A Call for the Rights of Unaccompanied Immigrant Minors
May 04, 2020
By The Rev. Carol L. Kessler, M.D., M.Div.
Though concerned about the milieu I might encounter in an Office of Refugee Resettlement (ORR) Detention Center for unaccompanied minors, the desire to serve the youth within its walls was stronger. I have journeyed with the people of Central America since volunteering to train health promoters in a conflict zone during El Salvador’s twelve-year U.S.-funded civil war. My initial reaction upon entering the facility was relief. I was met with the sound of Central American music, the colors of Central American flags and decorations for upcoming Halloween festivities.
I decorated my office with photos and crafts from El Salvador and informed my patients of my history with their homeland. One youth reminisced - “I used to work on a farm with fruit trees just like those. I hate being locked up here!” Some opted for voluntary return home. A teen girl shared – “My cousin painted her life in Florida through rose-colored glasses. I couldn’t go to school in Guatemala because I’d have to cross three rivers. I came to join her, but I’m locked up instead, so I asked to go home.” Others feared that returning home would mean certain death. A teen had been threatened when he tried to protect his mother from her Sinaloa drug cartel leader boyfriend’s blows. Another faced threats for failing to join the Mara Salavatrucha gang.
Youth pushed to the U.S. by threat of imminent harm or lack of access to education were pulled by the promise of liberty and justice for all. A Honduran youth who’d been working since age seven begged his father to allow his journey north to the land where it’s illegal for children not to attend school. He lost his father’s phone number as he crossed the river. Scenes from the ride on the U.S. bound train through Mexico, “la Bestia” haunt him - a child struck by a branch falling to his death; an intoxicated man on the tracks getting run over.
Many youth wear a cross or speak of God guiding them. One youth thanks God for leading him from a town filled with drugs and gangs to a country where he might get an education, work, and send money to his family. Prayers to God ask for sustenance of loved ones left behind and for companionship through the night.
It doesn’t take long to see the toll that detention takes on these youth’s psyches – as they are held indefinitely, in a web of legal and administrative processes, with little control over daily life. The United Nations Committee on the Rights of the Child declares that “immigration detention is never in a child’s best interest and therefore always a child rights violation.” Detention is deemed permissible as a measure of last resort,” for the “minimum necessary period,” and “limited to strictly exceptional cases." A Workgroup for the Best Interests of Unaccompanied / Separated Children recommends that each child be assigned a trained advocate to ensure that the best interest of the child is at the center of decisions made at time of apprehension, while in custody, and upon release. Failure to appoint such an advocate makes the ORR the youths’ de facto guardian. This leaves the door open for mental health professionals to intervene in a manner that may be legal, but may not be in accordance with professional, ethical standards of care.
As a child psychiatrist, I uphold the biopsychosocial nature of our field. In underfunded clinics, foster children are frequently brought for a psychiatric evaluation by a foster parent or caseworker who is not privy to the child’s history. I am often told that the child is aggressive with the expectation that I will diagnose and prescribe. I clarify that I can merely perform an examination of the child’s current mental status. To do a psychiatric evaluation I need copies of foster agency records – history of placement/ pregnancy/ birth/ development/ abuse/ education/ family/ medical and psychiatric treatment. Were rights not terminated, communication with biological parents is a critical component of the evaluation and treatment planning process. Indeed U.S. citizen parents have the right to consent or refuse to psychiatric medication prescribed to their children, with a family court judge overriding refusal if it is against the child’s best interest. And so, I was pleased to learn that at least one of my colleagues at the ORR facility routinely spoke to unaccompanied minors’ relatives before prescribing medication. This proved to be the exception.
A Guatemalan teen presented for a psychiatric visit after learning from her immigration lawyer that she would be transferred to an adult ICE detention center should another disposition fail to materialize before her upcoming eighteenth birthday. She worried that her irritability and resultant rude behavior would result in incident reports that might interfere with her release to the community. She was frustrated with her case manager’s failure to notify her about a tentative upcoming visit with her uncle/ potential sponsor.
The following week, I was shocked when Maria requested to call her father so that she could ask to return to Guatemala. For her ORR records coincided with her narrative of fleeing home to escape sexual abuse by a neighbor with no possibility of police intervention. I told her that I would use this opportunity to speak with her father to ensure that he was aware of the three psychotropic medications she’d been taking since her detention months ago and to obtain the elements vital for a psychiatric evaluation. He was shocked to hear of her desire to return home, where he had been unable to keep her safe from her older brothers, who abused her while intoxicated. He’d arranged for Maria to flee to her uncle’s home in the U.S. Before ending the call, I learned that Maria’s father hadn’t spoken to any previous psychiatrist and wasn’t aware that she was taking medication.
