The scramble began on May 6: Two sisters from El Salvador, ages 8 and 11, in U.S. government custody had just been approved for reunification with their Houston-based mom, when ICE stepped in and moved to deport them.
That same day, in McAllen, Texas, a teenage girl from Guatemala completed a sworn asylum declaration, claiming she would be persecuted because of her race, indigenous identity and refusal to join a gang if returned to her home country. Hours later, ICE picked her up.
The sisters and the teenage girl have three things in common. They all previously sought asylum at the U.S.-Mexico border alongside parents. They were sent to Mexico under the Migrant Protection Protocols, or MPP, program. And they reentered the U.S. a second time — without their parents.
Minors are not supposed to be returned to Mexico under MPP if unaccompanied by their parents or legal guardians, so some families have allowed their children to seek asylum in the U.S. alone. Between October 2019 and this month, at least 577 unaccompanied migrant children in the care of the Office of Refugee Resettlement, or ORR, have reported having their parents in Mexico, according to the agency.
Under a landmark court settlement, the U.S. government is obligated to make "prompt and continuous efforts" to unite unaccompanied migrant children with relatives or other sponsors in the U.S. while their immigration cases proceed.
But the government argues that children who have already been ordered removed with their families under the Remain in Mexico policy should be deported — even if they last entered the U.S. unaccompanied. Attorneys for the minors, however, say they should be treated like other unaccompanied migrant children.
Both the sisters and the teen girl have been fighting their case in court. A federal judge barred the government from immediately deporting the Salvadoran sisters, and they were released to their mother in Houston, according to attorneys. Their deportation proceedings are ongoing. Their father, with whom they were originally sent to Mexico, remains in Matamoros, Mexico.
The Guatemalan teen was transported by the government first to a motel in McAllen, then moved to another one in Alexandria, Louisiana, according to her attorneys. ICE was prepared to deport her on a flight Friday afternoon, according to Neha Desai, a lawyer who is part of the team representing all children in U.S. immigration custody. But her flight was postponed to Monday after the Guatemalan government said it would not receive the plane because of coronavirus cases among migrants recently deported by the U.S.
Judge Dolly Gee of the U.S. District Court in Los Angeles ruled on April 24 that deportation orders under the Remain in Mexico program do not change the government's obligation to seek the prompt release of migrant children to relatives and other sponsors in the U.S. under the landmark 1997 Flores Settlement Agreement.
"That policy just like any other pending proceedings or participation in class action proceedings or anything like that, if it results in a prolonged detention where deportation is not imminent, then it is causing unnecessary delay," Gee said during a hearing before issuing her order, which said the administration's "opaque policies" surrounding children with pending MPP cases violate the Flores settlement.
Advocates say ICE has seized on Gee's use of the word "imminent" to move to deport children in ORR care who have pending removal orders under the Remain in Mexico policy.
ICE said migrant children are only deported when "their immigration case is complete and there are no legal impediments to removal."
"If a minor received a final order of removal from an immigration judge as part of a family unit enrolled in the Migrant Protection Protocols (MPP) — prior to entering the U.S. as (an unaccompanied migrant child) — then they are subject to the final order of removal," an ICE spokeswoman said in a statement Friday.
The agency did not comment on specific cases or say how deporting migrant children from shelters overseen by the U.S. government conforms with the adjusted "enforcement posture" it announced in March as a result of the pandemic. In its announcement, ICE said its agents would only focus on detaining "public safety risks," as well as immigrants whose criminal records require the agency to apprehend them. For everyone else, the agency said it would "delay enforcement actions" until the crisis abated.
Mark Weber, a spokesman for ORR, said his office does not determine which children in its custody are deported, calling it a child welfare agency.
Desai said she is concerned that the government's actions are related to Gee's decision that children who were previously returned to Mexico and came back unaccompanied should be released to sponsors.
"We can't concretely say it's retaliation, but it sure feels like it," Desai said, adding that she believed the government had intensified attempts to deport these children after Gee's ruling was made.
Asra Syed, who represents the sisters in Houston, said that in addition to being so near to their mother, there were no relatives in El Salvador who the children could be safely returned to. A redacted filing reviewed by CBS News included descriptions of abuse and gang threats during the girls' youth.
"Our clients are the only detained children we know of who ICE is insisting on deporting even though: 1) they have a parent in the U.S. who ORR recommends they be reunified with, 2) they have no parent or other relative in their home country who can take care of them, and 3) they are really, really young — only 8 and 11," Syed said.
ORR currently has roughly 1,600 migrant children in its custody, a low population level not seen since 2011. The agency has been receiving few minors since late March from border officials, who are expelling most unauthorized migrants, including unaccompanied children, under an emergency public health order.