While the surrounding world has been transformed by the coronavirus, relatively little has changed inside the government-sponsored shelter for migrant children in Fairfield, California.
Staffers at the facility, BCFS Fairfield, about an hour’s drive from San Francisco, constantly come and go, according to one of the shelters’ residents, a 17-year-old boy from Guatemala who’s been in U.S. custody for a year.
Case managers, clinicians and cooks come in each day and return to their communities each night. A woman who helps with cleaning maintains her usual hours. A teacher is still doing math lessons five days a week. In all, the boy described more than a dozen adults who routinely enter and leave the shelter, sometimes without masks, goggles or gloves.
BCFS Fairfield, which didn’t respond to requests for comment for this story, can hold up to 18 children. In an interview in early April, the boy said the shelter held only two other kids: a Mexican teen who hadn’t been in for too long and a Honduran teen who, after two years in the system, asked for voluntary departure, turning to deportation as his only way out.
The three boys have become friends, but there’s a limit to how much comfort they can offer each other. Even before the pandemic, the federal Office of Refugee Resettlement long barred contact between its shelter residents.
“I’ve already gotten used to it,” he said. “We can’t even hug one another.”
They can still play sports. The 17-year-old described a recent hourlong soccer game: the three kids and three adult staffers who work there, running and panting in a makeshift field.
Although he doesn’t have a mask to cover his nose and mouth, he said he stopped twice to wash his hands, and when the game was over, he rubbed his hands with sanitizer. But risking infection is not what he’s most focused on. “I want to get out and live with a family,” he said.
Keeping children locked up in shelters is considered essential business during the pandemic, laying bare a bleak aspect of U.S. immigration policy. Yet the children don’t have to be there.
Many remain stranded in the U.S. government’s care despite having willing sponsors to whom they could be released – providing not only a caring home, but also an opportunity to safely shelter in place.
There’s a family in Minnesota ready to welcome the 17-year-old into their home. But it’s taken a federal lawsuit for the government to consider the request.
Known as M.D.S. in court filings, the indigenous Mam boy, a migrant from Guatemala, has sued the federal government demanding his release in light of the pandemic. The lawsuit argues that it’s virtually impossible to practice social distancing in shelters where children live in close quarters, eat food served and prepared in a communal setting, and share bathrooms that aren’t always disinfected between use.
“Where a detainee has a viable alternative living environment that poses a substantially lower health and safety risk, it would be not only unjust but immoral to refuse him that opportunity,” reads the complaint, filed April 9 in the California Eastern District Court.
Reveal from The Center for Investigative Reporting isn’t naming the boy because he’s a juvenile and a victim of trafficking.
For M.D.S., release would carry additional weight. As a victim of trafficking, he can apply for a special humanitarian visa that grants protections to children who were abandoned by their parents. He’d have a much better shot at it if he were out of the shelter first.
The lawsuit was filed against the backdrop of a larger, urgent battle playing out between the Office of Refugee Resettlement and immigration lawyers over the fate of children in government shelters as the pandemic has swept across the country. In late March, attorneys for migrant children in U.S. immigration custody sought a temporary restraining order to expedite the release of children in the care of the refugee agency. Citing the risk of the coronavirus contagion, they asked a federal court to require the Office of Refugee Resettlement to release as many as 1,193 children who had been in shelters for 30 or more days and for whom a family or other adult sponsor had been identified as ready and willing to take them in.
The filing also seeks to transfer the remaining children without sponsors into settings where social distancing can be meaningfully practiced.
In an April 10 order in the case, Judge Dolly M. Gee plainly called into question the government’s decision to keep children locked up during the public health crisis. And she criticized blanket bans that the agency put into place in March and April in New York, California and Washington barring the release of unaccompanied minors.
One reason the agency has given for halting family reunifications is that fingerprinting services are no longer available to vet sponsors in some states. But Gee questioned why the agency would decline to follow the lead of other agencies at this time.
“For example, would ORR consider postponing or suspending its fingerprinting requirements like some state child services agencies have done due to the pandemic?” she wrote. Weeks later, Gee required the government to do just that.
