GEO Wants Taxpayers to Foot Bill for Private Prison Exploitation

GEO Execs Demand More Money
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GEO and ICE communications about litigation linked below

In the last five years, seven class action lawsuits have been filed seeking damages and injunctive relief from private prisons that stand accused of forcing people to work in violation of several federal and state laws.  In letters obtain from FOIA litigation, we now know GEO is demanding taxpayers cover their fees and even damages.  The government, even Trump's government, so far is refusing.

The first lawsuit was filed in Denver in 2014 against GEO Corp.  Judge John Kane saw through GEO's whining captioned as a Motion to Dismiss and an especially overwrought Motion for Reconsideration and allowed two of the three charges to proceed.  Other judges did likewise and even allowed the minimum wage claims to go forward, the one charge Kane had sidelined.

In 2017, GEO told the Tenth Circuit appellate panel that if the class action lawsuit in Denver were allowed to proceed it would pose a "a potentially catastrophic risk to GEO's ability to honor its contracts with the federal government."  

GEO also told the Tenth Circuit panel that "the skeleton of this suit could potentially be refiled against privately operated facilities across the United States, causing GEO and other contractors to defend them even though GEO firmly believes that policies give the Plaintiffs no legal claim."  

In early 2018, the Tenth Circuit panel unanimously green-lighted the litigation. Apparently they were concerned more about the rule of law than GEO's profits.  

On January 11, 2019, the plaintiff attorneys sent out the following notice to up to 60,000 people held in the Aurora facility: "If you were detained at GEO’s Detention Facility in Aurora, Colorado between October 22, 2004 and October 22, 2014, please read this notice. A class action lawsuit
may affect your rights..." 

After six more lawsuits were filed against private prison firms for using those in their custody to do the work on federal contracts and had survived the motions to dismiss, I was curious about how the government was responding and filed a new request for documents.  

Here are a few highlights from the 4,015 pages obtained to date, pursuant to ongoing FOIA litigation.   

In a February 14, 2018 letter from GEO's Senior Vice President of Business Development to Acting Director Thomas Homan we learn:

1)  GEO has been begging ICE to intervene and support their exploitation of immigrants and U.S. citizens in their custody. "There is an urgent need for the federal government to particpate in the current and anticipated future litigation, as well as to justify and defend the programs and policies that ICE requires of its detention contractors."

2)  GEO thinks the U.S. taxpayers should reimburse GEO for their legal fees and damages.  Of the Colorado case, GEO writes: 

The legal discovery costs could total several millions of dollars and potential damages could be in the tens of millions.  Understandably, GEO would need to be reimbursed for all of the costs through an equitable adjustment request to ICE. To date, GEO has expended $1,615,000 in legal costs for which we seek an equitable adjustment.

GEO's letter also noted an additional $442,000 in fees for its defense against two lawsuits in Washington and new litigation and laws threatening their operations in California, including one requiring GEO to release information:  "The City of Adelanto has recently received multiple broad reqeusts for information about the Adelanto facility under this provision from the news againcy BuzzFeed and one individual." 

Apparently GEO does not want the public to become aware of its operations.  (Just guessing they won't be thrilled about our reading their correspondence about them not wanting us to read their correspondence.)
 

3)  Just a few months later, in May, 2018 GEO ups the estimate of legal fees alone to $15 to $20 million, and claims damages could be in the tens of millions. (This seems low to me.  GEO provides no basis for this estimate.)

4)  GEO hopes that by dramatizing a mutual enemy, Washington State's Attorney General, perhaps ICE, a.k.a. "U.S. taxpayers," will pay off GEO: "the State of Washington's suit is pursued by Washington's Attorney General, who has publicly boasted of his victories over the current Administration, including several regarding immigration."

5)  GEO continues to live in its own legal bubble and presses claims that several judges rejected when it made these claims to ICE in February 2018:  "Decades of precedents under the Fair Labor Standards Act have upheld the $1 per day allowance for detainee work, holding that detainees are not 'employees' of detention facilities and that minimum wage standards are inapplicable to detainees...Yet, GEO finds itself defending the agency and its policies against allegations of state minimum wage violations."   This is absurd on its face.

