States should expeditiously and completely cease or eradicate the immigration detention of children.”[35] A robust consensus in the medical literature documents the grave, at times irreversible, harm done to children in immigration detention.[36] In 2017, the American Academy of Pediatrics issued a policy statement concluding that ICE facilities “do not meet the basic standards for the care of children,” likely causing or exacerbating trauma in immigrant youth.[37] In 2020, after evaluating children who experienced detention following family separation, a group of doctors with Physicians for Human Rights concluded that such treatment constituted torture.[38]

While the United States is the only country in the world that has refused to sign the Convention on the Rights of the Child, U.S. domestic law affords constitutional protections to family integrity, prohibiting the government from removing children from parental custody except in very limited cases. Since 1997, the United States has recognized the minimum standards for the care of noncitizen children in its custody laid out in the Flores Settlement Agreement. Under the Agreement, agencies who take custody of noncitizen children are obligated to seek their release and reunification with family members as a primordial objective. Agencies must release detained minors “without unnecessary delay” to the care of parents or guardians. When this is not immediately feasible, they must hold them in the “least restrictive setting… in the best interest of the child.”[39]

Legal protections for minors

When the Homeland Security Act of 2002 dissolved the INS, delegating most of its functions to the new Department of Homeland Security (DHS), it established the Office of Refugee Resettlement (ORR) as responsible for managing the custody of immigrant and refugee youth.[40] Today, ICE, as a component of DHS, must transfer any child in its custody to the Office of Refugee Resettlement, typically within 72 hours. ORR, not ICE, is the agency that Congress mandated to provide care of migrant children and reunite them with family or guardians. The actions of both agencies remain subject to the standards of the Flores Settlement Agreement, and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), which Congress passed in 2008 to codify certain of the Flores standards into law.

Together, the constitutional right to family integrity, the Flores Agreement, and the TVPRA form a legal framework that protects children from family separation, minimizes child detention, and limits overreaching by government agencies by placing children in the hands of those most interested in their welfare. ICE’s separation of families and detention of migrant children strikes at the core of this carefully constructed legal framework for protecting and reunifying migrant children. It runs against federal law and policy in three ways: when it violates the right to family integrity through family separation, subjects children to egregiously prolonged detention, and fails to take steps to reunify children with the families they were taken from.

First, ICE’s apprehension of children living with their families in the U.S. violates the constitutional right to family integrity.[41] Separation of parents and children only for a civil immigration process, without a prior legal determination that the parent is unfit, “shocks the conscience” as an arbitrary abuse of executive power that rises to constitutional magnitude.[42] DHS learned this lesson in 2018 when a federal judge and then the President prohibited immigration officials from separating families apprehended at the border.[43]

Second, prolonged detention of children, in this case for many months, violates the Flores Settlement Agreement. Regardless of which agency has custody of these children, officials are under a legal obligation under the Flores Settlement agreement to make “continuous efforts” toward family reunification as long as a minor is in its custody.[44] ICE’s own contract with Cowlitz specifies that the county is required to adhere to the terms of the Flores Agreement, noting in boldface that the Agreement applies to “all INS juveniles regardless of their detention status.”[45]

Finally, ICE’s contract with the Cowlitz County facility flagrantly violates the Agreement. The Flores Agreement is clear: it stipulates that “children shall be separated from delinquent offenders.”[46] Yet the ICE contract violates this obligation by inviting its contractors to mix children ICE has apprehended with delinquent offenders, stating that “INS Juveniles classified as List 1 detainees may be mixed with non-INS criminal offenders.”[47] Furthermore, the limited freedoms afforded to youth in both facilities certainly do not suggest adherence to the Agreement’s stipulation that youth should be held in the “least restrictive setting possible”; in fact, their placement alongside youth in criminal detention suggests circumstances that are not only restrictive, but punitive.[48] This violates both the Flores Agreement and the TVPRA.

There is no lawful authority for the youth housed at Cowlitz and NORCOR to remain in ICE custody rather than being released to family or transferred to ORR. The language of Cowlitz’s 2001 contract, which cites Flores, and of the 2017 ICE facilities spreadsheet released under FOIA[49] suggest that these facilities may initially have been intended as stopgap placements for youth en route to ORR facilities. Relatedly, a 2007 Congressional Research Service report noted a small number of immigrant minors who remained in ICE custody in certain facilities, including Cowlitz and NORCOR, explaining that “the predominant reason for a [unaccompanied alien child] being held in excess of 72 hours was the lack of ORR bed space or no beds available in a ‘reasonable’ commuting area.”[50] Yet given that some youth today spend hundreds of days in Cowlitz and NORCOR, and most do not appear to leave for ORR placement, these are clearly not the circumstances leading to youth detention in these facilities today.

