Orphans of the State
If fate had been kinder, or if people in state agencies had done their jobs, perhaps nineteen-year-old Kyle would not have done time in a state correctional facility. Nor would he now be stuck in Krome detention center. When social workers from the Department of Children and Families (DCF) in Broward County closed his case and plucked the undocumented youth from foster care without obtaining for him a Special Immigrant Juvenile visa, as the law dictates, they secured for him an uncertain future at best. At worst, deportation to a Caribbean land in which he's never lived.
On a March morning in 1999, the assistant director of the shelter Kyle had resided in for four years ordered him to pack his belongings. He was on his way to class. Instead of going to school, he says he got $50 for bus fare to Fort Lauderdale. There was no graduating into the independent-living program that DCF makes available to foster youths. No aid for college tuition. No acceptance into Job Corps.
Kyle is not alone. According to his mother, his younger brothers, both of whom spent time in foster care as well, also have not received special immigrant visas.
Had the DCF in Miami-Dade County placed seventeen-year-old Omar into foster care, he would have qualified almost immediately for a visa. Although DCF is obligated by law to do so, it didn't.
Manuela finally was put into a foster home, but that didn't solve her immigration problem. As a result the young mother, who has a life-threatening disease, didn't qualify for badly needed Medicaid during all of her childhood years.
The Immigration and Nationality Act of 1990 makes it possible for undocumented minors such as Omar, Kyle, and Manuela (not their real names) to receive Special Immigrant Juvenile visas, also called "J-visas," once they become wards of the state. It's up to DCF to apply the law. Since the agency cannot deny children care on the basis of their legal status, it's in the state's best interest to acquire J-visas for undocumented children, because without the junior green card, DCF cannot receive federal backing for such kids. Without J-visas alien children in foster care can't benefit from federal aid, such as Medicaid or college grants. They can't enter DCF's independent-living program (an option for kids in foster care when they turn eighteen years old). Leaving the system without a legal status is akin to stepping off a boat full of immigrants who have just reached U.S. shores. Except they haven't; many have been here most of their lives.
These children are part of a lost generation of young immigrants who flee their war-torn or poverty-stricken homelands only to arrive in a nation where violence against children is less obvious. Some arrive with relatives who then abandon them, others with smugglers who drop them off in unfamiliar places for a price. Some children are sold as indentured servants, others live out of backpacks and drift from couch to couch. Many end up on the streets. They grow up undocumented and rely on third-world survival skills to subsist in a bleak immigrant netherworld. Abuse, neglect, and abandonment often are rites of passage these children must endure. In some instances even the undocumented minors who cling to the social structure and pass through the child-welfare system still slip through the cracks.
Miami-Dade County's DCF, which at one time maintained a "don't ask, don't tell" policy regarding undocumented kids in foster care, has not stepped up efforts to identify children who are in need of J-visas, despite a contract with the Florida Immigrant Advocacy Center to do just that. Broward DCF lags way behind in its efforts. Critics argue that both districts should be leading the nation with cutting-edge J-visa programs, given the steady stream of new arrivals to South Florida. Federal law already protects alien children against discrimination in obtaining state benefits and guarantees them a visa. A state rule also sets specific responsibilities when investigating the abuse and abandonment of undocumented children.
But in the decade since the Immigration and Nationality Act was passed, and four years after the law was bolstered by the state's Alien Children Rule, Miami-Dade and Broward DCFs have failed to apply the laws consistently, if at all. "I'm concerned if DCF caseworkers are even aware they have undocumented kids," says Bernard Perlmutter, director of the University of Miami's Children and Youth Law Clinic. "Many of the caseworkers aren't aware there are means of assisting these children. They don't even know that such laws exist."
These, after all, are children who easily are placed out of sight. Unlike Elian Gonzalez, who commands the attention of an often myopic media, most undocumented children lack the star appeal or political clout, even collectively, that one six-year-old boy has been able to garner in two nations.
The relatives with whom Omar lived after stepping out of a plane from Jamaica at age two never took him to Disney World. Their idea of a fantastic ride was locking him in a parked car for hours with the windows rolled up whenever he misbehaved, the boy claims. "It would get so hot I couldn't breathe," Omar stated during a University of Miami School of Medicine psychological assessment. According to Omar his stepgrandmother would also beat him with an extension cord. One time she knocked him unconscious.
Omar's mother gave him up in Jamaica when he was a toddler. "She had too many kids and couldn't afford to keep me," he explains while waiting for the bailiff to call his name in Miami's Juvenile Justice Center on NW 27th Avenue. On this early February morning, a juvenile-delinquency judge will decide if Omar can apply for a J-visa. His caseworker is sitting next to him, his pro bono attorney directly behind him.