If courts for decades were upholding GEO's legal analysis, the lawsuits would have been thrown out and GEO wouldn't be begging ICE for money.  GEO's own summary of the litigation makes it clear that some courts in recent years are holding that GEO's organization of work by those in ICE custody could be an employer-employee relation.

About one per cent of class action employment lawsuits survive motions to dismiss and go to trial.  For these class action lawsuits against GEO and CoreCivic to have gone this far, it's pretty obvious the firms made some big mistakes and might now have to pay for them.  (The mainstream media has stayed away from in-depth coverage, a reflection and perpetuation of the legal illiteracy that advantages the fraudsters who wrangle massive government contracts amid egregious violations of federal laws and regulations.)  
 
There are several problems for GEO and CCA. One challenge is that the law GEO's Senior V.P. references in the letter, 8 USC 1555(d), says that the payments should be "at such rate as may be specified from time to time in the appropriation Act involved."  The last time Congress set a rate in its appropriations act was 1978.  That appropriations act expired in 1979 and was for "no more" than one dollar/day.  It also was in effect during a time frame when few people were in detention for more than a few days. 

Anyway, on the one hand, GEO is claiming that it is paying people in accordance with this (irrelevant, because long-expired) appropriations act.  

On the other hand, GEO clearly is not doing even this.  Internal email shows ICE attorneys very attentive to how GEO is using the labor of ICE residents as a mainstay for its operations, including by paying in some cases up to six dollars/day to insure GEO has the labor supply to meet its ICE committments.  

In an email of July 20, 2017, one official writes, "It is interesting that GEO is paying different rates at the facilities."  A colleague replies 20 minutes later, "I know! I'm really curious why they would pay more at Jena.  It is odd. (But good, I guess?  Then again, I hear commissary items are outrageosly expensive.  So, they probably just recoup it all that way.)"

In the end, ICE and the Solicitor General put the law and the taxpayers before GEO and CoreCivic.  On June 21, 2018 ICE denied all of GEO's requests for contract adjustments to cover their legal fees in this litigation. (It's on the last page.) ICE also declined to file as an intervenor and refused to defend the private prisons.  

An amicus brief filed on April 1, 2019 by the Solicitor General, "in support of neither party,"  affirmed the Trafficking Victims Protection Act analysis of the plaintiffs and the district court judge, i.e., holding that a for-profit prison is not categorically excluded from TVPA protections:

As the district court [in the seventh case, filed in Georgia] correctly recognized, there is no basis for reading this broad provision to categorically exclude from its coverage facilities operated by private entities that contract or subcontract to provide immigration detention services to the federal government, particularly in light of Congress’s repeated efforts to ensure that federal contractors do not provide goods and services to the government through reliance on forced labor.

It's the Trump administration and filed on April Fool's Day so I just checked again.  Trump's S.G. really says this.

The Georgia case against CoreCivic, the facility that held Mark Lyttle and is the subject of the above S.G. brief, makes no minimum wage claims.  The Eleventh Circuit appellate court has not yet issued its decision on whether the case  can proceed.  If it adheres to the analysis of the district court and the Solicitor General, the case should be ordered to proceed.  If it does, the outcome will hang on whether the CoreCivic can prove it was running the facility consistent with the Performance Based National Detention Standards.  (We know from independent audits and the Office of Inspector General reports that CoreCivic has flunked already.)  
 
Some folks reading this may be wondering about the policy implications.  It is becoming painfully clear that there is a fundamental contradiction between the rule of law and the operations necessary to regulate the movement of people across national boundaries.  

In light of this, a lot of Trumpists think it's fine to suspend with the rule of law, the thought being: do we really want to make it either more difficult or more expensive to exclude or remove those without legal authorization from the United States? If the cost of controlling the ancestry of U.S. residents means blowing off our labor laws, then so be it, runs this line of reasoning, with no small support from some bad U.S. Supreme Court decisions from the nineteenth century.

