The Mouths of Babes

On May 26, 17-year-old Elvin Alexander Nunez Padilla and his father Santiago Nunez Rivera deserted their small town in Honduras and headed for Texas. They left behind Elvin’s mother and two sisters. There simply isn’t any work to be found where he lives, Elvin explains. “The only way we could move forward was by coming [here],” he says matter-of-factly. After a harrowing journey that included a shakedown by the Mexican Judicial police, who robbed each of them of 300 pesos (about $30 dollars), they crossed the Rio Grande and entered the United States on June 21. Fifteen minutes later the Immigration and Naturalization Service caught them.

The INS separated Elvin and his father, sending the boy to a juvenile detention center in Los Fresnos. The boy hasn’t seen or spoken with his father since that day. Elvin’s lawyer does not know where Santiago Rivera was sent. At the juvenile facility, Elvin was treated like the kid he is. He took educational classes including English, played sports outside, and wore regular clothes.

Five days after arriving, his teacher took Elvin and three other kids to the dentist. The dentist examined Elvin’s molars, but didn’t say anything to him. After the visit, all three were sent by the INS to the Port Isabel Service Processing Center, an adult facility in Los Fresnos. The dentist, by looking at X-rays of Elvin’s teeth, had determined that he was lying about his age and was in fact 18 years old. Elvin’s birthday is October 31, 1985. “I told them when I was born but they wouldn’t listen,” he says of his guards, whom he calls the verdes for the green uniforms they wear.

Until recently, Elvin was incarcerated in the adult facility with older men, some of whom are possibly dangerous criminals. There, he says, all they do is sleep and eat, going from their bunk beds to the cafeteria and back. There are no classes. There are no sports. Elvin, along with the other undocumented immigration detainees, must wear a blue prison jumpsuit.

Both the British Medical Association and the chairman of the radiology department at New York University are on record saying that it is impossible to assess whether a child is 18 or older by examining their teeth. The INS is not deterred by the fact that using teeth to determine age is based on questionable science. “I don’t think the INS has ever claimed or maintained that these processes are exact,” says Russ Bergeron, the chief press officer for the agency. Bergeron argues that the dental exams, while not perfect, are the best technology available. He also insists that the exams are just one of several methods the INS uses to determine age.

The fact is, putting kids in adult facilities is cheaper, which seems to be what the INS wants. An estimated 5,000 illegal immigrant children are detained by the INS each year. Juvenile facilities are about twice as expensive as those that house detainees who are over 18. The INS spends roughly $200 a day to incarcerate children versus $70 to $80 a day for adults, according to INS Public Affairs Specialist Karen Kraushaar. The INS does not pay for the dental exams, which can run upwards of $200 a patient. That bill is footed by the U.S. Public Health Service.

The INS does not know exactly how many dental examinations are performed each year on juvenile detainees. No one at the INS seems to know how long the agency has been using dental exams to date the age of children. Nor does anyone seem to have records of how many kids examined were determined to be adults, or whether they were sent to county jails as many adult detainees are. When asked if any of these minors ended up in jail, Kraushaar replied dismissively: “Sure, and would you like to know if they were wearing red hats or green?”

Elvin, along with two other Honduran boys, Jose de Jésus Guifarro Cardona and Wilmer Alexander Ortez Pineda–all detained at the Port Isabel facility–were lucky. Out of thousands, they are among the rare cases of minors detained by the INS who got access to lawyers. Their counsel, Meredith Linsky, Coordinator for the South Texas Pro Bono Asylum Representation Project (PROBAR) has managed to track down birth certificates for all three. After she presented them to the INS along with documentation questioning the validity of dental aging, all three boys were sent to juvenile facilities.

There might soon be hope for more children caught by the INS. Folded into the proposed legislation creating the new Homeland Security Department are provisions that would transfer jurisdiction over custody and release decisions regarding unaccompanied minors in detention from the INS to the Department of Health and Human Services. It would also take responsibility for foster care and shelter care facilities. In addition, it would guarantee guardians ad litem and court-appointed lawyers for each minor detained. Finally the legislation would require new procedures to more accurately determine the age of an unaccompanied alien child rather than relying solely on X-rays.

Successful passage of the legislation would be welcomed by advocates like PROBAR’s Linsky. “The consequences of erroneously finding a minor to be an adult are grave, and mistakes happen regularly,” she notes. “We need a more child-friendly atmosphere, not an enforcement mindset.”