The Trump administration has been blocked from systematically breaking up migrant families, but hundreds of children crossing the border continue to be separated from their parents in a process requiring none of the oversight used to removechildren in the United States from their homes, according to a USA TODAY review of the system.
Separating a child from a family in most communities requires a child welfare specialist and involvement of the judicial system, often with a judge scrutinizing the case for months or even years.
At the border, the removal decision is made solely by U.S. Customs and Border Protection agents in the field. No child welfare specialist is required, and no judge is involved in a decision that cannot be appealed.
Rebekah Fletcher, a supervising attorney at Kids in Need of Defense (KIND), a group that provides lawyers to migrant children in U.S. courts, says the removal of a child from a family in the U.S. is, by design, a difficult, multi-layered process involving multiple people from multiple branches of government. But not so for children at the border.
“To put those similar types of determinations solely in CBP’s hands … the room for error and the room for misinterpretation is dangerously high,” she said.
Even CBP characterizes its family separation process as “brief and expeditious in nature,” according to a statement provided to USA TODAY.
However, there is an exception: When a parent presents a danger to a child.
What constitutes a “danger” is not clearly defined, but can include obvious cases of abuse, where the child is covered in bruises, and harder-to-detect cases, where immigration agents believe a child is in peril.
In the seven months after Trump and Sabraw issued their orders, Homeland Security separated at least 218 children from their parents in part by using the danger exception, according to the Department of Health and Human Services, which takes custody of the children once the family is separated.
Immigration attorneys and family law experts say the process being used to separate children, most commonly carried out by CBP agents, has been shrouded in mystery, provides no due process for the parents and is vulnerable to abuse or mistakes.
CBP defended its family separation process as one that balances the desire to “maintain family unity to the greatest extent operationally feasible” with strong protections for children who may be in danger.
“When handling children it is a practice to always err on the side of caution and to act in the best interest of the child,” according to the CBP statement. “The moment of suspicion that a threat to a child exists, it becomes an inquiry and potentially an investigation into the welfare of that child.”
Both Democratic and Republican lawmakers expressed shock over the process during a committee hearing in the House Energy and Commerce Committee this month, and the separation process will be further scrutinized during a House Judiciary committee hearing on Feb. 26.
The ACLU also plans to raise the issue in federal court on Thursday, when lawyers appear before Sabraw as he continues to monitor the reunification of more than 2,800 children separated under the Trump administration’s “zero-tolerance” policy.
Sabraw has allowed 21 of those families to remain separated because the parent was deemed a danger to the child, according to court filings by the Justice Department. The judge also has allowed the government to continue separating more families using the exception to ensure migrant children are not being trafficked or abused.
ACLU attorney Lee Gelernt said the most recent separation cases have shown that the government may be abusing that exception and plans to tell the judge this during Thursday’s hearing.
“The government appears to be doing an end run around the court order by unilaterally declaring parents a danger, and failing to give parents the ability to rebut that charge,” Gelernt said.
When a migrant family crosses the border, either legally at a port of entry or illegally between ports, an immigration agent processes the case. That includes taking down basic information — names, birth dates, country of origin, whether they’re applying for asylum or other forms of protection.
The family members are given a medical check and entered into various databases to determine if they have immigration violations or criminal backgrounds, according to CBP. The immigration agent also tries to verify the parent-child relationship to ensure the child isn’t being trafficked by a human smuggler posing as a parent.
All the while, the agent is observing the family to gauge whether the parent poses a danger to the child. But no clear-cut definition of danger to the child exists to guide Border Patrol agents when making that determination. Complicating the decision are language barriers or children too young to offer information.
CBP officials said their decisions are based on multiple U.S. laws and regulations that govern the treatment of migrant children in government custody. None of those lays out a process for separating a migrant parent from his or her child.
The separation process, which is being challenged in court, was explained to USA TODAY by a senior Border Patrol official who was authorized to speak only if his name was withheld.
The official said his agents can generally determine if a child has been abused based on the agents’ experience as law enforcement officers and history of interviewing suspects. Agents don’t receive any training on identifying child trauma. “We’re not trained behavioral scientists,” the official said.
But the Border Patrol official said an agents’ experience as a father or mother can help them make the determination. The official said agents can orderan additional medical examination of the child to identify signs of injuries, and can conduct separate interviews with the parent and child to ensure their stories line up.
