Week 54: Hundreds of separated children’s parents have not been reached

Immigration news, in context.

This is the fifty-fourth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine a status update in ongoing litigation over family separation, which reveals that the parents of 545 identified children have not been contacted.

  • In Under the Radar, we look at the sheer impact of the asylum bar in the period of time before it was enjoined.

  • In Next Destination, we delve into SCOTUS forthcoming consideration of two big immigration-related cases.

The Big Picture

The news: The latest status update on the court-ordered reunification of families separated under the 2018 “zero tolerance” policy and an earlier pilot program has revealed that the committee formed to locate parents has not been able to establish contact with parents for 545 children in the legal class.

What’s happening?

The whole sordid affair of family separation has become the touchstone issue of the Trump administration’s immigration policies. It incorporated many of the administration’s longstanding objectives, including the destruction of a functioning asylum system and the presumptive detention of people in removal proceedings, as opposed to parole or supervised release. Yet, the imagery of toddlers being removed from their parents’ care, often under false pretenses, and taken away to pursue a separate case was so horrific that it broke through the litany of other restrictions and became and remains a well-known national issue. Because of this, there are a number of myths and misconceptions about it, so before we launch into the latest developments, here’s a brief factual framework:

  • The first instances of family separation as a formal policy of deterrence came under the Trump administration, starting with what’s come to be known as a pilot program in the El Paso sector in 2017, and eventually becoming national policy in May of 2018.

  • The Obama administration did construct what are known as the Family Residential Centers (FRCs) as a result of prior upticks in the arrival of families of asylum seekers, primarily from Central America, leading to the charge that the Obama administration had the same policies. However, families were detained together at the time, and separation was never implemented as a matter of course.

  • This doesn’t mean family separation at the border did not occur then, and has not occurred in the time since the zero tolerance policy ended. It has long been Border Patrol practice to take children from parents who are discovered to have criminal records or are otherwise considered dangerous for the child, as well as guardians who are not parents or legal guardians (even if they are aunts and uncles, for example). These separations can happen on dubious grounds, but it is not an across-the-board policy.

  • During zero tolerance, the mechanism to separate families was through criminal prosecutions, making the separation itself seem somewhat incidental, i.e. parents who would not have been prosecuted before were being prosecuted, and their transfer to criminal custody triggered the separation.

  • Many parents were ultimately deported without their children, and in some cases children were deported without their parents.

Six days after Trump stopped the policy with an executive order on June 20, 2018, the ACLU filed a federal lawsuit on behalf of a Congolese asylum seeker known only as Ms. L, whose seven-year-old daughter had been taken from her by Border Patrol in November 2017. The judge ultimately granted class certification to all parents with separated children who were in the custody of the Department of Homeland Security or the Department of Health and Human Services, which is the entity in charge of caring for unaccompanied minors (which children became upon separation). HHS makes efforts to place every child with a sponsor, preferentially another family member already residing in the United States.

A separate preliminary injunction both prevented the government from continuing to separate families and detain separated children, and ordered it to reunite separated children with their parents. The administration was tasked with locating separated children within its vast bureaucracy — a necessary enterprise given that records were not adequately kept by DHS components and HHS didn’t really know which of the children in its care were separated — while a steering committee of legal providers went about attempting to find and communicate with their parents, including those who had already been deported. Despite the data issues, most identified children’s parents were ultimately located and reunited, though some who had already been deported preferred for their children to remain in U.S. asylum processes instead.

Then, in March 2019, the class was expanded to include parents and children who had been separated going back to July 1, 2017, and children no longer in U.S. government custody. This prompted a new and more difficult search, looking for people who had been in custody well over a year prior. After an expanded records search, HHS produced a new list, this time with 1,556 children of potential expanded class members, of whom 1,134 were confirmed and uncontested (the remaining 422 had parents whom the government determined were excluded, presumably for reasons including criminal history). The government was able to provide possible phone numbers for the parents of 1,030 of them, and the steering committee set about trying to reach them.

