RAYMONDVILLE – A boy was separated from his father nine months after crossing into the country illegally, the Guatemalan family remains separated; the boy is staying at a shelter in the Valley.

This week, a lawsuit was filed requesting the child be released from the government's custody, but a recently enacted policy keeps him at the shelter.

They crossed through McAllen in May; his father has since been deported.

The nine-year-old boy is at the Baptist Child and Family Services Facility in Raymondville.

Ricardo De Anda, the boy's attorney, recently visited him and says the boy entered the country speaking his native Mayan tongue.

De Anda said he "didn't speak a word of Spanish. Only spoke K' iche', which is a native Mayan tongue. Now he speaks Spanish like a pro. He learned Spanish in detention, because that's the only way he could relate to the other children around him."

The father chose to be deported, but De Anda said it was a decision he made after being misinformed of his rights as an asylum seeker.

"Dad was told by the immigration officials that if he persisted in his asylum claim that his son would be adopted, would be taken from him and adopted, because he was going to have to stay in jail and it was going to take up to two years. Byron could not stay with him in jail. And Byron would probably be adopted. Rather than lose his son, he signed a waiver form," says De Anda.  

The government said the boy could be deported back to Guatemala but the boy's father refused.

In a signed affidavit the father described fleeing religious persecution.

He was a preacher who rejected gang recruitment attempts; he explained they knew of his son, his "greatest love."

At one point, the gang tied him to a pole, tortured and stabbed the father; he was warned by the gangs they'd hurt his son too. 

The other option was to have him released to custodians in the U.S.

A couple based in Austin with a steady income and a socially active lifestyle agreed to house the Guatemalan child.

The Office of Refugee Resettlement refused citing a policy guideline which now requires a host family to know the asylum seeking family before their entry to the United States. 

"This is the first time that they've absolutely stiffed the parents, and said we're not going to listen to you. We're going to decide where your children are going to be," said De Anda. 

He contends the guidelines requiring this pre-existing relationship was hastily enforced.

He believes the ORR circumvented federal laws on public information by skipping posting the changes to the federal registry.

It's part of the Administrative Procedure Act; that would have allowed public input.

De Anda says, "The Administrative Procedure Act is the law which requires an agency to publish whatever rules they intend to use in their departments, allow the public an opportunity to respond. And only when that process has been undertaken can that rule be considered a law."

The child has cycled through four shelters during the time he's been in custody.

The family worries about his well-being. "He's been placed in an institution where he doesn't have one-to-one support and love. And it's heartbreaking to put a child through this."