TRUST AND CONSEQUENCES

The government required him to see a therapist. He thought his words would be confidential. Now, the traumatized migrant may be deported.

By Hannah Dreier Feb. 15, 2020 for The Washington Post

It was time for another hearing in the ongoing efforts of the U.S. government to deport a Honduran teenager named Kevin Euceda, who had already been in detention for more than two years. In a Northern Virginia courtroom, U.S. immigration judge Helaine Perlman peered at a TV screen as a detainee came into blurry view: a slight 19-year-old with deep dimples and a V-shaped scar on his forehead. "Buenos días," Kevin said, hoping this was the day he would find out about his request for asylum, and then tried to follow along as Perlman began to explain the latest twist.

“I had made a decision granting your request — but the government disagreed with it,” she said. “They want me to make a new decision.”

Kevin was watching from a remote detention center. On one side of the judge, he could see his lawyers, ready to argue that he should be freed immediately. Across from them was a lawyer for Immigration and Customs Enforcement (ICE), there to argue that Kevin should be deported. And in front of them all, inside a thick folder, was an old report from a shelter for immigrant children that was the reason the long-running matter of Kevin Euceda existed at all: “Youth reports history of physical abuse, neglect, and gang affiliation in country of origin. Unaccompanied child self-disclosed selling drugs. Unaccompanied child reports being part of witnessing torturing and killing, including dismemberment of body parts,” the report said.

The person who had signed it: A therapist at a government shelter for immigrant children who had assured Kevin that their sessions would be confidential. Instead, the words Kevin spoke had traveled from the shelter to one federal agency and then another, followed him through three detention centers, been cited in multiple ICE filings arguing for his detention and deportation, and now, in the fall of 2019, were about to be used against him once more.

This kind of information sharing was part of a Trump administration strategy that is technically legal but which professional therapy associations say is a profound violation of patient confidentiality. To bolster its policy of stepped up enforcement, the administration is requiring that notes taken during mandatory therapy sessions with immigrant children be passed onto ICE, which can then use those reports against minors in court. Intimate confessions, early traumas, half-remembered nightmares — all have been turned into prosecutorial weapons, often without the consent of the therapists involved, and always without the consent of the minors themselves, in hearings where the stakes can be life and death.

One of Kevin’s lawyers leaned into her microphone and asked Perlman to make a ruling as soon as possible. “Kevin has been in detention for 856 days today,” she said.

The ICE attorney said the government would continue to assert that Kevin was a danger to the country, and would rely on its latest legal filing, including references to that first therapist’s report.

As the lawyers argued back and forth in English, Kevin watched in silence. He only understood a few words here and there, but after two years he knew enough to understand that he was at the mercy of a stranger’s interpretations of things he had said when he’d been younger, frightened, and so naive he might as well have been a different person.

Finally, the judge turned to him again and asked the interpreter to translate. “I’m going to take a very short amount of time to look at the documents, and then I’m going to issue a decision,” she said. “I’ll work as quickly as possible. I know you’ve been waiting a long time.”

* * *

Each of the 856 days Kevin had been in detention traced back to an evening in May 2017 when he walked into a small, cheery room in a repurposed nursing home to talk with a woman who introduced herself as a therapist and offered her help.

Kevin had crossed the Rio Grande with his 18-year-old sister on an inflatable raft the day before, gotten lost in the Texas scrub, and been found by the U.S. Border Patrol. Agents had sent his sister to an ICE detention center to be jailed until she could be deported. But Kevin was 17, a minor, and so he was transferred to the Office of Refugee Resettlement (ORR), a federal agency responsible for the custody of each of the tens of thousands of immigrant children who come to the United States alone or are separated from their families at the border every year.

ORR was charged with watching over Kevin’s health and well-being until he could be released to live in the United States while his request for asylum was being processed. The agency placed Kevin at one of its 195 contracted shelters — a one-story building called New Hope, in McAllen, Tex. There, as required by ORR policy, Kevin was offered a chance to shower and brush his teeth, taken to a closet to pick out clothes and given a medical checkup. With each step, shelter staff entered information about him into a database. One of them noted the scar on Kevin’s forehead, and wrote that he was feeling “really good” despite what a doctor logged as a “cough” and “sore throat” he’d picked up during the three-month journey from Honduras. Next up was a required meeting with a therapist.

