SAN FRANCISCO - An Afghan teen who fled from the Taliban has been held as an adult in ICE custody for the last five months, prompting a heated debate over whether he is illegally being detained at the Bakersfield, California facility because of his age. At the heart of the issue, in large part, are his teeth.
Hamid, a pseudonym used for his safety, is the subject of an immigration proceeding filed by attorney Mariel Villarreal at the San Francisco-based Pangea Legal Services.
The Department of Homeland Security is arguing that Hamid is older than 18 and should be locked up with other adult detainees at the Mesa Verde Detention Center, where he has been held since Dec. 14. If Hamid were a child, he would be able to remain out of custody. He has family friends in Texas who are willing to take him in as he awaits his political asylum hearings to play out.
“He has absolutely no family here,” said Mohammed Abdollahi, an immigrant rights activist helping with the case. “He knows nobody. He literally hasn’t spoken to anyone in five months. It’s really horrific.”
Added Villarreal: “I have never seen anything like this. I feel like they’re doing this to make an example, making people scared to apply for asylum. This is clearly a ridiculous fight.”
In an email, the Department of Homeland Security on Friday declined comment. ICE spokesman Richard Rocha said in an email that the "true age is a matter that remains the subject of litigation."
Hamid's attorneys have also reached out to U.S. Sen. Kamala Harris' office to visit him in detention. A spokesperson for Harris' office told KTVU on Friday that the senator is working with Hamid's attorneys and has opened up formal inquiries on his behalf. A petition was also started for his release.
It’s true that Hamid’s uncle likely used passports and other travel documentation falsely claiming that his nephew was older than 18, Hamid’s lawyers contend. That’s because unaccompanied minors are not allowed to leave their country without a parent present.
“But that’s pretty common,” Abdollahi said.
However, federal officials have long contended that document forgery is common and every measure must be made to keep asylum seekers and others honest.
Hamid’s father and brother were both killed more than a year ago in Afghanistan, likely by Taliban members, his lawyers contend. His mother is still alive but she is in hiding, Villareal said. Anyway, in Afghanistan, women don’t have the authority to verify identity documents, she added. After the deaths, Hamid’s uncle vowed to get Hamid to safety and he got his nephew’s paperwork in order for him to leave the country.
It’s this paperwork, along with a dental analysis conducted by Dr. David Senn, a forensic odontologist from the University of Texas, which are key pieces of evidence being presented by the government in Hamid’s case. Senn concluded that Hamid’s molar X-rays show that he is between the ages of 16 to 23 years old. But Senn also concluded that the likelihood that Hamid is 18 years old is greater than 79 percent, according to the government’s filing presented to the immigration court.
Hamid’s lawyers contend Senn’s methodology and results are faulty. And they are arguing that Hamid’s age cannot be determined by his teeth, especially since he has lived in a tiny village and has never seen a dentist or received oral care. Villarreal is also arguing that it violates federal law to make an age determination based solely on a dental X-ray analysis. In an interview with Reveal, attorney Matt Adams with the Northwest Immigrant Rights Project described Senn’s dental analysis “pseudoscience.” He said Senn “keeps his hands clean and does it all on paper without ever even seeing the kids, using some kind of template formula that has the most drastic consequences on children."
Dr. Richard Fixott, secretary of the American Board of Forensic Odontology, is part part of the case. But when asked by KTVU about this topic, he said emphatically: "You can not determine exact age through examination of the development of teeth."
Aside from the teeth issue, Hamid’s lawyers have found a “tazkera,” or an Afghan identity document showing that he is either 16 or 17 years old. Plus, Hamid testified that he was born in the “1380 of the Persian Calendar,” which converts either into March 2001 or March 2002, which would make him about 16 or 17 years old.
An immigration judge agreed and has sided with Hamid. On April 25, Immigration Judge Patrick O’Brien in San Francisco disagreed with the federal government. Instead, O’Brien ruled that evidence provided by Hamid’s attorneys establishes by a “preponderance” that the boy is younger than 18. Hamid’s birth certificate and “consistent assertions” of being younger than 18 “outweigh the dental age test,” the judge wrote in his ruling.
However, the government has appealed that ruling. A court date to re-hear the case has been scheduled for Monday in immigration court in San Francisco on Montgomery Street.
Hamid may have been trying to escape terrorism in his home country. But his journey to the United States has also been fraught with terror.
He first flew to South America and then ended up at the San Ysidro point of entry in San Diego north of the Mexico border, where on Nov. 22, 2017, he told Customs Border Patrol that he was seeking political asylum, court papers state.
He also told officers that he didn’t know his exact birthdate because that is something that is not recorded in his Afghan village. He thought he was about 16 or 17. Border Patrol officers determined he was a child and gave him a “random birthdate of Jan. 1, 2000,” according to his legal immigration filings.
Hamid was then sent to Southwest Key in Pleasant Hill, a nonprofit immigrant children's shelter on Grayson Road. While he was there, Hamid’s teeth were X-rayed to determine his age. The executive director of the shelter did not immediately return a call from KTVU seeking comment
On Dec. 14, ICE agents came to the Pleasant Hill shelter and took him away, placing him in detention. The Mesa Verde Detention Facility has no accommodations for children, so he is living with adult men..
Someone at the shelter contacted Pangea attorneys in San Francisco to help regarding Hamid’s unusual case.
Since January, Hamid has had five court hearings, most of which were to determine his age.
At each one, his lawyers say he has cried, told the judge he was scared and pleaded to be placed with children his own age.