Federal agents are expelling asylum seekers as young as 8 months from the border, citing COVID-19 risks

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

Also, sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

A teenage girl carrying her baby arrived at the U.S. border this summer and begged for help. She told federal agents that she feared returning to Guatemala. The man who raped her she said had threatened to make her “disappear.”

Then, advocates say, the child briefly vanished — into the custody of the U.S. government, which held her and her baby for days in a hotel with almost no outside contact before federal officers summarily expelled them from the country.

Similar actions have played out along the border for months under an emergency health order the Trump administration issued in March. Citing the threat of COVID-19, it granted federal agents sweeping powers to almost immediately return anyone at the border, including infants as young as 8 months. Children are typically entitled to special protections under the law, including the right to have their asylum claims adjudicated by a judge.

Under this new policy, the administration is not deporting children — a proceeding based on years of established law that requires a formal hearing in immigration court.

It is instead expelling them — without a judge’s ruling and after only a cursory government screening and no access to social workers or lawyers, sometimes not even their family, while in U.S. custody. The children are not even granted the primary registration number by which the Department of Homeland Security tracks all immigrants in its care, making it “virtually impossible” to find them, Efrén C. Olivares, a lawyer with the Texas Civil Rights Project, wrote in a court declaration arguing that the practice is illegal.

Little is known about how the process works, but published government figures suggest almost all children arriving at the border are being rapidly returned.

Between April and June, Customs and Border Protection officials encountered 3,379 unaccompanied minors at or between ports of entry. Of those, just 162 were sent to federal shelters for immigrant children run by the Office of Refugee Resettlement, the Health and Human Services agency tasked with their care. CBP would not say whether the remaining minors had been expelled or explain what had happened to them.

The precise number of children who are detained or to what situations they are returned is difficult to ascertain.

“We are only reaching a tiny fraction of these kids,” said Lisa Frydman, vice president of international programs at Kids in Need of Defense, an advocacy group for migrant children with partners across Central America. “The rest are just gone.”

Lawyers have fielded frantic calls from family members whose children suddenly went missing after crossing the U.S. border. Of the thousands of unaccompanied minors expelled under the health order, advocacy organizations said that they have only found about three dozen after months of searching across the United States, Mexico and Central America.

The Guatemalan teenager is one of them. She told child protection workers in Guatemala that she was sent to an American hotel with her baby for days and allowed only a brief call with her father in the United States. Then she and her infant were flown to Guatemala, where her case so alarmed international refugee groups that they referred her for protection in another country, determining that she was in peril. Advocates would not provide her age or other personal details to protect her.

The Associated Press first reported last month that the administration has detained at least 169 children in three Hampton Inn & Suites hotels in El Paso and McAllen, as well as Phoenix, before expelling them. New government numbers show that practice grew to more than 240 children over the past three months. Children reported being held for weeks in hotel rooms by an unlicensed government contractor, with little ability to reach anyone outside.

Advocates said the administration’s expulsion policy is far more concerning than simply the practice of lengthy hotel detention, which they argue violates a long-standing court settlement protecting migrant children. Most kids who now reach U.S. soil are quickly flown back to their home countries — often to danger, forcing the intervention of international child welfare agencies to protect them from harm. Some children told advocates that they were sent to Mexico, even if they were not from there, in the middle of the night.

The U.S. government has largely declined to comment or release statistics, citing litigation that the American Civil Liberties Union and other advocacy organizations have brought against the expulsion program.

In June, a desperate father in Houston found Linda Corchado, an immigration attorney in El Paso. His 16-year-old son was detained somewhere in an American hotel, although where or by whom he did not know. He said the government was about to fly the boy back to Honduras, where he feared his son might be executed by gang members who threatened him after he saw them kill another man.

Corchado alerted the ACLU, and the boy became the first plaintiff in what lawyers hoped would be a test case as they argued that the government was illegally using an obscure provision of the federal Public Health and Welfare Code, written in 1893, to justify expelling all migrants, even children, at the border.

The boy’s case spurred an emergency court hearing in June in Washington, D.C., before U.S. District Judge Carl Nichols, who ruled that the ACLU was “likely to succeed” in its arguments that the government did not have the authority to expel the boy under the health declaration, issued by the Centers for Disease Control and Prevention.