This response reflects the success of our kleptocratic leaders in controlling public discourse.  They encourage the assumption that the object of the game is arbitrary population controls and not our intellectual, political, and economic vitality.

The important questions are the ones the Republicans and the Democrats alike don't want us asking: if we want to deter from residing here people who drain the U.S. coffers and avoid paying taxes on their booty, then why aren't we deporting the Trump family, or for that matter the Pritzkers and the Crowns of Illinois, who for decades laundered funds illicitly funneled from government coffers to themselves in the guise of public spending, going back to war profiteering in the 1940s, and who continue this through bogus "philanthropic" gifts and tax deductions today?  

"Without justice, what are kingdoms but great robberies?" -St. Augustine, City of God, c. 380.

What are the marginal public benefits of a dollar spent on GEO holding a guy who wants to pick tomatos, and his children, compared to a buck spent on investigating General Dynamics Information Technology for anti-trust violations connected to their gobbling up of firms that handle databases for Homeland Security, including apparently one that lost track of migrant children?   

Is the giant sucking sound jobs shipped to China, or funds whisked into the offshore accounts of those turned into billionaires from padded federal contracts, and who fight on various fronts to insure our taxes will never be available for responsibly, not corruptly, designed and built high speed trains, Creative Commons licensing training (and the elimination of the Bayh Act), or public health investments?  

Do we really want to investigate fewer than 1,200 cases of tax evasion annually, down from 1,948 in 2010  and leave tens of billions on the table while spending scarce resources capturing and locking up hundreds of thousands of people who might actually assist the U.S economy and pay more taxes than the jailers who are exploiting them? A Department of Treasury report notes "a significant decrease in the Collection function’s staffing in recent years.  The number of revenue officers declined over 40 percent, from 4,068 at the end of FY 2010 to 2,425 as of June 2016."

The myth is that the one percent somehow earned their wealth through the miracle of capitalism.  Sure, a few did.  But most wealth is from intergenerational transfers and much of this is from assests or commodities acquired from the state and federal government.  The largest spender in the world is the U.S. federal government, and it spent about $1 trillion, including taxes from noncitizens, on some of the world's most toxic commodities, from cluster bombs to biometric databases to prisons.  The folks hauling in these billions run firms that buy or merge with their competition, and spend millions on making nice with the people who control the purse strings to not ask questions or to install those who they can insure will not.

Shouldn't we be taking care of the real vulnerabilities to the rule of law, i.e., the corruption of those managing our treasury and our jails, i.e., our resources and liberty, before worrying about the lineage of new arrivals, a population less likely to be convicted of any crimes if they cross borders instead of being born here?

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." - Preamble, U.S. Constitution

Our wager as citizens is on a people defined solely by our desire to establish justice and further other principles, with no other criteria as to collective origins or fantasies thereof.  To the extent that ideas about ancestry and especially nationality favored by the identity politicians of the right and left crowd out these founding aspirations, they pose the real threats to the rule of law and hence the posterity of the founders.  Those arriving for the purpose of joining the  people of the U.S. Constitution are the posterity perfecting the rule of law and should be welcomed.  Any other decision-rules for admission or expulsion, especially hereditary, are distractions that are expensive and even lethal.

P.S. How this happened....

It's been just over ten years since June, 2009, when Mark Lyttle asked for help in obtaining what he said was $32 owed him by the Correction Corporation of America (CCA).  Mark had been working in the kitchen and had a midnight shift buffing floors at the Stewart Detention Facility in Lumpkin, Georgia.  CCA was paying him one dollar a day.

Mark, a U.S. citizen, in late 2008 was employed by a for-profit immigration jail.  The only difference between him and the janitor at the hospital down the road is that Mark was in the custody of his employer and was waiting for an immigration hearing. It's illegal for ICE to detain and deport U.S. citizens.  I was writing about that piece of his saga, and what it meant that William Cassidy, a federal attorney and hearing officer, a.k.a., immigration judge, could ship Mark to Mexico, lie about it, and still not be fired.    