The maternal grandfather who brought the boy to the United States abandoned him and went back to the island when Omar was thirteen years old. Shortly thereafter the teenager turned up in juvenile court on shoplifting charges, in March 1996. On April 15, 1998, police arrested the youth, who was then homeless, for attempting to steal a car parked outside of a Winn-Dixie supermarket in Hialeah. Judge Lester Langer referred him to a homeless shelter. But nine days later, Omar was back on the streets stealing cars. Police arrested him again on April 24 and Judge Langer placed him in secure detention. The Department of Juvenile Justice (DJJ) released him to his stepgrandmother, but soon Omar was homeless again.
Bernard Perlmutter, who represented Omar for the J-visa petition, argues that once it was revealed in court that the boy was homeless, Miami-Dade's Department of Children and Families should have put him into foster care. Perlmutter believes Omar met the criteria: His family abandoned him twice, he allegedly suffered abuse at the hands of relatives, and he had been homeless for two years. "In this case DCF, which has the primary responsibility to conduct a thorough investigation of allegations of abandonment and abuse, shirked its responsibility," Perlmutter says. "They're swamped with work; a case like Omar's is of little priority to them."
Furthermore, Omar was undocumented. Yet despite the bleak circumstances surrounding his case, DCF had never initiated juvenile-dependency proceedings on his behalf. Because DCF had not assumed custody of Omar, the state welfare agency could not petition a J-visa for him. The boy had to commit a few crimes while he was homeless in order to become a ward, a dependent in the juvenile system. That's when Perlmutter stepped in. The pro bono attorney wrangled with state prosecutors and tried to convince a judge to assume jurisdiction over the Jamaican boy's immigration quagmire.
To avoid taking Omar's case, Miami-Dade DCF struck a deal with Omar's stepgrandmother on July 30, 1998: DCF would provide her with housing assistance if she would care for the boy. Caseworkers, Omar's DJJ probation officer Herman Perry, and the boy's stepgrandmother came together to discuss his fate. Omar's stepgrandmother, who had been living with friends because she couldn't afford to pay rent, told DCF caseworkers she was unable to care for Omar, according to Perry. DCF offered to provide her with assistance for housing if she agreed to take him in.
Perry says that during the meeting, Omar's stepgrandmother also hinted the boy did not have legal status. The meeting concluded with Omar's stepgrandmother agreeing to care for the child in return for assistance.
About a month after the roundtable had taken place, Omar reported that his stepgrandmother abused him. On September 17 DJJ disclosed the allegations to juvenile court. DCF investigated, concluding that Omar's claims could not be substantiated. That same day Perry contacted Perlmutter to help Omar obtain a J-visa. Sensing a long court battle over who should take Omar's case, Perlmutter decided there was no time to pull DCF back into the matter. By March 1999 Omar had run away again. DJJ issued a pick-up order for him, and when he was located they placed him in an independent-living program at Miami's River of Life in Homestead.
This past February Bernard Perlmutter was able to persuade a judge to declare Omar eligible for a J-visa. State prosecutors were opposed to the idea. They argued Omar was not a dependent of the state and that a criminal judge lacked jurisdiction over an immigration matter. In court Perlmutter begged to differ. "The arguments of the state are very misleading," Perlmutter said. "He is for all intents and purposes a dependent. He is in the custody of the state, in a program under the auspices of DJJ. He has no family." Judge Lester Langer ruled in Omar's favor.
"I'm somewhat familiar with [Omar's] situation," the judge stated. "Without getting into an argument of form over substance, he qualifies for long-term foster care. He has no parents in the U.S. The child is dependent on the juvenile court even though he hasn't been declared dependent by a juvenile court.... I will issue an order that will allow him to enter an application with INS."
With that pronouncement Omar was free to apply for a green card, with which he could apply for a scholarship at Johnson & Wales University. He wants to be a chef. As he left the courthouse, he felt it was as if a weight had been lifted. "I feel better," Omar commented.
There was no outpouring, no warm welcome, when nine-year-old Kyle and his family arrived in the United States from Haiti. During much of their childhood in Fort Lauderdale, Kyle and his two brothers fended for themselves. Their mother worked long hours in low-paying jobs and supplemented the family's income by taking monthlong trips to the Caribbean to sell merchandise bought cheap in the States. During her long absences, the family collapsed.
