The Berks County Youth Center (BCYC) consists of three separate facilities: a secure detention wing, housing juveniles who have been charged or adjudicated delinquent; a shelter care facility used primarily for children in the custody of local child welfare authorities (referred to in this report as the “old shelter”); and a second thirty-five-bed shelter care facility which opened in October 1998, used primarily for children in INS custody (referred to as the “new shelter”).
The new shelter nearly triples the number of shelter beds available to the INS at BCYC. At capacity, the shelter will house thirty-five juvenile detainees. At the time of our visit on November 23, 1998, it held twenty-two children.
INS detainees may be placed in any one of the three facilities. Of the forty-seven children in INS custody who were detained at BCYC betweeen October 1 and November 9, 1998, approximately one-quarter were placed in securedetention and three-quarters in shelter care. On a national basis, roughly one-third of the children held by the INS are kept in secure detention.46
BCYC’s old shelter care facility is carpeted, with comfortable furniture in both common areas and in individual rooms. Children in shelter care are allowed to maintain personal possessions, decorate their rooms, and are frequently allowed to go outdoors. Children interviewed report a wide range of available activities and a caring staff. With the exception of difficulties related to language and translation (discussed later in this report), children described general satisfaction with the facility and its programs.
The new shelter is a renovated wing of a retirement home. At the time of our November visit, it had been open only a few weeks and reflected the relatively sterile environment of a newly opened facility. However, its well-lit day rooms had newly installed carpet, comfortable furniture, television, and games. It also has two classrooms, each equipped with several computer terminals.
In stark contrast, BCYC’s secure detention facility is surrounded by a fifteen-foot razor wire fence. Children are brought to secure detention in handcuffs and leg irons and are strip-searched upon entry. They are forced to relinquish their personal clothing and issued t-shirts, sweat pants, and sweat shirts. Children are assigned to cells with concrete walls, ceiling, and floor, completely bare except for bedding and a Bible.
Findings Common to All BCYC Facilities
Information on Legal Rights and Available Legal Services
Very few of the children that we interviewed reported receiving any information about legal services from either INS or BCYC staff. Fernando, a sixteen-year-old Salvadoran, told us in November that “when I came here, they gave us a paper and told us to read it. They told us about the rules here, and about showers, classes, etc. But no, they didn’t give me a list of lawyers, or anything about court or a judge.”
Neither could local INS and BCYC staff identify a clear mechanism by which children received this information. While local INS Supervisor Marion Dillis first told us that children received a list of legal services when they were first picked up, she later said that lists were provided by BCYC counselors.47 BCYC director Jack Borden, on the other hand, said he didn’t know anything about attorney representation and that the children had access to attorneys through Marion Dillis.48 Some other BCYC staff told us that counselors had lists of attorneys. Asked for the list, a counselor spent several minutes rummaging in a file cabinet. He finally produced two dog-eared pages of listings, some nearly illegible and others without phone numbers. A local immigration judge told Human Rights Watch that while some children appearing in his court indicate that they have been given a list of legal services, “I always presume they have not.”49
Several local immigration attorneys reported difficulty in learning about children needing legal representation. One commented that local INS and BCYC staff “don’t care about representation”50 and another said that she felt that it was an “unstated policy to make legal representation as difficult as possible.”51 Attorneys handling juvenile casesreported that while they were sometimes called by BCYC counselors who believed a child needed representation, they were more often approached directly by judges.52
Several children reported that their only communication about legal representation was with an immigration judge at their first hearing. An immigration judge in nearby York, Pennsylvania, reported that the vast majority of children are unrepresented the first time they appear in his court. He said that access to legal representation for juveniles was a “great concern” and indicated that very few attorneys are willing to take on pro bono juvenile cases. “If an attorney happens to be in the court at the time, I’ll talk to them and ask them to stand in, but I’m wearing out my welcome doing that.”53
As required by regulation, local immigration judges refuse to take pleadings from children without an attorney or family members present.54 According to one attorney, “what this means is that kids are there for months and months without representation”55 and often end up going back and forth to court.
Because few children have the means to pay for attorneys, most depend on pro bono representation. As a result, attorneys are often unwilling or unable to give the case much time and attention. Several children who told us that their attorneys had been secured by local judges reported that they had no contact with the attorney apart from a few minutes’ conversation prior to a hearing. These children can hardly be said to have meaningful representation.
