Border Policies During COVID-19 Impact Unaccompanied Children

The COVID-19 pandemic has impacted people’s health around the world, the way we work and live, the global economy, and borders. Children seeking safety in the U.S. have also been affected in a number of ways.

Following the rise of COVID-19, the Centers for Disease Control and Prevention (CDC) used a public health law in Title 42 of the U.S. Code (42 U.S.C. § 265), to limit migration across U.S. borders.[i] Reports have surfaced that “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus, according to two former health officials.”

The United Nations High Commissioner for Refugees (UNHCR) provided a statement in mid-March 2020 regarding migrants’ access to crossing borders saying, “while States may put in place measures which may include a health screening or testing of persons seeking international protection upon entry and/or putting them in quarantine, such measures may not result in denying them an effective opportunity to seek asylum or result in refoulement.”[ii] UNICEF USA and others have spoken out about the U.S.’s practice to use COVID-19 as a pretext to expel migrants including children, who have often fled dangerous situations to seek safety in the U.S.

In total, the U.S. has expelled over 159,000 individuals including over 8,800 unaccompanied children since March 2020.[iii] This action has denied unaccompanied children the protections afforded by the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. Generally, once a child is identified as an unaccompanied child, they should be transferred to the Office of Refugee Resettlement (ORR) under the Department of Health and Human Services and should have the right to go through removal proceedings to seek legal relief and protection in the U.S. Instead children are being expelled from the U.S. without that opportunity.

ORR oversees a network of state-licensed shelters nationwide for unaccompanied children. As a result of the Title 42 expulsions, the number of children in ORR shelters has been low in recent months. ORR data shows that as of August 2020, there were only 849 unaccompanied children in care despite a capacity for over 13,000. Despite there being plenty of space in ORR shelters, a U.S. Immigration and Custom Enforcement (ICE) contractor has held migrants including unaccompanied children in hotels pending their expulsion.[iv] According to reports, “[b]etween April and July 2020, over 650 immigrant children from ages 0-17 years old were transferred from CBP to ICE custody, detained in motels, and then expelled from the United States under the Title 42 Order. Many of these children – including babies and toddlers – were held in motels for over a week.”[v]

On September 4, 2020, Judge Dolly Gee of the United States District Court for the Central District of California granted the motion to Enforce the Flores Settlement Agreement finding that children detained by DHS or ORR pursuant to Title 42 were class members and protected by the Flores agreement. In her order, Judge Gee stated that COVID-19 “is no excuse for DHS to skirt the fundamental humanitarian protections that the Flores Agreement guarantees for minors in their custody, especially when there is no persuasive evidence that hoteling is safer than licensed facilities.” On September 21, 2020, Judge Gee denied the Defendants’ stay, and in early October, the U.S. Court of Appeals for the Ninth Circuit refused to lift her order by denying the government’s motion for a stay. Therefore, the Trump administration should be barred from placing minors at hotels except for “brief hotel stays (not more than 72 hours) as necessary and in good faith to alleviate bottlenecks in the intake processes at licensed facilities” as stated in Judge Gee’s order.[vi]

Other litigation has been filed in several cases including J.B.B.C. v. WolfG.Y.J.P. v. Wolf, and P.J.E.S. v. Wolf to challenge the expulsions of unaccompanied children. Notably, in P.J.E.S. v. Wolf, a Magistrate Judge in the U.S. District Court of the District of Columbia issued a Report and Recommendation in mid-September that if adopted would enjoin the current Title 42 process as it applies to unaccompanied children.[vii] No final decision has been made yet, but this is a case to watch because it could greatly impact unaccompanied children and again allow children to enter and seek protection in the U.S.

[i] See 8 FR 1655985 FR 16567See also the Center for Disease Control and Prevention (CDC) Amendment and Extension of Order Suspending introduction of Certain Persons From Countries Where a Communicable Disease Exists; Department of Homeland Security (DHS) Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus.

[ii] UN High Commissioner for Refugees (UNHCR) also stated in Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response, “©entral to the right to seek asylum is the principle of non-refoulement, which prohibits, without discrimination, any State conduct leading to the ‘return in any manner whatsoever’ to an unsafe foreign territory, including rejection at the frontier or non-admission to the territory.”.

[iii] See CBS News, U.S. stops holding migrant children in hotels, but says they can still be expelled, Camilo Montoya-Galvez, Oct. 2, 2020.

[iv] See El Paso Times, A new El Paso shelter for migrant children opened its doors. But where are the kids?, Lauren Villagran, Oct. 16, 2020.

[v] See also Law360, ICE Should Stop Detaining Solo Kids In Hotels, Monitor Says, Alyssa Aquino, Aug. 27, 2020.

[vi] See also Law360, 9th Circ. Preserves End to Hotel Detention for Migrant Kids, Suzanne Monyak, Oct. 5, 2020.

[vii] The Magistrate Judges’ Report and Recommendation dated September 25, 2020 recommended provisionally granting class certification of “all unaccompanied children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to expulsion from the United States under the Title 42 Process, whether pursuant to an Order issued by the Director of the Centers for Disease Control and Prevention . . . .”