In the summer of 1990, a juvenile court placed the three siblings under DCF supervision (then called Department of Health and Rehabilitative Services, or HRS) while they continued to live at home. Two years later, despite expressing reluctance to assume custody of the boys because of their "unclear alien status," DCF physically removed them from their mother's care, separated the brothers, and dispatched them to foster homes. A few months later, in July 1992, DCF again expressed concern over the trio's residency status. An interoffice memorandum identified the boys as "illegal aliens" who were therefore not eligible to receive Medicaid. At this point DCF should have petitioned the court to declare them eligible for J-visas.
Internal DCF paper trails reveal that during the nine years Kyle remained in foster care, a gamut of DCF employees, from rank and file to top administrators, knew the boy was undocumented. Caseworkers, foster-care supervisors, a program administrator, and others had identified Kyle as an illegal alien. His two guardian ad litems knew as well. (Guardian ad litems are court-appointed volunteers who advocate for children and represent them in court.) Both pressed DCF to take action. So did a Broward juvenile court.
On July 6, 1994, a month and a half before DCF transferred Kyle to a boys' home in Georgia, Frank M. Beisler, the youth's first guardian ad litem, submitted a written report to the court during Kyle's twice-yearly review. In it he expressed concerns about the teenager's criminal activities; by age thirteen Kyle had already been charged with car theft, possession of stolen property, and resisting arrest without violence. Beisler also recommended DCF obtain legal residency status for Kyle. He had contacted Susan Satler, a pro bono attorney who was preparing to file a J-visa application with INS on behalf of Kyle.
According to the review, Satler had received all but one of the necessary forms. DCF was completing the final form and had indicated to Beisler it would arrange for the necessary physical examination and required head shots of Kyle. But DCF didn't complete these simple final steps. "They acted with reckless indifference to the rights of this young man," says Alan Mishael, a child-welfare attorney who is preparing to file suit in federal court on Kyle's behalf.
A month later, bereft of a green card and without a say in the matter, Kyle was uprooted. DCF moved him to the Mel Blount Youth Home located in the Georgia wilderness. The closest town, Vidalia, was seven miles away. During the four years Kyle lived in near-seclusion, his mother visited once. She wrote him three letters, and called him on average three days per week. Kyle never saw his brothers. Indeed, according to Irving Reisfeld, Kyle's second guardian ad litem from 1995 to 1998, contact or even communication with Kyle was next to impossible at the boot-camplike retreat for ungovernable boys.
A communications breakdown was the least of the problems at Mel Blount. Complaints of cruel punishment had been surfacing since 1990. Among other things teenage boys claimed staff members beat them, rationed their food, and made them smash rocks with twenty-pound sledgehammers in the middle of the night. On October 29, 1999, the Georgia Department of Human Resources concluded one of several investigations and planned on revoking Mel Blount's license. But according to Clint Blount, Mel Blount's director, it may not have to close. As of January there were still three South Florida kids residing at Mel Blount. Broward DCF would not respond to questions about the questionable facility with which they contract.
In 1997 a Broward judge finally signed an order declaring Kyle eligible to receive a Special Immigrant Juvenile visa. But any further efforts beyond a judicial order died there. In the meantime Kyle seemed to be flourishing. According to Mel Blount progress reports from 1997 and 1998, he was doing well in school. Evaluations describe him as a hard worker and role model to his peers. In 1998 he led some 900 runners in the six-mile annual Vidalia Onion Run. He came in second. He won first place in Mount Vernon's Heritage Run.
On October 26, 1998, DCF reported to the juvenile court in Broward that Kyle didn't have any relatives willing to care for him; he would remain in foster care through June 30, 1999. Yet this cut-off date could have been extended had DCF abided by the laws. With a J-visa Kyle could have stayed in foster care until the age of 21. All he had to do was remain in school, work part-time, and participate in the independent-living program. During the court hearing, DCF encouraged all parties involved in Kyle's case to continue supporting the young man in his academic endeavors, knowing they would be short lived. Deena Gayhart, DCF's foster-care supervisor in Broward, officially closed the young man's case on January 9, 1999.
In March of that year, as Kyle was preparing to go to school, Mel Blount's assistant director Anne Jackson walked into his room, presented him with a suitcase and open sack for packing his belongings, handed him money for a Greyhound bus ticket, and told him to leave. Although Kyle had resided in Mel Blount for almost five years, Jackson gave him just fifteen minutes to depart. The eighteen-year-old didn't have time to say goodbye to his friends and had no room to take his track trophies with him.
