What about the Children? An Update on the Status of the Central American Families Separated at the Border

By Michelle Martin, PhD, MSW

There are many questions people are asking about the humanitarian crisis involving the Central American immigrants who were separated from their children at the border in this past year, including
1) Who are the families involved?
2) How are the children being treated?
3) Are there any financial incentives involved in detaining asylum-seekers? 4) Will all the families be reunited?
 
In preparation for writing this blog post, I conducted a considerable amount of research, including reviewing public documents received from Freedom of Information Act (FOIA) requests, reading all pleadings in the ACLU lawsuit filed against the government in March 2018 when the separations began, and other relevant documents. This post represents a summary of key issues related to the family separations, as well as outlining the potential path forward. 

Who are the Families Involved?

According to President Trump, the Central American families who were separated from their children at the border are for the most part gang members and other criminals, including murderers. But is this accurate?

No, it is not. Information obtained from a variety of reliable sources (including government records submitted in response to a recent court case) indicate that the majority of families are young single moms from Central America with children under the age of 7, fleeing persecution and human rights violations.

Attorney General Sessions has on numerous occasions stated that the “right” way to claim asylum is to go through a U.S. Port of Entry, and if parents didn’t want to be separated from their children, they should not cross the border illegally.
 
For instance, when Sessions announced his zero-tolerance policy on April 6, 2018, he stated (in part): “Illegally entering this country will not be rewarded [with asylum], but will instead be met with the full prosecutorial powers of the Department of Justice.” Not only does this statement conflict with U.S. asylum law (crossing the border without documentation does not render an immigrant inadmissible for receiving asylum), the government revealed in a recently filed court pleading that parents who entered U.S. ports of entry and requested asylum were also separated from their children. 

When asked about the government’s policy of separating families at the border, DSH Secretary Nielsen asserted there was no such policy, and that the family separations was the natural consequence of the administration’s decision to start criminally prosecuting those who crossed the border without valid documentation, stating “we do not have a policy to separate children from their parents. Our policy is, if you break the law we will prosecute you.”

​Thomas Homan, ICE deputy director, echoed the warnings of Nielsen and Sessions, stating: "I want to be clear. DHS does not have a blanket policy on separating families as a deterrent. There is no new policy. This has always been the policy. But you will see more prosecutions because of the commitment to zero tolerance.” 

So according to the Trump administration, the families are being separated because the parents are being criminally prosecuted. And yet, although the maximum jail term for crossing the border illegally is six months (for a first conviction), according to court documents submitted as a part of an ongoing lawsuit against the government, the majority of sentences for the Central American immigrants have been ‘time served,’ which has equaled to about one or two days.

Thus, it does not appear as though the families have been separated because the parents are being criminally prosecuted, but rather because the administration decided not to release the immigrants on a home monitoring program (a lot like bond) pending their asylum hearings, as has been the practice of previous administrations. 

It’s unclear how many parents are involved because the government has not  released a list of all parents and of their children. The list they recently released to the ACLU in response to a court order, was found to be incomplete with several errors. 

​There is also some confusion about the number of children involved (partly because the administration began separating families prior to announcing the zero tolerance policy). But in a recently released report from the Department of Health and Human Services (DHHS), the government asserted there were 2551 children between the ages of 5 and 17 years who in the past few months were separated from their parents at the border, and an additional 200 children under the age of 5. In a recent court document though, the judge determined there could be up to 3000 children separated from their families. 

How are the Children Being Treated?

The government has been quite secretive about where the children are being detained as well as how they are being treated.  Information has emerged from immigrant rights groups, attorneys representing separated families and children, and journalists who have had direct access to some of the parents and children. The more serious allegations include:
​

• Not allowing siblings to hug each other and punishing them if they try.
• Telling the children that they would be in detention forever if they didn’t behave.
• Detention guards making jokes about crying children.
• Detention staff forcing children as young as 5-years old to take cocktails of psychotropic drugs disguised as vitamins, and at times, injecting them against their will.
• Un-air-conditioned sleeping quarters when temperatures rose above 100º
• Children being denied telephonic communication with their parents, despite Melania Trump being told that the children were allowed two 10 minute phone calls with parents per week. 

Are there any Financial Incentives in Detaining Asylum-Seekers in for-Profit Prisons Rather than Monitoring them in the Community?