The expansion at Berks caused great concern among local attorneys and others concerned about legal representation for children in INS detention. One immigration attorney, referring to the limited number of local attorneys who are willing to take juvenile cases on a pro bono basis, said, “I don’t know how we’re ever going to represent that many kids.”56 Her concerns were echoed by a local immigration judge, who said, “I’m very concerned about it [the expansion] from the perspective of having virtually no pro bono counsel here in York. Frankly, I don’t know how to approach this. We’re up against a wall.”57
In an effort to meet the legal needs of the increased number of juvenile detainees at BCYC, INS Assistant District Director Ted Nordmark has made efforts to improve access to legal representation. Shortly before the opening of the new shelter, he contacted the Nationalities Service Center (NSC), an agency in Philadelphia that provides immigration and other legal services. NSC is now working to set up a legal services program for juveniles at BCYC which would rely on law students, volunteer attorneys from the Pennsylvania chapter of the American Immigration Lawyers Association, and other local organizations. NSC is seeking funding for a full-time coordinator for the program and is identifying volunteer translators to help with representation. Under the planned program, NSC plans to send law students and attorneys to BCYC once or twice a week to complete initial interviews with the children and help identify appropriate attorneys willing to take cases.58
The INS is exploring the possibility of installing video-conferencing equipment to facilitate contact between children and their attorneys and allow the possibility of conducting hearings by video conference. Such capabilities could both reduce the need for lengthy trips to York and make it more possible for Philadelphia-area attorneys to represent clients at BCYC. INS officials also plan to propose that York-based immigration judges travel to Leesport to hold hearings at BCYC, also in an effort to reduce the amount of travel for both children and their attorneys.
If implemented as envisioned, these changes and the NSC’s anticipated legal services program could significantly relieve existing problems related to legal access. However, the planned program depends on outside grant funding and the willingness of Philadelphia-area attorneys to take on pro bono clients housed over an hour away. One local attorney welcomed the new effort but expressed some skepticism that Philadelphia attorneys would be willing to travel to Berks, remarking, “Attorneys need to have direct contact with the children. It’s very impersonal to do it by video conferencing. That’s not terribly good for anything substantive.”59
The concerns regarding legal representation and difficulties in hiring staff with appropriate language skills underline the importance of locating facilities housing juveniles in INS custody in major ports of entry to the United States and near urban centers where legal assistance and services from nongovernmental agencies (including those with multicultural staff and programs) are more likely to be available, as recommended by the United Nations High Commissioner on Refugees.60
A problem identified repeatedly in our interviews was the unavailability of translation, particularly the lack of staff with any Chinese language skills. While BCYC employs Spanish-speaking staff, until recently there were no staff who could communicate with Chinese-speaking children, despite the fact that the majority of the INS children detained at BCYC in the past year have been Chinese.
On a day-to-day basis, Chinese-speaking children often find themselves completely isolated, unable to communicate their needs or questions. The plight of these children underscores the need to locate facilities in areas where culturally appropriate community resources are available, as the United Nations High Commissioner for Refugees has recommended.61
BCYC staff acknowledged the need for Chinese-speaking staff and expressed frustration that they had been unable to hire staff with Chinese language skills. Several BCYC staff told Human Rights Watch that “we do the best we can,” emphasizing that translation services can be requested through the INS when needed and are available twenty-four hours a day by telephone. However, not all staff appear to be aware of this option. For example, during our tour of the intake area for the secure facility, when one staff member mentioned the availability of telephone translation, the officer staffing the area responded, “I was never told to do that; we don’t do that.”62 The intake process for the secure facility can be frightening for any child. However, one can only imagine that being brought in handcuffs and leg irons into a facility surrounded by a fifteen-foot razor-wire fence and then being strip searched without any explanation in a language a child can understand, could be terrifying.
Human Rights Watch was shown copies of facility rules translated into Chinese and Spanish, and BCYC staff told us that a computer system offers some translation assistance for Chinese-speaking children. Nevertheless, most Chinese children we interviewed reported that they had not seen any Chinese-language materials.63
In addition, only one of the children we interviewed reported using telephone translation services. Most were unaware that it was available if needed. For many children, even basic requests were very difficult to communicate. For example, Bao, a fifteen-year-old from China, recalled during our September interview that he needed to make a phone call to relatives but lacked the ability to communicate his request to the staff.
While some Chinese-speaking children have been able to rely on other Chinese detainees with stronger English skills to help communicate with staff and other children, Human Rights Watch interviewed one child who had been detained for five months without a single person present in the facility with whom he could converse in his own language.
At the time of our June visit, there were no Chinese speaking staff at the facility. According to John Pogash, national INS juvenile coordinator, a condition of the expansion at Berks is that Chinese-speaking staff would be hired to provide twenty-four-hour coverage at the facility. Although BCYC is seeking additional staff with appropriate language capabilities and now has part-time Chinese-speaking staff, this goal has not been met.