Her April 10 order highlights the confounding way in which the Office of Refugee Resettlement has handled the crisis. Officials have repeatedly altered the agency’s rules for discharge, argued that children may be safer in custody than at home with their families, cited confusing reasons for postponing the release of vulnerable children in its custody and made arbitrary exceptions. All the while, the agency has left children who could be released to sponsors stranded in shelters meant to provide a temporary place to stay.
Among the children originally barred from release was another 17-year-old unaccompanied minor, this one being held at Catholic Guardian Services’ Seton shelter in the Bronx, New York. In early March, his sponsor, an adult cousin in Michigan, had gone through the requisite steps to secure the child’s release.
Right as it appeared the minor would be sent to live with his family, an email arrived March 25 from an agency contractor instructing all New York shelter providers “to stop all discharges at this time.” He’d be stranded like other children in the region – despite a looming birthday that could dramatically alter his fate. Unaccompanied minors who turn 18 in shelters get turned over to U.S. Immigration and Customs Enforcement custody. While the agency refused to release the 17-year-old to his family, preparations were underway to transfer him to ICE detention.
On April 6, four days after Reveal contacted the Office of Refugee Resettlement for comment about the case, the 17-year-old was released to his cousin, just one day shy of turning 18.
Gee issued a subsequent order April 24, requiring the refugee agency to “continue to make every effort to promptly and safely release” children in custody to suitable guardians.
In the seven weeks since attorneys first filed their motion, at least 68 children in agency custody in five states have tested positive for COVID-19; 63 have fully recovered and five more results are pending, according to agency figures. An additional 136 people who work with Office of Refugee Resettlement programs have self-reported positive for the disease in 12 states.
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M.D.S.’ birth parents, both itinerant coffee plantation workers, lived in extreme poverty in the Guatemalan countryside and turned to someone else to raise him. That man provided a home and sent the child to school, but he also required him to work in coffee fields from a young age, according to the boy’s lawyer, Ricardo de Anda.
When the boy was 15, the man took him to the United States. When the pair arrived at the border in March 2019, the man used a fake birth certificate and an assumed name for the child in an attempt to pass him off as his own; when authorities determined they weren’t truly father and son, they were separated.
The man was taken into custody and later deported. Refugee agency records indicate the boy has been moved around since then to four different contracted facilities: two in Texas, one in Arizona and finally the one in Fairfield, California.
“During this time,” the legal complaint alleges, “his mental health has deteriorated, and he has been hospitalized in various health facilities.”
The refugee agency classifies children into sponsorship categories for release. Category 1 is for children whose birth parents are in the United States; category 2 for those who have a close family member, such as a brother or cousin, in the country; and category 3 for minors who have a more distant relative or even an unrelated adult sponsor here. M.D.S. was originally placed in category 4: a child for whom the agency hasn’t identified a sponsor. Category 4 children can languish in shelters for years before graduating into ICE detention at 18.
Because M.D.S. had no known relatives or family friends in the United States, his release hinged on identifying a willing sponsor, which would bump him up to category 3.
In August, de Anda began the race to find him one before his 18th birthday. He knew that the refugee agency may decline to consider a sponsorship application in cases in which the child doesn’t know the sponsor prior to being swept into custody. But the attorney also knew it wasn’t impossible; he’d won such an arrangement for another child in 2019.
If de Anda could find M.D.S. a sponsor, a door would open for him to gain legal status here. Thirty years ago, Congress designated a special status for children who’ve been abandoned by one or both parents and whose best interest is remaining in the United States.
“He’s eligible for a special juvenile immigrant visa as an abandoned and trafficked child, but only if he’s out of detention,” de Anda said. “The only way he can apply for this visa is if he’s in the hands of a sponsor.”
Children in the refugee agency’s custody are technically eligible to begin the visa process while still in custody, but it’s difficult to do so, requiring both the consent of the agency and a finding from a local juvenile court. A process started in one venue can get interrupted by a transfer to a shelter in another venue. All of this must happen before the visa application is even considered by the federal government.
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In September, Bryce Tache was sending postcards from his home in Minneapolis to children who had been separated from their families at the U.S.-Mexico border and sent into detention in Texas. He wondered if there was anything else he could do for these isolated kids. Through a loose network of activists, Tache learned about M.D.S.
Soon thereafter, Tache was in touch with de Anda, offering to sponsor the child.
