BY CAMILO MONTOYA-GALVEZ | UPDATED ON: MAY 7, 2020 / 8:02 PM / CBS NEWS
María does not know what to do. Her request for U.S. asylum was denied. Her authorization to be in Mexico, contingent on having an ongoing U.S. immigration case, has expired. And now, the U.S. has sent her 10-year-old son alone to Honduras, where she fled an abusive partner who threatened to kill her if she returns.
After losing their asylum case under the Remain-in-Mexico policy, which has granted protection to just 1.1% of the migrants who have completed their proceedings under the program, María allowed Jesús, her young son, to cross the border alone to turn himself over to U.S. officials, thinking he would be allowed to reunite with family in Texas and seek refuge in the U.S. under long-standing policies for unaccompanied migrant minors.
Instead, Jesús was placed on a deportation flight to Honduras within four days of encountering U.S. immigration officials, who have been granted broad emergency powers during the coronavirus pandemic.
“He was desperate,” María told CBS News in Spanish, referring to her son. “He wanted to be in the U.S. with his uncle because he did not want to go back to Honduras to suffer. ‘I do not want to live with that man again so he can mistreat me,’ he told me.”
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.”
While officials like Morgan have maintained that the turn-back order was not a matter of immigration policy, it accomplishes an objective the Trump administration has pursued for over three years: shutting off access to humanitarian protections for immigrants who hardliners see as chiefly economic migrants.
“The administration is using coronavirus and the pandemic as a cover for doing what it has always wanted to do, which was to close the border to children,” Jennifer Nagda, the policy director at the Young Center for Immigrant Children’s Rights, told CBS News. “There is no reason why unaccompanied children arriving at the border can’t be safely screened and transferred to ORR custody, where capacity is at an all-time low.”
“There is no real public health justification for turning these children away at the border — and it absolutely violates federal law,” Nagda added.
María said she and Jesús left Honduras last year after being threatened by her former partner. She said her other three children stayed at her mother’s home, where they had been living.
CBS News is not disclosing María or Jesús’ real names to protect their identities.
Upon reaching and crossing the U.S.-Mexico border in September 2019, María and her son were placed in the Remain in Mexico program, formally known as the Migrant Protection Protocols or MPP, according to U.S. government documents reviewed by CBS News. For months, they lived in the tent city in Matamoros, Mexico, the largest refugee camp along the U.S.-Mexico border. They entered the U.S. three times to attend their court hearings at a makeshift immigration court in Brownsville, Texas.
In March, an immigration judge denied the family’s petition for humanitarian protection in the U.S. María said she found herself in an agonizing position. She feared her son could be hurt if they returned to Honduras. She was also concerned about his safety in the squalid tent camp in Matamoros, located in the Mexican state of Tamaulipas, which the U.S. government warns Americans not to visit because of the rampant violence and crime there.
So María followed the lead of other asylum-seeking parents in the MPP program and let Jesús cross the border without her, since unaccompanied minors are supposed to be excluded from the Remain in Mexico policy. Between October 2019 and last month, at least 571 children in the custody of the U.S. refugee agency have said their parents were in Mexico under the policy, according to government data obtained by CBS News.
In a letter Wednesday, the Congressional Hispanic Caucus denounced reports by advocates that the U.S. refugee agency has been delaying the release of children with pending Remain in Mexico cases. Last month, a federal judge said the agency can’t block the release of children with sponsors simply because they were formerly in Mexico with their family and have a pending case linked to the MPP program.
According to U.S. Immigration and Customs Enforcement (ICE), Jesús was turned over to the agency on April 20, one day after Border Patrol agents encountered and processed him under the public health order. On April 24, ICE sent him to Honduras on a deportation flight, the agency said.
But María said she did not find out about her son’s fate until a week after he was expelled to San Pedro Sula, Honduras. Her cousin in Tegucigalpa, the country’s capital, was the one who told her, she said. Honduran immigration officials reached her six days after Jesús’ removal. “I was scared about my son’s whereabouts. I didn’t know where they had him,” she said.
María’s cousin has agreed to take care of Jesús for the time being. The 10-year-old boy is still shocked and distressed, María said.
“This is the first time we have been separated. That’s why he is sad. ‘When are you coming, mommy?’ he has asked me,” she added. “They told me he spent his days at the shelter crying.”
Dr. Amy Cohen, a child welfare expert and executive director of the group Every Last One, which works with asylum-seeking minors, helped María locate her child and arranged for him to stay with family members in Honduras. Faulting the U.S. government, Cohen said it would’ve been nearly impossible for the Honduran mother to locate her son if she had not received outside help.
“This child, for all intents and purposes, is now alone in Honduras. He’s 10-years-old. He has been traumatized and separated from his mother,” Cohen told CBS News.
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. But Jennifer Podkul, vice president of Kids in Need of Defense, a group that provides legal services to unaccompanied minors, said these safeguards were purposely established to protect them.
“Congress passed legislation with incredible bipartisan support, recognizing that this is a particularly vulnerable population, to make sure that these kids aren’t summarily returned but rather that they have the opportunity to talk to a social worker, talk to a lawyer and talk to a judge, so that the United States can be sure they are not sending a kid back to danger,” Podkul told CBS News. “That was Congress’ intent.”
Pablo Rodriguez, an attorney at the Refugee and Immigrant Center for Education and Legal Services who works with unaccompanied minors in U.S. immigration custody, said children fleeing to the U.S. are still in need of protection, even during a pandemic.
“Just because there is a pandemic going on does not mean that the reasons the children flee, the reasons why people are coming to the United States, have changed,” Rodriguez told CBS News. “They are still fleeing gang violence, and a lot of other push-and-pull factors are still at play.”
Border officials citing the CDC order have also altered the long-standing definition of an “unaccompanied” migrant child as a minor 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.
Under an informal agreement between the U.S. and Mexico, Mexican officials agreed to receive Central American families and single adults expelled by the U.S. under the public health order but not unaccompanied minors, a Mexican government official told CBS News. However, a CBP spokesman said Tuesday that unaccompanied children could be expelled to Mexico through a port of entry, or in an ICE deportation flight.
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.
Nagda, the policy director at the Young Center for Immigrant Children’s Rights, is worried about the potential asylum and protection requests that the U.S. is no longer hearing from children.
“What is most terrifying about this situation is the complete dereliction of any sense of either our legal obligation or moral obligation to very vulnerable children who are coming to our borders,” she said. “We have no idea who these children are and we have no idea where they’re going.”
Meanwhile, in the refugee camp in Matamoros, María is now contemplating returning to Honduras.
“Yes, I’m scared to go back — but my son is there now,” she said.