Upon arriving in Fort Lauderdale, Kyle tried without success to speak with his foster care caseworker, Gary Reynolds. But Reynolds's supervisor informed him that since he was now eighteen years old, there was nothing else DCF could do for him. Then Kyle telephoned his guardian ad litem, Irving Reisfeld, who in turn contacted DCF lawyer LaVerne Pinkney. He asked her if Kyle could be reinstated into foster care. Pinkney delegated the inquiry to Deborah Guller, her assistant. In a letter to Reisfeld, Guller wrote: "It is important that [Kyle] make some decisions as to his own immigration status; perhaps hire an attorney, as he is no longer a minor and does not meet the criteria for a juvenile visa."
Had Kyle received a J-visa while in foster care, says Reisfeld, he would not have been pushed out. "It's all about money," Reisfeld asserts. "DCF must have stopped funding him. When he turned eighteen, Mel Blount had no reason to keep him."
In November 1999 police arrested Kyle for violating his probation on charges of cocaine possession. "He wouldn't be in jail today if he had a green card when he was discharged from foster care," says Bernard Perlmutter, a UM law professor. "He had no choice but to resort to criminal activity. It's not that DCF didn't know he was undocumented; it's just that they screwed up."
Kyle was scheduled for release from the Joseph V. Conte facility this past February 16. Fifteen minutes before his mother arrived at the blue-gray, barracks-style penitentiary in Pompano Beach to take her son home, police officers informed him he couldn't leave. INS put a hold on Kyle's release because he is an illegal alien with a criminal record and therefore subject to deportation. INS transferred him to Krome. A deportation hearing has not been scheduled. But in all likelihood, according to attorney Alan Mishael, the young man will be sent to the Bahamas, his birthplace, if he can prove he was born there. But if not, then it's off to Haiti. "Do you know how much money the government spent on this kid, and then for the want of a fingerprint everything goes down the drain and he's vanished to another country?" says Mishael, Kyle's attorney. "I'm speechless. What this kid's gone through is a nightmare."
Broward DCF at first would not respond to inquiries, citing confidentiality of its juvenile cases. But when a New Times reporter suggested to DCF attorney Deborah Guller that Kyle's imprisonment could have been prevented had DCF done more, Guller said, "There's a point in time when individuals have to take responsibility for their own actions." DCF has not responded to any other questions.
For obvious reasons it is impossible to know how many undocumented minors live in South Florida. Twenty-nine currently are living in Boys Town, an INS-contracted facility in Miami. Since July 1999 DCF in Miami has referred fourteen children to the Florida Immigrant Advocacy Center (FIAC), which is contracted to help alien children. DCF must refer a minimum of 40 cases by June of this year, according to FIAC's pro bono attorney Christina Kleiser; Miami-Dade DCF is off the mark by 26 cases. In Broward the figures are hazier; because that county has made little effort to count, it has an uncharted pool of kids eligible for J-visas.
But UM professor and child-welfare attorney Bernard Perlmutter believes there are many. "I suspect there are scores of kids out there," he says. "Many of the ones who are under the legal custody of DCF aren't getting their fingerprints, photos, or medical exams in time to appear at their adjustment interviews with INS." Perlmutter knows first-hand. In the past he's even had to drive clients to physical exam appointments, because their DCF caseworkers hadn't arranged transportation for them. "As a result they don't get their green cards," he says. "It's DCF's responsibility to identify the undocumented kids who are in the system and to go through the necessary steps in adjusting their legal status."
In the past politics influenced how DCF handled cases of abuse pertaining to alien children. When Lawton Chiles took an a critical stance against funding illegal aliens during his tenure as governor of Florida, DCF did the same. In early 1994 Chiles sued the federal government for millions of dollars he claimed the state had spent on social services for illegal immigrants. Chiles argued that they were the responsibility of the federal government. In keeping with the spirit of the times, the Department of Children and Families in Miami (then HRS)routinely denied foster care to abandoned children who entered the nation illegally. Twice welfare officials successfully argued in federal court that undocumented children had no legal right to state services.
But in late 1994, just as Kyle was beginning to settle into the Mel Blount Youth Home in Georgia, controversy over how Florida's welfare agency treated immigrant children in need of foster care sparked a counter lawsuit in Miami, and DCF came under fire. Attorneys Alan Mishael, Chris Zawisza, and Juan Gomez sued DCF on behalf of two Haitian girls. They argued that immigrant children were being deprived of services based on their residency status and accused the state of trying to shirk its responsibilities by pushing abused immigrant children off on to the federal government.
DCF denied the allegations. But in the end, refugee advocates and state officials settled the case with the issuance of statewide rules that prohibit DCF from discriminating against undocumented kids. Mishael, who helped write the guidelines, says the law has gone largely ignored. "We wrote the Alien Children Rule and then everyone sits on their hands," Mishael says.