Without exception, Chinese children identified Chinese-speaking staff and teachers as the single biggest need at BCYC. Qing, detained at age fifteen, told Human Rights Watch in September, “They should have staff who can speak Chinese, so things will be much easier for us.” Miguel, a sixteen-year-old from El Salvador, shared the concern, telling us in November, “I think they should have more bilingual staff here, not just Spanish and English, because there are people here from lots of different countries, like India and China. They should have people who speak their language.”
Visitation and Telephone Access
Children at BCYC are allowed weekly visits and phone calls. Both attorneys and children expressed appreciation for policies that allow children to call family members as far away as China. Children from Central America also indicated that they were able to make extra phone calls after the November hurricane that affected several Central American countries to inquire about the health and safety of family members.
However, several children described difficulties in making telephone calls. Xiao Ling, fifteen at the time of her apprehension, and Carlos, sixteen, each described having to make repeated requests to place a phone call, despite staff promises to offer assistance. Both relayed instances where it took over a week until the promised call was finally made. At the time of our interview in June, Carlos indicated that it has been ten or eleven days since he had been able to speak to his family.
Miguel, sixteen, told us that on at least one occasion, staff had noted in their records that a phone call to his family had been made, when in fact, the call did not go through. He relayed another instance where he was trying to reach his brother in El Salvador. When his sister-in-law answered the phone and indicated that the brother was not at home, BCYC staff terminated the call rather than allowing Miguel to speak to his sister-in-law.
Although phone calls are reportedly allowed twice a week, several children told us that they were only able to make them once a week, and Juan reported that while in secure detention, he was allowed phone calls only once every fifteen days.
The Flores settlement stipulates that children in “licensed programs,”64 including those in shelter care facilities, must be provided educational services that are appropriate to the child’s level of development and communication skills. These services must be provided in a structured classroom setting, and they must concentrate primarily on basic academic competencies and secondarily on English language training.65
Although the Flores agreement does not address the educational services that are required for children in secure detention, the Convention on the Rights of the Child calls upon states to make secondary education “available and accessible to every child.”66 The U.N. Rules for the Protection of Juveniles clarify that a child in detention has the “right to education suited to his or her needs and abilities and designed to prepare him or her for return to society.”67 Similarly, the United Nations High Commissioner for Refugees has stated that “[e]very child, regardless of status, should have full access to education in the asylum country.”68
Children in shelter care at BCYC receive about four hours of classes per day, while children in secure detention receive about three hours. Non-English speaking children are often simply given books or worksheets to work on individually. Until recently, BCYC had no English-as-a-second language program, which severely hampered the ability of children to adapt to their environment or to benefit from other instruction. A local advocate had interviewed a Chinese youth who spoke no English even after two years at BCYC and a subsequent transfer to an adult facility.69 Describing communication between the teacher and the Spanish-speaking students, Jesús told us, “We didn’t know what she was saying, and she didn’t know what we were saying.”
Chinese children are generally forced to learn on their own, with books and access to a computer with a bilingual English-Chinese language program. Qian, fifteen, reported in September that as many as seven Chinese-speaking children were at BCYC at one time during her period of detention. Because the facility only had one computer equipped with the Chinese-English language program, the children were forced to sign up at intervals to gain access.
Teachers are available for questions, but children report that communication is difficult and often consisted of sign language. Bao told Human Rights Watch that during his four and a half months in detention, “it seems I made very little progress because there was no translator.” Another Chinese girl was classified at the third grade level at the time of her release from BCYC but within months of entering public school was ranked in the top third of her ninth grade class.70
In conjunction with the opening of the new shelter facility, INS and BCYC officials have worked to implement new and improved services and programs for detainees. Education programs now include English as a Second Language (ESL) instruction, and the addition of new teachers has reduced the average class size. Both INS andBCYC have reached out to local non-profit agencies, such as the Nationalities Service Center for legal services and Latino Social Service for help building a foreign language library. BCYC staff have also made contact with local Chinese churches in order to provide Chinese-language pastoral visits for children at the Center.
Use of Restraints During Transportation
Regardless of whether they were in secure detention or in shelter care, most of the children we interviewed reported that they were handcuffed when they were taken to court to appear before an immigration judge. To make the trip to immigration court, which is an hour away, in York, Pennsylvania, children often leave the facility at 6:30 or 7:00 a.m. and return to BCYC at 2:00 or 3:00 p.m. Several children told us that they were handcuffed on such an occasion for more than eight hours, including transportation and time spent consulting with their attorney. One attorney complained about the practice and described meeting with an eleven-year-old client who was “so small, the handcuffs were practically falling off his hands.”71
Other children reported that the handcuffs were only used during transport, and were taken off once they reached court. Paul, a sixteen-year-old interviewed in November, estimated that he was handcuffed during five of his eight trips to immigration court.
