By Suzanne Monyak

Law360 (March 30, 2020, 5:34 PM EDT) -- Border agents may swiftly push back migrant children entering the U.S. alone under new border restrictions aimed at combating the spread of the novel coronavirus, the federal government said Monday, a reversal from its initial statement that minors would be exempted.

U.S. Customs and Border Protection said that minors will be included in the Centers for Disease Control and Prevention's recent order blocking foreigners, including asylum-seekers, from entering the U.S. at both its northern and southern borders.

"When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families quickly and safely, if possible," the agency said.

CBP said that unaccompanied minors may still be referred to the U.S. Department of Health and Human Services' refugee office, which typically takes custody of migrant children who cross the border without their parents "on a case-by-case basis." For instance, the agency may still place children in U.S. government custody if a border agent determines they may have been trafficked, appear to be sick or cannot be returned to their country of citizenship.

The statement is a marked departure from the agency's initial position that minors would be exempt from the border restraints, which were issued under a 1944 statute known as the Public Health Service Act.

A CBP spokesperson said on March 24 that unaccompanied minors would continue to be placed in the custody of HHS' refugee office "as of right now."

Yael Schacher, senior U.S. advocate at Refugees International, told Law360 on Monday that the practice violates the Trafficking Victims Protection Reauthorization Act, which mandates that unaccompanied migrant children from nonneighboring countries be sent to the Office of Refugee Resettlement within 72 hours of being picked up by border agents. The law also provides a number of benefits to children, including making it easier for them to apply for asylum. 

"This process of quick screening takes away those benefits that Congress gave to children to be able to apply for," she said. "These special legal statuses and procedures that were created by Congress for children are made moot if no one can apply for them."

She also noted that President Donald Trump had stated as early as October 2017 in his priorities to Congress that his administration wanted to revise the law to "ensure the expeditious return" of unaccompanied migrant children, referring to the TVPRA's requirement that they be sent to government custody as a loophole in U.S. immigration law.

The border restrictions, which took effect March 21, were issued in an effort to prevent the spread of COVID-19, the illness caused by the coronavirus, in border facilities. Instead, foreigners who present themselves at the border without legal travel documentation, as well as those who cross in between designated entry ports without permission, will be promptly turned back to Mexico or Canada, or in some cases, sent back to their home countries.

CBP has declined to say whether there is any screening procedure in place to detect asylum claims. Immigration experts have said that the policy likely violates U.S. refugee laws and its international obligation not to send people to countries where they will be persecuted.

Democrats quickly slammed the U.S. Department of Homeland Security, which houses CBP, for risking children's safety.

Rep. Jerry Nadler, a New York Democrat who chairs the House Judiciary Committee, and Sen. Dianne Feinstein of California, the top Democrat on the Senate's judiciary panel, said that the practice of turning away children violates trafficking protections for kids. 

"Children do not have to be put in harm's way to protect us from the coronavirus pandemic. DHS has the ability and capacity to protect both these children and the public," they wrote in a Monday letter to acting Homeland Security Secretary Chad Wolf. "We request that DHS stop this practice immediately."

The CDC-issued border restrictions are part of a series of measures to tighten the U.S.' borders in an effort to stem the spread of the virus.

The U.S. has closed its border with Mexico and Canada to all but essential travel and blocked foreigners who have spent time recently in the United Kingdom, Ireland, China, Iran and the 26 European countries that comprise the Schengen free travel zone from entering the U.S., with exceptions for U.S. green card holders.

Additionally, Americans and green card holders returning to the U.S. from those areas are now filtered through 13 airports, where they are given medical screenings and quarantined if necessary.

The decision to subject unaccompanied children to the restrictions comes as advocates push the Trump administration to release immigrants in its custody, fearing a coronavirus outbreak at a detention facility amid reports of COVID-19 cases among staffers and detainees.

HHS' refugee office, the Office of Refugee Resettlement, hasn't been immune to the virus either. Four children in ORR's care in New York have been diagnosed with COVID-19, as well as five staff members and one staff contractor in several facilities in the state. One staff member at a Texas facility and one foster parent in Washington state have also tested positive for COVID-19, the agency said. The agency will no longer place minors in facilities in California, New York and Washington "out of an abundance of caution."

Advocates had pushed a California federal judge to order the release of all children in ORR custody to protect them from a coronavirus outbreak. But on Saturday, U.S. District Judge Dolly Gee, who is overseeing a class action covering all migrant children in government custody, stopped short of issuing such an order and instead called on the government to "make every effort to promptly and safely release" those children.

--Additional reporting by Craig Clough. Editing by Jack Karp.

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