Before Mishael, Zawisza, and Gomez filed their lawsuit (Roe and Doe v. Towey), DCF in Dade County had already sought help from Legal Services of Greater Miami. "At the time we had a huge number of illegal immigrant kids coming into the abuse system," says Carmen Dominguez, a DCF lawyer who worked on J-visas from 1994 until early 1997. Esther Olavarria, a former Legal Services of Greater Miami attorney, says DCF began inquiring about services for undocumented minors in the spring of 1994. "They needed assistance in representing kids they discovered were not legal residents," Olavarria says.
But the collaboration between pro bono attorneys and the state agency wasn't formalized until after Mishael sued and the Alien Children Rule was drafted. By then Legal Services had become the Florida Immigrant Advocacy Center, and in July 1996, DCF officially contracted them to file J-visa petitions for children in state custody.
According to Olavarria, who headed the project from FIAC's end, she received a couple of hundred referrals during her tenure from 1992 to 1997. FIAC also set up training for caseworkers and DCF lawyers and established an understanding with INS in which the federal agency would agree to waive all filing fees.
The hardest cases to detect, according to Olavarria, were those of children who had been in foster care from a very early age. "Those kids who had assumed they were born here, those were the hardest cases to piece together," Olavarria says. In fact according to Dominguez, DCF ignored those children until after Alan Mishael's lawsuit. Initially DCF assisted only those alien children just coming into the system. "As a result of that lawsuit, caseworkers had to go back and identify every kid that had been in the system for years," says Dominguez. The DCF lawyer doubts her job was assigned to someone else once she transferred to another position. "To be honest with you, I don't think anybody took over after I left," Dominguez admits. "The only reason I was designated for the job was because there was this brouhaha over Alan Mishael's case. I think the system may just have gone back to the way it was after I left."
"We suspected that eligible children were not being identified," says Rebecca Sharpless, an FIAC attorney who assumed Olavarria's position from June 1997 until November 1999. "These are kids who at the end of their time in foster care are being released to no futures," Sharpless says. "They don't qualify for financial aid to go to college and they have no legal status to work or reside in the United States."
Sharpless credits half a dozen responsible caseworkers but says getting referrals in general was an obstacle. "Despite our efforts no systematic attempt was made to inform caseworkers of this project."
In April 1999 Sharpless and attorney Christina Kleiser from FIAC collaborated on J-visa petitions. In July DCF renewed its contract with FIAC. Monthly training sessions were to continue as part of the agreement, but it wasn't until December that DCF attorneys finally attended a class.
Efforts to continue identifying J-visa kids indeed seem to have died down in Miami. (In Broward they are now just beginning. There's no contract with FIAC, but the agency does employ the services of two pro bono attorneys.) And while FIAC in Miami continues to provide services to children DCF refers to them, there is no Carmen Dominguez on DCF's end to help speed up the process.
Currently Kleiser has a list of approximately seven kids who potentially qualify for J-visas. By the end of March, only two caseworkers had called her with two more cases. "There has just been a real lack of referrals of these kids, and we know there are a lot more out there," Kleiser says. The attorney is setting up three more caseworker training sessions for April. "It's not enough," she says. "But we're definitely trying to figure out who to target."
Manuela should have been targeted much earlier. Her many U.S. guardians left her out in the cold, even when she had a child to care for. After a male friend from Carol City demanded sex in return for a place to stay, she left, and for a day sat in front of a Winn-Dixie supermarket with her eighteen-month-old child. Manuela hadn't eaten in three days and only had a bottle of milk for her boy. Police picked her up late in the night.
That's how Manuela came into foster care. Since then she's dropped out of high school twice. After nearly two years in state custody without a green card, and therefore without the services for which she would have been eligible, she finally received it by mail in January. At least now Manuela and her children receive Medicaid.
Kyle's future looks darker. "When he calls all he does is cry," says Olivie, Kyle's mother. "I don't know what I'm supposed to do. I don't know who is supposed to help me." According to attorney Alan Mishael, few options are left. Odds are INS will deport Kyle either to the Bahamas, where he was born, or Haiti, where his roots are. Or where the state claims they are.
"Once he told me that if he got a green card, he wanted to work as a chef at a restaurant," attorney Perlmutter says. "All that stood in the way of him being a good citizen was his legal status. But right now it seems like it's a lost cause. He may never be eligible to adjust his status. Like him there are so many children, ill prepared to make it on their own. Chances are they're going to be a burden on society."
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