Trump administration officials are seeking to accelerate a vicious policy of ripping children away from parents attempting to cross the southern border into the U.S.
Even as a new report details how 700 children have been torn from their parents while being processed at border stations since October, Immigration and Customs Enforcement (ICE) officials are now pressing the Department of Homeland Security (DHS) to begin detaining and prosecuting all parents caught with children — a policy that would see thousands more separated.
The Washington Post obtained a memorandum addressed to DHS Secretary Kirstjen Nielsen outlining a harsher, “zero tolerance” policy of threatening parents with criminal charges and prison time that ICE Director Thomas Homan, who recently announced his retirement, and other immigration officials argue would be the “most effective” way to reduce unauthorized crossings.
While the proposal, sent to Nielson last Monday, does not seek to prosecute asylum-seekers who turn themselves in at legal ports of entry, most families who are caught attempting to cross the border — regardless of whether they are trying to evade capture — are released pending civil deportation hearings.
The prosecution of parents would land them in immigrant jails where children cannot be held due to court rulings restricting the detention of children, thus rapidly expanding separations. But immigrant and human rights advocates are pushing back against the Trump administration’s current separation practices at the border and ICE’s new proposal that would escalate the procedure.
The American Civil Liberties Union (ACLU) has filed a federal lawsuit in California over previous separations at the border, including the case of “Ms. L.,” a 39-year-old asylum-seeking mother who traveled with her 7-year-old daughter from the Democratic Republic of Congo to Mexico. Ms. L was separated from her daughter shortly after surrendering to immigration agents at the San Ysidro Port of Entry near San Diego in December.
Ms. L and her daughter were reunited in March, but the class-action lawsuit remains ongoing and is scheduled for its first hearing in San Diego on May 4. The suit, which argues Ms. L’s constitutional right to due process was violated and cites a government directive to keep families together, is seeking a nationwide preliminary injunction to halt separations and immediately reunite all families.
“We’re hopeful that on May 4, a federal judge will put an end to this so these children don’t become pawns in a larger public policy experiment,” said Lee Gelernt, attorney and deputy director of the ACLU’s Immigrants Rights Project.
Homeland Security officials have maintained the agency does not separate families at the border as a deterrence policy, claiming instead that the agency is concerned about instances of fraud and “have a legal obligation to protect the best interests of the child” from drug smugglers or human traffickers, according to a DHS spokesperson.
But pediatricians and child psychologists have widely testified that the stress of family separation or detention in an immigrant jail only magnifies the traumas children may experience during their journey north to escape gang-related violence in Central America’s northern triangle countries of Guatemala, Honduras and El Salvador.
Katharina Obser is a senior policy adviser at the Women’s Refugee Commission’s Migrant Rights and Justice program, where she advocates for the rights of women, children and families seeking protection. Obser says the newly reported data on separations from the Office of Refugee Resettlement, a division of the Department of Health and Human Services, “makes clear that this administration has no qualms about implementing a cruel and inhumane practice.”
Further, she says, that while “DHS is trying to frame this as a matter of preventing fraud or child endangerment, … Make no mistake, DHS’s practice of separating families continues to be a matter first and foremost of deterrence.”
While serving as Homeland Security secretary last year, John Kelly, President Trump’s chief of staff, suggested the idea of using the practice specifically as a deterrence policy but then quickly walked his remarks back.
The Refugee Commission and other immigrant rights groups also filed a complaint in December 2017 with the Office for Civil Rights and Civil Liberties and Office of the Inspector General highlighting more than a dozen incidents of family separations at the border, including cases of babies and toddlers as young as 1 and 2 years old. According to the newly reported data from the Office of Refugee Resettlement, more than 100 separated children were younger than 4.
Once removed from a parent, separated children are taken to facilities operated by Refugee Resettlement or by non-governmental organizations. If social workers cannot identify a relative or guardian to take custody, children can languish in these shelters indefinitely. Indeed, that process is difficult for workers who say that, more often than not, separated children arrive without records that would allow them to locate a family member. Further, according to a Border Patrol official who spoke with The New York Times, there remains no procedure in place for reuniting families that were mistakenly separated.
To make matters worse, a top official with the Department of Health and Human Services told Congress last week that the department lost track of nearly 1,500 immigrant children it had placed with sponsors in the U.S.