Indeed, ICE justification for retaining custody of these youth appears to have shifted: the agency now says the incarceration of the children at Cowlitz is necessary because these youth are public safety or national security threats.[51] But both the Flores Agreement and TVPRA allow for children, under a limited set of circumstances which includes criminal behavior, to be placed in secure ORR facilities sometimes referred to as “step-ups”; some of these, like the Shenandoah Valley Juvenile Center in Virginia, also house U.S. citizen youth involved with the criminal justice system,[52] and have also received youth detained in anti-gang operations like Operation Matador.[53] (Serious allegations of abuse have surfaced in these facilities.[54]) It does not make sense, then, that ICE must itself retain custody of the youth at Cowlitz and NORCOR because of their exceptional circumstances, rather than transfer them to ORR.

Instead, it appears likely that these children have fallen through the legal cracks, and are held in a legal limbo where they have access to few of the effective protections ensured by the Flores Agreement—or, for that matter, the U.S. Constitution. Ironically perhaps, this occurs in states which have enacted some of the nation’s most immigrant-friendly provisions into law, yet where leaders have declined to examine the legality of these youth’s detention.

In fact, these practices may also run afoul of state law. Beginning in 1913, the Washington state legislature granted counties over a certain size the authority to create a room or house of detention[55] for juveniles “alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through 13.40.230″ but the definitions of juvenile offender, “offense,” and “violation” all exclusively relate to criminal justice, not administrative/civil matters.[56] This would suggest that Cowlitz county has contracted with ICE to perform a function which the legislature never granted it the authority to do—the civil detention of minors, without benefit of due process.

Washington jail administrators have made an error of this constitutional magnitude before. Many county jails, in Washington and elsewhere, had honored ICE detainers requesting they hold inmates an additional 48 hours beyond their scheduled release date to facilitate their pickup by ICE, until this was shown to be unconstitutional because they lacked the legal authority to detain immigrants beyond their release date. The practice of detaining youth for civil violations—however shrouded in stigma their past criminal entanglements might be—may similarly constitute an arbitrary deprivation of liberty.

NORCOR’s administrative detention of children in exchange for payment by ICE may also run afoul of Oregon law. Oregon’s legislature carefully circumscribed county officials’ power to detain juveniles in secure or correctional facilities. Oregon law limits juvenile detention to one circumstance: when youth or youth offenders are “confined pursuant to a judicial commitment or order pending final adjudication of the case by a juvenile court.”[57] Holding children in the NORCOR facility is based on an agreement with ICE, not a judicial commitment or juvenile court order.[58] When NORCOR contracts with the Department of Homeland Security to lock noncitizen youth in its detention facility, it oversteps the specific, clearly articulated limitations that the State of Oregon imposed to safeguard children.

Secrecy surrounding youth detention

Crack

If the fact that county jails are deriving income from a system that removes children from their families, transports them thousands of miles from their home community, and incarcerates them indefinitely without due process are not worrisome enough, the secrecy surrounding this practice should give us additional pause. Effectively, ICE is attempting to treat these facilities as a “black site” for the detention of immigrant children—a place about which all information is kept from the public. As the Editorial Board of The Seattle Times has written, “The American justice system is supposed to function with better transparency than this.”[59]

House Of Detention Crack

While the UWCHR began this research in 2018, the release of records that could clarify the questions raised here has been blocked by the federal government since that time; as a result of this, the University of Washington and UWCHR Director Angelina Godoy are defendants in ongoing litigation which has now been moved to federal court. At issue is the researchers’ request for copies of the detained youth’s jail files in order to understand the legal basis for their detention. While Cowlitz county asserts it is willing to provide access to these records, ICE insists that federal statute 8 CFR § 236.6 contains an absolute prohibition on the release of any information about any person held for ICE, a position that appears to run headlong into the Freedom of Information Act.

This too thwarts the will of Washington’s legislature, which has established that human rights research is protected by law. The Washington state legislature established the University of Washington Center for Human Rights in 2009, mandating that the UWCHR conduct research to inform public policy, and specifically naming immigrant rights as a key area for inquiry.[60] Furthermore, under state law, Washington institutions of higher learning are afforded access to otherwise-confidential portions of inmates’ jail records when conducting research in the public interest[61]; under this statute, UWCHR researchers have successfully obtained copies of the jail records of inmates held for ICE in many other Washington state jails.