Ultimately, parents or their attorneys were successfully contacted for 485 children. Of the remaining 545, the parents of a total of 360 children are thought to have been deported. There are 75 children for whom additional outreach efforts are expected to successfully contact their parents, leaving 470 whose parents are in the “unreachable” category. One of the legal groups that forms the steering committee was able to locate, but not reach, the parents of 187 of them, which leaves 283 whose parents have neither been located nor reached.

The committee has engaged in what it describes as “ time-consuming and arduous on-the-ground searches for parents in their respective countries of origin,” a methodology that was limited by the COVID-19 pandemic. Efforts are resuming in a limited fashion now.

How we got here

Although outrage over the administration’s family separation policy reached a fever pitch during the summer of 2018, immigration officers actually began separating parents from their children in late 2017. Reporter Lomi Kriel, formerly of the Houston Chronicle, broke the story of the administration’s family separation pilot program, reporting an increase in adults being prosecuted for crossing the border without authorization—a federal misdemeanor—as well as hundreds of children being referred to shelters for unaccompanied migrant children despite having arrived at the border with their parents.

The 2017 pilot program was the lead-up to the 2018 “zero-tolerance” family separation policy, under which immigration officers stationed at the border prosecuted adults as a pretext for separating families. The stated goal was deterrence. When the official policy was announced in April 2018—months after the administration had begun separating families—then-attorney general Jeff Sessions warned that “illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.” In meetings with government prosecutors who balked at the idea of family separations, Sessions was more clear: “We need to take away children,” he said, according to a staffer’s notes taken in shorthand referenced in a recent New York Times report.  “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

The separations were the administration’s way of circumventing the Flores settlement agreement, a consent decree that limits how long migrant children can be kept in immigrant detention centers. Since Flores prevents the government from indefinitely detaining migrant children and their families, the administration decided to prosecute parents for illegal entry in order to put them in criminal custody. Although immigrant children can be detained in CBP and ICE custody—to a point—they can’t be taken to criminal detention centers such as jails or prisons, prompting the separations. (However, it’s worth noting that there were several instances of families who were separated after asking for asylum at a port of entry, the “legal” way of entering the country.) 

After being prosecuted en masse, migrant parents were taken to ICE detention centers for single adults. Meanwhile, their children were transferred to shelters for unaccompanied migrant children operated by the Office of Refugee Resettlement, an agency within the Department of Health and Human Services. 

Amid all of this, the administration largely denied that it had a policy of separating children from their families, even as it did just that. In June 2018, then-DHS secretary Kirstjen Nielsen tweeted “We do not have a policy of separating families at the border. Period.” That same month, Trump signed an executive order ending the family separation policy. Shortly afterwards, a federal judge required the administration to begin reuniting migrant parents with their children.

The separations were bad enough on their own, but it quickly became clear that the government didn’t keep sufficient records of the entire process. It may sound pedantic to bemoan a lack of adequate record-keeping of human rights abuses, but in practice, a lack of paperwork meant that reuniting parents with their children was nearly impossible. According to the New York Times, Customs and Border Protection agents deleted hundreds of the initial records containing families’ “identification numbers.” A report from the Government Accountability Office obtained by BuzzFeed News found that Border Patrol agents failed to record separations and inconsistently filled out required forms. Although the government claimed it had a central database tracking parents and children—who, as a reminder, were in the custody of different federal agencies within different departments—but there was no database, nor was there a concrete plan to reunite families.

That leads us to the current situation: the government has yet to make contact with the parents of 545 children who were separated from their families under the policy. As several immigration attorneys have noted, it’s also possible that the parents of those children, returned to the danger they fled, are now dead.

What’s next?

Efforts will continue, but it’s likely that, at the end of the day, some number of children will never be reunited with their parents. Even for those who are reached, a percentage will choose to have their children remain in the United States as opposed to being returned to the circumstances that they had fled from in the first place, making the separation permanent in a sort of forced choice.