Until recently, children in INS custody were also transported to court together with adult inmates, in direct violation of the Flores agreement.72 Once this practice became known to district and national INS officers, they indicated that it would stop immediately. When asked about the use of handcuffs, however, they asserted that the INS was within its rights to use handcuffs as a security measure, stating that under INS enforcement standards, the use of restraints during transportation was at the officers’ discretion.73 International guidelines, however, only allow the practice in exceptional circumstances.74
Several children also told us that they were forced to skip meals on days when they appeared in court. Jose told us, “When you go to court, you are always hungry. Everyone always told us that.” When the issue was raised with BCYC staff, they said that lunches were supposed to be provided at court but that they would explore providing bag lunches as an alternative.75
BCYC procedure identifies the use of restraints and isolation as a last resort for dealing with children exhibiting aggressive behavior. Both staff and children report that physical exercise is one of the primary disciplinary measures used in the facility. Children in shelter care as well as secure detention are required to do pushups in increments of twenty-five for noncompliance. Although physical condition is supposed to be noted when a child has his or her intake physical, we received several reports that indicate that physical exercise may be used excessively, putting children at risk. When describing the use of pushups as a disciplinary measure, one child indicated that even if children were sick or unable to complete the exercise, the staff “would keep on fucking with them until they do it.” José, a seventeen-year-old Honduran housed in the new shelter, told us in November that during physical exercises another child developed cramps and started to cry, but staff forced him to continue the exercises. Paul, sixteen, reported that another detainee in the new shelter had been required to do 400 disciplinary pushups during the course of one day. A local advocate told us of another detainee who was forced to run laps despite severe asthma. On several occasions, staff forced her to continue until she collapsed and even then continued to harass her.76
The imposition of pushups and other physical exercise as disciplinary measures violate international standards when such punishment compromises the physical or mental health of a child.77
Several children held in the new shelter complained that discipline was sometimes administered inappropriately as a result of language barriers between detainees and staff. Fernando, sixteen, told us, “Sometimes they tell you to do something and we don’t understand, so they make us do pushups.” Miguel, a sixteen-year-old Salvadoran, said, “When you come here, they make you learn English and say everything to you in English. But if you are from El Salvador, and don’t speak English, they don’t give you time to understand. . . . A lot of times, staff don’t give time for translation and make us do pushups.”
Treatment by Staff and Grievance Procedures
In general, children held in shelter care at BCYC expressed satisfaction with the treatment they received from staff. Most indicated that they were treated well, and some children credited staff with being helpful when they experienced problems.
The difficulties described by detainees were primarily related to language problems. Bao, a Chinese boy, told us that “because we [Chinese detainees] didn’t speak English, we were blamed for conflicts with other kids. If we went to staff to complain, other kids would tell the opposite story, so we got frustrated.” As described above, in such situations, children were often forced to do pushups. In other cases, detainees felt that discipline was applied arbitrarily. Miguel, age sixteen, told us that because he does not have glasses for reading, he often gets headaches. On one such occasion, he asked for permission to lie down but was refused. The staff person reportedly told him, “You don’t get to do what you want to here” and made him do twenty-five pushups. Miguel reflected, “There are some people here who shouldn’t be working here because they abuse their authority.”
The U.N. Rules for the Protection of Juveniles establishes that children have the right to make requests or complaints to the director of the detention facility and other judicial authorities and to be informed of the response without delay. The rules also advocate an independent office to receive and investigate complaints made by juveniles deprived of their liberty.78
When asked about grievance procedures at BCYC, staff told us that children had the right to speak to a shift supervisor or to submit a written complaint to the shelter director. When asked how that policy was communicated to detainees, we were told that it was part of the handbook that children get at the time of admission. However, the only instruction the document gives is “if a problem arises let staff know immediately.” BCYC staff acknowledged that the instruction was not clear, and needed to be rewritten.79
Richard, sixteen, had spent several months in shelter care at BCYC and told Human Rights Watch in June that he was able to participate in a range of activities and was rarely bored. Children in shelter care attend presentations on reproductive health, AIDS, nutrition, and drug and alcohol awareness and participate in sewing, arts and crafts, and other activities. Richard also reported field trips to soccer games, wrestling matches, and a roller skating rink.
Children in the new shelter report that they are able to play outdoors almost daily, usually soccer and occasionally basketball. For their outside games, however, they are restricted to a small fenced area. Paul, a sixteen-year-old detained at the new shelter during its first two weeks of operation, told us that he felt the playing area was too small for the fourteen children who were housed at the facility at the time. He said he couldn’t imagine how the field would accommodate thirty-five children when the facility reaches full capacity.