ICE has not alleged that UW researchers have engaged in wrongdoing. But by taking us to federal court, they are compelling us to either withdraw the records request or engage in a costly battle to defend our right to the information about the immigrant youth held in Cowlitz county. This is not the first case in which ICE has invoked a draconian interpretation of federal statutes to block transparency, but it is the first time we are aware of that the agency has taken legal action of this sort against an academic researcher seeking access to information about incarcerated immigrant children. For this reason, it has raised concern in international human rights institutions.[62]

Relatedly, or perhaps in response, NORCOR chose to retain a private law firm, Sussman Shank LLP, to respond to UWCHR researchers’ requests for information under Oregon public records law. Invoices submitted by the firm for payment make clear that its work involves meeting with ICE and then issuing letters to UWCHR researchers citing “federal agency interpretations” of 8 CFR § 236.6 as the reason records cannot be disclosed. While NORCOR has not resorted to litigation against the university, using tax dollars to hire a private law firm to deny public records requests suggests an unusual commitment to blocking transparency.

COVID-19

All of these concerns take on additional urgency in the context of the COVID-19 pandemic. In recent weeks, doctors employed by the Department of Homeland Security itself have taken the unusual step of warning Congress of an “imminent threat to the health and safety of immigrant detainees,” and to the general public, if coronavirus spreads in ICE detention facilities.[63] It is not clear what precautions Cowlitz County Youth Services may have taken to adhere to the Center for Disease Control’s recommendations to contain the spread of the virus within the facility,[64] but county administrators have chosen to release all U.S. citizen children housed in the facility, except one, due to public health concerns. This leaves only three non-citizen children remaining in Cowlitz county custody, exposed to the continual risk of infection as guards, medical staff, and others continually enter and exit the facility.

ICE’s contract with Cowlitz County, however, includes the following stipulation, suggesting that this selective evacuation of the facility may violate its contract: “In the event of an emergency requiring evacuation of the Facility, the Service Provider shall evacuate INS detainees in the same manner, and with the same safeguards, as it employs for persons detained under the Service Provider’s authority. The Service Provider shall notify INS within two hours of such evacuation.”[65] Furthermore, the contract notes that “This Agreement shall remain in effect indefinitely, or until terminated by either Party upon 60 days written notice, unless an emergency situation requires the immediate relocation of detainees, or the Parties agree to a shorter period under the procedures prescribed in Article X,”[66] suggesting that the public health emergency caused by COVID-19 may give Cowlitz County grounds for immediate termination of the contract.

This research raises fundamental legal questions about the underlying legality of Cowlitz County’s and NORCOR’s contracts with ICE for the detention of immigrant kids, and even deeper ethical questions about their role facilitating the separation of immigrant families and cooperating with ICE to cover it up.

  • Terminate the ICE contracts: In light of these concerns, Cowlitz County and NORCOR should immediately issue the required move to terminate their contracts with ICE, either by invoking the public health emergency or by providing the 60-day required notice under the contracts. Per the terms of both contracts, neither of these actions should trigger any economic penalty to the county. In the case of Cowlitz County in particular, the Keep Washington Working Act of 2019 requires the sunsetting of that contract by December 2021 in any case, but the imperative to stop facilitating family separation should be sufficient to motivate its early termination. The only cost to the county that such action would impose is lost revenue, a cost that may be offset by the savings of potential legal costs should the legality of the contract be challenged.
  • Release kids immediately due to COVID-19: Furthermore, Cowlitz County should indicate that due to the public health emergency declared in the state of Washington, the Youth Services Center can no longer safely detain the three immigrant youth currently in its custody, and urge the agency to seek reunification of these children with their families pending the adjudication of their immigration cases, as required under the Flores Agreement.
  • Comply with FOIA: ICE should also comply with the requirements of federal transparency law, and cease its litigation against the University of Washington and UWCHR Director Angelina Godoy.
  • Stop separating families: Lastly, and most importantly, ICE should cease its practices of interior enforcement that result in the separation of immigrant families. In adherence to the Flores Agreement and TVPRA, it should reunify the immigrant youth with their families or, if that is not immediately possible, transfer them to the custody of ORR.

