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Lawsuit Challenges Prolonged Detention Of Immigrant Children, Targeting Of Relatives For Deportation

Detained immigrant children and relatives, who have attempted to serve as their sponsors, expanded a federal lawsuit to challenge the United States government’s practice of illegally and improperly denying children the opportunity to reunite with family.

Immigrant rights advocates, including the Catholic Legal Immigration Network and the Northwest Immigrant Rights Project, contend there are thousands of children covered by the lawsuit, especially since the Office of Refugee Resettlement (ORR) has over 10,000 children in its custody.

They additionally challenge the extreme vetting of potential sponsors, which involves fingerprinting, and is used for civil immigration enforcement against the “very sponsors who are willing to open their homes to enable children to leave government custody.”

According to the lawsuit [PDF], ORR officials in President Donald Trump’s administration have violated the federal statute that “governs detention and release of immigrant children,” as well as the Administrative Procedures Act’s prohibitions against unreasonable delays and “arbitrary and capricious conduct.” They argue actions by ORR officials violate due process rights in the Constitution too.

“ORR has implemented the sponsorship process in an opaque and arbitrary manner, lacking sufficient notice and opportunity to be heard, and designed to stymie—rather than facilitate—the release of detained immigrant children,” the lawsuit states.

It explains that “family members or other sponsors seeking to open their home to a child in ORR custody must submit to an opaque process with shifting goalposts; with no delineated timelines whatsoever; which includes procedural steps designed solely to facilitate immigration enforcement against the sponsor, to the detriment of the child’s interest in speedy release from detention and in family unity.”

The case manager has “unreviewable power to deny a sponsor application,” advocates claim. “Meanwhile, the children are trapped in highly restrictive government-controlled facilities, as if they were prisoners serving out criminal sentences without any semblances of due process.”

For 17 year-olds, arbitrary delays are particularly pernicious. They turn 18 and are told, “Happy birthday!” then whisked away in handcuffs to adult detention centers.

One of the plaintiffs, A.Y.S.R., is a 17 year-old, who left El Salvador in September with her one year-old son. She was sexually abused by her father from the age of 7 to 14. He was a high-ranking member of a Salvadoran gang. She told her mother when she was 14, and her mother didn’t believe her.

Not long after, her mother died. A.Y.S.R. had to keep living with her father. He planned to leave El Salvador with her so she fled her home. A.Y.S.R. fell in love with a boy, who was one year older. They had a son and lived relatively peacefully until her father came looking for her. Members of a gang that were rivals of the one her father was a part of pressured her to help them kill her father. She did not want to be responsible for his death so she fled to the United States.

Myrna, a wife of her father’s cousin, lived in Colorado. A.Y.S.R. trusted Myrna and wanted to live with her. She presented herself at a port of entry in Arizona in September of last year. U.S. immigration officials tried to take her son from her, but they were detained together in a Border Patrol facility that is commonly referred to as an “icebox.” After four days, both were transferred to Crittenton, a youth detention center in California.

In less than three months, A.Y.S.R. will be 18. She has endured “serious trauma” and at the detention center she lacks access to her “support system, her partner and Myrna.” Staff will not allow her to talk to her partner. Even though Myrna subjected her home to a probe and endured criticism to help A.Y.S.R. move out of detention, she is still not allowed to go live with family.

Much of the focus on Trump anti-immigrant policies has involved its support for family separation at the border. But a recent document from a whistleblower shows the administration considered targeting sponsors or family members, who were willing to accept migrant children into their homes. This would hopefully have a deterrent effect.

On April 13, 2018, ORR signed an agreement with Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) that expanded information collected from sponsors and the sharing of information about these individuals. It was intended to deter immigration but ORR cast it as a measure to ensure “child welfare.”

“When ICE arrests a would-be sponsor of an immigrant child, that immigrant child obviously cannot be released to the sponsor,” the lawsuit declares. “When ICE arrests the sponsor of a recently released immigrant child, that sponsor is prevented from carrying out the terms of his sponsorship agreement with ORR, and the child will be plunged into instability and often poverty.”

The lawsuit includes an example involving a 17 year-old Guatemalan child named E.A.X., who came to the U.S. on July 20, 2018. He arrived with two younger brothers. They were detained at a 300-bed shelter in Arizona. Their father has a wife and son in Nebraska, and he was willing to become a sponsor for his boys.

Around September 4, the father submitted fingerprints. He was pulled over by ICE agents, arrested, and deported to Guatemala about three days later. E.A.X., who was already separated from his brothers and transferred to another more secure facility in northern California, felt guilty.

The boys’ stepmother attempted to convince ORR to release the children to her. E.A.X.’s brothers were released, but because E.A.X. is in a facility with more restrictive conditions, he was not freed. Several incidents have occurred as a result of his frustration with his prolonged detention.

E.A.X.’s “emotional and psychological condition further deteriorated, and he attempted suicide.” He learned his stepmother may not go through with the sponsorship process because of the onerous parts of the process at issue in this lawsuit. He believed paramedics were there to kill him, and he was hospitalized for several days.

As the lawsuit notes, “Instead of working to release E.A.X. to a sponsor as quickly as possible, or alternatively place him in a facility where his mental health needs could be adequately met, ORR transferred E.A.X. to the Yolo County Detention Facility, its most secure and jail-like detention facility in the United States, where his freedoms are even further curtailed, and he is surrounded by other children, who have similar difficulties adjusting to prolonged detention.”

At least 170 individuals, who were willing to become sponsors, were targeted and arrested by ICE during the first four months that this policy was in effect. Over 100 individuals had no criminal record.

ICE’s fingerprint-sharing policy led to many sponsors withdrawing from the process. They did not want to help children because it may lead to ICE agents targeting them. Plus, the fingerprinting system apparently became overwhelmed with appointments and caused longer delays for detained children. This caused ORR’s detained children population to grow to 15,000.

The lawsuit recalls, “More than one-third of those children were detained at mega-facilities with over 1,000 children each, a far-cry from the level of individualized attention implied by the concept of ‘shelter-level care.’”

ORR had to erect temporary facilities that were far more strict. In particular, a “fenced-in tent city in the middle of the desert” in Tornillo, Texas, warehoused children in conditions “reminiscent of the World War II-era Japanese internment camp at Manzanar.”

The migrant children who are in detention are generally from Mexico, El Salvador, Guatemala, Honduras, and other parts of Central America. They fled their home countries to escape violence.

Last week, the inspector general for Health and Human Services reported that ORR had no idea how many children were separated from their families.

Immigration officials continue to separate children from their parents. Between July 1 and November 7, 2018, at least 118 children were transferred into ORR custody. The Homeland Security Department provided “limited information” on why those children had to be taken from their parents, which the inspector general said would make it harder for ORR to place children with a sponsor.

Katie Tuten speaks at Lincoln Yards Meeting. Photo by Aaron Cynic.
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."