Following an emergency federal court action taken last week, New York group home providers caring for unaccompanied Central American minors have begun to move some of those children out of shelters that now constitute a contagion-risky environment in a city that has become the epicenter of the coronavirus pandemic.
In the last week, 18 out of 73 unaccompanied migrant youth placed with New York care provider Cayuga Centers – where two staff members have tested positive for COVID-19 – have been discharged to relatives or other guardians. Children placed with Cayuga live in foster homes and generally commute to the organization’s shelter each day, but the nonprofit stopped that practice as of April 1.
At Children’s Village – where at least one staff member tested positive for the virus – another 18 unaccompanied migrant youth have been released. At MercyFirst – where 13 staff working with both migrant and non-migrant youth have tested positive for COVID-19, including one worker who has died – six out of 38 migrant youth have been reunited with relatives.
Several other MercyFirst youths are awaiting the end of a quarantine placed on three MercyFirst group homes or cottages where a staff member has tested positive. They are expected to be able to travel in a few days when the quarantine is lifted, though they will not be preemptively tested for the virus.
The moves come on the heels of a decision by United States District Judge Dolly Gee, of the United States District Court for the Central District of California, saying that any “unexplained delay” in the release of a child would violate the requirement laid out in what’s known as the Flores Settlement that the government “make and record the prompt and continuous efforts on its part … toward the release of the minor.”
The Unaccompanied Alien Children (UAC) program is America’s response to children arriving alone who claim asylum or the need for special protection. Most of the children leave the Central American countries of Guatemala, Honduras and El Salvador, and make a dangerous journey through Mexico to arrive at the United States’ southern border.
Those children are screened first by Customs and Border Patrol, and then turned over to the custody of the Office of Refugee Resettlement (ORR), a division of the U.S Department of Health and Human Services.
ORR contracts with private and nonprofit providers to provide thousands of shelter beds for these children. Those shelters are tasked with caring for and educating youth until a sponsor for them in the United States – often a parent or close relative – has been approved. The minors are then placed with sponsors until their hearing in immigration court.
Three weeks ago, as New York City became a bright-red hotspot for coronavirus, ORR officials essentially froze area providers for unaccompanied minors in place: no new children would be placed with them, and they could not release any of the children in shelters to a family member.
“With New York being the epicenter of all this stuff, I think [ORR] got very nervous” about bringing kids into a hotspot or sending them away from one, said MercyFirst CEO Jerry McCaffery. “So I think rather than thinking it through, they just shut it all down out of the New York area and said we’ll figure it out later.”
On the weekend immediately after the “stop placement” order was first announced, Cayuga Centers released 23 children to sponsors, according to a declaration submitted to the district court by Elisa Gahng, an attorney with Kids in Need of Defense, who reviewed the agency’s census. But over the following two weeks, no more children were released.
Gahng and other attorneys representing unaccompanied minors in New York ORR facilities have stated that the federal agency did not provide them with clear guidance regarding the release of children or explain what criteria were being used to determine if a child’s release would be delayed, despite repeated requests for clarification.
Anthony Enriquez, an attorney with Catholic Charities who directs legal services for unaccompanied minors at several New York facilities, wrote in a declaration to the district court that at one point an ORR employee advised him that all releases of his clients were frozen, while at another point he was instructed that the agency was instituting a two-week quarantine before any further releases. But, he wrote, some children in similar circumstances as his clients continued to be released with no explanation of any special criteria applied to their cases.
Enriquez noted his concern for several clients who, if not reunified with a sponsor before they turn 18 in April, will be soon be transferred to an ICE detention facility. Youth who have “aged out” of their placement with Children’s Village were transferred to ICE as recently as March 24, including to a detention facility with at least four confirmed cases of COVID-19, according to a declaration submitted to the court by Hannah Flamm, an attorney with The Door who leads the nonprofit’s legal services for detained minors.
Within days of the initial freeze on releases, several child advocacy groups led by the National Center for Youth Law filed for a temporary restraining order that would compel ORR and its providers to continue moving children out of so-called congregate care placements and into the homes of family.
In cases where family sponsors could not be established, the filing asked that youth be placed in “non-congregate” settings – ORR also contracts with some organizations that provide in-home foster care.
“The spread of COVID-19 into ORR facilities is not hypothetical,” the court filing for the restraining order said, citing documented infections that had been confirmed at MercyFirst and another ORR provider, Abbott House.
The advocates estimated the class of children – those who had been in a group setting for 30 or more days – to be “nearly 1,200.” There were a total of 2,328 minors in congregate ORR-contracted facilities at the end of March, according to the government’s most recent filing.
“Should ORR place a significant number of currently detained children with their families, those remaining in detention will have both more ability to practice social distancing and more medical resources available to them if they fall ill, increasing their chance of protecting themselves against the current pandemic,” the filing said.
Judge Gee granted the restraining order in part, ordering ORR to “show cause” for why they should not quickly release minors. The agency responded on Monday in a filing that argued that “unexplained delays” were not explicitly prohibited under Flores, so therefore it was not in violation of the terms even if ORR failed to publicly explain the reason for delays in reunifying minors.
The advocates responded with their own filing on Wednesday, arguing that because Flores already requires ORR to “make and record” efforts to reunify children with family, an order requiring the agency to share that information “is an appropriate mechanism to encourage substantial compliance with the terms of the Agreement without changing those terms.”
Legal advocates for children and ORR providers say the ongoing court battle has played a key role in pushing the agency to resume releases and issue clearer guidance this week.
“Given ORR’s April 6, 2020 guidance to the field … and ORR’s release of some of our clients, it seems clear to me that the [Temporary Restraining Order] issued in Flores is having an effect,” wrote Enriquez in his declaration to the court. “I question whether ORR would have issued any guidance at all were it not for the pressure from this litigation.”