Posted on May 6, 2020

U.S. Suspends Protections for Migrant Kids at Border, Expelling Hundreds Amid Pandemic

Camilo Montoya-Galvez, CBS News, May 5, 2020


For the first time in decades, children like Jesús who show up at the southern border without their parents or legal guardians are being summarily expelled and denied access to protections that have been afforded to them under U.S. law. The shift is being justified under a 17-page public health order the Trump administration believes allows border officials to bypass asylum, immigration and anti-trafficking laws.

Under the Centers for Disease Control and Prevention (CDC) order, first issued on March 20 and renewed for another 30 days late last month, border officials have expelled thousands of unauthorized migrants to Mexico or their home countries and denied most asylum-seekers the opportunity to request humanitarian protections created by Congress.

In the last 11 days of March alone, officials expelled at least 299 unaccompanied children under the public health order. Expulsions in April are expected to be released Thursday, according to a Customs and Border Protection (CBP) spokesman, but data from the U.S. refugee agency responsible for caring for these minors suggests that most unaccompanied children have been denied entry since the emergency order took effect.

The Office of Refugee Resettlement (ORR) received only 58 children from border officials in April, according to government data obtained by CBS News. In March, including the 11 days under the order, border officials referred 1,852 children to the agency.

Before the worst weeks of the pandemic, the office was getting as many as 77 migrant minors on a given day. Since the order’s implementation, especially in April, daily referrals from border officials have hovered around the single digits. On some days, the agency has not received any minors.

Because the refugee agency has continued to release children to relatives and sponsors in the U.S. during the pandemic, the number of unaccompanied migrant minors in its custody has plummeted, falling to 1,648 this week — a population not seen since late 2011, according to an administration official. Last April, during an unprecedented wave of U.S.-bound migrant families and children, the office had 12,500 minors in its care.

The administration has argued that the CDC order invoking a 1940s-era public health law is necessary to block the entry of migrants who could be carrying the coronavirus and cause outbreaks inside immigration jails that would overwhelm the public health system along the border. Migrant children, top officials have argued, pose the same threat to the U.S. as adults during the pandemic.

“The disease doesn’t know age,” Acting CBP Commissioner Mark Morgan told reporters last month. “When [minors] come across the border, they pose an absolute, concrete public health risk to this country and everybody they come in contact with.”


The rapid expulsion of unaccompanied children like Jesús from U.S. soil upends decades of legal safeguards that underage migrants have been granted for years, particularly those classified as unaccompanied.

When the Department of Homeland Security was created in the wake of the 9/11 attacks, Congress charged the Office of Refugee Resettlement with caring for unaccompanied minors, which had been the responsibility of the Immigration and Naturalization Service, a Justice Department branch with law enforcement functions that was disbanded.

Under a 2008 law, border officials generally must transfer unaccompanied migrant children who are not from Mexico or Canada to the U.S. refugee agency within three days of their apprehension, except in extraordinary circumstances.

Once in the U.S., immigration law dictates that unaccompanied migrant minors can’t be placed in a fast-tracked deportation process known as “expedited removal” and must be connected with legal services providers and child advocates. They are to be placed in the “least restrictive” shelters and facilities.

U.S. law stipulates that unaccompanied children can also have their asylum applications decided by U.S. Citizenship and Immigration Services, rather than an immigration judge. Migrant minors, unlike adults, also have other avenues beyond asylum to seek safe haven in the U.S. Those who can prove they have been neglected, abandoned or abused by one or both parents can request “Special Immigrant Juvenile Status,” which creates a pathway to U.S. citizenship.

The care of unaccompanied children in U.S. custody is also governed by the landmark 1997 Flores Settlement Agreement, which also covers minors in families. Under the settlement, minors must be detained in safe and sanitary facilities, and the government must make a continuing effort to release them to qualified sponsors.

The Trump administration has sought to alter, limit or completely scrap most of these laws and protections, arguing that they encourage unauthorized migration of children, particularly from poverty-stricken and violence-ridden parts of Central America. {snip}


Border officials citing the CDC order have also altered the long-standing definition of an “unaccompanied” migrant child as a child who is encountered at the border without a parent or legal guardian. The administration has told Congress it is now classifying minors who come to the border with other family members as “accompanied” and expelling them as a family.


CBP has said its agents could exclude unaccompanied minors from the public health order on a case-by-case basis if they see signs of trafficking or illness, or if the child’s expulsion to her home country is not immediately possible. A CBP spokesman did not provide more details about when agents could exclude children. “If specific circumstances guaranteeing exemptions from title 42 expulsion were to be made public, they would be exploited by human smugglers,” the spokesman said.