US Customs and Border Protection deported unaccompanied children from Mexico and Canada without documenting how they knew minors would be safe
US border patrol agents violated agency rules in deporting thousands of unaccompanied immigrant children from 2009 to 2014, according to a federal audit released this week.
The US Government Accountability Office audit said that US Customs and Border Protection (CBP) repatriated 93% of unaccompanied children under age 14 from Mexico and Canada without documenting how they decided 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, is one of several people to have questioned how effective the CBP process is in earlier reports.
“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, the same day that Immigrations and Customs Enforcement said it had released about 200 Central Americans in just over a week as it sped up the interview process used to determine whether those people would be in danger if repatriated. Advocates like Human Rights First say asylum seekers should generally not be held in detention centers.
Detention centers have been overwhelmed by the recent spike in unaccompanied child migrants, who primarily come from Honduras, Guatemala and El Salvador, and cross the Mexico border to get into the US.
Last year, Barack Obama said the border crossing of more than 47,000 unaccompanied children that year was an “urgent humanitarian situation”.
There was a vast reduction in the amount of unaccompanied children who made it to the border in the first five months of this year, compared to the same period last year, according to a study released by Pew Research Center in April. This, as Mexico deports a record number of Central American immigrant children.
The screening process used to determine whether Mexican children could be endangered by being repatriated has been a long-held concern for immigration rights groups. While children under 14 from most countries go before a judge to have their safety determined, Mexican and Canadian children are exempt from this rule and are instead asked a set 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.
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.
Under the Trafficking Victims Protection Reauthorization Act, 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.
But, as the GAO report shows, there is little documentation to show that this process is being completed.
While children 14 and under are presumed to typically be unable to make such a determination, there is no documentation for how these decisions were made for 93% of Mexican and Canadian children detained from the fiscal years 2009 to 2014. In that period, the Department of Homeland Security 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 said. “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.”
The murkiness of the documentation standards is exemplified in part of the GAO report which said that a CBP memorandum from 2009 instructs agents to document how they determined whether someone could make an independent decision on form I-213. This form includes biographical information about the immigrant and their encounter with federal officials. But, the GAO’s analysis of 180 cases from 2014 led it to estimate that none of the 15,531 forms for unaccompanied Mexican children from fiscal year 2014 included documentation of how they determined a child’s ability to make an independent decision.
Rebecca Gambler, the GAO’s director of homeland security and justice, said in an email that: “It is not a legal or statutory requirement; rather it is something required by CBP policy.”
CBP did not respond to an emailed request for comment. But in the report, the Department of Homeland Security said it concurs with 12 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, who said this is the first time the government has agreed to speak with NGOs about the documentation issue.