The lawyer, Diane de Gramont from the National Center for Youth Law, recounted numerous stories of children being separated from their parents or family members from a D.C. district court lectern Tuesday. The children, having been re-arrested because of their immigration status, had been sent back to Office of Refugee Resettlement "care provider facilities" while their custodians, who had already been approved to sponsor the "unaccompanied" children, waited months for approval once again.
In one instance, de Gramont said, an eight-year-old had been taken from his mother.
"The harm of an eight-year-old child being taken from his mother," she said, her voice shaking as she apologized for nearly coming to tears, "is clearly irreparable."
As attorneys representing the minors have described, the kids — who previously arrived in the U.S. without a guardian — have fallen into a procedural cycle stemming from the administration's immigration crackdown. Having already been held in an ORR facility upon their arrival while their sponsor, often a parent or close relative, applied to become their custodian, they were then released to the sponsor's care while they went to school and otherwise became a part of their communities.
But when they were swept up in the immigration crackdown for not having permanent legal status, the kids have said in declarations to the court, they were re-referred to ORR by the U.S. Department of Homeland Security. Out of public school and back in ORR facilities, they've then had to wait — often for months — for their previous sponsors to go back through an even tighter application process.
"They had a regular life," de Gramont said Tuesday, "and now that's all been taken away from them."
Last month, a proposed class of minors and their representatives filed suit and asked for a preliminary injunction that would block what they call the government's "blanket reapplication policy" and require ORR to provide timely due process "regarding any alleged necessity of a new sponsor approval decision."
U.S. District Judge Carl J. Nichols gave little indication of how he would rule on the injunction Tuesday, pressing attorneys for the government on delays in processing the repeat sponsor applications, but also pointing out that under the Trafficking Victims Protection Reauthorization Act, the government was required to ensure that the minors were placed in safe homes.
"There's a lot of very strong statutory language that says 'ORR, you have to protect these kids,'" and make sure they're not "in harm's way," he said Tuesday.
But de Gramont pointed out that the statute also requires ORR to quickly place unaccompanied children "in the least restrictive setting that is in the best interest of the child," which is typically with a "suitable family member." In the ORR facilities, she said, kids often can't leave except for infrequent "field trips." According to a declaration from one of the children, he wasn't even allowed to go outside within the facility's grounds.
"I don't think there's any dispute that where they are now ... is more restrictive than being with their sponsor," de Gramont said Tuesday.
In the meantime, she said, ORR has made the application process more demanding, and there have been documented instances of custodian applicants being arrested by DHS immigration officers on their way into ORR appointments.
One of the named plaintiffs in the proposed class, a 16-year-old who filed a declaration under the pseudonym "Diego N.," said he had been living with his father when he was arrested by U.S. Customs and Border Patrol during a traffic stop of his friend's car. His father quickly filled out the sponsor application once again, complying with heightened requirements for identification and income verification, getting fingerprinted and having a government employee conduct a "home study" while Diego waited in an ORR facility, he said. But after ORR said it would set up an appointment for his father to do DNA testing, months went by with no updates before Diego was finally returned to his father's custody, de Gramont said.
Judge Nichols asked U.S. Department of Justice attorney Joshua McCroskey to explain such delays Tuesday.
McCroskey said it took time for the father's "internet criminal and sex abuse checks" to clear, and that ORR ultimately waived the DNA testing requirement.
"It's not clear why that would take two-and-a-half months," Judge Nichols said. "That's a two-and-a-half month period of custody to give Diego … back to his father, who was his previous custodian."
McCroskey responded that ORR was exploring ways to expedite the application process for parents after an initial background check. But plaintiffs have asked for a quick administrative hearing of some sort after re-referral from DHS to see if the minor can safely go back to his previous custodian.
McCroskey said that it was the government's responsibility to undertake a full review ensuring that the child would be placed in a suitable home.
"It takes a deeper investigation and questioning to assess all the circumstances involved," he said.
McCroskey also argued that the plaintiffs should have sued DHS for making the arrests and re-referrals, which trigger placement proceedings with ORR all over again.
"Plaintiffs have shown no need for this court to impose a brand new … administrative burden … on [ORR]," he said. "It's not ORR that was taking the child out of the community."
But Judge Nichols didn't appear to buy that line of argument Tuesday.
"ORR has choices, and it could … do many things," he said. "There's no shirking any of that responsibility to DHS."
The federal government is represented by Joshua M. McCroskey, Jesse A. Montes, Cara E. Alsterberg, Glenn M. Girdharry, Anthony P. Nicastro and Brett A. Shumate of the U.S. Department of Justice.
The minors are represented by Diane de Gramont and Mishan Wroe of the National Center for Youth Law, as well as Anna Deffebach, Joel McElvain and Robin F. Thurston of Democracy Forward Foundation.
The case is N. et al. v. U.S. Department of Health and Human Services et al., case number 1:26-cv-00577, in the U.S. District Court for the District of Columbia.
--Editing by Emily Kokoll.
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