WASHINGTON — Last September, the Department of Homeland Security started advising unaccompanied immigrant children that they could either self-deport or expect to face long-term detention.
But a federal judge in Los Angeles on Mondayordered the government to stop using such “blatantly coercive” language, ruling that the new advisals, as they are known, violated a 40-year-old court order that bans immigration agents from pressuring unaccompanied children to give up asylum claims and leave the U.S.
According to court documents, the legal advisal was given to recently detained immigrant children. Unaccompanied children are those in the country without a parent or legal guardian.
The minors were told they had the option to return to their country, that doing so would result in no administrative consequences and that they still could apply for a visa in the future.
But the children also were told that if they chose to seek a hearing with an immigration judge or indicated that they were afraid to leave the U.S., they could expect to be held at a detention facility “for a prolonged period of time.”
Those who turned 18 while in custody would be turned over to Immigration and Customs Enforcement for deportation, they were told. The advisal, though generally passed on verbally, was written out in court documents by lawyers representing the immigrant children, which the government did not dispute.
“If your sponsor in the United States does not have legal immigration status, they will be subject to arrest and removal,” the advisals continued. “The sponsor may be subject to criminal prosecution for aiding your illegal entry.”
U.S. District Judge Michael W. Fitzgerald said that “such a threat disturbingly mirrors” the testimony of Jose Antonio Perez-Funez, a plaintiff in a 1980s class-action lawsuit challenging the tactics of immigration officers.
Perez-Funez, who was 16 when he was arrested near the Mexican border, testified in 1985 in Los Angeles federal court that he agreed to self-deport because federal officers said he would face lengthy detention if he didn’t return to El Salvador.
Perez-Funez’s case originally led the court to establish due process safeguards for immigrant children, giving them the right to speak with a relative or attorney before signing forms that waive their pursuit of legal protection.
“The Government was thus already on notice that such a statement delivered in this environment is precisely the kind of inappropriate persuasion the Injunction sought to prevent,” Fitzgerald wrote.
Fitzgerald, a judge in the Central District of California, also denied a request by the federal government to end the permanent court-mandated safeguards for immigrant children.
In response to a request for comment, U.S. Customs and Border Protection provided a statement, attributed to a spokesperson who wasn’t named, that the agency is following the law and protecting children. The agency said the advisal document explains to unaccompanied children their options available under federal law.
“Many unaccompanied minors are brought to the border by smugglers and face real risks of exploitation, which is why providing a clear, lawful advisal is essential,” the statement said. “It ensures they understand their rights and options — and for many who were trafficked or coerced, returning home to their family is the safest path.”
Unaccompanied children are first held by Homeland Security before being turned over to the Office of Refugee Resettlement, which is within the Department of Health and Human Services, for long-term housing. Federal law requires ORR to provide them with a legal consultation within 10 days.
“It is difficult to imagine a scenario more coercive than the one faced by [unaccompanied immigrant children] in the 72 hours before they are transferred into ORR custody, particularly for noncitizen children who likely do not know whether they possess any rights at all,” Fitzgerald wrote in his order.
In declarations to the court, children wrote that they felt threatened by the government’s advisals. One minor, identified as D.A.T.M., said the threats to prosecute their parents and of long-term detention caused them to sign voluntary departure papers.
Mark Rosenbaum, an attorney at the pro bono law firm Public Counsel, helped secure the 1986 court order. He said his legal team discovered Homeland Security had changed the advisals only after a government attorney notified him in November that the agency was going to seek to end the court-mandated safeguards.
“I consider this a war on children — the most vulnerable population,” he said.
The government has until Thursday to decide whether it will appeal the judge’s ruling. Regardless, Rosenbaum said, his goal is to establish more aggressive monitoring of unaccompanied children’s cases to ensure their rights aren’t violated again.
