Volume 31

The Myth of Second Chances: Noncitizen Youth and Confidentiality of Delinquency Records

by Beth K. Zilberman

It is often assumed that youthful transgressions are forgiven and that those who have participated in the juvenile justice system are given a clean slate. However, the reality for many noncitizens living in the United States who have been involved in the juvenile justice system is far less compassionate.1 Rather than benefitting from a potential second chance, the juvenile justice system’s treatment of noncitizen youths’ mistakes can lead directly to their deportation. Noncitizen children, like adult noncitizens, are always vulnerable to deportation. For these children, the process leading to deportation is often initiated or accelerated as a result of involvement with the juvenile justice system.2

All youth residing in the United States fall under state or federal juvenile justice jurisdiction, regardless of citizenship or immigration status. Children who violate the law are treated as children and provided the same retribution and protections afforded by delinquency systems.3 A significant number of noncitizen youth live in the United States, who, if they transgress, are susceptible to involvement in the juvenile justice system.4

When state or federal jurisdictions determine that the actions of a youth are sufficiently severe to require transfer to adult criminal court, noncitizen youth are also subject to these same rules and decisions.5 Since the 1990s, it has become increasingly easy for courts across the country to transfer children into adult courts if their alleged crimes are deemed severe enough to warrant this treatment. Ergo, if a youth is not transferred but kept in delinquency proceedings, the state generally has chosen to treat that child as a child.

Delinquency cases are governed by the goals of the juvenile justice system: holding youth accountable, rehabilitating youth to prevent reoffending, and treating them fairly.6 Juvenile court systems are distinct from adult criminal justice systems, and juvenile proceedings are civil rather than criminal. Unlike adult systems, juvenile justice systems are in place to rehabilitate youth, rather than simply to punish. Recent juvenile justice reform has taken a developmental approach by acknowledging the scientific fact that youth and adolescent minds are fundamentally different from adults. This fact is inherent in the fundamental principles of the juvenile justice system: youth are less culpable, more able to rehabilitate, and should not be burdened with the lifelong consequences of a criminal record.7

To achieve the goals of the juvenile justice system, confidentiality of juvenile records is essential. Confidentiality mitigates the labeling of youth, which can halt rehabilitation. It is also necessary given the type of record created in delinquency proceedings. The collection of sensitive information to build the record in a delinquency case is intended to further the rehabilitation goals of the juvenile justice system. In pursuing rehabilitation, juvenile records explore many areas of a child’s life, including reports from community or school members, personal medical and mental health information, and other relevant informal communications. Any and all of this information related to delinquency, regardless of the final disposition of the case, can be harmful to a noncitizen’s ability to stay in the United States when used in immigration determinations.

The lack of confidentiality and use of delinquency records in immigration decisions is discordant with the goals of the juvenile justice system. Notwithstanding, immigration authorities frequently use information arising from delinquency cases to make crucial decisions affecting noncitizens’ immigration cases.8 This impacts children here lawfully as well as unauthorized immigrants. Immigration and Customs Enforcement (ICE) actively seeks out information from states on a child’s involvement in the juvenile justice system to determine whom to take into custody and remove from the United States.

Similarly, immigration adjudicators request delinquency information to determine whether a noncitizen can receive an immigration status or benefit, merits discretion, must remain in detention, or must be deported. This use of delinquency records by immigration officials is contrary to the core objectives of the juvenile justice system, specifically giving youth a second chance through rehabilitation and treating them fairly.

This article explores confidentiality in the juvenile justice system and examines how juvenile justice records, contrary to their purpose, are shared with immigration enforcement and adjudicators. This undermines juvenile justice goals and creates life-changing consequences for noncitizen youth, often resulting in deportation. Important scholarship has been done concerning noncitizens’ interaction with the juvenile justice system9 However, missing from the literature is a comprehensive look at confidentiality and the use of delinquency records in the immigration context. This area is not often litigated and therefore has largely evaded scholarly review. This article seeks to fill that gap.10

Specifically, this article argues that confidentiality protections are not just the responsibility of the states, but also must be incorporated into immigration systems to protect noncitizen youth. A uniform approach by all federal immigration enforcement and adjudicatory agencies, and one aligned with Supreme Court jurisprudence and juvenile justice values, is necessary and consistent with the renewed focus on the importance of confidentiality within juvenile justice systems nationwide.

Part I of this article provides a baseline for why concern is warranted by discussing the particular vulnerability of noncitizens to entanglement with the juvenile justice system. Noncitizen youth can be particularly vulnerable to the main determinants of delinquency, including systemic racial bias, lack of access to services and opportunities because of their immigration status, and exposure to violence that occurs in their home country, on their journey to the United States, as well as in their communities in the United States.

Part II explores confidentiality in the juvenile justice system, beginning with its origins in the formation of juvenile court systems, followed by an examination of the period of erosion of confidentiality protections, and finally explaining the present-day status of confidentiality. This includes Supreme Court jurisprudence demonstrating a new developmental approach to acts of youth. The article then explores the extreme immigration consequences that arise from immigration authorities’ frequent access to the confidential information contained in delinquency records, as well as the current deficiencies in confidentiality that permit such access to occur. Part III discusses the specific ways that sharing of delinquency records with federal immigration authorities plays a role in immigration decisions at every stage of a noncitizen’s immigration case, from identification for initiation of deportation proceedings, immigration detention, and ultimately their deportation or inability to gain a lawful status.