“You size up people with their demeanor and you can tell if they’re angry, if they’re upset, if they had an altercation,” he said. “There’s a lot of non-verbals that stand out.”
Throughout the U.S., that kind of analysis is usually conducted by child welfare experts who studied the field and are working for state or local child welfare agencies.
Vivek Sankaran, a clinical professor of law and director of the Child Advocacy Law Clinic at the University of Michigan Law School, said identifying child trauma, and the cause of it, requires years of education and training.
“It is universal among mental health professionals that the idea of removing a child from a parent is one of the most traumatic things we as a society can do to the child,” he said. “So you want somebody who has been very well-trained to make sure that we need to inflict (a separation) on the child.”
Even a former CBP commissioner questioned whether agents should be conducting the child welfare investigations alone.
Gil Kerlikowske, who headed CBP in the Obama administration, said in an interview that migrants are being screened at one of the most stressful moments of their lives, having just completed an exhausting journey across Mexico where they are frequently victims of robberies, kidnappings and sexual assaults.
Kerlikowske said CBP agents are operating without information that is available in normal child abuse investigations, including a list of official visits to the home, and interviews with neighbors and relatives.
“How do you determine whether the child is afraid of the parent, or afraid of the Border Patrol agent in the green uniform?” he asked.
Another factor contributing to the evaluation is a parent’s criminal history, either in the U.S. or in their home country. The U.S. government shares criminal databases with Central American countries and can identify whether there are warrants out for their arrest.
But CBP did not specify what kinds of crimes they’re researching.
Michelle Brané, director of the Migrant Rights and Justice Program at the Women’s Refugee Commission, said she’s seen cases where a parent is deemed a danger over immigration violations, or minor criminal convictions that do not indicate whether the parent may abuse the child.
“There’s a lot of people (in the U.S.) with all sorts of convictions and it doesn’t even trigger a child protective services investigation,” Brané said. “If you have a shoplifting conviction, or didn’t pay child support, or you stole a car, does that really put the child at risk?”
CBP says agents are allowed to get assistance from child welfare specialists from local and state agencies, but that is not a requirement and CBP does not track how often such requests are made.
The final decision to separate a family is made by the front-line officer with approval from a supervisor. The decision is final and cannot be reviewed by a judge.
Once the decision to separate is made, the child is sent to the Department of Health and Human Services’ Office of Refugee Resettlement, which takes custody of the child and starts searching for a suitable sponsor in the U.S.
CBP says its agents are required to flag the separation in each case file, and provide a reason for the separation, but HHS officials and immigration attorneys say agents regularly fail to so do so.
HHS spokesman Mark Weber said caseworkers ask all incoming children about their parents to make sure separated children are properly identified.
Fletcher, the supervising attorney for KIND, said they get the full picture of a child’s separation only after filing a federal Freedom of Information Act request, which can take weeks or months to come back.
While it’s been difficult for any kind of immigration bill to pass Congress in recent years, Democrats and Republicans alike are starting to look into ways to improve the family separation process.
During the congressional hearing earlier this month, Rep. Diana DeGette, D-Colo., said there need to be clear guidelines to separate a family, and that child welfare professionals need to be involved. Rep. Susan Brooks, R-Ind., agreed.
“We don’t have a terrific system, we don’t have standards, we don’t have procedures,” Brooks said. “What should we be doing?”
Suggestions are plentiful. Cristina Muñiz de la Peña, a mental health expert who testified before the committee, said the guidelines and practices that should be imposed on Homeland Security already exist in child welfare agencies around the country.
“We could adapt those guidelines in the immigration context and bring those professionals to really counsel the people on the ground,” she said.
Kerlikowske, the former CBP commissioner, says CBP could hire a dozen child welfare experts in the four border states who could be on call and required to step in to evaluate any migrant parent suspected of abusing their child.
Sankaran, the University of Michigan Law School professor, suggested taking things a step further: Place all migrant families where abuse is suspected directly into the state juvenile court system.
Anything short of that, Sankaram said, would only tinker with a Homeland Security process that is fatally flawed and prolonging the anguish of family separations that should have been put to rest last summer.
“None of us would tolerate this process for our own families,” he said.