Notes

[1] Contributors include University of Washington Professor Angelina Godoy, UWCHR Project Coordinator Phil Neff, Lewis and Clark Law School Professor Juliet Stumpf, and Lewis and Clark Law School students Ruth Campbell, CJ Fuenzalida Nuñez, Jessica Gutierrez, and Madeline Wilson.

[2] We are not aware of any children currently detained under contract for ICE at NORCOR. [Update 2020-05-01: Following publication of this report, NORCOR confirmed to reporter Lilly Fowler of Crosscut that one child is in custody for ICE at NORCOR Juvenile. NORCOR denied a public records request seeking release of information about the child’s nationality, the length of their detention, or any charges against them, citing federal statute 8 CFR § 236.6.]

[3] NORCOR serves the Oregon counties of Wasco, Hood River, Sherman, and Gilliam.

[4]Minutes, Cowlitz County Board of Commissioners Meeting, May 23, 2017 Vol. 539.

[5] See NORCOR’s updated 2018 contract with ICE.

[6] The spreadsheet was shared publicly, see National Immigrant Justice Center, “ICE released its most comprehensive immigration detention data yet. It’s alarming”, March 13, 2018.

[7] The ICE facilities spreadsheet lists 9 authorized facilities in total, but only three hold minors for longer than 72 hours: Cowlitz, NORCOR, and the GEO-run Abraxas Academy in Morgantown, PA. UWCHR researchers contacted all nine facilities to confirm this; as privately-run facilities, the Abraxas Academy in PA and the Compass House Shelter in Buffalo, NY declined to provide information, but other facilities indicated their placements were shorter than 72 hours. One facility, the Carver County Juvenile Detention Center in Chaska, MN, declined to provide a copy of their contract with ICE, stating that the contract itself included a non-disclosure clause, despite being an agreement between two public entities.

[8] The ICE facilities spreadsheet specifically states, “With the passage of the Homeland Security Act of 2002 (HSA), responsibility for the care and custody of unaccompanied alien children (UAC) was transferred to the Office of Refugee Resettlement (ORR), Department of Health and Human Services, from the former Immigration and Naturalization Service… While the HSA stipulates that UAC be transferred to an ORR facility within 72 hours, in some instances, in the event ORR cannot locate adequate placement for UAC within six hours after the initial request is made to ORR, ICE procedure stipulates that suitable accommodations will be secured to ensure his or her safety and well-being in the interim period pending the ORR-approved placement. The attached list represents those state licensed juvenile facilities that are authorized for use in these instances.”

[9] While the table provided by NORCOR is dated “07/15/2013-07/15/2018”, it includes information regarding youth admitted through January, 2018. The document was released to UWCHR on February 26, 2018 pursuant to a public records request.

[10] Unlike Cowlitz County, NORCOR also has an adult facility which contracts with ICE.

[11] Nina Shapiro, “‘I Didn’t Know Where to Look For Him’: ICE Ships Kids Across the Country to Pacific Northwest Jails”, The Seattle Times, August 3, 2019.

[12] National Immigrant Justice Center, “ICE released its most comprehensive immigration detention data yet. It’s alarming”, March 13, 2018.

[13] Both Cowlitz and NORCOR reported zero youth held for ICE during 2013-2014. In three cases where youth remained in detention at the time of release of information, “Days detained” represents minimum amount of time detained.

[14] See Alex Bruell, “Cowlitz Juvenile Detention Center has detained 15 juveniles for ICE since 2013,”The Daily News, July 13, 2018.

[15] Anonymous, phone interview with Angelina Godoy, November 7, 2019.

[16] Anonymous, phone interview with Angelina Godoy, December 2, 2019.

[17] Hannah Dreier, “How a Crackdown on MS-13 Caught up Innocent High School Students,” New York Times Magazine December 27, 2018.

[18] Graham Kates, “Feds holding back documents that show local police targeting migrant kids, lawyers say,”CBS News, January 2, 2020.

[19] JP Perry and Simon McCormack, “How this NY County is Helping ICE Trap Teens,” June 20, 2019.

[20] Operation Matador began in May 2017 and continued into 2018: see ICE, “Joint Operation nets 24 transnational gang members, 475 total arrests under Operation Matador”, March 28, 2018.

[21] For more on Operation Raging Bull, see: ICE, “ICE’s ‘Operation Raging Bull’ nets 267 MS-13 arrests,” April 16, 2019.

