Lawyers mobilize to free migrant children held in US custody

Habeas corpus petitions target indefinite detention of unaccompanied minors

More than 50 legal organizations, firms and law offices have mobilized through a coalition they call the Children’s Due Process Project, sending lawyers pro bono into federal courts to argue that migrant children held by the US government are being detained unlawfully. The Guardian first reported the effort on Thursday.

The attorneys are filing petitions for writs of habeas corpus — the legal procedure that allows any person to argue in court that they are being detained without a valid reason — on behalf of individual children. Habeas petitions have rarely been used or needed for immigrant children with vetted sponsors, family members or other adults in the US who have passed government screening to care for them, the Guardian reported.

“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, one of the project’s co-managing organizations.

Around 1,900 unaccompanied minors — children who arrived in the US without a parent or guardian — were under federal control across the country as of the end of August. From babies to teenagers, they 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 having family members in the United States anxiously awaiting their release.

“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.

The project is co-managed by the National Center for Youth Law, 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. It began quietly this summer and has built up over recent months.

The legal push comes as the Trump administration has imposed new restrictions that make it harder, and in some states effectively impossible, for children to be released to vetted sponsors. Officials have undone privacy protections for sponsors who are undocumented, allowing the Office of Refugee Resettlement (ORR) to share information with immigration enforcement at the Department of Homeland Security, the parent agency of Immigration and Customs Enforcement and Customs and Border Protection. Parents have been detained at appointments that are part of the sponsorship process, according to the Guardian.

At the same time, the administration defunded the children’s existing legal counsel last month and has scheduled accelerated immigration hearings in which government lawyers are arguing for the children’s removal from the US before they can receive legal protections from other agencies, project organizers said.

ORR oversees facilities that experts describe 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,” said Ryan Matlow, a clinical associate professor at Stanford Medicine at Stanford University, which he said “create[s] the conditions for trauma and a lasting post traumatic stress response.”

A spokesperson for the Administration for Children and Families at the Department of Health and Human Services, ORR’s parent agency, defended the agency’s pace in a statement to the Guardian: “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 spokesperson added: “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.”

By the end of July, at least 65 children 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. “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.”

In Texas and Florida, some ORR facilities are unlicensed. One former shelter in Brownsville, Texas, now closed, was housed in a repurposed Walmart Supercenter, the Guardian reported.

Habeas petitions have become an increasingly regular practice for adults and families 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 said they are beginning to see fresh success with children.

“Judges are basically asking, like, ‘What are you doing? This child should be with their family,’” Wolozin said.