I helped Mark find attorneys at the ACLU.  They filed a lawsuit for the detention and deportation.  No one followed up on the $32 CCA owed him.   

It bugged me.  I couldn't figure out why CCA thought they could pay him, or anyone who had not been convicted of a crime, one dollar per day, and not at least minimum wage.  (The 13th Amendment exampts from the prohibition against forced labor work performed as a condition of punishment.)

Thanks to the acumen of Andrew Free, who also handled the FOIA litigation crucial for obtaining documents for my research unwinding this, the class action lawsuits against the private prison firms for work programs along the lines of what Mark described to me rolled out nationwide. 

I am now also indebted to attorney Nicolette Glazer, who has stepped in to help out with the FOIA litigation, including the winding down of the prison contract litigation Andrew filed in 2014, which is still ongoing.  

Here's a link to a law review note updating the litigation last year.   

Age Assessments for Unaccompanied Children: Alternative Facts, Policies, and Logic

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Interim Report on Age Assessment Policy Violations by the U.S. Department of Health and Human Services, Office of Refugee and Resettlement

Jackie Stevens 

Professor, Political Science Department, Founding Director, Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University

Research assistance from Political Science Department Farrell Fellow Daisy Grace Conant and Posner Fellow Khadeejah Milhan

This is a preliminary report on findings about ORR Age Assessments.  It is being released in conjunction with producer Nadia Reiman's "This American Life" July 12 broadcast as an interim alert to the public, including those in custody, and attorneys, as we await the full production from ORR and ICE.

U.S. officials are unlawfully moving asylum-seeking children from costly shelters into relatively cheaper Immigration and Customs Enforcement jails.  The Deportation Research Clinic has reviewed hundreds of age assessment cases since January 1, 2016.  Among the 205 formal Memorandums of Age Determination coded to date we found ORR officials blatantly misstating the results of medical assessments and official policies.

Along with keeping adults out of facilities meant for minors, officials from the Office of Refugee and Resettlement are placing unaccompanied children into ICE jails.  We found ORR collaborating with Immigration and Customs Enforcement officials, violating the policies for placement, and also writing bogus reports that could hurt children's asylum claims.
 
Journalists previously have highlighted ORR officials turning children over to ICE if, per ORR policy, a dentist says there is at least a 75% likelihood that their wisdom teeth, roots and all, look like those of someone 18 years or older.  If you're reading this a second time and furrowing your brow, you're not alone: the expert consensus is that dental radiographs cannot be used to reliably distinguish the teeth of a 17 year-old from those of a 23 year-old, much less an 18 year-old.  And if the teeth are those of someone from the vast majority of the world's population that has no reference sample for a comparison, forget about it.

U.S. policy says the radiograph reports cannot be used without other evidence of adult status, such as a birth certificate.  In at least three separate federal lawsuits since 2016, judges have found ORR violating this policy.  

It's bad enough that the government is using tooth X-rays for immigrant age assessments.  But we found something even more alarming and not previously reported: the government ordering children moved to ICE custody even though they had submitted their own bona fide birth certificates and the dental radiographs affirmed their claims or were never referenced.

The L.A. Times article recently lamented cases in which people had their ages reassessed because they passsed the 75% threshold. Our cases show ages being reassessed upward even when the radiograph reports show probabilities below this threshold, including indicating someone is not likely to be an adult.
 
Think Magic Eight Ball.  The government asks the Magic Radiograph, "Is Taj 18 years or older?"  The Magic Radiograph says, "Most likely."   The shelter worker gives Taj the news and tells him ICE is on the way to put him into jail.  Taj says, "What about my Bangladeshi birth certificate?"  "Tough luck," the case worker might tell him.  

But what about when the Magic Radiograph answers the question of whether Taj is at least 18 with "Cannot Predict Now," or even "Very Doubtful"?  That's what happened in about a quarter of the cases we reviewed that used the dental forensic reports.