​Yes. President Obama developed two monitoring programs for vetted political asylum-seekers so they could be released into the community while being closely monitored, pending their immigration hearing. The more strict of the two programs was the Supervision Alternative Program (ISAP), which was based on a similar program developed during the Bush administration. ISAP involved monitoring asylum-seekers through a GPS ankle bracelet and was primarily used with asylum-seekers and others on immigration holds with no criminal history, but who were deemed a moderate flight risk. 

For more vulnerable families, such as mothers with younger children, the Family Case Management Program (FCMP) was used, which included community monitoring, legal orientation, and other case management services, such as transportation, referrals to immigration advocates and attorneys, and assistance with safe passage back to the immigrants’ home country in the event that their asylum claims were denied.

Both programs were extremely successful, with a 99% show rate at immigration hearings, but Trump canceled them almost immediately upon taking office, calling them “catch-and-release” programs that flooded our communities with gang members and murderers.
 
In describing these programs Trump stated, “We need a wall. We need border security. We got to get rid of catch-and-release. You catch a criminal, you take his name, you release him, and he never shows up again. He goes into our society, and then we end up getting him in a different way, oftentimes after he’s killed somebody.”

Trump's assertions aren't supported even by Trump's own government records, and yet, far too often, his assertions are believed because his rhetoric taps into negative stereotypes of immigrants (particularly those who cross the border without documentation). In other words, these are easy lies to believe if one already buy into these negative stereotypes.

Trump also cited budgetary concerns as a reason for canceling ISAP and FCMP. And yet, rather than paying the modest $36/day for the FCMP, the administration is opting instead to pay roughly $319 per person per day for detainment. Additionally, ICE has recently entered into several billion-dollar  contracts with for-profit prisons to house immigrant families seeking asylum, including a four-year $1 billion contract with Corrections Corporation of America, and a $110 million contract with for-profit GEO Group to open a new 1,000-bed immigration detention center in Houston. So Trump is paying over $1 billion compared to the total annual cost of $17.6 million for the FCMP.
 
Also, these large detention centers are a boon to communities experiencing lingering economic challenges, because they employ hundreds of local residents, and occupy previously abandoned stores, such as the old Walmart in Brownsville, Texas, currently being used to house some of the children. (Note: It’s been widely reported that Jeff Sessions has stock in the private prison system, but appears to be false. While some of his mutual funds have invested in a few private prison companies, such funds are highly diversified thus it’s highly unlikely that Sessions would personally benefit from these contracts).

While a financial incentive may not have been the original motivation for the government’s policy to detain asylum-seekers on a long-term basis, profit entrenchment will likely serve as a strong  motivating force in the future, driving policy decisions regarding how to manage asylum-seekers in the post-credible fear/pre-immigration hearing waiting period. 

Will the Families be Reunited

If you’d asked me this a month ago, I would have said probably not. Why? Because when the Trump administration made the choice to separate children from their parents, a series of federal and state laws were triggered.
 
First, the Trump administration made the decision to no longer handle illegal border crossings administratively, but criminally. And yet even with criminal prosecution, because crossing the border is a misdemeanor in most cases, the parents have only been detained on average a few days. Thus while it’s true that the children could not be kept in jail with their parents, the separations should have lasted only one or two days, with the families being reunited once the parents were released (thus not warranting relocating them across the country).  Instead, once the parents were released from U.S. Marshall custody, they were referred for ICE detention. And despite the majority passing their credible fear screenings, they remained in detention, without their children. And it doesn’t appear as though the government had any intention of ever reuniting them (more on that later).
 
U.S. law requires that immigrant children not in the care of their parents be deemed “unaccompanied alien children,” which allows the U.S. government to take guardianship of the children and place them in the custody of the Office of Refugee Resettlement (ORR), under the umbrella of the Department of Health and Human Services. At this point, the asylum cases of the children were separated from the parents' case, thus they were no longer considered a "family unit."

Additionally, there are strong indications that the responsible government agencies did not utilize an effective tracking system to monitor parents and children, with some parents having gotten lost in the system. Children may have been lost as well, as immigration attorneys representing parents have discovered when they attempted to locate their clients’ children. For instance,  immigration attorneys with the Texas Civil Rights Project. who represent over 300 parents have only been able to locate two of the children.

