The plane had just landed on the tarmac in Guatemala City. It was filled with 32 children who crossed over the US southern border without a parent and, in accordance with a controversial Trump administration policy, were expelled back to their home country.
Right around the same time on that Nov. 18 afternoon, a lead Immigration and Customs Enforcement attorney sent an email to top agency officials with an urgent plea: Don’t let them get off the plane. Fly them back.
The attorney was rushing to comply with a fresh federal court order no longer allowing such deportations, according to a source who described the contents of the email to BuzzFeed News.
The children weren’t flown back. They were handed off to officials in Guatemala.
The hectic scene — a federal judge’s order coming shortly before a plane lands, sparking rushed messages from government officials — underscores the chaotic nature of the Trump administration’s patchwork approach to immigration policy and the lengths it will go to severely limit the number of people who can seek protections in the US.
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Ten minutes before the flight left Louisiana for Guatemala City, US Judge Emmet Sullivan blocked the Trump administration from turning back unaccompanied children under a widely criticized policy that allowed officials to expel immigrants under the belief that it would protect the country from further spread of COVID-19. (By November, the Trump administration had largely allowed the coronavirus to wreak havoc on the US, killing hundreds of thousands of people and financially ruining many more.)
ICE officials said four of the children on the flight had tested positive for COVID-19.
The ICE lawyer, Adam Loiacono, sent the email in response to a request for advice on how to handle the group considering the judge’s order.
“Plane just landed in Guatemala. Need to know STAT because once we take them off the plane, they are essentially turned over to Guatemala officials. Please advise soonest,” wrote a lead official overseeing ICE deportation flights.
Loiacono wrote back soon after, saying he believed that the children should have stayed on the plane and been returned to the US.
“In light of the district court’s order enjoining expulsion of unaccompanied minors under T42 [the public health order the judge blocked] issued this morning, [the Office of the Principal Legal Advisor] strongly recommends that the T42 unaccompanied minors be returned on this flight and not deplane in Guatemala,” he wrote, according to the source who described the email to BuzzFeed News.
Loiacono continued, “It appears likely that the district court’s order [was] issued prior to the flight departing the United States, even though we found out after take-off, and even if it [had been] issued after take-off, the expulsion would likely not be found to have been completed until they arrived in Guatemala. Sorry for the short explanation, but need to be brief in light of the urgency.”
The description of the email provides a window into how agency lawyers viewed its obligation to the court order that undid a key administration policy, one that Department of Homeland Security officials often cite as a necessary initiative to stem the flow of people at the border during the pandemic.
Lee Gelernt, an attorney with the ACLU who sued the government over the policy, said the injunction applied from the moment it was issued.
“There is no question that the injunction applied even if the plane took off and landed in Guatemala after the court issued the injunction,” he said.
Jeffrey Lynch, a deputy assistant director at ICE, told the court in a filing this month that agency personnel on the ground handed over the children to Guatemalan officials within 15 minutes after landing, during a period of time that they did not know about the order. The email from Loiacono appears to have been sent shortly after this reported transfer.
The ICE personnel found out about the order at 1:09 p.m. ET that day, Lynch said in the filing, nearly 15 minutes after the children had been handed over to Guatemalan authorities. ICE officials there obtained contact information for the adults to whom the children were released in Guatemala.
Later that afternoon, Lynch said, the personnel were told by ICE officials in Washington, DC, that Homeland Security had determined the children should not be brought back on the flight returning to the US.
ICE officials maintained that they would never ignore a court order.
“The implication that [ICE] would knowingly disregard a judge’s order is completely false,” said Danielle Bennett, an agency spokesperson, in an email. “While ICE is a large, complex law enforcement agency with a multi-faceted mission and personnel stationed at hundreds of locations throughout the world, agency personnel work diligently to uphold the rule of law, which includes enforcement of and compliance with binding court orders.”
Sarah Pierce, an analyst at the Migration Policy Institute, said the emails are another indication that the administration was determined to turn away immigrants at “any possible step.”
“It is so tragic,” she said. “You’re talking about one of the most vulnerable populations. These children had an opportunity to stay in the US and apply for humanitarian benefits for which they may well qualify. This administration took it away from them.”
ICE was not the only agency to turn back children following the order: This past weekend, government attorneys told Sullivan, the US judge, that agents and officers on the border had turned back 34 children after his order was issued.
Before the policy was blocked, critics said the government was using public health orders from the Centers for Disease Control and Prevention as an excuse to violate federal laws that govern the processing of unaccompanied children at the border. BuzzFeed News previously reported that the Department of Homeland Security has expelled unaccompanied immigrant children from the US border more than 13,000 times since March.
Before the pandemic, unaccompanied children picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement, where they would be housed in shelters as they started applying for asylum and waited to be reunited with family members in the US.
The ORR referral process was created by the Trafficking Victims Protection Reauthorization Act, which was signed by then-president George W. Bush in 2008. Under the law, Customs and Border Protection officials are generally required to refer the children within 72 hours to the US refugee agency. But those referrals dropped precipitously after the CDC's coronavirus order. Instead, unaccompanied children at the border are now turned back immediately to Mexico or held in detention facilities until they could be put on a flight out of the country.
In late June, US District Judge Carl Nichols, who was appointed by President Donald Trump, blocked the deportation of a 16-year-old Honduran boy under the CDC's order. While the ruling did not void the policy altogether, it was seen as a blow to the administration. Since then, the government has said it was no longer seeking to use the CDC's order to remove the boy from the country.