Nearly 9,000 migrant children have been expelled under pandemic border policy, court documents say

At least 8,800 migrant children who arrived at the southern border without their parents have been swiftly expelled from the country and denied U.S. refuge during the pandemic under an emergency policy, the Trump administration told a federal court on Friday.

In addition to the unaccompanied minors, approximately 7,600 members of migrant families with children have been expelled from the U.S.-Mexico border since the Centers for Disease Control and Prevention issued a public health order authorizing these expulsions in mid-March. 

With single adults accounted for, more than 159,000 expulsions have been carried out under the unprecedented restrictions, which the Trump administration says are designed to avert coronavirus outbreaks inside migrant holding facilities and among the broader U.S. population.

"The numbers are stunning," Lindsay Toczylowski, the executive director of the Immigrant Defenders Law Center, told CBS News. "Having talked to so many kids who come here seeking asylum and knowing the fear that they have and what they're fleeing, to find out that our government has literally taken children who are seeking protection and sent them back to the very places they fled in such high numbers really took my breath away."

Citing the CDC order, U.S. Department of Homeland Security officials have suspended humanitarian protections for most border-crossers, arguing that public health law overrides asylum, immigration and anti-trafficking safeguards during a pandemic. Instead of placing migrants in regular deportation proceedings and transferring most unaccompanied children to the U.S. refugee agency, which is required under a 2008 anti-trafficking law, border officials have been making rapid expulsions.

The previously undisclosed figures were revealed in documents the Trump administration submitted as part of an emergency request for the Ninth Circuit Court of Appeals to stay a lower court order from last week. That ruling ordered the government to stop holding migrant children in hotel rooms before expelling them.

During the pandemic, the Trump administration has expanded its use of hotels to detain migrant minors whom it seeks to expel from the country under the CDC order. Some unaccompanied children and minors apprehended with their parents wait in these hotels, where they are supervised by private Immigration and Customs Enforcement contractors, while ICE officials arrange for them to be expelled to their home countries via deportation flights. 

Most single adult migrants processed under the CDC directive have been turned back directly to Mexico.

According to the figures revealed Friday, nearly 7,000 families with minors and more than 6,500 unaccompanied children were expelled by land to Mexico. Border Patrol also transferred 2,200 unaccompanied children and 600 families to ICE so the agency could expel them on repatriation flights. 

Since the CDC's order implementation, 1,600 family members and 1,500 unaccompanied minors have been allowed to undergo regular immigration proceedings after crossing the southern border, according to Friday's court documents.

Last week, Judge Dolly Gee of the U.S. District Court in Los Angeles said the secretive border hotel detention system violated the Flores Settlement Agreement, which governs the care of all minors in U.S. immigration custody. She said the hotels lack sufficient oversight, state licenses to hold minors, standards for the care of young children and an adequate process for migrants to seek counsel from lawyers. Gee ordered DHS to wind down its large-scale hotel detention system by next Tuesday.

In their emergency request on Friday, Justice Department lawyers said Gee's order would undermine the Trump administration's efforts to contain the coronavirus. 

"The district court's order requires that all minors and families who would have been held in individual rooms in a hotel, and then expelled under the CDC order, must now instead be placed into congregate settings regardless of the CDC Director's judgments and regardless of the limitations on the government's ability to maintain appropriate infection-control measures in those settings. That is wrong," the Justice Department lawyers wrote.

Trump administration officials said Gee's ruling could overburden ICE detention facilities for families, as well as shelters administered by the Office of Refugee Resettlement to house unaccompanied minors. Border officials said the order could lead them to refer between 60 and 140 more migrant children to the refugee agency per week.

In a court declaration, Deputy Border Patrol Chief Raul Ortiz said the inability to hold minors in hotels would likely require his agents to detain families and unaccompanied children in holding stations designed for single adults for longer periods of time. That could increase the risk of coronavirus transmission among migrants and Border Patrol personnel, Ortiz said.

At least 2,018 Customs and Border Protection (CBP) personnel have tested positive for the coronavirus, and a dozen employees and one contractor have died of complications from the virus, according to the court declaration.

Jallyn Sualog, the deputy director of the Office of Refugee Resettlement, said an influx of hundreds of migrant children would hinder efforts to contain the coronavirus inside the agency's network of shelters and housing facilities, which were holding 1,097 minors as of early this week. The agency has the capacity to house more than 13,000 children, but Sualog said the system would be under "significant stress" if it receives more than 100 minors per week.

"ORR will gradually lose the extra space that must be held in reserve to quarantine or isolate UAC as needed, and ORR will be forced to house UAC in denser conditions, which will further increase the risk of transmission of COVID-19," Sualog wrote in her declaration, referring to migrant minors through the "unaccompanied alien children" (UAC) legal term.

So far, 204 minors in Office of Refugee Resettlement custody, as well as 745 staff and contractors, have tested positive for the coronavirus, according to Sualog's declaration.

ICE official Russell Hott made a similar warning, saying the transfer of more migrants to the agency's three family detention centers in Texas and Pennsylvania would make it more challenging to implement coronavirus containment measures.

Toczylowski, the immigration attorney who has worked with migrant children processed under the CDC order, strongly rejected the government's arguments. She said other measures could be taken to contain the coronavirus, including conducting rapid testing on migrant children and families before releasing them to sponsors so they can quarantine and continue their immigration proceedings outside of detention.

"It's laughable that the only option is to hold children in hotel rooms before expelling them and to say that it stops the spread of coronavirus," she added.