Taj should have lucked out.  But in the world of alternative facts, he still loses.  The government is taking these results and emphasizing that according to the Magic Radiograph, there's some chance Taj could be 18 years or older.  And then, based only on adulthood simply being possible, the government is disregarding Taj's bona fide documents, and his narrative, and that of his parents, and still telling him ICE is on the way to put him into jail and hold him there until his final hearing. 

Interim Key findings:

(1)  ORR officials are misrepresenting the facts and policies in their age assessment memorandums.  Instead of catching fraud, ORR is perpetrating it.

The ORR shelters regularly encounter people whose narratives, statements on file with the government, official documents, and biometrics, contain discrepancies. There is nothing inherently unlawful or even surprising about this. Children often travel using false documents attesting adulthood so they can leave their country of origin, especially if their journeys require air travel from, say, Bangladesh, India, or Camaroon.  The registries of many developing countries are known to contain errors and missing data.   

Minors benefit from laws allowing them more lenient supervision and release while awaiting hearings. Not surprisingly, some adult noncitizens have entered the United States with their own altered birth certificates or a bona fide birth certificate belonging to a younger friend or relative and used these to enter the juvenile shelter system.   Case managers in shelters are catching some of those, mostly from pressuring people into confessions. 

Case managers also review cases remotely, including employees of a military firm with ORR contract.  They conduct reviews of migrant children digitally and from their homes.  One employee claimed she had elucidated an ORR client was lying after she found a Facebook page that, if it really did belong to the person in their custody, proved the person had graduated from college.  Again, if, it didn't belong to another, say, Juan Mario Gomez from El Salvador.) 

ORR's Age Assessment policy states:

Each agency acknowledges the challenges in determining the age of individuals in custody. These challenges include, but are not limited to: 
•Unavailable  documentation;
• Contradictory or fraudulent identity documentation and/or statements
• Physical appearance of the individual; and
• Diminished capacity of the individual.

The TVPRA requires the age determination procedures, at a minimum, to take into account multiple forms of evidence. Accordingly, under these procedures, each case must be evaluated carefully based on the totality of all available evidence, including the statement of the individual in question.

ORR blatantly disregards these requirements, as documented below.

(2) The payments for these investigations are coming out of ORR's health care budget for these children.
The payments to the dentists performing the X-rays and analysis are coming out of ORR's health care budget for the shelters.  This would be like the Federal Bureau of Investigation paying for forensic hair analyis from our Medicare budget.  It's exactly the sort of shuffling of funds from child care to law enforcement that makes it difficult for the Democrats to support Trump's plans to increase even ORR funding without extensive oversight by the House.  (ORR has funds to pay hundreds of thousands of dollars for junk science reports, but not toothpaste for kids in CBP custody?)  UPDATE: 3/17/2020 - The documents released indicated offsite age assessments were being performed by four dentists, with David Senn and Peter Arvanitis conducting the vast majority.  Arvanitis runs a family dentistry practice in Arizona, was not listed as a member of the American Board of Forensic Ondontology, and did not respond to inquiries about his qualifications for conducting such assessments.

   
(3) The age assessments rely heavily on data and narratives from the consular officials of the children's country of origin.
The cases are frequently asylum claims.  Relying on the consular officer's disavowal of claims made by those seeking asylum is like discrediting a wife's claim of abuse because an accused husband claims the narrative is not plausible.  Further, the vast majority of the age assessments are for people from Guatemala or Honduras, both  notorious for national registries with inaccuracies, missing information, and even, in the case of Honduras, criminal fraud.  (Widespread problems with the registries and certificates in Latin American countries are described by Emory University Law School Professor Polly Price in Chapter 1 of Citizenship In Question: Evidentiary Birthright and Statelessness.)

(4)  When attorneys file habeas challenges to the relocation of a client to ICE custody based on the dental X-rays, judges convey the common sense indignation one would expect from any well-educated professional.
The judges' orders note that those charged with enforcing the Trafficking Victims Protection Reauthorization Act seem unfamiliar with its most basic instructions.  The orders suggest that the judges are encountering government officials who inhabit a cave of illiterate simpletons.

