ImmigrationCBP violated rules in deporting thousands of unaccompanied children

A U.S. Government Accountability Office (GAO) audit says U.S. Border Patrol agents were in violation of agency rules when, between 2009 and 2014, they deported thousands of unaccompanied immigrant children.

The GAO said that Customs and Border Protection (CBP) repatriated 93 percent of unaccompanied children under age 14 from Mexico and Canada – and did so without documenting what procedures they followed to ascertain that the children would be safe when they return to their home countries.

Jennifer Podkul, a senior program officer for the Migrant Rights and Justice program at the Women’s Refugee Commission, has criticized the CBP process in reports by her organization.

“The part that is illegal is not that they have not been giving them documentation, the part that’s illegal is that they have not been adequately screening them according to the law,” Podkul said.

The GAO report was released on Tuesday, and perhaps by coincidence, the Immigrations and Customs Enforcement (ICE) announced on Tuesday that it had released about 200 Central Americans as it was speeding up the interview process which the agency uses to find out whether those people would be in danger if repatriated.

Immigration advocates like Human Rights First say asylum seekers should not even be held in detention centers while their cases are being reviewed.

The first five months of this year saw a substantial reduction, compared to last year, in the number of unaccompanied children who made it to the border, according to a study released by Pew Research Center in April. One reason for the reduction is that Mexico has been deporting a record number of Central American immigrant children back to their home countries.

The process by which it is determined whether or not children under 14 would be in risk for their lives or welfare if they were repatriated is different for children from Mexico and Canada relative to children from other countries. Children under 14 from most countries go before a judge to have their safety in their home country determined, but Mexican and Canadian children are instead asked a series of questions by a border patrol officer or agent.

“CBP just does not have the training, the understanding of humanitarian protection, to make the assessment of these children from Mexico before sending them back to their home countries,” said Greg Chen, director of advocacy at the American Immigration Lawyers Association (AILA), told the Guardian.

Chen said that the AILA’s primary concern is that the existing law assumes that an unaccompanied child can give a sufficient response to the questions while at a border patrol station, where they have likely been for a short time, and could be hungry, dehydrated and cold. “Can that child actually tell an agent, realistically, that he or she is afraid – and answer those questions well?” Chen said.

The Trafficking Victims Protection Reauthorization Act requires that border agents try to determine whether the child is a victim of trafficking, could become a victim of trafficking, has a fear of persecution, and is competent to make decisions about their situation.

The GAO report notes, however, that there is little documentation to show that this process is being completed.

It is generally assumed that children 14 and under are typically unable on their own to provide accurate and reliable information make such a determination, but there is no documentation for how these decisions were made by Border Patrol agents for 93 percent of Mexican and Canadian children detained from the fiscal years 2009 to 2014. In that period, DHS apprehended more than 200,000 unaccompanied children.

Michael Tan, an attorney with the ACLU’s Immigrants’ Rights Project, said that the GAO report was troubling, but not surprising.

“It’s common sense that in order for CBP to meet its obligation under law, it has to be reporting what its agents are doing,” Tan told the Guardian. “And of course, the fact that they aren’t, makes it very difficult, if not impossible, to hold them accountable to what Congress requires them to do.”

DHS said it concurs with twelve recommendations the GAO handed down in the report, including looking into how it can add to its process a way to document an unaccompanied child’s independent decision-making ability.

“We feel like this is a huge step forward,” said Podkul.

— Read more in Unaccompanied Alien Children: Actions Needed to Ensure Children Receive Required Care in DHS Custody, GAO-15-521 (GAO, 14 July 2015)