One morning last month, dozens of migrants with handcuffed wrists and ankles filled the benches of the federal courthouse in McAllen, Texas. They’d all been caught crossing the Rio Grande just days earlier and faced criminal charges—misdemeanors for illegal entry and felonies for illegal reentry. Some charged with illegal reentry faced the gravest consequence of all: having their kids ripped away.
The Trump administration claims it now only separates families when parents have serious criminal histories, when parents or children have medical issues, or when officials determine that the parent poses a danger to the child. But the administration is apparently interpreting “serious criminal history” to mean the parent has tried to enter the U.S. before. Using that rationale, the government appears to be violating the spirit of last year’s court ruling against family separation.
“You had two children with you?” Texas Civil Rights Project attorney Karla Vargas, whom I was assisting in that Texas courtroom last month, asked one Honduran father. He nodded, begging to reunite with his kids, even if he was to be deported. Weeks later, this father remains separated from his children, and Vargas told me she has not been able to access information about whether the family will be reunited.
The Department of Homeland Security has not released a breakdown for the reasons for ongoing family separations, though it recently disclosed in a court filing in response to litigation from the ACLU that it separated at least 245 families from June to December 2018, of which 225 were separated because of the criminal history of a parent. An inspector general’s report into family separation also noted that between July 1 and Nov. 7—after the separation policy had ended—the Office of Refugee Resettlement was still taking in double the number of separated children as were received in the last year of the Obama administration.
Many of the separations that the Texas Civil Rights Project is monitoring are solely due to the “criminal history” of previous illegal entry, said Vargas, who has compiled the information from personal conversations with detainees. “Other families are separated due to criminal issues that would not necessarily have a bearing on the parent’s ability to care for their child or pose any danger to the child—including DUI’s that are more than a decade old,” she told Slate.
In the case of Ms. L v. ICE, District Judge Dana Sabraw ruled last year that child separation was a violation of the Due Process Clause of the Constitution and ordered it ended, except in cases where the parent had criminal history or a communicable disease. Sabraw said his goal was to prevent the government from separating families without a showing that the parent was unfit or a danger to the child. The government appears to be using vagueness around the definition of fitness to evade Sabraw’s order.
Indeed, Border Patrol Chief Carla Provost told a House Judiciary Committee hearing in late February that Border Patrol agents were separating families “if the [parents] have a serious criminal conviction, if they have a medical condition, […] or if it’s in the welfare of the child—if they present a danger to the child.” At the same time, Provost also acknowledged that individual Border Patrol agents are allowed to use their discretion to determine whether separation should occur and stated that families were being separated on the basis of felony convictions for illegal reentry.
This would mean that Customs and Border Patrol agents are individually determining that entering the U.S. without documents more than once makes undocumented immigrants “unfit” parents deserving of losing their child, perhaps indefinitely. Based on Sabraw’s own words, this does not appear to be what the judge intended. During a hearing in July clarifying the scope of his order, which has not been appealed by the government, Sabraw said that he assumed that convictions for illegal entry and illegal reentry “collectively would not exclude” parents from the part of his order that halted family separation. “The court has made clear that neither entry or reentry convictions are a basis for deeming the parent unfit,” says the ACLU’s Lee Gelernt, who is litigating the case on behalf of separated families. (Disclosure: I am interning this summer with the ACLU Immigrants’ Rights Project, at which Gelernt is the deputy director.)
If Sabraw’s order is meant to protect the best interest of the children, a reading that family separation should not occur in cases of illegal reentry makes sense. Seeking asylum in the United States is these parents’ legal right, and they’re often doing it to protect their children from rampant violence, corruption, and instability in their home countries. These parents are no harm to their children. Separating children from their parents, meanwhile, has ongoing traumatic effects.
The Trump administration’s manipulatively broad interpretation of “serious criminal history” and “child welfare” in the service of maintaining family separation continues to put countless children at risk. (DHS did not respond to multiple emails asking if it was separating families on the basis of illegal reentry and how this might comply with the spirit of Sabraw’s order in Ms. L v. ICE.) As Bob Carey, who served as director of ORR under the Obama administration, told me, this approach is “demonizing the act of the right of seeking protection.”
“If the parents are seeking to protect their children and there’s this punitive measure that has been put into effect, it harms the child,” he said. “This runs counter to the goals of child welfare.”
In these cases, parents are being separated from their kids at the border or in their first few days in DHS custody. Through interviews with dozens of separated parents, the Texas Civil Rights Project has found that these parents are given little information about when or if they will ever see their children again. “At most, [agents] will tell them their children will go to a shelter,” Vargas told me. “There is no systemic method identified where parents can know where their children end up—indeed, DHS agents, at the point of separation, do not know where the children will end up.”
Vargas added that, in many cases, parents are only able to communicate with their separated children after the intervention of her organization.
After separation, the parents, like all adults who face illegal entry or reentry criminal prosecutions, are handed from DHS’s Border Patrol agents to the custody of the U.S Marshals Service. After they serve any jail sentence, they are returned to DHS’s hands. DHS then will often initiate their deportations immediately, Vargas says, unless the parents know to ask to seek asylum out of fear of returning to their home countries. While the cases proceed, the children are held in ORR custody, uncertain of their own fates, said Jennifer Podkul, senior director of policy and advocacy at Kids in Need of Defense, a national organization advocating for unaccompanied minor immigrants.
“The kids don’t know when or if their parents are ever going to be released from ICE custody,” Podkul said, “[or] if their parent will be able to reunify with them in the U.S., or if they’ll go back to their home country with the parent, or if they’ll have the option of being reunified with someone else in the United States.”
Podkul also said that, while the government created a plan to reunify class members in the Ms. L case, reunification of families who continue to be separated appears to remain “very ad hoc.”
When asked if there was a current plan for reuniting those children who have continued to be separated following the Ms. L court order, ORR responded: “HHS and its interagency partners created reunification plans to meet the orders issued by the court in Ms. L. The plans continue to be executed to complete any remaining reunifications of Ms. L class members.”
In its January report, the inspector general found that there was still no centralized tracking of separated families, which would mean that these reunification plans do not extend to separations that have continued to occur after the court’s ruling. The average stay for children in ORR custody, meanwhile, has dramatically increased: from 37 days in 2016, according to a congressional report, to 89 days in the first quarter of fiscal year 2019, according to the Department of Health and Human Services’ March fact sheet.
While we don’t know for sure why these families are being separated, increased enforcement of illegal reentry is clearly playing a role. In fiscal year 2018, illegal entry or reentry constituted 57 percent of all federal criminal charges filed, according to data compiled from TRAC Immigration and analyzed by Justice Strategies and Grassroots Leadership.
At the same time, the administration has made it increasingly difficult for people to seek asylum by coming to ports of entry, with the president’s recent threats to shut the entire Southern border only the latest such escalation. Previous policies, such as those increasing wait times at ports of entry and forcing asylum-seekers to carry out their court cases from Northern Mexico, have placed additional pressure on desperate asylum-seekers. Some have then chosen to cross outside of a port of entry.
However they enter, these people have the legal right to seek asylum. Even asylum-seekers, though, are not safe from an administration that continues to treat desperate parents as criminals, taking and traumatizing their children in the process.