In 2004, Tache and his husband, Van Donaldson, then barred from marrying in Pennsylvania, where they were living at the time, moved to Canada, where they married and adopted two boys, now 13 and 14. They returned with their family to the United States five years ago. The couple saw M.D.S. as a welcome addition to their family.
Tache and his family quickly established contact with M.D.S.’ birth parents in Huehuetenango, Guatemala, who agreed that Tache should sponsor the child and in October signed declarations spelling out their wishes.
It wasn’t until February that Tache was finally able to speak with M.D.S. by video chat.
“He was able to meet my husband, my boys, our dogs, kinda gave him a tour of the house and the neighborhood, to try to get him excited about such a drastic move,” Tache said. There was snow outside that day, which would be new for M.D.S. But there were also soccer fields a block away.
That first call was complicated. While M.D.S. speaks Mam and Spanish, Tache and his family speak only English, so they were all speaking through an interpreter. Tache acknowledges that it was likely overwhelming for M.D.S., who appeared hopeful, if extremely skeptical. The sponsorship process had already taken months.
But he says M.D.S. clearly wanted to live with this family, and connecting by video felt like a big step forward.
In a more recent call, Tache said M.D.S. appeared dejected, even depressed.
“It appeared to me he had given up hope,” Tache said. “It was very clear he was in a place he didn’t want to be.”
The uncertainty has also been tough on Tache and his family. His boys, biological brothers who joined Tache and his husband as toddlers, have been looking forward to the arrival of their new big brother.
But in January, after Tache submitted his formal application to sponsor the child, he was rejected outright.
“Mr. Tache does not meet criteria for UC sponsorship,” Elicia Smith, a federal field specialist for the refugee agency, wrote in an email to de Anda. “Unrelated sponsors must provide evidence of a bona fide social relationship with the child and/or the child’s family that existed before the child migrated to the United States.”
When asked why the refugee agency doesn’t consider previously unknown adults for sponsorship, spokesperson Lydia Holt sent a list of the agency’s policies. Those policies note that the agency will consider the “nature and extent of the sponsor’s previous and current relationship with the child” or the child’s family.
But the policies do not say the lack of a previous relationship forbids the agency from considering a sponsorship application.
Although M.D.S.’ birth parents had declared their support for the arrangement and the child had agreed – both of which are listed among additional standards for release to a sponsor – the federal government refused to initiate the process.
By now, M.D.S. has been in custody for more than a year. He turned 17 about a week ago. The day was marked with a video call with Tache’s family.
M.D.S. was in a room by himself in Fairfield, while the family in Minneapolis sang to him and held a little sign that read, “Feliz cumpleaños.” It was M.D.S.’ second birthday in custody. Tache says the child told him that it was the first time in his life that anyone had recognized his birthday. They told him presents would be waiting for him after his release from the shelter. But they don’t know if or when that will happen.
The lawsuit seems to be having an effect. Shelter staff have started communicating with Tache and preparing for the boy’s possible release. Records from the refugee agency indicate that the agency has changed M.D.S.’ status. He’s no longer considered category 4. Now he’s category 3, a child with a sponsor who is an unrelated adult.
But they’re still running into hurdles. The agency is requiring Tache and Donaldson to be fingerprinted – even though Gee ordered the agency to defer fingerprinting during the pandemic.
Hennepin County, where the couple lives, has shut down services due to the coronavirus, so Tache and Donaldson traveled to a neighboring county to get processed. The family is also moving to a new home May 15, and the agency is now saying it wants to conduct a study of the property afterward.
It’s yet another obstacle illustrating that the agency can essentially do whatever it pleases as children’s well-being hangs on the line. The Office of Refugee Resettlement can make its own rules, and exceptions to those rules, when it wants. It will defy a judge’s order. A little pressure, and it can change the trajectory of a child’s life.
So M.D.S. will have to continue to wait to learn whether the family that’s been ready to take him in can finally embrace him. In the meantime, he remains in a group setting as COVID-19 cases mount across California.
This story was edited by Andrew Donohue and Esther Kaplan and copy edited by Nikki Frick.
Aura Bogado can be reached at abogado@revealnews.org. Follow her on Twitter: @aurabogado.
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