Long Island attorneys representing children who entered the country illegally as unaccompanied minors and say they were held for days in cold cells without adequate food or care are formally calling on a federal prosecutor in Texas to file criminal charges against the nation's top immigration officials because of the alleged mistreatment.
The lawyers, who have represented scores of immigrant children resettled on Long Island, said their clients and other detained children, some less than a year old, were held in deplorable conditions for longer than the 72 hours prescribed under a federal consent decree.
The children were locked in cells without adequate food and water, were not given medical attention, had to sleep on the floor and couldn't take showers or bathe, they said.
Seeking criminal charges
Ala Amoachi and Bryan Johnson, partners in a Bay Shore firm that focuses on immigration issues, requested that U.S. Attorney Kenneth Magidson, of the Southern District of Texas, prosecute Department of Homeland Security Secretary Jeh Johnson and former DHS Secretary Janet Napolitano "for committing the federal crime of Deprivation of Rights Under Color of Law."
The unaccompanied minors cited in the Dec. 30 request are a 17-year-old and her child from Honduras, who were among an estimated 53,000 youths illegally crossing into the United States at its border with Mexico during the fiscal year that ended in September, fleeing violence and poverty in Central America.
The wave of humanity triggered a crisis as state and federal authorities struggled to cope. President Barack Obama made an emergency $3.7-billion request to Congress to respond by increasing temporary detention capacity and speeding up cases through immigration court, but lawmakers did not approve it.
The Texas federal court district, based in Houston, is the jurisdiction where the mother and son were detained after entering the country in June. The lawyers' request for prosecution also was filed as a complaint with the Department of Homeland Security's Office of Inspector General and its Office for Civil Rights and Civil Liberties.
Their action is an unproven method of redress against top federal officials, several legal experts said.
Origins in slaves' rights
The law is more than a century old -- dating to the post-Civil War Reconstruction period -- and was intended for use in enforcing the rights of freed slaves in the South. It traditionally has been employed in cases where the federal government is investigating state and local government officials, not against federal agencies, said Leon Friedman, a Hofstra University law professor who teaches constitutional law.
Gary Gildin, a law professor at The Dickinson School of Law of Pennsylvania State University, said it typically is used in prosecuting state and local government officials, including police officers, and "requires something that is incredible abuse or attracts such widespread publicity, like in the [Eric] Garner and [Michael] Brown cases, that the federal government feels compelled to act."
The treatment of the minors was "outrageous," said Amoachi, whose firm has more than 200 open court cases for immigrants who came to the U.S. as unaccompanied minors and are fighting deportation. "You have to think of them not as immigrants who are crossing illegally, but think of them as children . . . It really reflects very poorly on our country, and it is a violation of human rights."
The request to Magidson focuses on the Department of Homeland Security as the lead oversight agency for immigration enforcement, including its U.S. Customs and Border Protection agency.
Magidson's office, in a written response, said it could not discuss any such case.
"We cannot comment on the existence and/or status of an investigation, whether or not we have received a request for investigation and/or prosecution or any other information that is not otherwise a part of the official court record," the statement said.
Homeland Security officials and the agency's investigative arms did not respond to the allegations.
Jeh Johnson and Napolitano, the current and former Homeland Security chiefs, also did not respond to requests for comment.
Mother recounts suffering
The mother and child at the center of the Long Island lawyers' mistreatment allegations now are living in Suffolk County with the woman's parents. Of nearly 6,000 unaccompanied minors who came to New York State in the 2014 fiscal year, more than 3,000 were released to relatives or sponsors in Nassau and Suffolk counties.
The lawyers withheld their clients' names to protect them.
The mother, in an interview, said she and her son, then 9 months old, left Honduras and rode buses for 10 days to arrive in late June at the border. After floating across the Rio Grande on a raft, she and her child were apprehended and held at two locations somewhere near Hidalgo, Texas, for 10 days. In each place, they were locked in a small room that other immigrants have come to call a hielera, Spanish for icebox, with nothing but a concrete bench and a toilet.
The cells were so cold, she said, that they "had trouble breathing," and they slept on the floor without blankets. The food was scarce, cold and unpalatable, and her son dropped weight, going from 23 to 15 pounds over their time in the cells.
She was afraid to ask for help, she said, because she heard the guards yelling at other detainees.
"I didn't want to live anymore," the young woman said in Spanish. "They treat us like criminals, just because we come seeking safety and something better for the future."
Ultimately, she was released to a shelter and, about a month later, to her parents on Long Island.
María Magdalena Velázquez, 19, a native of El Salvador who is another client of the Bay Shore attorneys, spoke of facing similar conditions after she crossed the border in June with her 1-year-old son, Marvin. Velázquez eventually was resettled in Brentwood.
The cells in which they were held were filthy, she said. The first one was too hot and crowded with other mothers and children. Then, she and her child were in a cell by themselves that "was super-cold and had us shivering" for five days.
Her boy was running a fever and started vomiting shortly after their release, Velázquez said.
"I was really scared that day," she said in Spanish.
In another case, an 8-year-old girl from El Salvador, whose parents asked that her identity be withheld, was held in cold jail cells for 15 days.
The girl, now living in the Town of Huntington and attending the second grade, said in Spanish that she thought "that I never was going to get out and I felt very bad."Their experiences resemble those of others, which prompted an ad hoc hearing before members of Congress in July and spurred national advocates to seek improved conditions and better legal representation for the minors.
Strategy a new legal tack
The approach taken by Amoachi and Bryan Johnson appears to be a new legal tack. Other attorneys and immigrant advocates said they have not heard of any prosecution relating to unaccompanied minors' treatment based on the "deprivation of rights" statute.
Phil Bridgmon is a criminal justice professor at Northeastern State University in Oklahoma who co-authored a scholarly article surveying prosecutions under the statute between 2001 and 2006.
While the law "is certainly usable in prosecuting federal officials," he said, it mostly has been employed against police and correction officers.
"You have to show the deprivation of rights was intentional and that the individual was aware to have both intent and motive," Bridgmon said.
A broader complaint about border detention cases was submitted to DHS investigators in June by a coalition of national immigrant-advocacy groups led by the American Civil Liberties Union.
That report identified 116 instances in which immigrant children in federal custody reported verbal, sexual and physical abuse, as well as squalid conditions and cold jail cells.
The complaint led to visits and reports on detention conditions from the Department of Homeland Security's Office of Inspector General and initiated other agency investigations that still are pending.
In October, DHS Inspector General John Roth said in a statement that the border protection agency "improved its capacity to provide medical screening, facility cleaning, food service and case processing for large groups" of minors.
ACLU staff attorney James Lyall, with the group's Border Litigation Project in Arizona, said the federal government's response has been inadequate.
"They claim that the investigation is ongoing, but we haven't been contacted by investigators and, frankly, DHS oversight agents have a track record of ignoring and failing to respond to complaints," Lyall said. "In the few instances where any agent was disciplined . . . the disciplinary action consisted of additional training."
The lack of significant reforms and accountability is why the Long Island immigration attorneys say more drastic measures are needed. The cases should be considered as matters of criminal law, they said, because the Department of Homeland Security and its agencies allowed detention conditions to deteriorate despite a multitude of complaints.
"If these kids were harmed in this way in any other context," Bryan Johnson said, "they would be arrested for child abuse."