Citing a public health order to curb the coronavirus pandemic, the Trump administration is swiftly deporting unaccompanied migrant minors apprehended near the U.S.-Mexico border, upending a long-standing practice required under a federal law designed to protect children from violence and exploitation.
Despite initially maintaining that the new measures would not apply to unaccompanied minors, Customs and Border Protection on Monday said its officials could deny entry to children who cross the southern border alone under an order by the Centers for Disease Control and Prevention, or CDC. The agency said some minors could be excluded from the CDC directive if a border official "suspects trafficking or sees signs of illness."
The administration has been using the CDC order, based on a 1940s law that allows the government to bar the entry of foreigners whom it determines could carry a communicable disease, toborder-crossing migrants to Mexico or Canada — or to swiftly deport them to their home countries. Officials have said the objective is to prevent overcrowding in detention facilities where the coronavirus could spread.
But the measures have been denounced by advocates as yet another barrier for asylum-seekers hoping to request protection in the U.S. They say Monday's announcement that the policy also applies to unaccompanied minors is particularly concerning because it overrides not just U.S. asylum law and obligations under international refugee treaties, but legal safeguards for migrant children.
For decades, migrant children have been afforded extra legal safeguards under U.S. law and the landmark 1997 Flores Settlement Agreement. Children in U.S. immigration custody have to be detained in safe and sanitary facilities that are not overly restrictive; connected with legal counsel and advocates; and the government must make continuous efforts to release them. Unaccompanied minors can also have their asylum applications decided by U.S. Citizenship and Immigration Services, rather than by an immigration judge in an adversarial setting.
Under the Bush-era William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, border officials need to transfer unaccompanied migrant children who are not from Mexico or Canada to the Office of Refugee Resettlement, or ORR, within three days of their apprehension, barring extraordinary circumstances.
"We've had a bipartisan consensus in this country that we don't deport kids who are in danger, at least when they first come to the country," Anthony Enriquez, an immigration lawyer who leads the unaccompanied minors program at Catholic Charities Community Services, told CBS News. "We give them an opportunity to tell their story, we provide them with legal services in ORR custody and we let them have a fair shot at telling us why they were running from something, why they were so terrified that they had to leave their home."
"This policy is a total sea change from that bipartisan consensus," Enriquez added. "From a humanitarian perspective, it's absolutely catastrophic."
Jennifer Nagda, the policy director at the Young Center for Immigrant Children's Rights, said the administration is portraying the issue of processing unaccompanied children during a global pandemic as a "zero-sum game." Instead of rapidly deporting them, she said officials could designate facilities to screen children for the coronavirus. Nagda said ORR, which currently has about 3,400 minors in its custody, has enough capacity to process and house migrant children.
"We are not at a place where there is no safe space to take them. We have the capacity to safely bring children across the border, to keep them safe and to make sure they don't present a risk of spreading the coronavirus or be exposed to the virus by others," she said.
In a letter to acting Homeland Security secretary Chad Wolf, Senators Dianne Feinstein and Dick Durbin and Representatives Jerry Nadler and Zoe Lofgren said the administration could be violating federal law with the new border measures. "Children do not have to be put in harm's way to protect us from the coronavirus pandemic," the Democratic lawmakers wrote in Monday's letter. "DHS has the ability and capacity to protect both these children and the public."
"Sad and discouraged"
The new policy, which was first reported by The New York Times, has already dashed the hopes of children in Central America who were searching for protection and a better life in the U.S. The families of four Guatemalan minors who recently journeyed to the U.S. southern border alone told CBS News that the children were rapidly deported to Guatemala within days or even hours of their encounter with U.S. border officials.
Gelmer, a 17-year-old indigenous teen from the western highlands of Guatemala, said he was deported the day after U.S. border officials apprehended him near El Paso, Texas. "I feel sad and discouraged," he told CBS News in Spanish during a phone call from his village near the town of Sacapulas.
"Despite everything I experienced along the way, they deported me the next day," Gelmer added. "It was very fast. I didn't get the opportunity to say why I was coming. They only told me they were going to deport me because of the disease."
His mother said she had to pick him up in Guatemala City after his deportation because the government's travel restrictions in response to the coronavirus pandemic have halted transportation for deportees. "It's very sad because I'm a single mother, and I have four kids. He's the one who's always helping me," the mother told CBS News in Spanish. "I don't know why they deported him. They deported him immediately."
For the past year, Gelmer has been studying for half the day and looking for construction work during the other half. But the teen said he often struggles to find work; and when he does, the pay is not enough to help his mother and three younger siblings. Gelmer was hoping to stay with his aunt in New Jersey while completing his immigration proceedings in the U.S. "I wanted to go there to help my mother, to study and to press forward."
Two other families of deported unaccompanied minors told CBS News their children family members were still stranded at the main migrant shelter in Guatemala City because of the travel restrictions. Another family said their 16-year-old child was supposed to return home from Guatemala City this week.
Like Gelmer, the three other children left poor indigenous communities in Guatemala. Their family members in the U.S. and Guatemala, some of whom only speak Mam or Kʼiche, languages of Mayan origin, all said they only received information of the children's whereabouts after they had already been deported to Guatemala.
Back in Guatemala, Gelmer and his mother are worried about how they are going to earn the 30,000 quetzals, or nearly 4,000 U.S. dollars, to pay off the total cost of the teen's unsuccessful journey to the U.S.
"I've always tried to help my mother so we can eat," Gelmer said. "But this a big debt that we owe — and I don't know how we are going to pay it."