On his own since he was 12, Kevin had gotten used to watching adults to see if they were going to hurt him. Mostly, they had. But, Kevin remembered, the New Hope workers seemed friendly and sincere. He was comforted by the smell of spiced cider in the building’s halls and the children’s drawings taped up everywhere, and so, even though he had only a vague idea of what a therapist did, he was ready to talk to a counselor named Leyanira Trevino, who explained that their conversation would remain private unless he talked about harm to himself or others.

“This is your opportunity to tell us your story,” she said, and so he told her about being abandoned by his parents and raised by his alcoholic grandmother. He described how his grandmother had sliced into his back with a machete, and once thrown a rock at his head, leaving him with his scar. “Youth reports the physical abuse stopped when his grandmother passed away due to drinking,” Trevino later wrote in her report.

Kevin explained that after his grandmother died, the gang MS-13 took over their shack. With nowhere else to go, he stayed even as gang members tortured rivals on the patio, slept in his bed and made him run their errands. The gang eventually put him to work selling drugs. “Youth denied committing murder; however, when asked if he had ever physically hurt another individual, minor stated I did things I regret,” Trevino wrote.

What Kevin regretted most, he would later testify in asylum proceedings, was what had happened to his cousin Ramon. Ramon had refused to join MS-13, Kevin would testify, and the gang had kidnapped him in retaliation. Kevin asked the gang leaders to spare his cousin, but instead, they ordered him to come to a shack by a river and join in the torture. Ramon was already in a heap on the floor when Kevin arrived, and had begged for his help. “Please,” Kevin remembered him saying, “You are my flesh and blood.” Terrified to disobey gang orders, Kevin had walked up and kicked his cousin once in the chest, then backed away as the others moved in. When night fell, Kevin snuck out of the shack and hurried toward the dark riverbank. He heard shots behind him and knew his cousin was dead.

A few weeks later, gang leaders ordered Kevin to kill a stranger to prove his loyalty. “Minor was told by gang members that he was required to kill someone he did not know, which prompted minor to convince his sister to run away with him to the U.S.,” Trevino wrote. A stream of threatening text messages from the gang followed the siblings north. “Minor disclosed that he fears being deported because abandoning his gang results in death,” Trevino wrote.

Trevino, at that point, had been on the job for six months. She had graduated the year before with a master’s in rehabilitation counseling, after studying law enforcement in college, and was still a year away from passing her licensing exam. An internal audit has found that ORR therapists often feel unprepared to deal with the trauma they encounter in immigrant children, but Kevin felt relieved after talking with her. He walked out of the session feeling lighter for having shared some of his most shameful secrets, while Trevino finished her three-page report with an account of how she’d counseled him:

“Clinician used client centered approach, providing active listening, empathy, and clarification,” she wrote. “Youth states feeling safe and secure.”

Then, because Kevin had mentioned gang activity, Trevino followed policy and sent her report to the shelter director and four regional ORR supervisors. A few days later, Kevin met with a second therapist who added several details to Trevino’s report, including that “Unaccompanied child states that his involvement in the gang included physically assaulting victims.” The following week, the therapist asked to see Kevin again. Kevin thought maybe he was going to get to call his sister, who he hadn’t spoken with since they were separated at the border. Instead, the therapist explained that because of what he had said, ORR had decided Kevin should be transferred rather than released. Kevin’s response was recorded in his file: “Unaccompanied child states, ‘Why are you going to send me to another center? I haven’t done anything wrong while I’ve been here.” The next day, Kevin was sent from New Hope, where the average stay was 53 days, to a high-security detention center designed to hold immigrant children for months or years.

* * *

The reason Kevin or any other teenager would see a therapist after crossing the border goes back to a 1997 court-ordered settlement that established minimum detention standards for immigrant children. For years, children have been required to meet with counselors within 72 hours of entering custody, and then at least once a week until their release.

