Twenty-eight children who have been detained in an Immigration and Customs Enforcement facility for more than a year could be deported after being denied the opportunity to seek asylum by Trump administration policies that federal courts have since blocked.
All of the children and their families were subjected to the Trump administration's asylum transit ban, which required immigrants to first seek protection in another country they traveled through before asking for refuge in the US.
In June, US District Judge Timothy Kelly struck down the transit ban and said the administration had “unlawfully” put the rule into effect. The rule was vacated nationwide and is no longer in effect. Then in July, the 9th Circuit Court of Appeals also blocked the rule.
The rule, however, had already been applied to thousands of asylum-seekers, including the group of 28 children. So while federal courts have struck down the transit ban, judges have said they don't have the legal authority to intervene in their deportations, said Bridget Cambria, executive director of Aldea — the People’s Justice Center, which offers free legal services to immigrant families detained by ICE in Pennsylvania.
"Although the policies can be deemed illegal, the effect it has on people is not," Cambria said.
Under the transit ban policy, those who crossed through a third country, such as Mexico or Guatemala, before arriving at the southern border were denied asylum during their credible fear interviews, an initial step in the asylum process. After being denied the chance to be screened for asylum, these children and their families were subjected to expedited removal, which allows the government to deport undocumented immigrants without a hearing in front of an immigration judge.
Federal courts have said they don't have the authority to weigh in on expedited removals. As a result, judges can't stop the deportation of the 28 children, even though they've found that the policies leading to their deportations are illegal.
"All 28 of these children were banned from asylum immediately upon entering the United States because they crossed through a third country. That rule has been deemed illegal," Cambria said on a call with reporters. "And despite it being deemed illegal, the children have no recourse."
In a statement, ICE said the children and their families have all been part of a number of lawsuits against the government, as well as appeals, and continue to file new lawsuits, all of which have delayed their deportation.
"The families have been afforded extensive legal processes and have been determined to have no legal basis to remain in the United States," ICE said.
The 28 children are part of 26 families detained at two of ICE's family detention centers, the South Texas Family Residential Center in Dilley, Texas, and Berks County Residential Center in Leesport, Pennsylvania. All of the families were granted a stay of removal by the 9th Circuit Court of Appeals through Saturday.
"After that time, they will require further court order. But that's not guaranteed," Cambria said.
Some of the detained children spoke on a call with reporters this week and asked to be identified by pseudonyms, fearing reprisal from the government.
Antonio, an 8-year-old who has been detained in Texas for more than 455 days, said it has been difficult to watch other immigrants who are no longer subject to Trump's policies leave detention while he and his family remain there.
"It is really awful, to be honest. I don't want to be here. I feel like I can't bear it anymore," Antonio told reporters. "I don't want to spend another Christmas in this detention center."
The asylum transit ban wasn't the only policy the families were subjected to that was later vacated or deemed illegal by federal courts.
Ana, a 15-year-old who has been detained at the facility in Dilley for more than 437 days, had her family's credible fear interview conducted by Customs and Border Protection agents as opposed to an asylum officer. An analysis from the Migration Policy Institute, a nonpartisan immigration think tank, from May 2019 to May 2020 found that CBP agents approved just 37% of credible fear interviews, compared to 64% among asylum officers.
"The officer said that we had no right to asylum," Ana told reporters.
The interview was also conducted within 48 hours of arriving at a detention center, the result of a US Citizenship and Immigration Services directive that credible fear interviews be conducted as quickly as possible after 24 hours of arrival to the facility. Many families were interviewed in that stretch, between 24 and 48 hours after arrival, said Shalyn Fluharty, an attorney with Proyecto Dilley, which represents some of the children. Advocates and attorneys said the directive was illegal because it denied immigrants access to counsel.
A federal judge in Washington, DC, blocked CBP officers from conducting the credible fear interviews, calling it illegal because agents do not receive the same level of training as asylum officers working for USCIS. The directive to rush immigrants through the interviews was vacated in March after a federal court concluded that Ken Cuccinelli, who issued the directive, had not been lawfully appointed to his role as acting director at USCIS at the time.
"I think that the interviews have been unfair because we had no time to talk to the lawyers," Ana said. "We had to go forward with our interview within 48 hours of arriving at the detention center, not knowing what the interview was or what we were about to face. We were sleep-deprived, tired, and still in the process of receiving medical care."
Attorneys for the children and their families said ICE can use its discretion to issue these families a Notice to Appear, a charging document issued by the Department of Homeland Security, and rescind their expedited deportations. An asylum officer at USCIS could also grant each familiy's request for reconsideration for refuge and, if the immigrants receive a positive credible fear determination, issue a notice to appear in immigration court.
Cambria said Congress should also change the provision in the Immigration and Nationality Act that limits judicial review of expedited deportations.
"We are a nation of laws. We expect these children to follow the laws, and we expect the government to follow their own laws. They didn't do it with respect to these kids," Cambria said. "These kids, they have every right to request asylum under the law."