An army of attorneys is rallying to free hundreds of children from immigration custody, where they have been stranded indefinitely by the Trump administration without their parents or loved ones, the Guardian can reveal.
The effort is a counter strike to what critics see as unprecedented moves by federal officials to ride roughshod over children’s rights and increase deportations – while in the meantime corralling them in conditions that can allegedly lead to psychological harm.
About 1,900 kids who arrived in the US unaccompanied by a parent or guardian were under the federal government’s control across the country as of the end of August. From babies to teenagers, children have spent an average of 183 days – roughly six months – in shelters or long-term foster care, according to the government’s own data, despite many of them having family members in the United States anxiously awaiting their release as their legal cases proceed through the immigration system.
Now, more than 50 legal organizations, firms and law offices have mobilized to join a mission they are calling the Children’s Due Process Project, where lawyers working pro bono head to federal courts to argue case-by-case that these kids are being detained unlawfully.
The immediate goal is to use highly effective habeas corpus petitions to force federal officials to justify their actions in keeping the children in their custody or let them go, the Guardian has exclusively learned.
“This is the most immediate way to help the kids who are currently being harmed,” said Becky Wolozin, senior attorney at the California-based National Center for Youth Law. Her group is co-managing the project, which started quietly this summer and has built up over recent months.
Other managing organizations include the Acacia Center for Justice in Washington DC, The Door, a New York-based comprehensive youth development organization, and the Immigration and Human Rights Clinic at Loyola University Chicago School of Law.
Attorneys are deploying petitions for a writ of habeas corpus for each child concerned – the legal procedure that allows any person to argue in court that they are being detained or confined without a valid reason – which have rarely been used or needed for immigrant kids in the US who have a vetted, willing person to receive and care for them, known as a sponsor, until now.
The aggressive move is needed, the advocates argue, to fight against what has become a crisis of seemingly interminable stays in facilities affiliated with the Office of Refugee Resettlement (ORR), the agency tasked with ensuring the welfare of children who came to the US unaccompanied.
At the same time, the administration defunded these kids’ existing attorneys last month and has scheduled accelerated immigration hearings where government lawyers are arguing for their abrupt removal from the US, before they can receive legal protections from other agencies.
“That’s the race that we’re in, is can we help children get to their families before they get chewed up and spit out by the child detention system?” Wolozin said.
A spokesperson for the administration for children and families at the Department of Health and Human Services (HHS), the parent agency of ORR, responded to a request for comment from the Guardian with a statement.
“The standards that ORR currently follows closely mirror those of the US foster care system. Once a sponsor completes their application, ORR releases children as quickly, or faster, than the US foster system. ORR is not slow, we are just more careful, as we should be: children’s lives are at stake,” the statement said in part.
US law says that unaccompanied immigrant children should “be promptly placed in the least restrictive setting that is in the best interest of the child”, which is typically with a family member already living in the US.
But during Donald Trump’s second term, officials have devised new restrictions that make it harder – and in some states, effectively impossible – for children to go home to the sponsors waiting for them.
They have also undone privacy protections for sponsors who are undocumented, allowing ORR to collaborate with immigration enforcement at the Department of Homeland Security (DHS), the parent agency of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), and have even had parents detained at appointments that are part of the sponsorship process.
“ORR has increased safety vetting measures for individuals applying to take custody of one or more children who arrived at the border alone. ORR is taking these advanced measures to ensure the safety of unaccompanied minors following investigations revealing that criminal smuggling organizations play a role in every case related to the entry of Unaccompanied Alien Children into the US,” the government’s statement said.
Unaccompanied children often rely on a sophisticated smuggling network hired to get them safely to the US from their home countries, though that has little bearing on their situation – beyond potential financial debts owed to the smugglers – once they arrive stateside.
By the end of July, at least 65 kids with continuing immigration court proceedings had been held by ORR for over a year, according to data researchers at the New York-based immigration data insights platform bklg.org who shared details with the Guardian.
“There’s just attempts from every single angle to harm the children that are in federal custody. And I think because they’re in federal custody, the government has more access to them,” said Beth Baltimore, interim managing director of the legal services center at The Door, implying that when children are in ORR facilities, the Trump administration is able to exert more control over their futures.
She added: “It’s really devastating to see the cruelty that’s taking place everywhere. This is not something that has happened en masse for children during other administrations.”
Often called shelters, experts describe ORR’s facilities as the equivalent of detention for children.
“Children are not allowed to leave. They have no contact with people outside of the place where they live. And so they eat, sleep, go to school, do activities all within one sort of small campus. In some cases, it’s a single building. And that’s their whole life,” Wolozin said.
Kids “are being held against their will”, explained Ryan Matlow, a clinical associate professor at the California-based Stanford Medicine at Stanford University, which “create[s] the conditions for trauma and a lasting post traumatic stress response”.
Trusted adults at the large, congregate shelters are hard to find for the children, as even well-meaning staffers “answer to ORR – and DHS by extension”, Wolozin said, talking about the agency’s new policies of information sharing with immigration enforcement. She remembers kids telling her how the walls to their rooms wouldn’t reach the ceilings of some large shelters. “You’re essentially sleeping in a cubicle, and there was constant noise.”
Meanwhile, in Texas and Florida, the facilities are unlicensed. One former ORR shelter in Brownsville, Texas, now closed, was infamously housed in a repurposed Walmart Supercenter.
To free the kids stuck in these conditions, attorneys with the Children’s Due Process Project are filing habeas petitions – often when sponsors have already gone through government security vetting, but the child is kept in federal custody anyway.
Habeas petitions have become an increasingly regular practice for adults and families stuck in immigration custody in recent months, with widespread success in the federal district courts, which are part of the independent judiciary branch while immigration courts come under the Department of Justice.
Attorneys are starting to see some fresh success with kids now, too.
“Judges are basically asking, like, ‘What are you doing? This child should be with their family,’” Wolozin said.
