DHS advised immigrant children to self-deport until a judge stepped in

WASHINGTON- Last September, the Department of Homeland Security began informing unaccompanied immigrant children that they could either self-deport or expect long-term detention.

But a federal judge in Los Angeles on Monday ordered the government to stop using such “blatantly coercive” language, ruling that the new counselors, as they are called, violated a 40-year-old court order that prohibits immigration agents from pressuring unaccompanied children to abandon their asylum claims and leave the United States.

According to court documents, the legal advice was given to recently detained immigrant children. Unaccompanied children are those who are in the country without a parent or legal guardian.

The minors were informed that they had the option of returning to their country, that this would not result in any administrative consequences and that they could still apply for a visa in the future.

But the children were also told that if they chose to request a hearing with an immigration judge or indicated they were afraid of leaving the United States, they could expect to be held in a detention center “for an extended period of time.”

Those who were 18 while in detention would be turned over to Immigration and Customs Enforcement for deportation, they were told. The notice, although usually delivered verbally, was entered into court documents by attorneys representing the immigrant children, which the government did not dispute.

“If your sponsor in the United States does not have lawful immigration status, he or she will be subject to arrest and removal,” the notices continue. “The sponsor may be subject to criminal prosecution for assisting in your illegal entry.”

U.S. District Judge Michael W. Fitzgerald said “such a threat disturbingly mirrors” the testimony of Jose Antonio Perez-Funez, a plaintiff in a 1980s class-action lawsuit challenging immigration agents’ tactics.

Perez-Funez, who was 16 when he was arrested near the Mexican border, testified in 1985 in Los Angeles federal court that he agreed to self-deport because federal agents said he would face lengthy detention if he did not return to El Salvador.

Perez-Funez’s case initially led the court to establish due process protections for immigrant children, giving them the right to speak with a parent or attorney before signing forms waiving their pursuit of legal protections.

“The government was therefore already aware that such a statement made in this environment is precisely the kind of improper persuasion that the injunction sought to prevent,” Fitzgerald wrote.

Fitzgerald, the Central District of California judge, also rejected a federal government request to end court-imposed permanent safeguards for immigrant children.

In response to a request for comment, U.S. Customs and Border Protection provided a statement, attributed to an unnamed spokesperson, that the agency follows the law and protects children. The agency said the advisory document explains to unaccompanied children the options available under federal law.

“Many unaccompanied minors are brought to the border by smugglers and face real risks of exploitation. This is why it is essential to provide clear and legal notice,” the statement said. “This ensures they understand their rights and their options – and for many people who are trafficked or coerced, returning home to their families is the safest route.” »

Unaccompanied children are first detained by Homeland Security before being released to the Office of Refugee Resettlement, part of the Department of Health and Human Services, for long-term housing. Federal law requires ORR to provide them with a legal consultation within 10 days.

“It is difficult to imagine a more coercive scenario than that faced by [unaccompanied immigrant children] within 72 hours prior to their transfer to ORR custody, particularly for non-citizen children who are likely unsure whether they possess rights,” Fitzgerald wrote in his order.

In their statements to the court, the children wrote that they felt threatened by the government’s advice. One minor, identified as DATM, said threats of legal action against his parents and long-term detention led him to sign voluntary departure papers.

Mark Rosenbaum, an attorney with the pro bono law firm Public Counsel, helped obtain the 1986 court order. He said his legal team discovered that Homeland Security had changed the notices only after a government attorney informed him in November that the agency would seek to end the court-imposed safeguards.

“I consider this a war on children, the most vulnerable population,” he said.

The government has until Thursday to decide whether it will appeal the judge’s decision. Regardless, Rosenbaum said, his goal is to establish more aggressive tracking of unaccompanied children’s cases to ensure their rights are no longer violated.