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Border officials issue new notification policy after migrant child’s death went undisclosed

New rules require U.S. Customs and Border Protection to promptly disclose deaths to Congress and the media.

In this June 17, 2018 file photo provided by U.S. Customs and Border Protection, people who've been taken into custody related to cases of illegal entry into the United States, sit in one of the cages at a facility in McAllen, Texas. (U.S. Customs and Border Protection's Rio Grande Valley Sector via AP
In this June 17, 2018 file photo provided by U.S. Customs and Border Protection, people who've been taken into custody related to cases of illegal entry into the United States, sit in one of the cages at a facility in McAllen, Texas. (U.S. Customs and Border Protection's Rio Grande Valley Sector via APRead moreAP

EL PASO - Seven-year-old Jakelin Caal and her father, Nery, were not provided water during the eight hours they were held in a remote Border Patrol facility with 161 other migrants, the family's lawyers said Wednesday, contradicting statements by U.S. Customs and Border Protection.

The lawyers also said Border Patrol agents presented the girl's father with English-language documents, which he signed, in the hours after her death on Dec. 8, raising the possibility that U.S. authorities sought an agreement - as he was grieving - to voluntarily leave the country.

"What we do know, and what our client is unequivocal with, is that no water was provided to either him or his daughter," said Christopher Benoit, one of four attorneys who appeared at a news conference here at a shelter for migrants.

Border Patrol officials have said food and water were available at the small border outpost in New Mexico where Jakelin and her father were held after crossing into the United States on the night of Dec. 6, and that the child consumed both after having nothing to eat or drink for several days. Nery Caal, 29, has disputed the government's account, and his attorneys said cookies were the only thing available to the families in custody that night.

On Wednesday, the Border Patrol referred questions to its previous statements that food and water were provided and the child consumed both. Officials declined to answer questions about what forms Caal may have signed after his daughter's death.

The Caal family attorneys called for an independent investigation of Jakelin's death, saying the ongoing inquiry by the Department of Homeland Security's Office of Inspector General is inadequate.

Lynn Coyle, another of the attorneys, questioned why the Border Patrol had not assigned more agents or medical personnel to the Antelope Wells border station in New Mexico, despite the arrival of large groups of families with children in recent months. None of the four agents on duty the night Jakelin and her father arrived had advanced medical training, Border Patrol officials have said.

"This wasn't a new phenomenon, they weren't thrown off guard, they shouldn't have been surprised, they should have been prepared. And that's where there's a systemic failure. That's the heart of our concern," Coyle said.

"If that attention was given, the system was in place, the resources were given, I am pretty confident Jakelin would have been flagged and cared for and probably alive," Coyle said.

Attorney Enrique Moreno accused Border Patrol agents of trying to exploit Caal's grief after his daughter's death. "The fact that within 48 hours after Jakelin's death, her father, still coping with his loss, was being asked by CBP to sign statements in English, that offends fundamental notions of fairness and decency," he said.

Moreno said Caal doesn't remember what forms he signed, and that Border Patrol has not provided the documents to Caal's attorneys. His primary language is Q'eqchi', a Mayan dialect. He speaks Spanish as a second language, but no English.

Border Patrol agents frequently ask migrants in their custody to sign voluntary departure forms, which allows for quicker removal from the country.

DHS officials say border agents did everything possible to save the child's life after she began vomiting on a bus ride from the border outpost in Antelope Wells to the Lordsburg Border Patrol station, 90 minutes away, as her condition rapidly deteriorated.

Caal has told his lawyers he wants to seek asylum in the United States. The attorneys say he is awaiting an interview with U.S. asylum officers.

Jakelin had experienced seizures and stopped breathing by the time the bus arrived. Emergency responders measured her temperature at 105.9 degrees and sent her by helicopter to an El Paso, Texas, children's hospital, where she died 15 hours later of "dehydration, shock and liver failure," according to the Border Patrol.

In previous statements, the child's father has praised the agents and responders who cared for his daughter.

An autopsy on the child has been completed, but a cause of death is pending additional tests, Moreno said.

Border Patrol officials said they are sending more personnel to the Antelope Wells crossing, and they have revised their notification policies to mandate prompt reporting to Congress and the media of any deaths in U.S. custody.

The agency has been under criticism for not publicly disclosing Jakelin's death or informing Congress.

Under the new guidelines, published on the agency's website Tuesday, the Border Patrol is required to notify lawmakers within 24 hours of a death of someone in its custody, and issue media statements an hour after that. Notifications will also be issued to nongovernmental organizations that work with migrants and others.

"To secure and maintain the public trust, CBP's intent is to be accessible and transparent by providing appropriate information to the Congress and the public regarding any death occurring in custody," the agency said.

Jakelin's death was first reported by The Washington Post on Dec. 13, two days after Border Patrol Commissioner Kevin McAleenan testified during an oversight hearing by the Senate Judiciary Committee but did not mention the occurrence. In a subsequent letter to lawmakers, McAleenan cited privacy issues and a concern that the girl's death would be politicized.

After a delegation of Democratic lawmakers visited the New Mexico border crossing and Border Patrol station Tuesday with McAleenan, retracing the Caals' journey, House Hispanic Caucus Chairman Joaquin Castro, D-Texas, called for McAleenan's resignation, saying he violated the law by not informing Congress within 24 hours.

Language in the 2018 House appropriations report directed the Border Patrol to tell lawmakers about any deaths within that time frame, but the agency did not have a statutory requirement and had not formalized the policy until the interim guidelines this week in the wake of Jakelin's death.

The new guidelines direct Border Patrol officials to notify the secretary and deputy secretary of DHS within 12 hours of any death in Border Patrol custody, and to alert the State Department and Border Patrol attaches assigned to the country of the decedent.

The DHS has not said when Secretary Kirstjen Nielsen was told of the child's death.

Jacqueline Alemany contributed to this report.