Finally, Part IV posits an approach to the interaction of the juvenile justice and immigration fields and the proper response to the incongruous use of delinquency records in immigration decisions. It advances a new framework, calling for immigration agencies to reject the use of delinquency records by immigration officials, thereby promoting uniformity and consistency with the mission of the juvenile justice system and juvenile jurisprudence.

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1. The term “noncitizens” encompasses individuals living in the United States with varying immigration status, from having no lawful immigration status (“unauthorized immigrant”) to lawful permanent residents on the verge of becoming citizens of the United States.

2. See 8 U.S.C. § 1182 (2013); 8 U.S.C. § 1227 (2008).

3. See U.S. v. Doe, 701 F.2d 819, 822 (9th Cir. 1983).

4. In 2015, 229,557 youth nineteen and younger obtained lawful permanent resident status. U.S. DEP’T OF HOMELAND SECURITY, 2015 YEARBOOK OF IMMIGRATION STATISTICS, TABLE 8 (Dec. 15, 2016), https://www.dhs.gov/immigration-statistics/yearbook/2015/table8 [https://perma.cc/VJY4-WGPJ]. In 2012, approximately one million children without status resided in the United States with unauthorized their parents. JEFFREY S. PASSEL & D’VERA COHN, PEW RES. CTR., UNAUTHORIZED IMMIGRANT POPULATION: NATIONAL AND STATE TRENDS, 2010: BIRTHS AND CHILDREN (Feb. 1, 2011),  http://www.pewhispanic.org/2011/02/01/iii-births-and-children [https://perma.cc/U5YJ-4MF5]. Another subset of noncitizen youth includes unauthorized noncitizens who arrived here recently, including children crossing the southern border without their parents to escape persecution, abuse in their homes, an uptick in violence coupled with the lack of protection in their home countries, severe deprivation, and reunify with caregivers. CENTER. FOR GEND. & REFUGEE STUD & KIDS IN NEED OF DEF., A
TREACHEROUS JOURNEY: CHILD MIGRANTS NAVIGATING THE U.S. IMMIGRATION SYSTEM 2 (2014), http://www.uchastings.edu/centers/cgrs-docs/treacherous_journey_cgrs_kind_report.pdf [https://perma.cc/EU3V-HZA6]; U.N. HIGH COMMISSIONER FOR REFUGEES, CHILDREN ON THE RUN 23 (2014), http://www.unhcr.org/56fc266f4.html [https://perma.cc/3N3E-PK3K]. In Fiscal Year 2016, 59,692 of Unaccompanied Alien Children were apprehended. U.S. CUST. & BORDER PROT., U.S. BORDER PATROL SOUTHWEST FAMILY UNIT SUBJECT AND UNACCOMPANIED ALIEN CHILDREN APPREHENSION FISCAL YEAR 2016 (Oct. 18, 2016), https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 [https://perma.cc/E8UV-MV3X].

5. Transferring jurisdiction of a youth to adult court can be done in three ways, depending on the state: through “judicial waiver” (a juvenile judge’s determination), through state statutory exclusions from delinquency for certain acts, or through prosecutors directly filing the case with adult court. Randall T. Salekin, Richard Rogers, & Karen L. Ustad, Juvenile Waiver to Adult Criminal Courts: Prototypes for Dangerousness, Sophistication-Maturity, and Amenability to Treatment, 7 PSYCHOL. PUB. POL’Y & L. 381, 382 (2001); Ellen Marrus, “That Isn’t Fair, Judge”: The Costs of Using Prior Juvenile Delinquency Adjudications in Criminal Court Sentencing, 40 HOUS. L. REV. 1323, n. 11 (2004).


7. See Roper v. Simmons, 543 U.S. 551, 569–571 (2005); James B. Jacobs, Juvenile Criminal Record Confidentiality, CHOOSING THE FUTURE FOR AMERICAN JUVENILE JUSTICE, 149, 149 (2014).

8. President Trump’s administration has expanded enforcement priorities, making youth more at risk than ever of having their delinquency records used to make enforcement decisions, as discussed in Section III. See JOHN KELLY, U.S. DEP’T OF HOMELAND SECURITY, ENFORCEMENT OF THE IMMIGRATION LAWS TO SERVE THE NATIONAL INTEREST (Feb. 20, 2017).

9. See e.g. Rebecca Phipps, Starting over: The Immigration Consequences of Juvenile Delinquency and Rehabilitation, 40 N.Y.U. REV. L. & SOC. CHANGE 515 (2016); Karla M. McKanders, America’s Disposable Youth: Undocumented Delinquent Juveniles, 59 HOW. L.J. 197 (2015); Caitlin Cavanagh & Elizabeth Cauffman, The Land of the Free: Undocumented Families in the Juvenile
Justice System, 39 LAW & HUM. BEHAV. 152 (2015); Beth Caldwell, Banished for Life: Deportation of Juvenile Offenders as Cruel and Unusual Punishment, 34 CARDOZO L. REV. 2261 (2013); Erin M. Adams, Noncitizen Youth in the Juvenile Justice System: The Serious Consequences of Failed Confidentiality by ICE Referral, 2017 BYU L. REV. 385 (2017).

10. The lack of litigation of this issue can be linked to lack of representation as well as, as
discussed in Section III, the fact that many immigration determinations are based on discretion, which is unreviewable under 8 U.S.C. § 1252(a)(2)(B). See Mary Holper, Confronting Cops in Immigration Court, 23 WM. & MARY BILL RTS. J. 675, 702–03 (2015).