Maria grew angry as she realized that her father was communicating that it wasn’t safe for her to return home. I called the program director to inform her of the contradiction between the father’s history and the federal records; of the father’s lack of awareness that his daughter was taking psychotropic medication; and of Maria’s need for support. I was told that staff should not be told any personal information and would escort her to her cottage. I was advised ORR is Maria’s guardian and that parental consent for psychotropic medication is not legally necessary.
Her statement clarified that “alien” youth’s parents’ rights cease at the moment of detention by U.S. Border Patrol. Though my role was to enforce ORR policy, adherence to such policy would violate my professional ethic. My concerns are echoed in an article describing clinicians in facilities that detain child asylum seekers who “initially hoped that they were equipped to treat and support traumatized children...but felt increasingly hopeless in the face of a merciless government policy and the petty tyrannies of a detention environment run along the lines of a penal colony.” The authors note that a pattern “of clinical recommendations being ignored and dismissed as biased or inaccurate in a culture that saw the detainees as simulating distress and engaging in so called ‘manipulative behaviors.”
Indeed, thirteen-year-old David, a teen who was slow to engage, had a number of “significant incident reports”. A few days earlier he had reportedly broken a pencil with intent to self-harm. He voiced frustration that he had been detained for months and believed that his case manager wasn’t pursuing a potential sponsor. The case manager claimed that David was impatient and untrustworthy. She explained that she needed to make a family tree and then reach out to potential sponsors who would need to provide David’s birth certificate. As David’s psychiatrist, to ease his distress, I explained the process as the case manager had explained it to me. Together, we created a family tree.
David then shared that he was an orphan, who lived with his grandmother in Guatemala City. There, gang members ordered him to steal a backpack. He was jailed for months, and when released feared gang reprisals. He fled to his aunt’s home in Mexico. Later, he and his cousin sought a safer, brighter future in the U.S. They parted ways en route. His cousin was detained and eventually released to a family friend in Pennsylvania, where David hoped to join him. And so, I called his aunt in Mexico who shared his cousin’s contact information. Within an hour, David was speaking with his cousin. A seed of hope for release to the community was planted.
I requested that the program director schedule a time for me to meet with youths’ case managers and therapists. She agreed, though she was surprised since my predecessor had assumed the role of independent “prescriber”. I was shocked to be the only one to have concerns about the discrepancy between Maria’s father’s story and that in her federal record. The therapist was primarily concerned that Maria’s urges to self-harm were a means of getting to her office to request more than the minimal required biweekly calls to her father.
The meeting proceeded with brief reports about each “minor.” My inquiry into the status of David’s potential sponsor was deemed out of the scope of my role as psychiatrist. My concerns about a youth who alleged sexual abuse by a staff member at another ORR facility was deemed a legal matter. Concerns that a youth referred due to symptoms of ADHD was illiterate led me to learn that individualized educational plans are only available in the community. Concerned that many had been waiting for foster homes for more than a year, I was told, “Welcome to Dante’s inferno.”
At that moment I believed that to stay at the center would violate my oath to “do no harm.” I joined my colleagues’ conclusion “that clinicians have an ethical responsibility to challenge the government when harm is done to individuals and groups as a result of bad law and policy. Remaining silent and acting as a bystander in effect colludes with the harmful practices.” I concur with the American Pediatric Association’s recommendation that exposure to detention be eliminated and that the health , consequences of detention of immigrant children in the U.S. be longitudinally evaluated.
I am encouraged by the Young Center for Immigrant Children’s Rights’ mission to create a dedicated children’s immigrant justice system. They heed the Inter American Court of Human Rights’ call to provide each child “with a guardian ad litem to help him/ her adjust to the U.S...and to ..make decisions in line with the child’s best interests”. They train volunteer child advocates to provide a voice to unaccompanied children similar to that granted to children in the domestic child welfare system who have been abused, neglected or abandoned.
I leave the youth in the hands of the God they depend on, as they wait for a federal specialist to determine their fate – voluntary departure; move to a sponsor or foster care; or graduation to adult ICE detention. I join Doctors for Camp Closure, a non-partisan organization of healthcare professionals who oppose the inhumane detention of migrants and refugees attempting to enter the U.S. I end with the words of Holocaust survivor Elie Wiesel – “No Human Being is Illegal.”