For instance, in an opinion of October 26, 2018, Judge Diane Humetewa writes:

There is no apparent plausible construction of the TVPRA, or the ORR Guide, under which an ORR official's nonspecific, unsubstantiated speculation of what they perceive to be adult behavior suffices as 'evidence' that may be considered and relied upon in making an age determination.  Indeed, ORR does not include appearance or behavior as criteria for evaluating whether an individual is an adult or juvenile, but instead lists those factors as a challenge to the age determination process.

The judge ridicules not only reliance on the case managers' subjective opinions but also the accuracy of  information in ICE databases.  She writes: "DHS was aware of this conflicting information in Bitmap at the time it designated Petitioner as an UAC" and so inferred "these records appear to be questionable at best."

(5)  Military and security firms are using massive cross-country databases with information that is not only bogus and harmful, in this case to the children from whom it was elicited without consent, but also prone to hacking and other illicit uses.

General Dynamics Information Technology handles juvenile case management services for ORR.  Last year GD acquired the firm that contracts with Homeland Security to operate the biometric database the judge above was rightly questioning.

Everyone knows that the Biometric Identification Transnational Migration Alert Program database cannot distinguish fraudulent passports children use to leave their countries from their own from bona fide documents they present on arriving at the U.S. border.) 

Here is a link to a GDIT juvenile case management job posting, courtesy of The Daily Beast.    (When you read about the difficulty in reuniting children with their parents, blame General Dynamics.) 

General Dynamics is the world's fifth largest military contractor and the country's third largest federal contractor.  Vertical integration is the name of its gruesome game.  Just like Purdue Pharma makes money first from addicting people to opioids and then from selling drugs for overdoses, General Dynamics profits first from selling cluster bomb missiles, and then the federal services for the children made refugees from war.   That's why countries and university faculties are calling for ending contracts with GD.

The MADs - Overview of Results to Date

The Memorandum of Age Determination is the key document ORR uses when coordinating with ICE to remove kids from a juvenile shelter, at a cost of about $750/day, and put them in ICE jail, about $125/day, while awaiting an immigration hearing.

The triggers for the reviews typically are omitted or stated vaguely.  105 MADs state the age review was initiated because it "became apparent" during an intake interview that the person was likely an adult, with no explanation of what exactly was "apparent" that prompted the case worker's belief the client was an adult. 

43 of the reviews were initiated due to discrepant documents, 21 after people admit they lied, and the balance are initiated based on "behavior" or "physical appearance."

Email shows the shelter case workers and ORR often are taking cues for age assessments from ICE officials, even though ORR is legally the guardian for unaccompanied children.  The case managers include people who staff the nonprofit shelters as well as folks who research cases from their homes and work for General Dynamics Information Technology.

The statements by these contract workers in records systems and emails, including those that are not made lawfully, may be used to move noncitizens out of shelters and also to impugn their credibility in asylum cases.  Conflicts of interest are a serious concern.  If the shelter is under scrutiny for self-dealing and overpay, as is Southwest Key, a major contributor to these MADs -- responsible for all but nine of the 205 MADs we reviewed -- could they be selling out those over whom they have legal guardianship by cheerfully providing assessments the contracting agency wants to hear?  If they cooperate, might this make it less likely ORR will suspend SWK from federal contracts, as the record shows should happen?

A typical MAD is between one and two pages and follows a template that narrates facts in the person's file and a list of the transfer documents, including a TB report.  The MAD concludes with an assessment the person is 18 years or older or just a statement that per policy ICE should pick them up.  About 80% include no medical age assessments. 

We are still tabulating, but so far found nine cases in which the dental radiographs put the chances of someone being an adult below 75%, sometimes well below.  ORR official memorandums misstated the outcomes or policy, or both.  Just to be clear, these cases have weak or no other evidence to impute adulthood.

