Lawsuit alleges illegal expulsion of unaccompanied migrant teen

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EDITOR’S NOTE: This story has been updated to reflect that the lawsuit does not indicate how the teen girl crossed into the United States.

McALLEN, Texas (Border Report) — Several nonprofit organizations have sued the federal government on behalf of an unaccompanied 13-year-old migrant girl from El Salvador who was expelled to her home country recently without proper processing by DHS officials under a new policy enacted by the Trump administration during the coronavirus pandemic.

The Texas Civil Rights Project, the American Civil Liberties Union, the Center for Gender & Refugee Studies, and Oxfam last week filed the lawsuit in the U.S. District Court for the District of Columbia alleging the swift removal of the girl on April 27 violated her rights as she was not afforded due process under U.S. amnesty and immigration laws. Homeland Security Acting Secretary Chad Wolf, U.S. Customs and Border Protection Acting Commissioner Mark Morgan, and U.S. Border Patrol Chief Agent Rodney Scott were named in the lawsuit.

The lawsuit is one of the nation’s first legal challenges to the Trump administration’s order restricting immigration at the border based on an unprecedented invocation of the Public Health Service Act, which was implemented when border restrictions were put in place March 20 to stop the spread of COVID-19.

Karla Vargas is a senior attorney with the Texas Civil Rights Project, based in Alamo, Texas. (Sandra Sanchez/Border Report)

Since 2008, U.S. law has always required that unaccompanied migrant children are placed within 72 hours in the custody of the U.S. Department of Health and Human Services under the Office of Refugee Resettlement. But Karla Vargas, of the Texas Civil Rights Project and a lead counsel in the case, on Monday told Border Report that the Trump administration is now hiding behind the cover of COVID-19 and using the pandemic as an excuse to summarily expel unaccompanied children rapidly, without any formal processing, which she says is illegal.

The lawsuit alleges that the girl was apprehended by U.S. Customs and Border Protection after being chased by a Border Patrol canine and falling into the Rio Grande, and was held without being processed for several days before being put on a deportation flight back to El Salvador.

“That’s the problem with these expulsions. When an unaccompanied child arrives, there are normally these steps that have to happen. Border Patrol ignored all those steps and kept the girl in DHS custody only,” Vargas said. “Deportation requires some kind of processing. This child had zero processing.”

Deportation requires some kind of processing. This child had zero processing.”

Karla Vargas, senior attorney for the Texas Civil Rights Project

“The Trump administration is hiding behind COVID-19 as a way to send children back to grave danger,” ACLU lawyer Lee Gelernt said in a statement. “Like Trump’s horrendous family separation policy, the courts should conclude this latest attack on children is illegal.”

Border Report reached out to CBP and Border Patrol for comment. A Border Patrol official on Monday responded, saying, “As a matter of policy, CBP does not comment on pending litigation. However, lack of comment should not be construed as agreement or stipulation with any of the allegations.”

Regarding the expulsion of minors, the CBP official wrote: “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.”

Vargas says the girl repeatedly requested to contact her mother, who lives in New York and who is legally residing in the United States after winning a withholding of removal order in 2018. The mother was a police officer in El Salvador who claimed fear of persecution by gangs and legally won the right to stay in the United States.

The girl, referred to as G.Y.J.P. in the lawsuit, reportedly arrived in South Texas on April 21 and according to the lawsuit “during her apprehension, she fell into the Rio Grande River because she was trying to get away from CBP patrol dogs. CBP sent her to the hospital.”

Vargas said she was not allowed to contact a lawyer or any legal counsel, and after being released from the hospital was held in the Border Patrol processing facility in McAllen, which is commonly called the “Ursula” facility, because of the avenue where the facility is located. She was then sent to a hotel, and then six days after her arrival she was put on a deportation flight in the middle of the night, according to the lawsuit.

“This was a complete shutting of the door to access of any type,” Vargas said, adding that the girl is now “in hiding” in El Salvador.

“G.Y.J.P. arrived at our border fleeing unthinkable violence, desperate to reunite with her mother,” said Jamie Crook, Center for Gender & Refugee Studies director of litigation. “Under the illegal order, our government sent her right back into harm’s way. The pandemic does not absolve the Trump administration of its legal obligations to children.”

This is the second case involving the expulsion of an unaccompanied child under Title 42 and COVID-19 restrictions. Last week, a federal judge in Washington, D.C., temporarily delayed the expulsion of a 16-year-old boy from Honduras, who also was detained by Border Patrol agents and held in a hotel before the agency sought to expel him.

Under a 2008 anti-trafficking law and a federal court settlement known as the Flores agreement, children from countries other than Canada and Mexico must have access to legal counsel and cannot be immediately deported. They are also supposed to be released to a sponsor or family they may have in the United States.

But since the Southwest border restrictions were implemented, the number of children sent to ORR has substantially decreased, while the number of expulsions from the Rio Grande Sector have skyrocketed.

In April, the Border Patrol processed 166 children as “unaccompanied” minors, meaning they would be taken to HHS youth holding facilities and allowed to stay in the U.S. at least temporarily, and expelled the remaining 600, the Associated Press reported.

In Fiscal 2019, there were nearly 23,924 unaccompanied migrant children processed in the Border Patrol’s Rio Grande Sector, according to CBP statistics. But statistics through May 20, show there have only been 6, 716 unaccompanied children so far processed in this sector this year — a 72% decrease. And CBP now combines statistics so that children expelled under Title 42 are now included with those processed, under Title 8 of charges of crossing illegally into the United States.

“We do not know how Title 42 expulsions are being documented, but we know that many times individuals are not entered into or processed under the ‘normal’ immigration system as they were before Title 42,” Vargas said.

The CBP official told Border Report on Monday: “During any time spent in CBP facilities, minors processed under either Title 42 and Title 8 will receive amenities and services consistent with applicable law and policy.”

Visit the BorderReport.com homepage for the latest exclusive stories and breaking news about issues along the United States-Mexico border.

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