We will also never have full clarity on the total numbers of children who were separated from their parents under the pilot or the full policy. The names and numbers we’ve arrived at have been the result of an exhaustive but ultimately inconclusive search of HHS records, which have attempted to find separated children based on certain characteristics. Fundamentally, it’s unlikely that such searches will have yielded every last child to fit the mold.

There’s also the topic of exclusions, which are based often on the subjective judgement of a Border Patrol agent, who may decide that the parent poses an unspecified risk to the child based on little more than the child’s mood or if they appear to be sick. For separations based on this flimsy evidence, reunifications are likely to never occur.

The administration has continued trying to work around the limitations imposed by the injunction, including through an attempt to institute a binary choice for families in detention: choose to be deported together, or separated in the United States. Just yesterday, in the final presidential debate, Trump again derided “catch-and-release,” a term for the practice of allowing families to be released into the interior of the country while awaiting asylum.

Ultimately, families currently aren’t getting the chance to apply for asylum at all, as it remains the administration’s policy to immediately expel asylum seekers arriving at the southern border, ostensibly as a COVID-response measure. Even prior to the pandemic, the Migrant Protection Protocols (MPP, more on that below) was sending families back to Mexico, another way of avoiding their release into the U.S. Even if families aren’t categorically separated anymore, they are unlikely to find refuge in the country.

Under the Radar 

More than 25,000 people subjected to the third-country transit ban in just two months

Last summer, the Trump administration implemented a policy denying asylum to any migrant who passed through another country en route to the United States. That policy, commonly referred to as the “asylum ban,” was one of the administration’s most draconian limits on asylum thus far; in practice, it denied protections to virtually all asylum seekers besides Mexican nationals and those who flew directly to the United States. Although the asylum ban is currently on hold due to an injunction issued by the U.S. Court of Appeals for the Ninth Circuit, its effects were devastating for thousands of migrants.

A new DHS report reveals that 25,096 migrants were barred from asylum under the third-country transit ban from July 16 and September 30, 2019. In other words, more than 25,000 people were denied asylum under the policy in just 76 days. The report notes that nearly half of the migrants who were denied asylum in that time were able to apply for other forms of protection, such as withholding of removal or protection under the Convention Against Torture. But unlike asylum, those forms of relief are both more difficult to obtain—they require a higher burden of proof—and don’t provide a pathway to U.S. citizenship. 

The administration initially justified the ban as an attempt to cut down on supposedly non-meritorious asylum claims, which it claimed were rampant among migrants at the U.S.-Mexico border. This summer, however, a panel of judges with the U.S. Court of Appeals for the Ninth Circuit ruled that the administration’s reasoning was faulty and upheld an earlier injunction against the ban. One judge, appointed by Trump, called the ban “perhaps the most significant change to American asylum in a generation.”

Next Destination

SCOTUS will hear “Remain in Mexico,” border wall cases

The Supreme Court said it will hear two cases regarding the Trump administration’s immigration policies. One focuses on the Migrant Protection Protocols, an initiative that has forced more than 60,000 asylum seekers to wait in Mexico while their cases play out in U.S. immigration courts. (For an in-depth look at MPP, we suggest reading these previous editions of the newsletter.) 

In March, a panel of judges with the Ninth Circuit Court of Appeals issued an injunction against MPP, but later stayed that ruling, allowing the policy to continue. MPP hearings have been on hold for most of this year due to the coronavirus pandemic, but according to immigration court records obtained by researchers at Syracuse University, the number of cases on the MPP docket is climbing again. In May, 136 cases were added to the docket; last month, 1,133 new MPP cases were added, according to TRAC’s analysis. Even though individual cases have been on hold, though, the program is technically still in effect, meaning anyone with a pending hearing is presumably waiting in Mexico indefinitely.

As the New York Times notes, the court appears to be pushing new cases through despite the current vacancy caused by Justice Ruth Bader Ginsburg’s death, the fact that the administration’s nominee has not been confirmed, and the upcoming election. The court also said it would hear a case regarding the administration’s use of military funds to pay for Trump’s wall along the U.S.-Mexico border. This summer, the court allowed the administration to continue building the wall despite pending litigation.