[22] E.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

[23] See Alex Bruell, “Cowlitz Juvenile Detention Center has detained 15 juveniles for ICE since 2013,”The Daily News, July 13, 2018.

[24] Alex Bruell, “Juvy director: ICE Detainees Treated Same as Other Cowlitz Offenders,”The Daily News February 10, 2020.

[25] Mel Brown, et al., “Evaluation of NORCOR Juvenile Detention Facility 11 (2018)”, in Wasco County Board of Commissioners Regular Session Minutes, April 18, 2018, p. 791.

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[26] See Aura Bogado, “The Disappeared,”Reveal, February 18, 2020 (reporting that one 17-year old, after six years in ORR custody, had asked an immigration judge for a deportation order to a country she could not remember).

[27] Anonymous, phone interview with Angelina Godoy, October 28, 2019.

[28] Anonymous, phone interview with Angelina Godoy, November 6, 2019.

[29] Anonymous, phone interview with Angelina Godoy, November 10, 2019.

[30] Anonymous, phone interview with Angelina Godoy, November 10, 2019.

[31] Alex Bruell, “Juvy director: ICE Detainees Treated Same as Other Cowlitz Offenders,”The Daily News February 10, 2020.

[32] Associated Press, “Young Immigrants Held for Years in Virginia Detention Center Claim Horrific Abuse,”NBC News, June 21, 2018.

[33] Christopher Sherman, Martha Mendoza and Garance Burke. “US held record number of migrant children in custody in 2019,”The Associated Press, November 12, 2019..

[34] See, for example, Convention on the Rights of the Child, art. 37; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, arts. 16 and 17; Universal Declaration of Human Rights, arts. 3 and 9; International Covenant on Civil and Political Rights, art. 9.

[35]Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return.

[36] See, for example, Laura C.N. Wood, “Impact of punitive immigration policies, parent-child separation and child detention on the mental health and development of children,”BMJ Paediatr Open, 2018;2(1):e000338, September 26, 2018; Louise K. Newman and Zachary Steel, “The Child Asylum Seeker: Psychological and Developmental Impact of Immigration Detention,”Child and Adolescent Psychiatric Clinics of North America, Volume 17, Issue 3, July 2008, pages 665-683; and Kronick, R., Rousseau, C., & Cleveland, J. (2015). “Asylum-seeking children’s experiences of detention in Canada: A qualitative study,”American Journal of Orthopsychiatry, 85(3), pages 287-294, May 2015.

[37] Julie M. Linton, Marsha Griffin, Alan Shapiro and the Council on Community Pediatrics, “Detention of Immigrant Children: Policy Statement,”Pediatrics, May 2017, 139 (5) e20170483.

[38] Hajar Habbahc, Kathryn Hampton, and Ranit Mishori,“‘You Will Never See Your Child Again’: The Persistent Psychological Effects of Family Separation,”Physicians for Human Rights, February 20, 2020.

[39] Flores Settlement Agreement, Flores, et al. v. Reno, Case No. CV 85-4544-RJK (C.D. CA, 1997).

[40] Homeland Security Act, codified as 6 U.S.C. § 279(a).

[41] Ms. L. v. ICE, 302 F. Supp. 3d 1149, 1167 (S.D. Cal. 2018). See also Ms. L. v. ICE, 302 F. Supp. 3d 1149, 1162 (S.D. Cal. 2018) (finding a due process right to family integrity extends to parents and children both detained during immigration proceedings); Ms. L. v. ICE, 310 F. Supp. 3d 1133, 1144 (S.D. Cal. 2018) (noting that, outside the context of criminal custody, “absent a finding the parent is unfit or presents a danger to the child, it is unclear why separation … would be necessary”).

[42] Ms. L. v. ICE, 302 F. Supp. 3d 1149, 1167 (S.D. Cal. 2018).

[43]Id.; Exec. Order No. 13,841, Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29,435 § 3.

[44] The Flores Settlement Agreement mandates that “[u]pon taking a minor into custody, the INS, or the licensed program in which the minor is placed, shall make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor pursuant to Paragraph 14 above. Such efforts at family reunification shall continue so long as the minor is in INS custody.” FSA, ¶18; see also id. at ¶14, ¶19.

[45]Intergovernmental Service Agreement ACL-0-H-0003 between Cowlitz County and Immigration and Naturalization Service, 2001, p. 2.

[46]Flores Settlement Agreement, Paragraph 12A.