On February 26, 2017, the ACLU filed a lawsuit (Ms. L. v. ICE) against various governmental agencies, on behalf of a mother (“Ms. L.”) from the Democratic Republic of the Congo. Ms. L. presented herself and her 6-year old daughter to border agents at the San Ysidro, California Port of Entry on November 1, 2017. On November 5, 2017, Ms. L. was forcibly separated from her daughter, who was sent across the country to a detention center in Chicago, run by ORR for unaccompanied youth. Ms. L. was referred for a credible fear interview and passed, but was kept in detention. She was allowed only six telephone calls with her daughter during their 8 month separation. On March 6, 2018, about one week after Ms. L. requested a preliminary injunction, ICE abruptly released her. She was reunited with her daughter shortly after, on March 16th.
 
On June 22, 2018 there was a status conference regarding the ACLU’s request for a preliminary injunction (a request that the court make an emergency decision before a final determination, based on the merits of the case) to compel the government to stop separating parents from their children and reunite previously separated children with their parents. Preliminary injunctions are not easy to get, particularly so early in a case. Basically, in order for the ACLU to be granted a preliminary injunction, they had to prove that the case had merit, and that there was a great likelihood they’d win the case. 

On June 26th, the court granted the ACLU’s request that the case be given class action status, which means that the decisions in the case apply to all the Central American separated families.

The court also granted the ACLU’s request for a preliminary injunction. During the hearing, Hon. Dana Sabraw (a George W. Bush appointee), summarized the facts of the case based on statements from both sides:

• Over the past year, the government has separated hundreds of migrant families “for no legitimate purpose,”
• Most immigrants crossed a few feet into the United States and immediately notified a border patrol agent of their intention to claim asylum, but were arrested and criminally charged, with most immigrants sentenced to time served, consisting of about 48 hours, on average.
• Parents were not reunified with their children after being released from incarceration, even after being transferred to asylum proceedings.
• Prior administrations detained families, but did not forcibly separate parents from their children.
• The government had no plans for reunifying parents and their children, despite many being separated for months.
• Parents who had entered the country legally through a port of entry, and then claimed asylum, were also separated from their children “for no apparent reason.”
• The government has not accused any of the parents of being unfit, or of abusing their children,
• 12 parents have been deported without their children because government agencies do not communicate,
• The government’s stance is that it was not responsible for reuniting parents with their children, stating “the onus is on the parents, who, for the most part, are themselves in either criminal or immigration proceedings, to contact ORR or otherwise search for their children and make application for reunification under the TVPRA [Trafficking Victims Protection Reauthorization Act].”

 
In his opinion, Hon. Sabraw wrote that the government’s practice of separating parents from their children and failing to reunited them was enough for the plaintiff to show that the case had merit. He also noted that what was particularly problematic, above and beyond the mere practice of the family separations, was the way the government chose to implement the policy, including:

• The lack of any effective procedures or protocols for notifying the parents about their children’s whereabouts,
• The lack of any effective procedures or protocols for ensuring communication between the parents and children, and
• The use of the children as tools in the parents’ criminal and immigration proceedings.

 
Hon. Sabraw referred to the government’s action in this regard as meeting the legal threshold for a preliminary injunction, as being “…so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience… and is so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency.” (p. 17).

One of the most powerful assertions made by Hon. Sabraw was this statement:  

“The facts set forth before the Court portray reactive governance—responses to address a chaotic circumstance of the Government’s own making.”

In other words, this mess was completely unnecessary and it has caused significant harm to the parents and the children. The court also noted that the government’s zero-tolerance policy and ensuing family separations violated the Fifth Amendment of the U.S. Constitution.
 
As a part of the preliminary injunctive relief, the court rendered this decision:

• The government is no longer allowed to separate immigrant families, unless the parent is unfit and a danger to the child,
• The government has 14 days to reunite all children under the age of 5 with their parents (July 10),
• The government has 30 days to reunite the remaining children with their parents (July 26),
• The government must coordinate regular telephonic communication between parents and children until they are reunited,
• All government agencies (ICE, CBP, BOP, and ORR) must start communicating about this issue (note: apparently there was little to no communication between the various governmental agencies involved with the parents and children, thus when a parent was released from detention, the ORR was not notified), and
• The government is prohibited from deporting any more parents without their children.

A status hearing on July 12, 2018 determined the following:

• 57 children under the age of 5 have been reunited with their parents, but the government failed to honor their agreement of notifying the ACLU of the time and place of the reunifications, so that legal advocates could provide facilitation assistance to the parents,
• In several cases, ICE told parents they would have to pay the cost of reunification, including telling one parent that she could only be reunified with her child if she wired $1900 through Western Union to pay for transportation, and DNA testing,
• The government asserted that 23 children could not be reunited with their parents for a variety of reasons, but has not provided verification of the reasons to the court.

