A 14-year-old boy ended up in custody of the Trump administration for four months after U.S. Border Patrol apprehended him in November, even though his dad was available to care for him.
The long delay in releasing the boy, referred to as Diego N. in court documents, was the result of a DNA test requirement enacted last year to verify the identity of people seeking custody of children apprehended without their parents. Diego’s dad had been approved in 2024 to care for him.
But when Diego was picked up as a passenger in a car pulled over by Border Patrol last year, his father had to wait months to schedule an appointment for the DNA test.
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Diego was only released after the Office of Refugee Resettlement, or ORR — the Department of Health and Human Services agency tasked with overseeing the placement and custody of children who arrive in the U.S. without a parent or legal guardian — decided earlier this month to waive the new requirement in his case.
Diego is back home with family in Texas and is part of a lawsuit to prevent other immigrant children from remaining in long-term custody of the government. More than 2,000 children recognized as unaccompanied minors by the Department of Homeland Security are still in ORR custody, spending nearly 200 days in shelters or foster care on average, according to data last updated March 11.
The nearly 200-day average stay is more than twice the number of days children spent in ORR custody during the peak of family separations in President Donald Trump’s first term. The highest monthly length of custody was 93 days in November 2018, according to court filings.
Diego and three other minors are part of a lawsuit filed against HHS last month seeking to speed up the reunification process for minors who end up back in ORR custody after being released to family members or other sponsors. Attorneys for the children are seeking to cover hundreds of kids who are reentering government care as part of internal immigration-enforcement operations.
The exact number of kids who fall under this category and are still in ORR custody is not clear.
U.S. District Judge Carl Nichols, who was appointed by Trump during his first term, heard arguments for the case on Tuesday in the U.S. District Court for the District of Columbia.
Attorneys representing the kids want ORR to provide individualized hearings within seven days for children reentering the system to determine more quickly whether there needs to be further investigation into their sponsors.
“There’s really no precedent in keeping children in detention preemptively,” Diane de Gramont, an attorney with the National Center for Youth Law, said during a hearing Tuesday. Attorneys with Democracy Forward are also representing the kids.
ORR argues that it has a statutory requirement to vet the sponsors, without exceptions for those who were approved to take custody of the children in the past. A Justice Department attorney said in court Tuesday that the proposed solution of individualized hearings would be too burdensome for the administration.
“It’s not ORR that’s taking the child out of the community,” DOJ attorney Joshua McCroskey said.
Last year, the Trump administration shifted its screening process, making it more restrictive while also eliminating protections against sharing sponsors’ immigration status information with DHS. The government expanded fingerprinting and DNA testing requirements, stopped accepting foreign passports, changed documents required to prove financial stability and enacted home studies and in-person appointments.
Those changes have prevented other plaintiffs in the suit from being released to parents and family members previously approved to care for them. Renesme R., a 16-year-old who entered the country in 2023, spent a week in ORR custody at the time before going to live with her father in Tennessee.
Immigration agents arrested Renesme in November without giving her a reason, according to the girl’s sworn declaration. She remains at a shelter in Texas.
“They arrested me and restrained my hands and legs,” she said in an English translation of her declaration submitted to the court last month. “I was very scared and I was crying. They put me in a car. They first took me to an immigration office that day, then to a hotel another day, and then they brought me to the shelter. They never told me why they detained me.”
Nichols said that ORR could have an interest in further inspecting sponsors it approved years before to ensure they were still suitable caretakers. But he also questioned why ORR took so long to release Diego from the shelter.
De Gramont, the lawyer for the children, mentioned an 8-year-old separated from his mom in Virginia and sent to foster care for six months under the custody of ORR.
“I don’t want us to lose sight of the irreparable harm that is happening to these children,” she said in her closing arguments to the court.
The 8-year-old returned to the care of his mom in February after a petition was filed on his behalf in federal court.
“It’s even harder being detained again than it was the first time,” the boy stated in a declaration filed in court. “I miss my mom a lot. I was crying a lot in the beginning because I missed my mom so much.”
“I didn’t want to live with people that I didn’t know,” he continued. “And it was hard to talk to the people taking care of me, because I did not speak English that well and they did not speak Spanish.”
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