Within days, Justice Department attorneys paused the boy’s expulsion and agreed to allow him to request asylum through the immigration courts — the legal process usually required for migrant children coming here alone.

Attorneys found more children facing expulsion.

The relative of another 16-year-old Honduran boy told an advocate at the U.S. port of entry in El Paso that the teenager had disappeared in U.S. custody after they crossed the border together. Corchado called CBP and requested the protection screening allowed for the boy under the expulsion process, but federal agents said that they were moving him to a hotel to fly him back.

Once migrants are transferred to a hotel under the care of a government contractor, it is as if they vanish into a “legal abyss” where it is unclear which federal agency retains custody, Corchado said.

“You can’t advocate for them,” she said.

She said a supervisor with Immigration and Customs Enforcement told her that after migrants are moved there, “it’s kind of off our radar.”

Under the threat of litigation by the ACLU, the administration agreed to halt the boy’s removal and transfer him to a federal shelter while he fought for asylum, his lawyers said.

Coordinating with advocates across the country, ACLU attorneys have located at least 18 children as of late July who were being expelled, court filings show. In each case, the government agreed to halt proceedings against them — a win for the child, but a concession that blocked lawyers from obtaining a judge’s ruling on the policy as a whole.

“We assumed the government would want to have a test case in court to decide the lawfulness of this highly controversial and unprecedented practice of using public health laws to effect shadow deportations of children,” said Lee Gelernt, an ACLU attorney fighting the program in court. “The government is getting away with a complete end run around all of the protections for children that Congress has painstakingly enacted.”

Alexa Vance, a Justice Department spokesperson, declined to comment. So did April Grant, a spokesperson for ICE, citing the pending lawsuits.

Grant also refused to release statistics on children expelled by the agency, including those it detained in hotels, or provide the repatriation agreements that the U.S. holds with at least eight countries — including Guatemala, El Salvador and Honduras — that would shed light on how those countries have agreed to accept expelled children and under which circumstances.

Matthew Dyman, a spokesman for CBP, similarly said the ongoing litigation meant he couldn’t answer most questions about the policy. Alexei Woltornist, a DHS spokesman, did not respond to emails.

“Nobody can find them”

Advocates said the secrecy reminds them of their search two years ago for thousands of immigrant children whom the Trump administration separated from their parents at the border.

Then, government agents sent children to federal shelters under ORR, often without tracking numbers linking them to their parents in ICE detention centers. It took a federal court order and months of taxpayer-funded efforts before many could be reunited with their parents. A few never were because their parents had been deported and so they were released instead to acquaintances or other relatives in the U.S.

What’s different now is that children are not entering the U.S. system for migrant children at all.

“Nobody can find them,” said Jennifer Podkul, vice president for policy at KIND, the advocacy group.

The majority are quickly flown back to Honduras, Guatemala and El Salvador, the three main origins of unaccompanied children to the U.S.

Once in Central America, they don’t have access to protections offered before the pandemic. Strict lockdowns have made it hard for watchdogs such as the United Nations High Commissioner for Refugees to track unaccompanied children after they are sent back to government repatriation centers.

Government representatives in those three Central American nations said that they could not differentiate between children who had been returned under the health order and those who had been deported under usual proceedings. But what they could report alarmed advocates.

Since the start of the pandemic through early July, at least 476 unaccompanied children have been sent back to Honduras, about half flown from the United States and the rest largely returned from Mexico, the Honduran federal agency overseeing children reported.

Guatemala reported about 380 such children returned from the United States in roughly that same period, according to a government spokesperson. El Salvador said more than 70 unaccompanied minors had been returned, and Mexico’s government reported some 1,050 of its own children were returned between April and June, the latest data available.

The total for unaccompanied children governments said had been returned to those four countries — about 1,700 — is far less than the last official figure the U.S. government released. In early June, it said it had expelled at least 2,175 “single minors” under the health declaration. Then, citing litigation, the administration stopped providing that data.

“The number of kids who have been received doesn’t match up with the number of kids who have been expelled,” said Frydman of KIND.

She and other advocates suspect children from other countries are informally expelled to Mexico. Many in the last few months have reported that U.S. authorities returned them there — sometimes alone in the middle of the night and without being processed by Mexican immigration officials.

KIND found at least three unaccompanied minors from Central America in Mexico.