The ACLU has asked the court to sanction the government for not meeting the July 10 deadline, as well as require the government to provide detailed information about all remaining children who have not yet been reunited with their parents. They also asked the court to compel the government to establish a fund to pay for mental health care counseling for the children, pay for the reunification of the families, including the DNA testing, and provide more consistent information to the court about the status of the reunifications.  

After the status hearing the judge ruled the following on July 13, 2018:

• The government substantively complied with the July 10 order,
• The government must provide a detailed list of all children and their parents, including their locations, and provide this information to the ACLU,
• The government must give the ACLU at least 12 hours notice before any future reunifications, to ensure legal advocates can connect with the released families.

Also, on July 13, 2018, the Texas Civil Rights Project, a not-for-profit organization of immigration right attorneys, released a statement that ICE was continuing to forcibly separate immigrant parents from their children at the border. Read the demand letter to US Customs and Border Protection and ICE by clicking HERE.

On July 16, 2018 the ACLU filed an emergency motion for a temporary restraining order to halt the government’s new plan of mass deportation. Apparently, in response to the judge's order to reunify families, and another judge's refusal to amend the Flores Agreement, rather than allowing the Central American asylum-seekers to remain free pending their immigration hearing, in a home monitoring program, the government has decided to deport all parents and children once they are reunited.

The ACLU pointed out that because the government separated the parents and children, they now have separate asylum cases, thus the parents’ asylum cases are now going to be decided separately from the children’s. This could mean that the children would be left alone in the United States (if their cases prevailed), while their parents are deported.
 
The ACLU also accused the government of failing to provide a list of all parents and all children by the due date, and the lists they did provide were filled with inconsistencies and inaccuracies, thus the ACLU still did not have a comprehensive list of all parents and children involved.

Additionally, the government did not comply with the court order to give the ACLU 12 hours advance notice of reunifications so that legal advocates could be present. Instead, the government has been reuniting families in secrecy, and presumably immediately deporting the families.
 
The ACLU also noted that in an attempt to weaken Central American asylum rights, Jeff Sessions had recently issued a decision to restrict asylum for those fleeing “private violence,” which includes domestic violence and gang violence, the very type of violence Central Americans (primarily women) are attempting to flee.  The ACLU asserted that this limitation was illegal, and would be challenged. 
 
Finally, the ACLU accused the government of presenting the parents with an “election form” containing a false choice: 1) Agreeing to abandon their asylum claim and get their children back, and be immediately deported, or 2) Moving forward with their asylum claim, and remaining separated from their children pending their immigration hearing (one and two years). This is apparently the basis on which the government will be conducting the mass deportation.

The ACLU asserted that both, Sessions’ decision to limit the asylum rights of immigrants fleeing gang violence and the election forms, violate U.S. law, so they are asking for at least 7 days to both fight the government’s plans, and also to give the parents time to decide whether they want to leave their children behind and be deported without them, with the hope that their children’s now separate asylum cases will be successful.
 
What a choice; what a dilemma. 

The court granted the ACLU’s motion for a temporary stay and set a new status date for July 20, 2018.

Some Final Thoughts...

A final note: One of the issues that I found rather surprising as I reviewed all the relevant documents in preparation for writing this post, was the extent to which members of the Trump administration consistently provided false information to the American public regarding the crisis at the border.

The information they shared wasn’t reflective of a certain perspective, and it wasn’t slightly embellished. It was downright false. When the Department of Justice’s own records completely contradict what its leaders definitively state to the media and the American public, I can think of no other way to frame this behavior than as a propaganda campaign.
 
The consistent assertions of President Trump, Attorney General Sessions, ICE Deputy Director Homan and DSH Secretary Nielsen that there is no family separation policy, that the parents are being separated from their children because they’re being criminally prosecuted, that only 3% of asylum-seekers show up to their immigration hearings (thus they must be detained), that most asylum-seekers who had their children taken from them were gang members and murderers, and that many of the children were trafficked or smuggled into the U.S., were all patently false.

But these assertions were repeated so many times, and delivered with such passion and zeal that many people believed them, and the result is that for a segment of the U.S. population, Trump is again placing America first, by protecting us from criminals bent on destroying our way of life.
 
These tactics are not only inconsistent with our country’s foundational values, but as the District Court has found, it violates the Fifth Amendment of the U.S. Constitution. And if we’re nothing else, we’re a land that respects the Rule of Law, right?

You can follow the developments in the case, Ms. L. vs. ICE et al., by clicking HERE.