Judge denies motion to release child from ORR custody

BROWNSVILLE — A federal judge on Thursday denied a motion seeking the release of an 8-year-old Guatemalan boy who has been held in Office of Refugee Resettlement custody for 10 months.

The child, Byron, was separated from his father David Xol during the height of family separations in 2018.

His attorney, Ricardo de Anda, sought his immediate release after learning that the boy suffered a broken leg while in custody, alleging the ORR waited at least two days before taking Byron to a doctor, who stabilized his leg by placing it in an ankle-to-hip cast, confining him to a wheelchair.

The attorney has asked the court to release Byron to a potential sponsor family, who had previously been told by the ORR that they could not sponsor the child because they did not have a prior relationship with Byron and his family prior to the boy and his father illegally crossing the Rio Grande last year to seek asylum.

U.S. District Judge Fernando Rodriguez recently ordered the ORR to consider the family as potential sponsors without regard to the agency regulation requiring the pre-existing relationship.

The ORR disagreed and denied the allegations de Anda brought against it regarding the characterization of Byron’s injury and the treatment the child received.

Byron’s attorney had accused the ORR of failing to adequately care for the child after his injury, which ORR Federal Field Specialist Servando Barrera said in a sworn declaration was the result of a soccer injury.

In a response to de Anda’s motion, the ORR said it is proceeding with a background investigation of the family and a home study was scheduled for last Thursday.

The ORR accused de Anda of using Byron’s injury to circumvent Rodriguez’s order requiring the ORR to conduct a background investigation to determine whether the family is a suitable sponsor.

“ORR requests that this Court, once again, decline to place itself in the shoes of ORR and leave the determination of whether the Sewells are proper sponsors to ORR,” the agency said in a motion.

Barrera, however, in his declaration, does admit that Byron should have been immediately taken to the emergency room and said he has advised BCFS Raymondville, the nonprofit that contracts with the ORR to hold migrant children awaiting asylum and immigration cases, to take children injured in similar situations immediately to the emergency room.

During the Thursday telephone conference where Rodriguez denied de Anda’s motion, he also prohibited the attorney from bringing electronic devices to any future hearings after discovering a photo taken of Byron inside the courtroom during a previous proceeding.

In an email, de Anda said Byron took the photo of himself without his knowledge or permission.

The attorney posted the photo to Twitter on April 10, the same day Rodriguez ordered the ORR to consider the potential sponsor family without regard to the agency’s internal rule prohibiting families from sponsoring migrants if they did not have a prior relationship to when the migrants entered the country.