Two were siblings who said they arrived on their own at the port of entry in El Paso. CBP officers told them “the border is closed,” the children later told attorneys, who declined to reveal the siblings’ ages or other details for their safety.

Federal officials sent the siblings to Ciudad Juarez, where they were homeless until they went to a shelter, which contacted Mexico’s child welfare agency.

Dyman, the CBP spokesperson, did not respond to questions about the siblings. But he said non-Mexican children can be expelled there only if they are with adult relatives. They are not supposed to be sent there alone.

“When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families,” Dyman wrote in an email.

He said agents may exempt migrants from expulsion under certain circumstances, such as when they cannot be returned to their countries or if officers suspect they were victims of human trafficking. But he declined to elaborate on how CBP officials make those exceptions and conduct screenings, saying that information is “law enforcement sensitive.”

Statistics from Mexico’s National Migration Institute show that more than 200 children from El Salvador, Guatemala and Honduras have been expelled to Mexico under the health declaration as of June. That number includes unaccompanied children and those with adults. An official at Mexico’s Secretary of Interior wrote that it does not have a formal agreement with the U.S. on how to return unaccompanied children from other countries, so it does not keep cumulative statistics.

“Shadow operation”

Usually children coming to the U.S. alone from nations other than Mexico must be flown home — an operation delayed by logistics during a global pandemic. By law, they cannot be held for more than 72 hours in temporary CBP processing facilities before they are sent to shelters run by ORR.

That agency is currently detaining about 850 children, although it has 14,000 taxpayer-funded beds available. Before the administration’s health order, ORR in late March was holding about 3,600 unaccompanied minors.

Instead of placing children in these federally regulated and state-licensed shelters, where they would have access to counsel and social workers, the U.S. moved hundreds of minors to a clandestine network of hotels — under the custody of a contractor not licensed to care for children.

The administration provided that data to attorneys litigating a court-ordered settlement that sets specific rules on how the government is allowed to hold migrant children. That 1997 consent decree, known as the Flores Settlement, requires migrant children in detention have certain rights, including that they be released quickly and held in licensed child care facilities.

In April, May and June, the government confined at least 240 children awaiting expulsion — including more than a dozen younger than 6 — in hotel rooms, according to legal filings submitted to the court overseeing compliance with the Flores Settlement.

In April, ICE, via its contractor MVM Inc., held at least 29 unaccompanied migrant children for as long as 10 days in the three Hampton Inn & Suites hotels in Texas and Arizona before expelling them.

In May, the contractor detained 80 children for days in those three hotels. In June, 120 were held there before being expelled, according to the government reports.

A 5-year-old was kept in a hotel room for 19 days in June before she was expelled.

An 8-month-old was held in a Hampton Inn for 12 days that month before being turned back with a 9-year-old sibling.

As of June 30, according to the administration’s most recent reports submitted under the Flores Settlement, a 2-month-old had been detained in a Hampton hotel for four days while awaiting expulsion along with 19 other children.

Neha Desai, an attorney with the National Center for Youth Law, an organization that litigates to ensure the government abides by that consent decree, called the prolonged detention of migrant children in hotels a “blatant breach” of that settlement.

“This is a shadow operation,” she said.

The U.S. has always briefly held a small number of children in hotel rooms after an immigration judge ordered them removed if there was a delay with their deportation flights.

But such widespread detention for up to three weeks involving children whose protection claims have never been adjudicated “flies in the face of the law,” said Andrew Lorenzen-Strait, a former senior ICE official who left the agency last year. He said Congress and the courts have repeatedly held that children should not be kept in hotel rooms for more than one night — and even then, only in limited circumstances.

“The government is playing cowboy with regards to children’s safety,” he said.

Bob Carey, who headed ORR under President Barack Obama, called the practice “horrific … you have vulnerable children in the care of a private contractor with little, if any, transparency or adherence to state law, federal guidelines, legislation and a court settlement.”

Not much is known about MVM, the private security contractor from Virginia that detains the children in hotel rooms. A spokesperson wrote in an email that its multimillion-dollar agreement with ICE to transport unaccompanied minors prevents it from disclosing information. It referred questions to ICE, which declined to comment and refused to release the contract.