Beyond that, separating parents and children complicates both party’s asylum claims, making it more difficult to achieve their legal right to seek safe haven in the U.S. Family members often play a role in corroborating the experiences that serve as a basis for an asylum claim. Moreover, rendering very young children unaccompanied often forces them to navigate the U.S. immigration system on their own.
Reacting to the newly reported data from Refugee Resettlement, Sen. Tina Smith (D-Minnesota), has promised to introduce legislation “to help protect children whose families are swept up in immigration enforcement,” and said she will reveal the bill in the coming weeks.
Ramping Up Border Crackdown
President Trump began tightening his grip on border region in April, asking state governors to deploy National Guard troops to assist the Border Patrol in apprehending undocumented border crossers, and erecting a 20-mile stretch of a new border wall prototype in Santa Teresa, New Mexico.
He also signed a second directive last month ordering the end of what his base refers to as a “catch-and-release” policy. The administration was forced to release about 100,000 parents and children from immigrant family jails after court rulings.
Following Trump’s April directive, Attorney General Jeff Sessions ordered U.S. attorneys along the border to prosecute all unauthorized border crossers referred to them by DHS “to the extent practicable.” Last Monday’s memo suggests DHS ramp up that policy by referring every adult held at the border for prosecution, “including those initially arriving or apprehended with minors.”
Despite DHS Secretary Nielson’s stated policy that the agency does not separate families as a deterrence strategy, the memo states immigration officials’ zero tolerance policy was tested in New Mexico and West Texas for a five-month period last year, and suggests that a decrease in the amount of crossers in the region during that time shows a deterrent effect, writing, “This decrease was attributed to the prosecution of adults … for illegal entry.”
Immigration officials are hyping a recent rise in border crossings from last year, including crossings of parents with children, to urge Secretary Nielsen to crackdown on undocumented families. Nielsen herself has also recently exploited this year’s increase before the House Appropriations Subcommittee on Homeland Security to press lawmakers to approve Trump’s $47.5 billion budget request for her department — including $18 billion for the border wall. Others are justifying the deployment of at least 2,400 National Guard members from Arizona, New Mexico, Texas and California to the border in recent weeks.
But even with the recent increase, undocumented crossings remain at historic lows, with the number of unauthorized border crossings at their lowest rate since 1971. According to a breakdown from Vox, Border Patrol agents caught 37,393 immigrants attempting to cross the border in March, almost three times fewer than when former President George W. Bush requested governors send National Guard troops to the border in May 2006, and one-and-a-half times fewer than when President Barack Obama requested 1,200 Guard troops in May 2010.
Alternatives Are More Humane — and Rational
Advocates say alternatives to putting undocumented border crossers in immigrant jails that would instead keep families together and out of custody are not only more humane but are also common sense — proving both cheaper and more effective in terms of realizing compliance with immigration laws.
Models based on case management for families in which programs provide community support, including legal and social services as well as support for vulnerable individuals such as asylum-seekers, are less expensive than immigrant detention, which cost taxpayers at least $3 billion last year, and see higher rates of compliance with legal requirements and appearances for initial court proceedings.
Jennifer Podkul, director of policy for Kids in Need of Defense, an organization which works to provide legal representation and due process for unaccompanied minors in the immigration system, also points out that an influx of children rendered unaccompanied by the state has also taxed the resources of agencies tasked with their care.
“The absurdity of the separations … is also a matter of resources. [The Office of Refugee Resettlement] is traditionally an under-resourced agency for all the responsibilities they have to care for these kids, so the numbers of kids who are going into their care who otherwise wouldn’t need to be in their care is really incredible,” Podkul said.
Further, separating families adds to the backlog of 685,000 cases in the immigration courts, as parents and children’s legal cases that would otherwise be processed together become severed and processed individually. “So at a time when adjudicators are overwhelmed, … the inefficiencies that are created, beyond the humanity of this, the separating kids, is really incredible,” Podkul added.
The basic humanitarian principle behind policies of family unity is one that runs through U.S. immigration and family laws, as well as international law, as laid out by the U.N. High Commission on Refugees.
“Parents seeking protection for their family should never have to fear that the price for lawfully seeking asylum is to be torn apart from their child,” Obser said.
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