ROMA, Texas — Immediately after landing on the banks of the Rio Grande in Roma, Texas, Gerbert promised his crying 4-year-old nephew that he would never leave him. But days later, inside a Border Patrol facility, he was forced to break that vow.
“I have nothing against you,” Gerbert said a young Border Patrol agent told him, “but the child is going to a shelter and you’re going back to Mexico.” Tears started to stream down Gerbert's face as he hugged Jair goodbye, but the agent told him not to cry in front of the child because they needed him to be strong.
“I don’t think he understood what was happening at the moment, but I just told him that I loved him and he just stared at me and told me he loved me too,” Gerbert told BuzzFeed News. “On the one hand, I understand that I couldn’t take him with me because I’m just his uncle, but I also don't know that we will ever recover from that experience.”
It’s an experience shared by thousands of immigrant children who have been separated by US immigration authorities after showing up at the border with relatives who aren't their parents or legal guardians. The child is classified as an unaccompanied minor and sent to a shelter while a sponsor, usually a family member, is screened by the US Department of Health and Human Services (HHS) to take custody of them. Government officials say they're required to separate the child from their family because the statutory definition of an unaccompanied minor is a child who has no parent or legal guardian in the US. But advocates argue the law has been misinterpreted when it comes to cases like Gerbert and his nephew’s.
Gerbert asked to be identified only by his first name, fearing retaliation from gangs in El Salvador and US immigration authorities for speaking out.
In recent months, the Biden administration was overwhelmed with the number of unaccompanied children showing up at the southern border. Some had crossed the US–Mexico border alone, while others, like Jair, had entered the United States with a family member. As the new administration improves how it detains these children and starts to reunite some families separated under Trump, advocates are pushing Biden officials to adopt changes that will end traumatizing separations they deem unnecessary and keep children out of the shelter system.
Jennifer Nagda, policy director at the Young Center for Immigrant Children’s Rights, said HHS and Customs and Border Protection (CBP) should try to determine whether the family member, even though they’re not a parent or legal guardian, can care for the child and release them together. It’s a proposal that immigrant advocates have been pushing for years without success.
“We just skip right to separation and then try to pick up the pieces later,” Nagda told BuzzFeed News. “It’s traumatizing for the child and the family member.”
The Young Center for Immigrant Children’s Rights, which works with and advocates for unaccompanied immigrant minors, presented the Biden administration with a process that would keep these families together. The proposed plan calls for HHS and CBP to work together at a site near the border where the relationship between children and nonparent family members can be evaluated. If staff from HHS’s Office of Refugee Resettlement determines the family member is a safe sponsor and CBP approves their release, they are released together.
Nagda believes a significant number of children could have been released this way instead of being sent to HHS's overwhelmed shelter system, where they could wait weeks or months before being released. HHS did not respond to questions about the number of children who had been separated from family members who were not their parents.
The Biden administration has faced sharp criticism for holding unaccompanied minors in crowded Border Patrol facilities beyond the three days they’re legally allowed to do so. According to recently published data, the government has succeeded in reducing the number of children held in border facilities meant for single adults, from 5,767 at the end of March to 591 on May 13.
The decrease in the number of unaccompanied minors at border facilities was the result of HHS building emergency sites to hold children and reducing the average time it takes to release them to sponsors. HHS was housing 20,060 unaccompanied minors on May 13 in its shelter system. As the numbers of children held at CBP facilities drop and the system is less overwhelmed, Nagda said, now is the time to make changes.
“These are the sort of long-term investments the Biden administration needs to be making,” Nagda said. “We currently have a punitive immigration system that's being applied to adults and kids. When that’s the system, you're going to have kids who end up unnecessarily hurt and traumatized.”
Matthew Dyman, a spokesperson for CBP, in a statement said the Trafficking Victims Protection Reauthorization Act (TVPRA), which establishes care, release, and due process rights for unaccompanied immigrant children, would need to be amended to allow these kinds of releases. If the TVPRA is not amended there would have to be policy changes at the DHS and HHS level, but is not something CBP could unilaterally do, Dyman said.