This therapy has historically been carried out with the mission of supporting children during a stressful time. In 2017, ORR began modifying that mission. Shortly after being appointed by Trump, then-ORR head Scott Lloyd introduced a policy of moving minors who self-disclosed gang ties to secure detention, and, as he said in congressional testimony, “working to enhance our day-to-day consultations” with ICE. Explaining further in a recent interview, Lloyd said he acted in response to concerns about criminals coming across the border. “There definitely were policy changes,” he said. “I could see there being no downside to just sharing information.”

A year later, in April 2018, ORR went a step further and entered into a formal Memorandum of Agreement with ICE to share details about children in its care. Explaining the strategy to Congress, Steven Wagner, who was overseeing ORR at that point, testified that among other things, the agency would be asking its therapists to “develop additional information” about children during “weekly counseling sessions where they may self-disclose previous gang or criminal activity to their assigned clinician.” The agency added two requirements to its public handbook: one that arriving children be informed that while it was essential to be honest with staff, self-disclosures could affect their release and the other that if a minor mentioned anything having to do with gangs or drug dealing, therapists would file a report within four hours to be passed to ICE within one day.

“One of the big factors we consider is, are we putting the community at large at risk?” Jallyn Sualog, current deputy director for children’s programs at ORR, said in defense of the policy. “We’re housing children with an eye toward child welfare, but these kids are not meant to be in our care forever; they’re meant to get out.” She explained that ORR acts in the role of legal guardian for children in its custody, as de facto parents, with the right to see children’s records and share them as it sees fit.

But professional organizations including the American Psychological Association, National Social Workers Association, and American Counseling Association say that while it may be legal to share these notes, it’s not ethically defensible. “The idea of going to therapy is not trying to solicit confessions for other uses. Even if your patient is being accused of a crime, you don’t just share your notes,” said Lynn Bufka, a senior director for the American Psychological Association.

Some shelter therapists say they are aware of the policy and take steps to protect children’s privacy by keeping two sets of clinical notes, or by leaving things out entirely. At MercyFirst shelter in New York, for instance, therapists try to protect minors by keeping disturbing artwork that might be misunderstood — gory red masks or contorted bodies undergoing violence — out of official files.

But interviews with more than two dozen shelter therapists suggest that most make promises of confidentiality they cannot keep. Claudia Maldonado, lead clinician at the BCFS shelter in Harlingen, Tex., said she tells immigrant children to think of her as their lawyer. At Southwest Key, the largest ORR shelter provider, its regional director of clinical services, Otto Berdiel, said minors are told that everything they disclose will be kept confidential. And at New Hope shelter, Trevino’s boss, clinical supervisor Alaina Hinojosa, said she’s never heard of a self-disclosure affecting a legal case.

“We let the kids know right away we’re not law enforcement,” Hinojosa said. “We tell them what they say is going to be confidential, and if we have to say something — if we need to report this — it’s not going to influence their case at all.”

The effect of all this: the administration has been given a tool that is being used in immigration proceedings around the country. In California, a teenager who had been detained for 11 months confided to shelter staff that he wanted to die; in an asylum hearing, the confession was read aloud as evidence he was a danger to himself and should be deported. In Virginia, a 16-year-old told a shelter therapist that his brother was wanted for murder in El Salvador; the therapist reported that the 16-year-old himself was involved in a murder, and he was transferred that same day to secure detention. In Arizona, a 15-year-old told a therapist he had participated in 50 murders, a number he quickly took back and said had been a boast; nonetheless, he was moved to high-security detention and his asylum case remains under review.

And then there was Kevin. Because of what he’d said in the privacy of a therapy session, ORR sent him in hand and leg shackles to its highest security facility, Shenandoah Valley Juvenile Center in Virginia. When he arrived, he was again put through an intake process that included meeting with a counselor named Andrew Mayles, who explained that based on his disclosures, ORR had identified him as someone who “engaged in violent or malicious behavior.” Kevin remembers feeling stunned, like he had been tricked, and crying from frustration. He told Mayles he would not be confiding in him or anyone else. Mayles, who, like Trevino, was still working toward becoming licensed as a therapist, thanked Kevin for his honesty and promised to work to earn his trust.

“Unaccompanied child expressed frustration with being moved up to a secure placement due to a disclosure to a clinician that he understood to be confidential,” read the first note in Kevin’s Shenandoah file.

