Border officials are pressuring unaccompanied children who arrive in the US as undocumented immigrants to quickly agree to return to their countries of origin, even if they express fear for their safety there – or else face “prolonged” detention and other consequences, a federal government document reveals.
The document, which emerged as an attachment in a court filing made by immigration attorneys, is understood to be presented or read to children within the first few days of them entering the US while they are still in the custody of Customs and Border Protection (CBP), before they can see any relatives in the US.
The document is termed an “advisal” and was attached as exhibit A at the bottom of a court filing by advocates. It says: “If you choose to seek a hearing with an immigration judge or indicate a fear of returning to your country you can expect the following: you will be detained in the custody of the United States Government for a prolonged period of time.” It goes on to say that the child’s sponsor – usually a family member residing in the US who will care for the child – “may be arrested, prosecuted and deported” if they do not have legal status, or prosecuted “for aiding your illegal entry”, and adds that if the child turns 18 in government custody they “will be turned over to Immigration and Customs Enforcement [ICE] for removal (deportation) …”
A US senator is now demanding “this cruel policy” be abolished, saying it “cynically exploits” unaccompanied children’s unique vulnerabilities as a way of pushing the Trump administration’s mass deportation agenda.
Senator Ron Wyden from Oregon, a Democrat and the ranking member of the Senate’s finance committee, has written to CBP accusing the agency of trying to frighten children into abandoning their rights by showing them a document with choices that he describes as “shockingly coercive”.
He added in the letter, shared exclusively with the Guardian, that the policy was “clearly intended to frighten unaccompanied children into abandoning the legal relief and protections they are seeking”.
The document, titled the UAC [Unaccompanied Alien Children] Processing Pathway Advisal, was filed in court in Washington DC as part of a longstanding lawsuit against the Department of Homeland Security (DHS), opposing the detention of children immediately after they turn 18, brought by the National Immigrant Justice Center (NIJC), an immigrants’ rights and legal organization based in Chicago, and other organizations. The advisal and the court filing were first reported by ProPublica last month, as part of a wider investigation by that outlet into immigrant child detention.
A CBP spokesperson sent a statement to the Guardian this week that said: “The advisal document provided to unaccompanied children explains options available under the Immigration and Nationality Act on their path forward. CBP’s duty is to follow the law and protect children. Many unaccompanied minors are brought to the border by smugglers and face real risks of exploitation, which is why providing a clear, lawful advisal is essential. It ensures they understand their rights and options – and for many who were trafficked or coerced, returning home to their family is the safest path.”
Wyden first wrote to CBP on 4 November about the policy change after reading US media reports about it, and then, after the advisal emerged, wrote to the agency again on 8 December. In the latest letter, he wrote: “Unaccompanied children are a uniquely vulnerable population, arriving in this country without guardians and often fleeing threats of violence, trafficking, abuse, and neglect. CBP’s new policy and the Advisal cynically exploit these vulnerabilities to remove unaccompanied children before they can access essential protections.”
The advisal offers an apparent incentive if children agree to return whence they came. “If you choose to voluntarily return to your country, there will be no administrative consequence, and you will still have the opportunity to apply for a visa, through legal means, in the future,” it says.
However, this is a “false carrot”, said Lisa Koop, the national director of legal services for the National Immigrant Justice Center (NIJC).
“It gives a suggestion that you can come back legally if you withdraw your request now,” Koop explained. “While there is perhaps some scenario where someone qualifies for a student visa or a family-based visa decades in the future, the suggestion that there’s going to be a legal path is a false one.”
CBP put the new policy in place earlier this year and it was previously confirmed in a 4 December letter to Wyden by the CBP commissioner, Rodney Scott, that the Guardian obtained.
Wyden’s letter comes as the Trump administration escalates its immigration enforcement operations aimed at immigrant children: this year, officials have sought out unaccompanied immigrant children to deport them or pursue criminal cases against them or their vetted sponsors; offered cash incentives for children to leave; and attempted to secretly and quickly deport dozens of Guatemalan children.
When unaccompanied immigrant children first arrive in the US, they are apprehended by CBP and remain in their custody for a maximum of 72 hours. Unaccompanied children are then transferred to the custody of the Office of Refugee Resettlement (ORR), where they are placed in shelters or foster homes or with vetted sponsors. ORR comes under the umbrella of the federal Department of Health and Human Services and also offers some legal assistance for children, through other organizations, to navigate the complicated immigration courts and asylum processes.
The document came to NIJC’s attention when an attorney, representing an unaccompanied child in an ORR shelter, discovered it among the child’s other records. The identity or other personal details about the minor in question have not been publicly disclosed.
Some children affected, who oftentimes have a limited understanding of the English language, are seemingly provided with the potentially intimidating advisal document without access to legal help, since they are still in CBP custody, before being transferred to the control of ORR.
Koop from NIJC says she and her team had never seen the advisal before they obtained it last month, despite having worked on hundreds of cases with unaccompanied minors.
“It’s not something that we’ve seen or that we were aware of in advance,” Koop said. “The most generous reading would be that it is extremely misleading.”
It is unclear whether the advisal is a piece of paper given to children or if it is just information that CBP officials verbally convey to children, Koop said. The short document, with its bullet points marking the different warnings, is in English and Spanish.
Meanwhile, the number of unaccompanied children arriving to the US across the Mexico border has significantly decreased this year, due to the Trump administration’s border policies severely restricting asylum.
“We know this administration is laser-focused on deporting children and preventing unaccompanied minors from accessing protection in the United States,” Koop said. “Even under the first Trump administration, we didn’t see this kind of coercion and threats. This is new and different.”
In mid-November, attorneys included the advisal in a court filing, as part of a longstanding lawsuit against DHS opposing the detention of children who turn 18.
It is unclear how many children the policy has so far affected.
Wyden wrote in his 8 December letter that the document is not only coercive, but “it intentionally misrepresents the US Government’s obligations to unaccompanied children under law”.
“While I have no difficulty believing the Trump administration intends to break the law, even at the expense of this vulnerable group, the Advisal blatantly misrepresents the rights unaccompanied children are entitled to in order to coerce them into voluntarily departing,” Wyden writes. “Further, the Advisal threatens immigration enforcement against family members to discourage children from seeking to reunify.”