We've extracted a few examples.  Here's one from November 3, 2018, for a teenager who possesses a birth certificate that shows his date of birth is 2001, and a reference to a Consulate report on the birth certificate with no claim the Consulate questioned its validity.  There is also a dental forensics report.  It estimates a 51.4% probability that the person claiming to be 17 is 18 years or older, the equivalent of the Magic Eightball being clueless.   (The Memo does not report the country of origin but other email and notes suggest the person is from Bangladesh.)

There is exactly one observation inconsistent with this person being a minor: "On November 5, 2018, ORR received information that Mr. [REDACTED] entered the US with a date of birth of [REDACTED] 1998, making him 20 years old."  There is no reference to the nature of the information, its source, or how information received on November 5, 2018 could be included in a Memo of Age Redeterminated dated two days earlier.


Compare the above memorandum with one typical of those referencing actual evidence that would hold up in court.  Information included in this one and not in the one above is: an admission of lying, specific evidence of an altered birth certificate, and a summary of a conversation with the Guatemalan consulate.

Another memorandum, also from early November, 2018, but authored by a different ORR official covering the Chicago region, where Yong was held, follows a similar trajectory as the first bogus one -- crediting unsourced information from Bitmap and ignoring bona fide documents and a radiograph that says there is only a 30% likelihood that the wisdom teeth belong to someone who is 18 years or older.

Here's a third example of a MAD gone wrong, by a third official, but in the same time frame and also for a teenage boy from Bangladesh.  The memorandum indicates the Bangladesh birth certificate is authenticated and that the forensic results are below the ORR threshold.  Nonetheless, the memorandum concludes, "In accordance with ORR age redetermination policy and procures, MR. [REDACTED] dental forensics results are 68.45 and ORR requests that FOJC [Field Office Juvenile Coordinator] coordinates and ensure[s] the immediate transfer of custody of this individual to an adult DRO facility." 

The media have made a big deal about the dental radiographs.  Not previously reported is that fewer than 20% of the MADs actually reference any forensic report.  For an unknown number of cases, radiographs appear to have been taken and assessed but not reported.  After we receive all the documents owed us from the FOIA request, we should be able to assess the discrepancies between references to dental X-rays in the shelter records and their absence from the MADs.
    
The MADs contain numerous other problems unrelated to radiographs.  In one case without a radiograph, the ORR in late 2018 noted it had evidence that a teenager from Guatemala was born in 2001, not 2000, as he claimed.  ORR's memo stated he was 20 years old.  The research assistant who coded this MAD conveyed to me her concern that people in ORR cannot add.

I told her my worry: under the impression no one would ever look at these, officials are filling in the blanks, maybe even copying and pasting, and then asserting whatever is necessary for the desired bottom line: "Please refer this case to DHS ICE Juvenile Coordinator to arrange for transfer to ICE adult custody."

In another case with a 2016 MAD, the U.S. government stated that someone was using travel documents with a 1999 date of birth, making the individual 17 years old.  However, a shelter worker claimed the individual stated he was born in 1997.  The government in this case relied on the older age supposedly stated by the teenager and ignored its documents.

 Cherry picking the oldests age based on the documents available is a pattern throughout the MADs.  In November, 2018 an ORR official in Washington, D.C. writing a report requesting an ICE pick-up from a Phoenix children's shelter writes: "Dental forensic report result indicate adult age over 18: Avg. Mean Age 17.02."  
Among the 205 memorandums going back to January 1, 2016 that we have coded to date, just 38 include forensic results.  Among these, 22 rely on these exclusively to claim the person is 18 years older.  And, about one of out four, are using the age ranges to claim people are adults, even though the probability is below the legal threshold or even states the person is unlikely to be an adult.  

One MAD indicates the radiograph report indicated just a 28% probability that the individual is an adult, meaning a 72% probability the dental radiographs were from a juvenile.  A prior communication on this same case explains the surprising outcome: "[Because] the possible age range includes having reached the age of majority, it is our determination that the original determination that they are adults should stand" (emphasis added).  This suggests the official disregarding not only ORR policy but also the math on which it is based. 