At New Hope, Kevin had been able to watch cars passing from his bedroom window. The shelter had a policy that any child who walked out would be encouraged to return but never physically prevented from leaving. Shenandoah, by contrast, was set up like a prison. It had been built to hold teenagers charged with serious crimes, with few windows at eye level and heavy cell doors with slots for passing in meals. Fights broke out daily in the gym and common rooms, and guards sometimes strapped biting and spitting detainees to chairs with mesh bags over their heads.

As the months passed, Kevin began to unravel. During the day, he thought constantly of his sister, who he had not spoken with since they were separated at the border. At night, he had flashbacks to the shack by the river and his cousin saying, accusingly, it now seemed, “You are my flesh and blood.” He sometimes tried to quell his feelings by slicing into his wrists with laminated plastic until he drew blood. Shenandoah staff gave him antidepressants and antipsychotics to help him calm down and sleep. But the pills made him groggy. Concerned, Mayles sent him for a psychological assessment. The results came back: “Kevin right now sits on a precipice, teetering between hope and despair. His trauma has filtered into every single corner of his self.”

The truth was, Kevin was increasingly lonely, and desperate for someone to talk with. And so, despite his initial reluctance, he started confiding in Mayles during their weekly sessions. A former probation officer, Mayles had responded to the center’s posting for a clinician because he wanted to work with kids. He brought in carrot cake to share with Kevin and found Christian praise music for them to listen to together. He arranged the first call between Kevin and his sister since they were separated.

Week by week, Kevin’s thinking about therapy changed and he began looking forward to his meetings with Mayles because the more he opened up, the better he felt. Guided by Mayles’s assessment, the government’s anti-trafficking program took the extraordinary step of certifying Kevin as a victim of “severe human trafficking,” finding that he had been “subjected to involuntary servitude by being forced to work for a gang.” The designation gave Kevin the right to all the benefits of a legal refugee, and meant he would be a prime candidate for asylum.

So Kevin kept talking to Mayles, and Mayles kept talking to Kevin, and, as therapists do, he also kept taking notes.

From his notes one day: Kevin “presents less withdrawn and communicates more.”

Another day: Kevin told Mayles about feeling humiliated when another boy shoulder-checked him during gym. “He describes being upset with a peer on the unit and nearly hit him with a ball,” Mayles wrote.

He grew more comfortable talking to social workers at the center, too. Another day, when Kevin described feeling frustrated and overwhelmed: “Unaccompanied child reported that he often feels like he is going to explode.”

Another day: Kevin is “blossoming.”

Another day: Kevin turned 18. He had been in custody for 170 days. Teenagers are generally released when they age out of the child shelter system, with the government trusting them to show up for immigration court. But ORR now flagged Kevin’s file to ICE, which, instead of releasing him, chose to move him to a different detention center, this one for adults.

“Case notes provided by ORR,” ICE wrote on the form explaining the reasons. “Per case notes, [Kevin] is affiliated with MS-13 in Honduras. [Kevin] was allegedly involved in a plot to kill his cousin. He has gang ties, poses a danger to the community, and is a flight risk.”

* * *

The place he was sent is a privately owned facility in rural Virginia, an hour's drive from the nearest city. Opened a decade ago, it houses some 700 immigration detainees, all in different stages of fighting deportation. Kevin was among the youngest ones when he arrived and nearly as skinny as he had been in Honduras. He slept on a bunk bed in a room with 100 other men, with the lights always on and little privacy, not even doors on the toilet stalls. He was scared of his fellow medium-high-security detainees. He had lost contact with his sister, who had been deported, and with Mayles, who he tried to call but could never reach. After five months, he was at last scheduled for a bond hearing; a chance to ask to be released until his request for asylum was settled.

It’s not easy for an 18-year-old with no family in the United States to find a lawyer, and Kevin felt grateful to be represented by a group of students from Washington and Lee University’s law school, who would be earning extra school credits for volunteering to take on his case. The students were so nervous at their first court appearance that Perlman, the judge, led them in a relaxation exercise. “Take a deep breath. Deep, cleansing yoga breath,” she told them.

