U.S. Customs and Border Protection confirmed Monday that it would deport unaccompanied immigrant children apprehended at the border as a step to avoid further spread of the coronavirus that causes COVID-19.
The practice would be a major departure from current policy, but Trump administration officials said it reflected the full implementation of travel restrictions announced March 20 for the U.S. northern and southern borders. The administration also announced a new Centers for Disease Control and Prevention order on the same day that allows border officers to bar from entry any migrant without proper documents, including asylum seekers.
CBP clarified Monday that the travel restrictions also pertain to children who come to the border 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 quickly and safely, if possible," a spokesman said via email. "CBP also may, on a case-by-case basis, such as when return to the home country is not possible or an agent suspects trafficking or sees signs of illness, except any alien from the CDC order."
Children declared exempt from the order will be transferred to the Department of Health and Human Services, as regular procedure dictates, the agency added.
Leading Democrats in the House and Senate Judiciary panels sent a letter Monday to Homeland Security authorities arguing that the move violates the Trafficking Victim Protection Reauthorization Act, which specifically lays out how unaccompanied children must be processed and cared for upon arrival at the border.
"Children do not have to be put in harm’s way to protect us from the coronavirus pandemic," wrote the lawmakers, including Rep. Jerrold Nadler, D-N.Y., who chairs the House Judiciary Committee, and Sen. Dianne Feinstein, D-Calif., the ranking member of her chamber's Judiciary Committee. "DHS has the ability and capacity to protect both these children and the public."
Monday's announcement, which was first reported by The New York Times, comes as the conditions in which unaccompanied children currently held in government custody have come under additional scrutiny. Last week, immigrant legal aid and human rights groups sought a temporary restraining order on behalf of children in government facilities, arguing that "large congregate facilities" do not allow for social distancing. Holding children in such an environment violates a 1997 court settlement that sets welfare standards for migrant children, the lawyers argued.
Over the weekend, U.S. District Judge Dolly Gee of the Central District of California partially granted the request. She said plaintiffs made a strong case that Immigration and Customs Enforcement, which holds children in family detention centers for limited periods of time, and HHS, which holds unaccompanied children, may not be providing "safe and sanitary conditions and appropriate medical care and living accommodations in the context of the COVID-19 outbreak."
"While the Court will not order immediate release of minors on a class-wide basis, the Court will order ICE and ORR [Office of Refugee Resettlement] to show cause why they should not be held to answer for unexplained delays in releasing eligible Class Members," Gee wrote in her order. The order demands more transparency out of the government agencies that house migrant children and sets up further legal confrontation in the coming months.
The administration has stopped placing unaccompanied children in California, New York and Washington — states with the highest number of COVID-19 cases. It also is "prioritizing local placements for all new referrals ... to limit air travel when possible," an HHS spokesman told CQ Roll Call in an email.
As of March 27, four children in three separate HHS facilities in New York had been confirmed positive for coronavirus out of 18 total children who have been tested. HHS also added that five staff members and one contractor in New York, one staffer in Texas and a foster parent in Washington state also tested positive for the virus.
ORR, which runs these facilities, is "currently locating and notifying anyone that may have been exposed at these care provider facilities," the HHS spokesman said. "ORR's medical team and affected programs are actively coordinating with state and local public health departments on appropriate public health measures."