A family near Austin is willing to care for him.
His deported father and Guatemalan mother want that family to care for their son.
The 9-year-old child would like to be with that family as his asylum claim plays out.
But the Office of Refugee Resettlement won’t release the child to the family because he didn’t know them prior to crossing the Rio Grande illegally with his father when they turned themselves in to Border Patrol on May 18, 2018.
The pair fled Guatemala in October 2017 after the father, David Xol was tortured by gang members for not joining their criminal organization because his evangelical Christian faith prohibits it.
His son, Byron, who is known as B.X. in federal court documents, was separated from his father on May 21, 2018, at the beginning of President Donald J. Trump’s family separation policy. His father, Xol, was deported on May 28, 2018, and has not seen his son since.
Unlike more than a thousand children separated under zero tolerance who a federal judge ordered reunited with family members or sent to live with relatives or friends, Byron is designated Category 4: an undocumented minor with no family, relatives or friends in the United States.
He has remained in the custody of the ORR for nine months.
“There are literally thousands and thousands of children that are in my client’s situation where they have no relatives in the U.S. or friends of the family and so they’re bound to indefinite detention because of this rule that prohibits a parent from designating a sponsor of his choice,” Byron’s attorney, Ricardo de Anda said.
The attorney filed a writ of habeas corpus last week on Byron’s behalf, seeking a court order allowing the child to stay with a sponsor family in Austin while his immigration case proceeds.
Byron’s potential sponsor identified the boy, who has also been previously identified by the Texas Tribune, which reported on his separation from his father last August.
Xol and his son are from a small village called San Miguel Limon in Guatemala.
Xol’s family is indigenous Mayan and they speak the K’ichi’ language.
His troubles started at a job in a nearby village when he starting proselytizing to his coworkers, some of whom belonged to the violent 18th Street Gang.
One day, those gang members told Xol to join the gang. Xol declined, explaining that his religious belief prohibited a life of crime. Xol is an associate pastor for a congregation called Iglesia Evangelica Menonita.
But the men continued to pressure him, even mocking his faith because he would not join the gang. Eventually, he quit his job and found another one closer to home.
However, the 18th Street Gang’s harassment and threats continued, including threats against his life, and Byron’s, according to affidavits Xol filed in the writ of habeas corpus. The gang members told Xol it didn’t matter where he ran. They would find him.
While Xol had employment, the work was better in that nearby town. And on Oct. 15, 2017, a friend called him to tell him a job had opened up there, but Xol would have to come apply that day.
So he did.
While traveling to the nearby town, members of the 18th Street Gang intercepted him and abducted him from his car.
They tied him to a utility pole and beat him, telling Xol he would die because of his religion.
“They mocked my religious convictions while I was being tortured, and blamed God for my fate,” Xol said in the affidavit.
They also told him his son would be next.
While torturing Xol, the gang members cut his arms and feet. They hit him in the stomach with a baseball bat. The gang members stabbed and cut his stomach.
Despite Xol’s desperate pleas to join the gang, they cut his neck.
He survived and fled in May 2018 with his son, only having enough money to pay the $5,000 smuggler fees for the both of them.
Xol and Bryon arrived at the Rio Grande near McAllen on May 18, 2018 and crossed. After being detained, Xol told Border Patrol agents he was seeking asylum due to fear of persecution based on his evangelical Christian religion and his anti-gang political opinion.
According to Xol, Border Patrol agents told him that if he persisted with his asylum claim, he would be separated from his son and would be held for two years while his son would be placed up for adoption.
The only way to avoid separation was to sign a document for both to be deported, Xol recalls in his affidavit.
“I was crushed with fear, and (BX) began to cry,” Xol states in his affidavit.
So he signed, and authorities immediately took his son from him, according to the writ.
After the separation, Xol said he was taken to court with 20 others and pleaded guilty. He says that the whole 10 days he was in custody, he was held in a metal cage and not allowed to shower.
After his guilty plea to illegal entry, authorities placed Xol on a plane and flew him back to Guatemala.
He has not seen his son since.
Xol, however, waived his right to have his son repatriated with him in Guatemala because he fears his son’s return presents a grave risk because of gang members.
Since Byron was placed in ORR custody, he has been held in four separate Baptist Child and Family Services facilities in Baytown, Driscoll, San Antonio and now, Raymondville.
When Holly and Matthew Sewell first learned about zero tolerance and how it resulted in family separations, they wanted to help.
“I left many messages that went unanswered and those few immigration lawyers I did reach could only say that they were looking into it themselves,” Holly said. “It was frustrating.”
After a few months, she mentioned to a friend that her family was trying to foster a child separated on the border and that friend told de Anda. That same day, de Anda called her.
“At that point we heard about Byron’s and David’s case,” Holly said. “This was September of 2018.”
Holly is a stay-at-home mother who is involved with theater and sits on two commissions in the City of Buda. Matthew is a senior software engineer who works in Austin. The couple lives in a two-story suburban house with their children, Winifred, 4, and Desmond, 6.
Holly says Xol and his wife, Florinda, are lovely people.
They communicate through translators to speak and ask questions.
“We were able to show them our house through video chat and where Byron would be sleeping, playing, eating, the yard, pool, kitchen,” Holly said. “I look forward to speaking with them again. I hope that once Byron is released, he can have daily communications with his parents via video chat. To be able to make that happen would be wonderful.”
Byron’s attorney, de Anda, filed the writ of habeas corpus after exhausting all other remedies, according to court documents.
Because of ORR’s internal rule about Byron not having a relationship with the Sewell family prior to illegally crossing the Rio Grande with his father, the federal agency won’t entertain a sponsorship for the child.
This rule potentially impacts many more children, de Anda said, explaining that even if an undocumented family lived undetected in the U.S. for nine months and then asked for asylum and the children are placed in detention, “even though the family has made friends here in nine months, that wouldn’t be enough.”
Aside from citing that rule, ORR has not said why it won’t release Byron to the custody of the Sewell family, who has promised to be present at all his immigration proceedings, despite Xol’s wishes and despite that all the parties have met via video chat and agreed that this is what is best for the child.
“I can’t imagine an explanation for that,” de Anda said.
Holly said the process has been a heart-wrenching one full of frustration and disappointment, but she will not give up.
“It has also strengthened our resolve to fight for him as best we can. There are so many children out there who could be in loving and safe homes and aren’t allowed the opportunity,” Holly said. “There are many families who are willing to open their households to these children and aren’t being allowed.”
Holly is hopeful and believes the writ of habeas corpus will succeed, but she is still disheartened that children remain in ORR facilities when there are caregivers willing to provide for them.
“The amount of circles we have been run in, only to have the goal post moved once again is incredibly frustrating,” Holly said. “It seems there are many more efforts being made to keep the children detained in questionable care than there are to find them safe homes in which to stay.”