Kevin watched his bond hearing from a cell outfitted with a camera and TV screen because the government had opted not to have him attend the hearing in person. For 15 minutes, he listened to his lawyers argue that he should be let out, noting that he was a certified trafficking victim and had a perfect disciplinary record in ICE custody. “In spite of suffering a truly horrific childhood, he’s still a thoughtful and kind person,” they summed up. “He is not a danger to the community.”

Then it was ICE’s turn, and Kevin watched as the ICE attorney handed Perlman a copy of the notes Trevino had signed, turned to the camera and asked, “Do you remember when you were in ORR custody, speaking to some people about your time with the gang?”

With a sinking feeling, Kevin said he remembered.

“You witnessed the ‘torture and killing’ of victims, right? And eventually became a full member of the gang?” the attorney continued, quoting directly from the report.

Kevin wanted to cry. But he steadied his voice and tried to explain that he’d never been a willing participant. “I wasn’t a full member,” he said, after a long pause. “I refused to do certain acts; that’s why I came to this country.”

The attorney went back to the New Hope report. “Okay, and you also sold drugs for MS-13? And you did that for a year and a half?”

Kevin acknowledged that he had.

“Okay, so you mentioned that at age 16, your responsibility was to be a lookout?” the attorney asked, quoting the word lookout from the report.

“I was forced to, yes,” Kevin said.

“And that your involvement in the gang included ‘physically assaulting victims?’ ”

“Yes,” Kevin said. “I was forced to commit those kinds of acts.”

“You witnessed ‘dismemberment of body parts?’ ” the attorney asked.

There was a pause.

“Yes,” Kevin said.

Twenty minutes later, the attorney was done and, as the hearing came to an end, Kevin was so convinced it had gone horribly, he didn’t understand at first when Perlman turned to the screen and said, “I am granting bond in your case.” She noted in her ruling that he had been put in a secure facility in the first place “only because of his disclosures to a counselor.” And she said she hoped Kevin would thrive in the United States. “You’ve certainly been through a lot,” she said.

It took Kevin a moment to process what had just happened, that he was going to be released. He had now been in custody for 329 days.

“Gracias por darme la oportunidad,” he said to Perlman — Thank you for giving me this opportunity. But before the hearing ended, ICE indicated it would be filing for an emergency hold on Perlman’s order, and instead of being freed, Kevin went back to his bunk while ICE assembled an appeal.

Six months later, he was still waiting for a decision on the ICE appeal when he got another chance to be freed, this time at a hearing on his asylum claim itself. Once again, the lawyers gathered in Perlman’s courtroom. Once again, Kevin watched from a detention cell and answered questions about his past with the gang, and felt a rush of gratitude when Perlman granted him asylum, followed by a crush of disappointment when ICE said it would file an immediate appeal.

For ICE, which said in a statement that it “regularly requests and receives documents from ORR” and has pursued Kevin’s case so strenuously “to ensure a public safety threat is not released into the community,” there was little question about using therapy notes. James Rust, an attorney who was part of the team arguing against Kevin, said any ethical considerations lay with ORR rather than ICE. He said he would never have known about Kevin’s disclosures had that agency not shared them. “We would have had no idea,” he said, adding that once he learned about Kevin’s past, he felt compelled to use the information. “If a kid has disclosed some kind of criminal activity, I err on the side of ‘this needs to be raised with the immigration judge,’ ” he said.

It wasn’t just Perlman now who was evaluating Kevin, though, it was a new set of people, all members of the Justice Department’s Board of Immigration Appeals, whose rulings would be guided by the interpretations and reinterpretations of what was in Kevin’s file:

“The respondent appeared to personally benefit, as he stated to ORR staff that he made a ‘profit/percentage of the sale’ of these drugs,” ICE wrote, citing notes from New Hope.

“The respondent expressed challenges controlling his anger in ORR custody, including feeling like ‘he is going to explode,’ ” ICE wrote, citing notes from Shenandoah.

“The respondent was so upset with a fellow resident that he almost hit him with a ball over a conflict and went to ‘cool down.’ ” ICE wrote.

