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Some migrants now sending their kids across the border alone so the kids won't be expelled, say lawyers

Currently the Biden administration is expelling all new asylum seekers arriving in the U.S., citing Covid precautions — except children who arrive alone.

DONNA, TEXAS — While the number of children in Border Patrol custody is setting new records once again this week, immigration lawyers tell NBC News that some migrant families are choosing to send their children to the southern border alone because they see it as the best chance for remaining in the U.S.

Currently the Biden administration is expelling all new asylum seekers arriving in the U.S., citing Covid-19 precautions — except for children who arrive by themselves.

“Still intact families who are desperate for their children’s safety are going to send their children to cross alone,” said immigration attorney Amy Maldonado, adding that the decision to send a child without a parent makes sense especially for those who have family members who can take care of the child in the U.S.

One family who spoke to NBC News on the condition of anonymity recently felt the impact of the policy firsthand. A four-year-old girl traveled to the U.S. from Guatemala with her aunt and cousin. The aunt and cousin, considered a family under U.S. law, were immediately expelled. The child was deemed unaccompanied even though her mother was an asylum seeker already in the U.S. waiting to pick her up.

On March 5, the four-year-old was detained in the newly erected Donna, Texas, border processing center, called the “epicenter of overcrowding” by a Department of Homeland Security official. The girl described being scared and being woken up by the guards at night.

Her mother said she could not get word from Customs and Border Protection on the whereabouts of her child.

“I knew she was there [in detention] but I didn’t know where they were going to take her, or if they would send her to another family. I was very worried,” the mother said.

“Monday, I finally got a call. They told me, ‘Your daughter is fine, but you need to talk to her. She won't stop crying.’ But they wouldn’t tell me what number to call back and she couldn’t stop crying,” the mother said.

The girl was then transferred to the custody of Health and Human Services and then to foster care in Michigan.

Finally, the two were reunited after the daughter spent four days with a foster family.

“Right now, she is a little happy and then very sad. She cries and is scared. But before she wasn't like that. She was very happy,” the mother said.

A four-year-old girl traveled to the U.S. from Guatemala with her aunt and cousin. The aunt and cousin, being part of a legal family, were immediately expelled. The child was deemed unaccompanied -- her mother was an asylum seeker already in the U.S. waiting to pick her up. The girl was later reunited in Maryland with her mother, who is carrying her in the photo above.NBC News

Meanwhile, while mother and daughter are living together in the U.S. as they await asylum rulings, the daughter’s aunt and cousin have been denied the right to seek the same protections because they entered together.

In a statement, CBP said it could not comment on specific cases, but, “Under the law, we cannot release children to anyone other than a parent. [Any] child who is not with a parent or legal guardian is considered unaccompanied and must be transferred to HHS without the adult relative.“

DHS did not immediately respond to a request for comment on whether parents are being incentivized to send their children to the U.S. alone.

Last week, CBP encountered 565 unaccompanied children along the southern border on average per day, up from an average of 313 children per day in the prior month.

As a result, more children are in overcrowded facilities like the one in Donna, Texas, with nearly 3,000 staying past the 72-hour legal limit as of Sunday, according to data obtained by NBC News.

Maldonado said the high numbers of unaccompanied children show parents are making a difficult choice.

“I feel like a lot of this could be avoided if intact families were processed through the border and allowed to seek asylum,” Maldonado said.