In 2018, Reveal from the Center for Investigative Reporting found that MVM had held children for longer than a day in vacant office buildings in Phoenix. An ICE spokesperson said the agency did not permit the company to detain children for more than 24 hours in those offices, which she said were intended as “waiting areas” for same-day transport between CBP and ORR shelters. An MVM spokesperson termed it a “regrettable exception” to the company’s policy of finding a hotel when there are delays in transporting children.

Details about the company’s current contract came to light in a July court filing from Andrea Sheridan Ordin, a former U.S. attorney appointed to monitor the Flores Settlement in 2018. The federal judge overseeing that consent decree determined that was necessary because the government was not complying with it.

Ordin recommended ICE cease detaining unaccompanied minors in hotels, citing a “lack of formal oversight.” She wrote MVM’s “transportation specialists” are required to have only an associate’s degree or high school diploma and one year of relevant work experience. They separated migrant children in hotel rooms by age and gender and allowed “little to no access to recreation.” Children must be “within the line of sight” of contractors at all times.

Ordin said detention for weeks in hotel rooms can have a “harmful” impact on children, adding that MVM did not appear to have consistent requirements “regarding the special needs of young children, including hygiene, nutrition, or emotional well-being.”

Ordin wrote that what was initially a “stop-gap measure” for the government to fly back children outside of normal proceedings has transformed under its expulsion policies into an “integral component of the immigration detention system” for children.

The administration argued she had overreached her authority. Children expelled under the health order, it contended, were not subject to protections under the Flores Settlement because they had never formally entered “immigration” custody.

Lawyers representing children under that settlement requested a judge’s ruling, writing that the government has a “penchant for unilaterally disregarding” the consent decree.

A sense of deja vu

Thirty-five years ago, a 15-year-old Salvadoran girl fleeing a civil war in her homeland was also imprisoned in an American hotel under the care of unlicensed private security guards. Jenny Flores’ case forced the most significant overhaul yet of how U.S. authorities can detain migrant children. In fact, the 1997 federal settlement is named for her.

Carlos Holguín, who began litigating that case in 1985, said there is now a sense of “deja vu … but the degree of lawlessness is even beyond what was going on then.”

Since taking office, the Trump administration has tried to end the Flores Settlement, arguing that it and a 2008 trafficking law work as “loopholes” encouraging families to send children here alone. The government has attempted to undo the settlement through regulations and requested Congress curtail the Trafficking Victims Protection Reauthorization Act, which requires certain safeguards for children arriving alone at the border.

So far, both efforts have failed.

The administration tried separating parents and children at the border, but a federal judge largely ruled against the practice in 2018, allowing it only in narrow circumstances such as if the adult poses a danger.

U.S. District Judge Dolly Gee, who is in charge of the Flores Settlement, has determined the administration must quickly release children locked up with their parents in immigrant detention centers, most recently citing the risk of coronavirus spreading.

“The family residential centers are on fire and there is no more time for half measures,” she wrote in a June 26 order.

The government is now arguing it can force detained parents to choose between freeing their children or staying indefinitely imprisoned with them.

But none of the administration’s attempts to undo either the settlement or the law have been as effective as the expulsion order, which is “eviscerating every single protection mechanism outlined by Congress and the courts with one sweeping gesture,” said Podkul of KIND.

Late last month, the ACLU sued to allow its lawyers access to children detained in the McAllen Hampton Inn after a video went viral showing a Texas Civil Rights Project lawyer forcibly pushed away.

“The children are in imminent danger of unlawful removal,” the attorneys wrote.

Facing a public relations scandal, Hilton quickly announced that all three hotels had canceled reservations with MVM.

“We expect all Hilton properties to reject business that would use a hotel in this way,” a Hilton spokesperson said.

Government attorneys agreed to pause the expulsion of the migrants who they said remained in the McAllen hotel on the date of the lawsuit — once again, ACLU attorneys said, mooting litigation on the broader policy. A separate suit involving a 13-year-old Salvadoran girl who was expelled this summer is still pending in a Washington, D.C., federal court.

By the time the administration stopped the removal of the migrants detained at the Hampton Inn, most who had been held there had already been expelled or transferred elsewhere — some, advocates said, just before the ACLU filed its lawsuit. Only 17 family members, including one unaccompanied child, remained in that hotel.

What happened to the rest? No one would say.