During the first month of operation, children in the new shelter were not able to go on any field trips. Staff are now arranging such trips, and are securing a new van to facilitate transportation.
None of the children we interviewed who had been in secure detention had ever been on a field trip. They also described a general lack of activities. In some cases, they spent hours each day in their bare rooms with no books or distractions.
In the past year, detained children at Berks have been transferred to several different facilities, including those in San Diego, Miami, Chicago, and Phoenix. In one case, four boys were kept in secure detention at Berks, only to be transferred to San Diego on the day that authentication of their guardianship papers was received by the INS. Although they had been held in secure detention on the ground that the INS believed them to be escape risks, their attorney was informed the reason for the transfer was that the San Diego facility was the only one available to keep the children under less restrictive conditions.80 After approving their release, the INS delays in transporting the children back to Berks forced their guardians (who were each New York City residents) to travel to San Diego and arrange return transportation for both themselves and the children at considerable personal expense and additional delay.
In this instance, the children’s attorney was also not notified in advance of the transfer; she learned of the decision when INS attorneys filed a motion for a change of venue. Another attorney told us that his client had been transferred to Florida in the middle of the night without notice.81
The local INS officer seemed unconcerned about the difficulties created by transferring children to facilities that are distant from both their attorneys and family or guardians. She told us that children could be adequately represented by telephone, and that while attorneys are normally contacted prior to a child being transferred, there areother occasions when “we don’t necessarily want them knowing when someone is leaving”82 because of security concerns. At the same time, she acknowledged that there have been no problems with smugglers at the BCYC facility.
The INS practice of transferring children without notice to their attorneys violates Flores v. Reno and other INS regulations. Particularly when the INS transfers children to distant facilities, this practice interferes with the ability of counsel to interview their clients, prepare applications for asylum and other forms of relief, and otherwise provide adequate representation. Accordingly, by moving children with no advance notice or notice within twenty-four hours in circumstances that are truly unusual, the INS routinely impedes minors’ right to counsel, protected under domestic law and international standards.83
Local attorneys and advocates also complained that children are too often transferred between facilities without notification of the family. One attorney told Human Rights Watch that family members were often unaware of a child’s whereabouts until she contacted them herself.84
Release and Family Reunification
In interviews with children and attorneys, we learned of several instances where the release of children to the custody of family members or guardians was unnecessarily delayed. For example, four Pakistani children were held in secure detention at BCYC for three months despite the fact that each had a close relative in New York with guardianship papers. The INS submitted the papers to the Pakistani Consulate with the request that they be sent to Pakistan for authentification. During the weeks required for this process, the children were kept in secure detention and denied both phone contact and visitation with their relatives. Contact was reestablished only after their attorney protested.85
Xiao Ling, from China and now seventeen, was detained for one year, including six months in secure detention, despite the fact that she had an uncle in New York who had agreed to take custody of her. In another instance, an attorney representing two Tamil children reported that the children remained at BCYC for more than a month after receiving asylum because no contact had been made with their family.86
Release has also been delayed when families fail to receive clear information about the requirements for the release process. One attorney told us of one family that was forced to make two or three trips to BCYC and was each time turned away because the paperwork required for release was incomplete. The family kept returning because they couldn’t read the written instructions that they had received and didn’t understand what was required.87
The INS is currently sending many of the Chinese children in its custody to Arizona, claiming that more appropriate services are available at facilities there. However, according to John Pogash, 90 percent of these childrenare eventually released to relatives or guardians in the New York City area.88 To send them to a facility so remote from their families creates unnecessary isolation and exacerbates problems related to both release and access to legal representation.
Conditions in BCYC’s Secure Detention Facility
The environment within BCYC’s secure wing is more restrictive than in many other juvenile detention centers. BCYC’s 1997 annual report noted an increase in the number of residents with violent behavioral backgrounds. It states that BCYC has a reputation of taking “out of control” juveniles from other county facilities which cannot control these youth. The report claims that BCYC’s effectiveness in holding such residents can be attributed to the “strict rules and regulations” enforced at the facility.89 Children interviewed by Human Rights Watch describe a rigid atmosphere and reported that in secure detention they were not allowed to laugh, often told not to talk, and were even required to ask staff for permission to scratch their nose. Both Spanish-speaking and Chinese-speaking children reported that they were not allowed to speak in their native languages. A local attorney who has represented numerous children reported that her clients have begged her to get them out.90 Xiao Ling, who spent several months in secure detention, told Human Rights Watch that while there she cried every day.91
Our investigation of secure confinement at BCYC revealed that the INS’s placement decisions were often arbitrary. In addition, international standards for children in confinement and INS regulations guarantee particular rights for children in confinement, including the right to personal possessions, to wear their own clothes, to have access to information in their own language, appropriate educational services, and meaningful activities and programs promoting the child’s development and health.92 Children in secure detention at BCYC are denied each of these rights.
