The front entrance of the E. Barrett Prettyman U.S. Courthouse in Washington, D.C., on Aug. 3, 2023. (Jennifer Shutt/States Newsroom)

WASHINGTON — Attorneys for a group of 10 Guatemalan children who were nearly deported late last month asked a federal judge during a hearing Wednesday to grant protections for all unaccompanied minors in the care of a Department of Health and Human Services agency handling refugee resettlement.

Efrén C. Olivares, the lead attorney of the National Immigration Law Center representing the unaccompanied Guatemalan children, told U.S. District Judge Timothy Kelly that President Donald Trump’s administration has taken steps to remove children from other countries “under the guise of reunification” with their parents.

The administration’s actions did not comply with federal law or constitutional due process rights, Olivares said. The government also backtracked on its initial claim that the parents had requested their children’s removal.

The attorney asked Kelly to bar the removal of all children in the care of the HHS Office of Refugee Resettlement who are not subject to final orders, removal or voluntary departure. The group should be certified as a class, he said.

“We believe the entire class is at risk (of removal),” he said.

At a minimum, Olivares said, the court should bar the removal of all Guatemalan children who met those criteria. 

Nearly deported

A flurry of legal action over Labor Day weekend halted the removal of the 10 children, who were woken up in the middle of the night and put on planes to Guatemala before a federal judge issued an emergency restraining order.

Olivares said the move appeared to be part of an administration initiative to deport children in the agency’s care.

“We did not hear a denial that there are plans… to get out of the country children from other nationalities,” he said of the U.S. Department of Justice’s position.

He also told Kelly that some children were pulled out of foster homes.

If a preliminary injunction is granted, Olivares asked if it could also direct ORR to place those children back in their foster homes, rather than agency-run shelters. 

‘Unfortunate’ incident

Congress has carved out special legal protections for immigrant children, such as a 2008 law that requires minors be placed in immigration proceedings and able to access legal counsel.

Olivares said in court Wednesday that the Trump administration broke that law over Labor Day weekend when officials tried to whisk the children out of bed for deportation to Guatemala. 

Kelly, who was appointed by Trump, asked DOJ attorney Sarah Welch if the government has the right to wake children in the middle of the night on the weekend to remove them from the country. 

“I think everyone can agree it’s unfortunate that the children were frightened and woken up in the middle of the night,” she said. 

Welch objected to class certification because there could be children in the class who want to return to Guatemala. But she acknowledged that the government had no record in the case of a child wishing to return. 

She added that in general, non-U.S. citizens facing removal could not be considered irreparably harmed because they could return to the U.S. 

Kelly said he would make a decision as soon as possible. 

Parents were unaware, court records show

After immigration attorneys asked the court for emergency relief in the early morning hours of Aug. 31, a judge who heard the emergency request blocked the government from deporting the roughly 2,000 Guatemalan children in ORR’s care.

DOJ attorneys initially argued that the parents of the children being removed had requested their children be returned to Guatemala. 

However, in court documents, the children said their parents were unaware. 

A declaration from one parent, referred to as B.M.R.P., detailed how she was not notified by either government of her child’s removal.

“I think she is in danger if she does return to Guatemala,” B.M.R.P. said. “All I ask is that you help my daughter stay safe – help her stay safe by not returning her to Guatemala.”

Kelly pressed Welch on those declarations and information from Guatemala’s government that the parents of the children were not notified they would be returned to the country. 

Welch said that the Trump administration would withdraw its claim that the parents of the Guatemalan children had requested the return of their children.

However, she said the Trump administration’s position is that a parent’s request is not required for a child to be deported. 

‘I feel traumatized’

Court filings also detailed the children’s experience. They said after being woken in the middle of the night, they were rushed to buses where they waited for hours without food. 

One 17-year-old, referred to as H.D.C.R., said the stress of being removed and potentially returned to Guatemala caused them to faint and be hospitalized for three days. 

“I suffered so much that I will never forget the bad time I had that weekend,” H.D.C.R. said, adding that they wish to remain in the U.S. to fight their immigration case.

Many of the children also expressed their fear of returning. A 16-year-old girl, A.J.D.E., said her sister was murdered in Guatemala and she feared the same would happen to her. She said she felt relieved when she learned she was not going to be deported to Guatemala because of Sooknanan’s order.

“The impact is real. I feel totally traumatized. I don’t even know how to explain it,” A.J.D.E. said.