Asked why the proposal from advocates to vet extended family members who cross the border with children had never been implemented, Dyman said it was "Probably because we have not seen this level of minors in the past." In March, US border authorities took 18,890 unaccompanied immigrant children into custody, the largest monthly figure on record. That number dropped to 17,171 in April.
The Department of Homeland Security and the White House did not respond to requests for comment on the practice of separating immigrant children from extended family at the border.
DHS officials have pointed to the need to separate children from extended family to protect children from trafficking. But Taylor Levy, an immigration attorney who has worked with immigrants at the border for years, said human trafficking should not be used as an excuse for family separations at the border.
“For a young child to be ripped from the arms of the only father or mother they know and love because it's mandatory for the purposes of combating trafficking is really misguided,” Levy told BuzzFeed News. “Screaming, sobbing children should not be taken away from those who are caring for them, and yet it is still happening every day.”
CBP and HHS staff can work together and use the mass data-sharing system the government has with some Central American countries to verify information, Levy said. The US can also call the child's parent, who is most likely already here, to vouch for the person the child crossed the border with.
“People are so afraid of the worst-case scenario, they have forgotten some of their humanity and can't see the forest through the trees,” Levy said.
If any changes are made in how the US treats these families, it will have been too late for people like Gerbert and his nephew.
Gerbert never imagined he would end up raising Jair, but everything changed when the boy’s mother, Maricela, fled El Salvador in 2018 after gang members sexually assaulted Jair's older brother, then 9 years old. Worried that the journey would be too difficult for 2-year-old Jair at the time, she left him in the care of Gerbert and her mother, promising to one day be reunited.
“It hurt my soul when the boy would say, ‘Uncle, I’m hungry.’”
Eventually, the same gangs that forced Jair’s mother to leave would corner Gerbert into making the same choice.
In 2018, gang members forced Gerbert to have sex with one of them after threatening to kill someone from his family if he refused. It was after the rape that Gerbert tested positive for HIV. The diagnosis was difficult to hear, but his mom and an aunt who raised him up until he was 14 were supportive, and Gerbert was able to control his infection with medication.
Gerbert’s aunt and uncle owned a bakery, and as with many businesses in El Salvador, local gangs would demand a weekly extortion fee that eventually they couldn’t afford to pay. Gang members stormed their house one evening demanding the money, but the family's screams alerted neighbors and the gang left, promising to return at night.
The last time anyone saw the family was on May 29, 2019. According to news reports, neighbors saw two trucks park in front of their small home and nine extended members of the family, including children, get into them peacefully, carrying nothing.
Gerbert thinks they're hiding somewhere from the gang, which is still looking for the family. Because people in the area knew Gerbert as this now-missing aunt and uncle's son, he feared that one day he would have to pay on their behalf.
A gang member accused Gerbert and his mom of knowing where the missing family was and lying to them. The same gang would also ask where Jair’s mother was. The last straw, Gerbert said, was when someone fired bullets at their home. No one was hurt, but the message was clear. Two weeks later, he set off with his nephew.
Gerbert thought about hiding in El Salvador, but he knew it would be difficult with a 4-year-old and instead decided to head to the US this March. Despite paying smugglers thousands of dollars, Gerbert said, they walked for 8 to 12 hours without food.
“It hurt my soul when the boy would say, ‘Uncle, I’m hungry,’” Gerbert said. “All I could tell him was, ‘Be patient, my love. We’re almost there.’”
Twice while trying to hide from Mexican immigration agents, the group they were with had to sleep on the floor inside stash houses. Gerbert put Jair on his chest so he wouldn’t touch the ground.
Finally, on March 25, the pair drifted across the Rio Grande on an inflatable raft and walked into the small Texas border city of Roma. Out of the 11 days Gerbert was in detention, he said he spent 8 of them in the same clothes he had been wearing when he entered the US, soaking wet. The food made him sick, and his HIV medication had run out a few days before they arrived at the border.