The Standards for Placing Children in Secure Detention
The settlement agreement in Flores v. Reno allows the INS to keep children in secure detention in several circumstances. First, the INS may hold children in secure detention for no more than five days while it finds a licensed placement, arranges transportation from remote areas, or locates interpreters for “unusual languages.”93 Second, the INS may hold children in secure detention for an unspecified but temporary period of time in the event of an emergency or an “influx of minors into the United States”; under this provision, the INS must place childrenwith less secure facilities “as expeditiously as possible.”94 Finally, a child may be kept in secure detention if he or she:
· has been charged with, is chargeable with, or is convicted of a crime;
· is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act;95
· has committed or threatened to commit a violent or malicious act, including an act directed at him or herself;
· has engaged in unacceptable and disruptive behavior in a licensed program;
· is an escape risk; or
· must be held for his or her own safety, “such as when the INS has reason to believe that a smuggler would abduct or coerce a particular minor to secure payment of smuggling fees.”96
The agreement also stipulates that under such circumstances:
· whenever possible, a child should be kept in a medium-security juvenile residential facility instead of a secure detention facility;
· when placed in a detention facility, the child should be placed in separate accommodations for INS minors;
· in all cases, the child must be provided with written notice of the reason for his or her placement in secure detention.
Several of the children we interviewed had been kept in secure detention while at BCYC, including one girl who had been kept in the secure wing for several months. The decisions whether to place a child in the secure wing or shelter care at BCYC often appear arbitrary. One sixteen-year-old girl, in secure detention for several months, told Human Rights Watch in June that she was transferred to shelter care only after her prospective foster parents were quoted in the local newspaper about her situation. Other children who had been in secure detention for periods ranging from one week to three months told Human Rights Watch that they were neither informed why they were placed in the secure wing nor told the reason for their eventual transfer to shelter care. In fact, none of the children with whom we spoke reported being given any reason, either written or verbal, for being placed in the secure wing.
In addition, none of the children in secure detention was segregated from children who were awaiting delinquency proceedings. The BCYC superintendent, Jack Borden, informed us that the secure facility houses violent offenders, including children accused of murder, rape, and drug trafficking. He also indicated that many of the children are repeat offenders.97 Although another BCYC staff person informed us that INS detainees in secure detention were either assigned rooms by themselves or shared a room with another INS detainee, we found this was not the case. During our June tour of the facility, we observed a posted resident list indicating that one of the children in INS custody roomed with a juvenile offender. Our interviews of children confirmed that INS detainees andjuvenile offenders shared rooms. Even those children who may be assigned a room by themselves have extensive contact with juveniles charged as delinquents during meals, classes, physical training, and unstructured time in their pods’ common room.
Although this commingling is prohibited by INS regulations and runs counter to international guidelines,98 BCYC staff universally praised it. They indicated that they felt it had a positive effect on both populations by enabling the INS children to pick up English and giving culturally enriching interactions to the juveniles charged as delinquents.
Decisions regarding the transfer of a detainee from a shelter care facility to secure detention are made entirely at the discretion of the INS. For example, a child in INS custody who exhibits disruptive behavior could be transfered to secure detention based solely on the recommendation of a local INS officer and approval by the INS Regional Office. In contrast, a child who is in shelter care as a ward of local social welfare authorities can not be transferred into secure detention unless formal charges are brought against the child as the result of a police investigation and probable cause hearing.
While INS officers stressed to us that children in secure detention were often placed there because they are charged or adjudicated delinquent,99 all of the detainees we interviewed who had been in secure detention were eventually placed in shelter care, indicating that it was unlikely that they had a history of delinquency. Most of the children we interviewed had been in secure detention for at least a week, and two had been held for more than three months.
Privacy and Personal Possessions
International standards state that the right to personal possessions is a basic element of the right to privacy and essential to the psychological well-being of the child.100 Detainees in secure detention at BCYC are forbidden to have any personal possessions in their cells, and are even denied deodorant. Children are not allowed to put anything on their walls, nor allowed books (other than an English language Bible), games or toys, even teddy bears. A prospective foster mother of a Chinese girl reported that when she took a child’s storybook to the facility, the staff “acted like we’d brought a weapon.”101 The children are not allowed pencils in their rooms, unless given specific permission by staff.
Detainees are denied the right to wear their own clothes, and are given t-shirts, sweat pants, and sweat shirts. They are forced to use toilet stalls with no doors, and staff supervise their showers.
