ICE and other agencies illegally use scans to hold children in adult detention; discredited practice smacks of race science, groups say

September 5, 2024, New York, NY – Rights groups and a directly impacted individual are seeking a court order to compel federal agencies to release information on their use of dental and bone x-rays to determine the age of unaccompanied migrant children.These faulty determinations are often used to place children in adult detention. In a complaint filed today in the Southern District of New York, the plaintiffs say agencies have improperly withheld this information, providing “zero records” in response to several Freedom of Access to Information (FOIA) requests. 

Since at least 1998, U.S. immigration authorities have used dental and bone radiographs in their process for determining the age of migrants even though the technique has been widely discredited. Further, authorities have often used the x-rays as the sole basis for these age determinations in violation of the Trafficking Victims Protection Reauthorization Act (TVPRA), which requires them to consider multiple forms of evidence, including the statements of the individual in question, birth certificates, school records, baptismal and other religious records, immunization records, and statements from friends and family. As a result, many migrant children have been illegally held in adult immigration prisons, and a disproportionate number are Black and South Asian.  

The Florence Project, one of the plaintiffs, has worked with at least fifty children whose detention in adult immigration prisons was based solely on dental or bone radiographs. The other plaintiffs are the Center for Constitutional Rights and L.B., a migrant from Eritrea wrongly placed in adult detention by authorities who used a dental scan as the sole basis for determining his age. 

“What I want to say is what they're doing is not right,” said L.B. “They tried to give us a new age, and they took us to detention. That's not how people should be treated.”

Far from a secret, the use of scans on migrants has triggered widespread opposition from doctors, ethicists, and government officials. Even a dentist contracted by the government since 1998 to make age determinations admitted it is impossible to pinpoint an exact age using radiographs. In 2007 and 2008, the House Appropriations Committee called on the Department of Homeland Security (DHS) to stop using “unreliable forensic testing of children's bones and teeth” in favor of “holistic age-determination methodologies recommended by medical and child welfare experts.” Yet, these practices continue. 

The reliance on dental and bone scans is part of a broader effort by authorities to force children into adult detention. As detailed in dozens of civil rights complaints, Customs and Border Patrol (CBP) officers have coerced migrant children into saying they were adults, falsified their records, and destroyed their birth certificates.  

“The Florence Project has seen first-hand the suffering that a wrongful age determination causes,” said Laura St. John, Legal Director at the Florence Project. “We have visited 17-year-olds held in solitary confinement in adult immigration prisons. We have watched teenagers who survived horrific trafficking on their way to the U.S. lose hope and become convinced that they will never get a fair shot​ to seek safety in the U.S. because of an age determination based only on a dental x-ray. This case is a step toward accountability and sunshine on an otherwise hidden process.”

By holding children in adult facilities, authorities are breaking federal laws intended to  grant unaccompanied immigrant children and youth special protections. TVPRA requires the government to hold unaccompanied children in the least restrictive setting that is in their best interests. Unlike adult migrants – who are held in facilities run by Immigration and Customs Enforcement (ICE) – unaccompanied children are supposed to be placed in the custody of the Department of Health and Human Services (HHS), which is supposed to provide “better care.” This includes the right to prompt release to vetted family members and friends, access to educational services, and therapy. 

“The government is relying on racist and unethical x-ray practices to determine the age of unaccompanied children in their custody,” said Samah Sisay, a staff attorney at the Center for Constitutional Rights. “This smacks of discredited race science, and we need to see the records because it disproportionately harms Black and South Asian youth and leads to their illegal placement in adult immigration prisons.”

The plaintiffs seek all relevant records from the defendants – HHS, ICE, CPB, and DHS – and from their components, including the Office of Refugee Resettlement (ORR), the Administration for Children and Families (ACF), the DHS Office of the Inspector General (DHS OIG), and the DHS Office of Civil Rights and Civil Liberties (DHS CRCL).

For more information, visit the Center for Constitutional Rights case page.

The Florence Project provides free legal and social services to the thousands of adults and children detained in immigration custody in Arizona on any given day. The Florence Project was founded in 1989 to provide free legal services to asylum seekers and other migrants in a remote immigration detention center in Florence, Arizona where people had no meaningful access to counsel. We have expanded significantly since that time and now provide free legal and social services to thousands of detained adults and unaccompanied children throughout Arizona. The Florence Project is at www.firrp.org, on Instagram at the_florenceproject, at https://www.facebook.com/FlorenceProject/, https://x.com/florenceproject