The day after they were separated by Border Patrol, Gerbert was sent to Reynosa, a Mexican border city in the state of Tamaulipas, which the State Department warns US residents against traveling to because killings, kidnapping, and sexual assault are common.
The Biden administration’s decision to keep a Trump-era policy that allows Border Patrol to quickly send back immigrants and asylum-seekers to Mexico or their home countries adds another complication to the separations. In the past, Gerbert, an asylum-seeker, would have been able to make his case in the US, though likely while in ICE detention. But now, citing an obscure public health law known as Title 42 to contain the coronavirus, the US immediately expels immigrants at the border, blocking them from accessing the asylum system.
Gerbert spent two days sleeping in an outdoor plaza in Reynosa with dozens of other immigrants and asylum-seekers who had been sent back under Title 42. On his first night, he saw a group of men in a van grab an immigrant woman and drive away. Criminals in border cities see expelled immigrants from the US as a way to make money by kidnapping them and extorting their families in exchange for their release. A Human Rights First report found that asylum-seekers turned away or stranded in Mexico had been the victims of at least 492 attacks on and kidnappings since President Joe Biden took office.
Gerbert decided it was too dangerous to stay and took a bus back to the Mexico–Guatemala border.
More than 1,700 miles away in Maryland, Maricela, Gerbert’s sister and the mother of his nephew, was anxiously waiting for her son to be released to her. Maricela, who asked to be identified only by her first name out of fear that speaking out would hurt her US asylum case, had immigrated to the US in 2018 seeking asylum after her oldest son was sexually assaulted by the gangs in El Salvador.
Weeks later, Maricela was reunited with her son after two and a half years. She’s overjoyed, but the transition has not been easy.
Jair cries if he is not within eyesight of his mother, and whenever they go somewhere outside the house, he asks Maricela if she’s going to leave him. He also had to go to the hospital to be treated for a fungal rash.
“I feel so empty, and the emptiness keeps growing every day.”
There are also moments when Jair stops playing to tell his mom about his detention, like having to sleep on the floor inside CBP facilities and being given cold food, and ask why his uncle abandoned him.
“This whole experience has traumatized him,” Maricela told BuzzFeed News. “I try not to cry in front of him because it will only make him more sad. But my heart breaks into pieces whenever he starts to tell me these stories.”
She knows people will criticize her decision to have her son make the journey from El Salvador to the border despite knowing the dangers in Mexico and conditions inside CBP facilities.
“It wasn’t an easy decision to make and it was very complicated,” Maricela said. “But the truth is, my son couldn’t stay in El Salvador — it was too dangerous. It was more dangerous than trying to come to the United States.”
When Gerbert returned to El Salvador, he grabbed a small robot that had belonged to Jair and locked himself in his room to cry, clutching the toy.
“I feel so empty, and the emptiness keeps growing every day,” Gerbert said. “I love him like he was my son. I know that I am not his father, but having spent so much time with him, it feels like I am.”
Gerbert keeps replaying the last time he saw Jair, the confused look on his nephew’s face, the tears he tried to hold back, and the immediate guilt he felt. He doesn’t want to make the trip back to the US–Mexico border again if he can help it.
In addition to the separation, Gerbert said the conditions were terrible in the facilities where asylum-seekers were held. Gerbert and Jair spent eight days not being able to shower inside a border processing facility at Donna, Texas. It was only after the burritos they ate made Jair so sick he threw up on himself and Gerbert that Border Patrol agents allowed Jair to shower and get a new change of clothes. Gerbert had to ask for a new shirt.
The experience broke him in more ways than he can count, Gerbert said. He sees Jair almost every day on video calls to his sister, but it's not the same.
“My life is still at risk here in El Salvador,” Gerbert said, “but at least I know he’s safe.” ●