During our visit, Human Rights Watch observed concrete cells, completely bare except for bedding and a Bible. The negative impact of this sterile environment is compounded by the fact that in some cases, children spend several hours a day confined to their rooms, deprived of any sensory or intellectual stimulation except for a Bible in a language they most often cannot read.
47 Human Rights Watch interview with Marion Dillis, INS Supervisory Detention/Deportation Officer, Leesport, Penn., June 16, 1998.
48 Human Rights Watch interview with Jack Borden, BCYC Superintendent, Leesport, Penn., June 16, 1998.
49 Human Rights Watch telephone interview with Immigration Judge Walter A. Durling, August 10, 1998. Judge Durling is one of two immigration judges in York, Pennsylvania, where the cases of children detained at BCYC are heard.
50 Human Rights Watch interview with immigration attorney Susan Weber, York, Penn., June 16, 1998.
51 Human Rights Watch telephone interview with immigration attorney Susan Toler, May 6, 1998.
52 Human Rights Watch interviews with immigration attorneys Susan Weber, York, Penn., June 16, 1998, and Ann Carr, Lancaster, Penn., June 16, 1998.
53 Human Rights Watch telephone interview with Immigration Judge Walter A. Durling, August 10, 1998.
54 8 C.F.R. section 240.10(c) requires:
The Immigration Judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge does not accept an admission of removability, he or she shall direct a hearing on the issues.
55 Human Rights Watch interview with Ann Carr, Lancaster, Penn., June 15, 1998.
56 Human Rights Watch interview with immigration attorney Susan Weber, York, Penn., June 16, 1998.
57 Human Rights Watch telephone interview with Immigration Judge Walter A. Durling, August 10, 1998.
58 Human Rights Watch interview with Cherylle Corpuz, director of legal services, Nationalities Service Center, in Leesport, Penn., November 23, 1998.
59 Human Rights Watch telephone interview with local immigration attorney, November 16, 1998.
60 The United Nations High Commissioner for Refugees recommends that “[f]acilities should not be located in isolated areas where culturally appropriate community resources and legal access may be unavailable.” UNHCR Guidelines on Policies, section 7.7.
62 Human Rights Watch site visit to BCYC, June 16, 1998.
63 International standards require that children in detention be given a copy of the detention center rules and a written description of their rights and obligations in a language they can understand. In addition, “for those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension.” U.N. Rules for the Protection of Juveniles, Article 24.
64 A licensed program is “any program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs minors.” Flores Settlement Agreement, p. 4.
65 Ibid., exhibit 1 (Minimum Standards for Licensed Programs), p. 2, paragraph 4.
66 Convention on the Rights of the Child, Article 28(1)(b).
67 U.N. Rules for the Protection of Juveniles, Article 38.
68 UNHCR Guidelines on Policies, section 7.12.
69 Human Rights Watch interview with immigration advocate, June 15, 1998.
70 Human Rights Watch interview with Harriet Miller, Seven Valleys, Penn., June 5, 1998.
71 Human Rights Watch telephone interview with Ann Carr, November 11, 1998.
72 Flores Settlement Agreement, pp. 15-16.
73 Human Rights Watch interview with John Pogash, Ted Nordmark, and others, Leesport, Penn., November 23, 1998. INS enforcement standards provide that “[r]emoval or application of restraints during transportation or escort shall be at the discretion of the officer.” INS Enforcement Standard, Use of Restraints, Standard III.L (February 5, 1998). These standards also provide that in exercising discretion:
Each officer will make an assessment of the detainee’s risks to the public, the escorting officer(s), and him or herself, as well as the likelihood of absconding. This assessment will include, at a minimum, a review of the detainee’s criminal violations (if any), aggressive or asocial behavior, suspected influence of alcohol or drugs, physical condition, age, sex, and medical condition. Officers should also take into consideration the nature of the assignment, such as type of detainee, length of travel, destination or exposure to the public.
Ibid., Standard III.C. The standards require the INS officer to observe a special degree of care when using restraints on children: “When an officer determines that conditions warrant the use of restraints for members of a family unit, females or juveniles, the officer must be able to articulate the conditions which require the restraints, in accordance with Standard III.C.” Ibid., Standard III.H.
74 Article 64 of the U.N. Rules for the Protection of Juveniles states that only in exceptional circumstances should instruments of restraint be used. Restraints should not cause humiliation or degradation and should be used restrictively for the shortest possible period of time. Article 26 states that “[t]he transport of juveniles should be carried out at the expense of the administration in conveyances with adequate ventilation and light, in conditions that should in no way subject them to hardship or indignity.”
