Hundreds of migrant children who crossed the U.S. southern border alone after their families were required to wait in Mexico under a Trump administration policy are being denied legal safeguards established by Congress, lawyers told a federal court Thursday.
Since instituting its "Migrant Protection Protocols" program in early 2019, the Trump administration has required roughly 70,000 non-Mexican asylum-seekers, including families with children, to wait for their U.S. court hearings in northern Mexico, which includes areas the State Department warns Americans not to visit due to widespread crime and violence.
Citing conditions in tent camps, insecurity in Mexican border towns and overall desperation, some migrant parents enrolled in the program have allowed their children to present themselves to U.S. border officials without them, since minors who are processed as unaccompanied can't be returned to Mexico under U.S. policy and law. Many of the children have other family members in the U.S. willing to care for them.
According to government data obtained by CBS News, the Office of Refugee Resettlement, the federal agency responsible for housing unaccompanied children, has housed 701 minors whose parents were in Mexico under the MPP program. Most — 643 of them — have been released to family members in the U.S.
Once they reached U.S. soil in late 2019 from Honduras, Modesto and his 15-year-old son were returned to Matamoros, Mexico, where they lived for months in the squalid tent city there, the largest migrant camp along the southern border. Modesto said they lived a "cruel life" in the camp.
"He would tell me, 'Dad, I can't stand it anymore. I suffer here. I'm hungry. I can't study. We don't live well here, and I feel desperate. I want to be in the U.S.,'" said Modesto, who asked for his surname to be omitted because he has an ongoing U.S. immigration case.
Modesto said he could barely provide for his son in Mexico.
After a year in Matamoros, Modesto said he allowed his son to present himself to U.S. border officials as an unaccompanied minor last November, hoping that his son would be able to live with Modesto's sister in Texas. He called it a "very difficult" choice.
"It still hurts a lot, but I'm always thinking about his future," Modesto said. "We adults have to make hard decisions."
A lawsuit filed by the Justice Action Center and other groups in the U.S. District Court in Los Angeles on Thursday said the Trump administration is seeking to deport children like Modesto's son while many of their parents remain in northern Mexico. Doing so, the lawsuit argued, violates a patchwork of legal protections for unaccompanied children.
U.S. law shields unaccompanied minors from expedited deportations and requires the government to connect them with lawyers and child advocates while they are housed in shelters overseen by the refugee agency, which is charged with releasing them to family members willing to sponsor them.
These minors are entitled to seek asylum through child-sensitive interviews with the U.S. Citizenship and Immigration Services, rather than in an adversarial courtroom proceeding with a judge and a government attorney who seeks their deportation. If they lose their case, they can apply for asylum a second time before an immigration judge. They may also request visas for victims of parental neglect, abuse or abandonment.
The government has argued that children who received a removal order alongside their family under the Remain-in-Mexico program can be quickly deported after re-entering the U.S. as unaccompanied minors. But advocates believe these children should be afforded the safeguards offered to other unaccompanied minors, arguing they did not get a fair day in court while waiting in Mexico.
"These children seeking safety deserve the protection, compassion and care that our government should, in theory, provide," Natalia Trotter, an attorney for the Refugee and Immigrant Center for Education and Legal Services who is representing Modesto's son, told CBS News. "The fact that this administration has allowed children to be in this chaotic situation is disgraceful."
Clara, a Los Angeles resident who also asked for her surname to be omitted because of an active immigration case, has been caring for her 12-year-old grandson since his mother allowed him to present himself to U.S. border agents alone last year. He has not seen his mother, who remains in the migrant encampment in Matamoros, for more than a year.
"There are many factors that lead him to not live a happy life, like a normal child. We try to give him all the support, but find him constantly sad," Clara said of her grandson. "He misses his mom. He has that uncertainty over whether he will see his mother."
According to Thursday's lawsuit, the 12-year-old child and his mother fled Honduras in 2019 after gangs threatened the boy. While traveling through Mexico, they were kidnapped and held for ransom until they managed to escape. They were returned to Mexico when they reached U.S. soil, and remained for months in Matamoros, where Clara said the family feared being kidnapped again.
"At the young age of eleven, A. Doe had already experienced far more violence than any child should," the lawsuit reads, using a pseudonym for the boy. "Knowing that she would be unable to protect him from the gangs who had already targeted him in Honduras and from the violence of Matamoros, A. Doe's mother made the difficult decision to send her son across the border alone."
The group Human Rights First has compiled more than 1,300 reports of murder, rape, kidnapping, torture and assault against migrants returned by the U.S. to Mexico.
According to the lawsuit and lawyers, the U.S. government has sought to deport Modesto's son and Clara's grandson based on their previous cases in the Remain-in-Mexico policy. Through the lawsuit, advocates hope to require the government to offer all unaccompanied children the protections Congress created for them, regardless of whether they were previously waiting in Mexico with their families.
The Trump administration has hailed the Remain-in-Mexico program as its signature border policy, arguing that it stemmed U.S.-bound migration from Central America and allowed U.S. officials to weed out "non-meritorious" or "fraudulent" asylum claims.
During the coronavirus pandemic, U.S. border officials have placed fewer asylum-seekers in the program, as most migrants, including unaccompanied children, have been rapidly expelled without a court hearing under an emergency measure authorized by the Centers for Disease Control and Prevention. Because of a court order in November, U.S. officials are currently barred from expelling unaccompanied minors.
President-elect Joe Biden has pledged to discontinue the Remain-in-Mexico policy, but his advisers have cautioned doing so will take time, given the ongoing pandemic. His transition team has also not indicated what will happen to the cases of an estimated 23,000 migrants who remain in northern Mexico.
Advocates are urging the incoming administration to reprocess these migrants and allow them to make their case for asylum or other relief from deportation in the U.S. Meeth Soni, a lawyer for the Immigrant Defenders Law Center, said children who entered the U.S. alone after being required to wait in Mexico with their parents should also be protected from quick deportations after Inauguration Day.
"What's at stake is the long-standing commitment we have made to protect vulnerable children from being summarily and unfairly deported to countries where they face danger, exploitation, and trafficking," Soni said. "The Biden administration cannot turn their backs on them."
After being released from government custody earlier this month, Modesto's son is now living with his aunt in Texas. Modesto said his son appears happy and well-fed during video calls. But the Honduran father said he misses his son dearly, noting he's never been separated from him.
Modesto remains in the Matamoros tent camp, waiting to see if his fortunes change under a new U.S. administration.
"We never expected to experience so much suffering on this border, that this program would cause so much harm," he said. "Not just to us, but to every migrant."
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