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Seven months detained: seven-year-old is longest-held child migrant in US

Alexandra Villarreal
Photograph: Bill Uhrich/AP

Emerson Hernandez and his daughter Maddie have withstood hunger and thirst.

They’ve been dumped in a threatening border city in Mexico, a foreign country with nowhere to shelter. And, for seven months, they’ve been locked up at what critics call a “baby jail”.

The father and daughter have weathered all of this just for a chance at asylum in the United States after they fled a home in Guatemala that’s now overrun with crime.

“I don’t want my daughter to grow up in that environment of delinquency. I really am afraid that something could happen to her,” Emerson told the Guardian.

Maddie has been detained the longest of any child currently held in family immigration detention across the country, her attorneys say. On 17 January, she turned seven years old at Berks county residential center, a controversial detention facility in Pennsylvania where she has spent roughly 8% of her life.

Despite her lawyers exhausting the legal avenues that could get her out, the government won’t release her and Emerson together.

A spokesperson for US Immigration and Customs Enforcement (Ice), the agency detaining them, said, “ICE’s custodial determinations for Mr. Hernandez and Maddie have been based on the merits and factors of their individual cases and are in conformity with the law and current agency priorities, guidelines and legal mandates.”

Emerson said Maddie has always been strong, but being confined for such a long time has changed her. She’s gone from an easy, smiley little girl to someone who has become violent and throws explosive temper tantrums, according to her parents and an attorney.

“Her change was sudden,” Emerson said. “And she says to me, ‘When are we going to leave this place?’”

The truth is no one knows. The Flores settlement, a landmark 1997 federal agreement that regulates child and family detention, made it the longstanding rule that kids and families should be released within 20 days. But there have been huge exceptions: Bridget Cambria, a lawyer representing Maddie, said the longest she was aware of a child being held through family detention was 707 days.

Emerson and Maddie are desperate to see the rest of their family, Maddie’s mother, Madelin, and her newborn baby, who still hasn’t met his dad. Madelin traveled to the US with a visa and lives in New Jersey, but Maddie’s visa application was denied. She and Emerson made a more perilous journey north last spring, when they went a full day without stopping.

“That day was hard for me,” Emerson remembered. “To see that my daughter said to me, ‘Papi, I’m thirsty, Papi, I want to eat,’ and I had nothing to give her.”

Madelin said she came to the US because she thought her family would be reunited soon after. But Maddie and Emerson were swept into the Trump administration’s increasingly hardline immigration policies, and Madelin hasn’t seen them since.

Last April, Emerson and Maddie finally made it to the US only to be turned back to Tijuana, Mexico, through the Migrant Protection Protocols (MPP), a Trump-era program that returns people across the border while they await US immigration court hearings.

Suddenly, they were homeless in one of the world’s most dangerous cities.

Emerson called Madelin to say there was no space for them at the local shelter. “I remember that he started to cry, and I did, too, because we didn’t know what to do,” she said.

Related: Inside Trump's tent immigration courts that turn away thousands of asylum seekers

A US Customs and Border Protection spokesperson said around 57,000 people had been subject to MPP, and in October, Reuters found that 16,000 migrants under 18 had been sent to Mexico.

At least 816 violent attacks against migrants under MPP have been reported, including 201 cases of children who were kidnapped or almost kidnapped, according to the not-for-profit Human Rights First.

On days when Emerson and Maddie found housing with good Samaritans, she rarely went outside because the city was so dangerous.

“Tijuana is not a very pretty place, it’s not a safe place,” Emerson said.

After two months in Mexico, they got their opportunity to go in front of a US immigration judge in June. Emerson made the mistake of following advice he said an immigration official gave him. He told the judge that he had come to the US to give his daughter a better life, a line that completely discredited his case.

There are immigration laws that protect asylum seekers. There aren’t immigration laws that protect devoted parents.

The judge gave him two options: he could return to Mexico and, against all odds, continue to fight for the right to come to the US. Or – after all Emerson and Maddie had endured –they could return to Guatemala.

Faced with an impossible choice, Emerson opted for the latter because at least if something happened to him at home, his family could look after his daughter and wife. But when he and Maddie boarded a plane, it didn’t land in Guatemala. Instead, they took a long trip deep into the country’s interior, to Berks county residential center in Leesport, Pennsylvania.

The family immigration detention facility garnered national notoriety a few years ago after an employee admitted to sexually assaulting a 19-year-old woman who was being held there. Critics have advocated for its closure, and reports of poor medical care and racism from employees have hamstrung the facility’s reputation.

But it continues to operate, as it has since 2001.

After Emerson and Maddie arrived at Berks, they met Cambria, the attorney who has helped to revive their asylum bid. When the government flew them to San Diego in July and tried to return them to Mexico again, Cambria quickly filed a federal lawsuit to bring them back to Berks, where they’ve remained ever since.

That lawsuit could eventually set a major precedent as to whether children can legally be placed under MPP. A ruling in Maddie’s favor would mean other kids like her could sue the government, arguing they shouldn’t be sent to Mexico. (Ice’s spokesperson said the agency did not comment on pending litigation.)

But Maddie didn’t come to the US to challenge immigration policy. She’s a kid who celebrated a Christmas and a birthday in detention, without her mom and little brother.

“This little girl is not doing well psychologically, we’ll put it that way,” said Cambria. “She’s saying things that are scary. She’s very sad.”

Ice has offered for Maddie to leave Berks, but without Emerson. This family separation is legally dubious, and Cambria said it was unprecedented in her experience representing immigrant families.

Amy Maldonado, another of Maddie’s lawyers, said Ice could release both Maddie and Emerson at any time, and has done so for families in similar situations.

Cambria said she doesn’t know why Ice is treating Emerson and Maddie differently from any other family at Berks. But the detention center is only for parents with children. If Maddie leaves and Emerson doesn’t, he’ll be sent away to another facility for adults or returned to Mexico.

Maddie is so young that she thinks of everything she’s gone through as a vacation, and she keeps telling her parents she’s ready for the vacation to be over.

“When I speak to her, she sometimes cries and says, ‘Mami, I want to leave already,’” Madelin said.

“‘I want to leave already.’”