Most dental radiograph from ORR shelters are likely to yield an age range that could include 18 years or much older.  This is because the dental radiograph ranges used for age determinations include two standard deviations above and below the mean.  Indeed, because the dental changes used for tracking wisdom teeth max out in our teens or early twenties -- we're not rodents -- radiograph analyses cannot distinguish someone who is 21 from someone who is 50.  In other words, more than 90% of the population falls within the two deviations of the 17.2 mean age associated with this radiograph. 

Here's the ORR policy on dental radiographs:

If an individual’s estimated probability of being 18 or older is 75 percent or greater according to a medical age assessment, and this evidence has been considered in conjunction with the totality of the evidence, ORR may refer the individual to DHS. The 75 percent probability threshold applies to all medical methods and approaches identified by the medical community as appropriate methods for assessing age.

Clearly ORR is ignoring this threshold. 

We also noted MADs leaving out information ORR requires to be included, especially the narratives of those in custody and their parents, as well as close coordination with DHS, especially for the individuals from Bangladesh.  An ORR official notes that "two dental records that indicate the UAC are minors."   In an earlier email the ORR official writes that the "Embassy said that the mother called and said when she gave birth and she should know since she is the one who birthed him."  This information does not appear in any of the MADs for the teenagers from Bangladesh, in violation of ORR policy.  
More generally, shelter workers claimed individuals confessed to being adults in about half the cases, but in the balance, the clients insisted they were indeed children.

Again, we are still in litigation.  The next status hearing is in late July and we will be asking the judge to order the government to release the balance of responsive documents, including the memorandums currently withheld in violation of the FOIA.

One important question is about the seeming discrepancy between the references to ordering dental forensics -- well over a hundred -- and the 38 memorandums of 205 referencing them.  Is the number referenced low because they were only ordered for these 38 cases, and when we receive more MADs they numbers will change significantly?  Or because an underling decided her boss might not want to see it? 

In an email of December 29, 2016, under the subject heading "re: Issue of Age," an intrepid ORR employee writes, "I'm happy to share the dental if you want it, I didn't send it in yet since it is below 75%." 

While ORR regularly uses the highest age range for kicking children out of ORR, the government also has been known to claim it has a very different policy, one requiring it use the lowest age.  "This American Life" producer Nadia Reiman encountered just such a case.  A Laotian woman arriving at O'Hare airport with a fiance visa was put into a juvenile shelter and held there despite a bona fide passport proving she was 19.  The rationale?  "[P]er ERO's standard operating procedures of age determination... DHS will base her age on the lowest age range from the 9/18/17 report (Dr. Senn's) at 15.35 age and minor's new DOB will be adjusted to September 1, 2002 for their records." 

With the exception of Yong's case, I have not seen a single report in which either ICE or ORR relied on the lowest age range of a dental forensic report.  And of course, if this policy were in place, then the cases that include age ranges under 18 -- the vast majority -- would not be moved to ICE custody and we've seen cases above showing that is happening.  For instance, the report of November, 2018 indicating a mean age of 17.02 states the lowest age for the person is 13.78 years. Yet the request is for immediate removal to ICE custody.

Finally, the stakes for the age assessment reports are not just custody while one waits for an asylum hearing.  A May, 2019 memorandum makes the MADs relevant to the actual asylum review as well:

Documentary evidence establishing the applicant's age and identity will be especially important if the applicant appears to be over the age of 18 at the time of filing, or if there are questions about the applicant's identity. As the party invoking users' jurisdiction, the individual filing for asylum bears the burden to establish that he or she met the UAC definition, which includes the applicant's burden to establish his or her age, and that the applicant was unaccompanied, at the time of first filing the asylum application." 

The USCIS memo misstates the Trafficking Victims Protection Reauthorization Act and ORR policy.  ORR states that challenges to accurate assessment of someone's age include "unavailable documentation" and "physical appearance."  In other words, officers need to make sure that just because someone is missing a birth certificate and may appear 18 years of age, the officials do not assume the person claiming to be a juvenile is lying.

To be continued!  Thanks to Nadia Reiman for her great reporting on Yong Xiong, and Daisy Conant and Khadeejah Milhan for their research assistance.