Again and again in its filings, ICE cited versions of what Kevin had confided, especially the report signed by Trevino, who said through a shelter spokesperson that she did not know her reports would be used against clients. Mayles, who said in an interview that he didn’t know, either, has since left Shenandoah. He said he grew disillusioned with what he saw as a “fear-based” push to keep children detained on shaky allegations of dangerousness. Offered a chance to review how ICE had cited Kevin’s Shenandoah records, he declined. “It would sicken me,” he said.

Determined not to make any more disclosures as he waited for the appeals board to rule, Kevin went days without speaking with anyone. He continued to wait through the spring and summer of 2019, when there was a mumps outbreak at the detention center, a quarantine, a hunger strike and a crackdown by guards. In August 2019, the appeals board’s decision came down: Perlman would need to rule again on asylum and put more weight on the fact that Kevin “sold illegal drugs on behalf of the criminal gang.” In September, Perlman was telling Kevin, “I’m going to take a very short amount of time to look at the documents, and then I’m going to issue a decision.” And in February 2020, still waiting as he now passed 950 days in detention, Kevin began thinking that he might just give up and self-deport, even if it meant going back to a place he’d been followed out of by text messages saying if he ever returned he would be killed.

* * *

Sometimes, Kevin now finds himself thinking back to the first day he crossed the border — ill from the journey, lost in the Texas scrub, but relieved he'd finally reached the United States. Then he thinks about what he's seen since of the country, which has amounted to glimpses out a van window while being moved between detention centers.

Wide, clean roads. Buildings taller than any he had seen in Honduras. Open fields. Dense stands of trees. He especially admires the sturdy homes on the sides of the highways, and says that he has never seen a house that wasn’t beautiful. That’s all he knows of the United States, he says, other than the insides of three detention centers, the video feed from Helaine Perlman’s courtroom and whatever news he gets from his student lawyers, the only people who visit him.

“And how are things here?” one of those lawyers, Erick Resek, said to him in Spanish one day after driving two hours from the Washington and Lee campus then being cleared through four sets of security doors. “What are your plans for when you get out?”

“Sometimes I don’t like to talk about them, in case they don’t happen,” Kevin said. He was wearing a short-sleeved green jumpsuit and hugging himself against the chill in the room. “But I know there are big opportunities here.”

“The most likely thing is when you get out of here, you’ll be working in a restaurant at first,” Resek said. He mentioned someone willing to sponsor him who lived in Charlottesville, adding, “In Charlottesville, there are a few Honduran restaurants.”

“I miss all that food,” Kevin said. “Here, we just eat pasta. Well, twice a week, we get fried chicken. But even that, with pasta. They never skip the pasta.”

“Do they put sauce on it at least?” Resek asked.

“Not really. It’s just the noodles,” Kevin said.

“Horrible,” Resek said. “What food did you like before you came here? Like if you had to choose a last supper?”

“Roast chicken. And my favorite was — do you know what encurtido is?” Kevin said. “It’s like a whole fish, in this special sauce, with pickled vegetables.”

“They don’t serve fish here?” Resek asked.

“I’ve never seen a fish dead or alive in this country. Only on TV,” Kevin said.

“The important thing is to stay distracted,” Resek said.

“It’s important not to get desperate,” Kevin said, “but sometimes it feels impossible.”

The two had been having versions of this conversation for months, always in this same small room with just enough space for a few plastic chairs, their knees almost touching as they talked about soccer, about God, about stray cats in Resek’s neighborhood, about anything at all to pass time as Kevin waited. But now, after a bit of quiet, Kevin said something different, almost confessional.

“Lately, I have a lot of feelings,” he said.

He looked down. He was on the verge of crying. He picked at the fabric of his jumpsuit. He mentioned the name of someone who worked at the detention center, a staff psychologist, and then said he’d gotten so lonely recently that he’d gone to see her.

“But did you tell her anything?” Resek asked, trying not to show the alarm he was feeling.

“No, “Kevin said. “No.”

“Did you feel like it helped?” Resek asked. “Would you want to do more of it?”

Kevin wiped at his eyes. He was no longer naive, no longer frightened, and no longer younger. He was 19 years old now and utterly alone.

“I would.”

Julie Tate contributed to this report.