75 Human Rights Watch interview with Eric Ruth, Jack Borden, and others, Leesport, Penn., November 23, 1998.
76 Human Rights Watch interview with immigration advocate, June 15, 1998.
77 U.N. Rules for the Protection of Juveniles, Article 67. In addition, the use of instruments of restraint and closed or solitary confinement as disciplinary measures violates international standards. Ibid., Articles 64 and 67.
79 Human Rights Watch interview with Jack Borden, Eric Ruth, and others, Leesport, Penn., November 23, 1998.
80 Human Rights Watch interview with Ann Carr, Lancaster, Penn., June 15, 1998.
81 Human Rights Watch telephone interview with attorney Blake Chisam, August 7, 1998.
82 Human Rights Watch interview with Marian Dillis, INS Supervisory Detention/Deportation Officer, Leesport, Penn., June 16, 1998.
83 Under Flores, “[n]o minor who is represented by counsel shall be transferred without advance notice to such counsel, except in unusual and compelling circumstances such as where the safety of the minor or others is threatened or the minor has been determined to be an escape risk, or where counsel has waived such notice, in which cases notice shall be provided to counsel within 24 hours following transfer.” Flores Settlement Agreement, p. 16.
84 Human Rights Watch interview with Ann Carr, Lancaster, Penn., June 15, 1998. UNHCR recommends that “changes in residence for unaccompanied children should be limited to a minimum.” UNHCR Guidelines on Policies, section 7.2.
85 Human Rights Watch interview with Ann Carr, Lancaster, Penn., June 15, 1998.
88 Human Rights Watch interview with John Pogash, INS National Juvenile Coordinator, Leesport, Penn., November 23, 1998.
89 Berks County Juvenile Detention Center Annual Report, p. 15 (Leesport, Penn.: Berks County Sheriff’s Department, 1997).
90 Human Rights Watch interview with immigration attorney Ann Carr, Lancaster, Penn., June 15, 1998.
91 Conditions for INS detainees in other secure juvenile facilities have been documented by other organizations. For example, the Women’s Commission on Refugee Women and Children visited the Liberty County Juvenile Correctional Center in Texas in June 1998. At the time, the INS had over eighty children incarcerated in the maximum security facility, where they were commingled with juveniles with criminal records, forced to wear prison uniforms, pat searched, and restricted to cells for twenty-three hours a day. Testimony before the Senate Judiciary Subcommittee on Immigration, September 16, 1998, by Wendy Young, Washington Liaison, Women’s Committee on Refugee Women and Children.
92 See generally Convention on the Rights of the Child; U.N. Rules for the Protection of Juveniles; UNHCR Guidelines on Policies; and Flores Settlement Agreement.
93 Flores Settlement Agreement, p. 8.
94 Under Flores, an “influx of minors” occurs whenever the INS has more than 130 minors eligible for placement in licensed programs, including those already placed. Ibid., p. 9. Our 1996 investigation found that at any given time, over two hundred children were in INS custody for seventy-two hours or more. According to data provided to us by the INS, some 241 children were in detention between October 7 and October 14, 1996, a figure that excludes those children detained less than seventy-two hours. Of that total, 28 percent were age fifteen or under; 5 percent were under the age of ten. Slipping Through the Cracks, p. 2. INS figures for fiscal year 1998 showed 479 juveniles in the “current custody” of the INS. Although these figures are not directly comparable (the 1998 figures represent “total custody occurrences” rather than the total number of juveniles), they show that the “influx” exception to the time limits on temporary secure detention is defined so broadly as to render the limit virtually meaningless.
95 The criminal and delinquency provisions do not apply to children whose offenses are isolated ones that do not fall into a pattern or practice of criminal activity and do not involve violence against a person or the use or carrying of a weapon. These provisions also do not apply to petty offenses, such as shoplifting, joyriding, or disturbing the peace. Flores Settlement Agreement, pp. 12-13.
97 Human Rights Watch interview with Jack Borden, BCYC superintendent, Leesport, Penn., June 16, 1998.
98 The Flores settlement requires that “minors shall be separated from delinquent offenders.” Flores Settlement Agreement, p. 8. Guideline 6 of the UNHCR Guidelines on the Detention of Asylum Seekers directs that asylum seekers should be separated from convicted criminals, an extension of the general international standard requiring separation between different categories of detainees. See Standard Minimum Rules, Article 8; U.N. Rules for the Protection of Juveniles, Article 29.
99 Interview with John Pogash, Ted Nordmark, and others, Leesport, Penn., November 23, 1998.
100 Article 35 of the U.N. Rules for the Protection of Juveniles note that the possession of personal effects is a basic element of the right to privacy and is essential to the well-being of a child.
101 Human Rights Watch interview with Harriet Miller, Seven Valleys, Penn., June 5, 1998.