[47]Intergovernmental Service Agreement ACL-0-H-0003 between Cowlitz County and Immigration and Naturalization Service, 2001, p. 3.

[48] Because ICE detention is administrative rather than criminal, neither the purpose for detention nor the conditions of detention can be punitive. People in civil detention “must be afforded ‘more considerate treatment’ than even pretrial detainees, who are being criminally detained prior to trial.” Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, at *4 (D. Ariz. Feb. 19, 2020) (finding that the conditions of detention in CBP holding cells were presumptively punitive and violated the Fifth Amendment). Detention conditions are presumptively punitive if they are equal to or worse than those who are imprisoned for criminal charges. Id. see also Youngberg v. Romeo, 457 U.S. 307, 321–22, (1982); Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

[49] The document reads, in part, “While the HSA stipulates that [unaccompanied alien children] be transferred to an ORR facility within 72 hours, in some instances, in the event ORR cannot locate adequate placement for UAC within six hours after the initial request is made to ORR, ICE procedure stipulates that suitable accommodations will be secured to ensure his or her safety and well-being in the interim period pending the ORR-approved placement. The attached list represents those state licensed juvenile facilities that are authorized for use in these instances.”

[50] Chad Haddal, “Unaccompanied alien children: Policies and issues,”Congressional Research Service, March 1, 2007, p.26.

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[51] ICE has stated that the children at Cowlitz “present a public safety or national security threat—including those with charges for murder or child molestation […] It would be irresponsible and potentially dangerous for the agency to allow these individuals to remain out of custody with a guardian.” See Alex Bruell, “Researcher: ICE’s Block on Cowlitz Records ‘Antithetical to Democracy’,”The Daily News, November 12, 2019.

[52] Anjali Tsui, “In Crackdown on MS-13, a New Detention Policy Raises Alarms,”Frontline February 18, 2018.

[53] New York Civil Liberties Union, “NYCLU Condemns Detention of Immigrant Teens Over Weak Allegations of Gang Affiliation,” July 27, 2017.

[54] See, for example, Jess Bidgood, Manny Fernandez, and Richard Fausset, “Restraint Chairs and Spit Masks: Migrant Detainees Claim Abuse at Detention Centers,”The New York Times August 4, 2018; and Samantha Michaels, “Immigrant Kids Were Restrained to Chairs With Bags Over Their Heads at a Juvenile Hall in Virginia,”Mother Jones January 22, 2020..

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[55] See RCW 13.04.135.

[56] See for example, RCW13.40.0201: (21)”Offense” means an act designated a violation or a crime if committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state; and (36) “Violation” means an act or omission, which if committed by an adult, must be proven beyond a reasonable doubt, and is punishable by sanctions which do not include incarceration.

[57] See Or. Rev. Stat. Ann §419A.004; see also O.R.S. § 419A.050.

[58] Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1206 (N.D. Cal. 2017).

[59] Seattle Times Editorial Board, “End the ICE Secrecy in Longview,”The Seattle Times. November 18, 2019.

[60] See RCW 28B.20.478.

[61] See RCW 70.48.100.

[62] For example, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, included this case in his 2019 annual report on Freedom of Expression in the Americas, writing “The Office of the Special Rapporteur also underscores its special concern over the case of professor, researcher, and human rights advocate Angelina Snodgrass Godoy of the University of Washington (a public university)… As part of the work the professor is doing on U.S. immigration policy and the defense of migrants’ rights through the university’s Human Rights Center (UWCHR)—in particular, an academic investigation of public interest into the potential violation of various rights of migrant children—she reportedly made several requests for access to information contained in the records of Cowlitz County, in the State of Washington. The Office of the Special Rapporteur stresses the importance of academic freedom, which depends on the exercise of various rights, including the right to freedom of expression and access to information; these rights are essential for informing others about significant public interest issues such as those described.” Edison Lanza, Annual Report of the Inter-American Commission on Human Rights 2019, Volume II. OEA/Ser.L/V/II. Doc. 5 February 24, 2020, p 161.

[63] Catherine E. Shoichet, “Doctors Warn of ‘Tinderbox Scenario’ If Coronavirus Spreads in ICE Detention,” CNN, March 30, 2020.

[64] See Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020.

[65]Intergovernmental Service Agreement ACL-0-H-0003 between Cowlitz County and Immigration and Naturalization Service, 2001, p. 3.

[66]Intergovernmental Service Agreement ACL-0-H-0003 between Cowlitz County and Immigration and Naturalization Service, p. 8.

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