When they arrived at the U.S. border June 1 seeking asylum, 5-year-old Esdras and the woman he called his “mamita” were split up by immigration officers.
“I cried so much,” Marta Alicia Mejia said. “I thought, ‘My God, why would they separate me from the boy?’ ”
Three weeks later, a federal judge ruled that the government must reunify the migrant families it separated at the border under the Trump administration’s “zero tolerance” policy between April and June 2018.
Mejia watched for weeks at a Texas detention center as parents were released while she stayed behind. That’s because only parents were being reunited with children. Even though Mejia has raised Esdras since he was born, she isn’t his mother. Esdras’ mother, court records state, became pregnant after she was raped at 18 and decided to give her son to Mejia, his great-grandmother.
The government isn’t reunifying all separated children because it’s treating legal guardians different from parents. The federal court case that forced the Trump administration to reunite families, Ms. L v. ICE, excludes legal guardians such as Mejia. It applies only to adoptive or biological parents.
More than 2,800 children were separated from parents last summer, and hundreds of family separations have been reported since then. U.S. District Judge Dana Sabraw recently expanded the Ms. L ruling to include any migrant parents and children torn apart in the past two years after a government report concluded that thousands more children were separated well before April 2018.
But it’s unclear how many legal guardians are affected. The Department of Homeland Security did not respond to questions about how many have been split up from their children.
Some lawyers say these families should get the same court protections afforded to parents and their children. Legal guardians have to find attorneys to file their own legal claims, which means they have to wait much longer to see their children again.
“They are the functional equivalent of parents,” said Joshua Toll, an attorney representing two legal guardians. “Because it’s the same trauma, we do believe they should be treated the same way.”
In a recent report by the Texas Civil Rights Project about ongoing family separations, lawyers noted that in at least five cases, “legal guardians and stepparents expressed frustration at government officials for failing to recognize the legal documentation they carry with them when they come to the United States.”
The report mentions a woman who had been detained and separated from her niece for more than six months “in large part because the government refuses to treat legal guardians as parents to keep families together.”
Mejia has raised Esdras since he was born. People in their neighborhood knew she took the boy in. Mejia, 61, sold tortillas in San Pedro Sula, Honduras, to make ends meet.
They fled when a local gang began threatening Mejia after she witnessed a robbery at a motorcycle repair shop in her neighborhood, court records state. She also was caught in the crossfire of a shootout between gang members and police.
After Mejia and Esdras were separated at the border, Esdras was placed with a foster family in New York City. When he later was released to Mejia’s son and his wife in Texas, he was tired and slept often, according to court records.
“When he wasn’t sleeping he acted shy and scared,” Rhina Martinez, Mejia’s daughter-in-law, said in a September court declaration. “He asks for her (Mejia) all the time and spends the nights crying about her. I’m very worried that it is harming (Esdras) psychologically to be without Marta for so long.”
Seven months and eight days would pass before Mejia would see her great-grandson again.
Lawyers from the Refugee and Immigrant Center for Education and Legal Services, or RAICES, took on Mejia’s case and requested a stay of deportation on her behalf.
“Ms. Mejia was very distraught when we were working with her,” said Manoj Govindaiah, litigation director for RAICES. “She was very determined to pursue her case and be reunited with (Esdras). I think that was really driving her.”
Complicating matters in Mejia’s case is that she arrived at the border without papers confirming that she had custody of Esdras. That’s typical in a lot of cases, Govindaiah said.
“A lot of it is just social norms. You live in a small town and everyone knows who you are and everyone knows this is your grandchild,” he said. “Everybody just knows that Grandma has authority to do whatever for this kid.”
Legal guardians sometimes arrive with a “carta poder,” a document signed by a parent that gives them custody over the child. In others, they have court records appointing them as guardians.
After Esdras was released from foster care, Mejia’s lawyers obtained a notarized letter from her granddaughter that confirmed Mejia raised the child. They also have a letter from a neighborhood association president who said Mejia “has been responsible” for Esdras’s upbringing.
RAICES also requested a second credible fear interview for Mejia, which is the first step in the asylum process. Mejia failed the first one, her lawyers say in court records, because she was distraught after the separation from her great-grandson.
It’s the same argument lawyers made in the case that reunited hundreds of families and resulted in a settlement agreement granting parents new credible fear interviews.
In October, attorneys representing legal guardians filed two objections that sought to include their clients in the settlement.
Sabraw, the district judge, denied their objections but ordered the lawyers to meet with the government to resolve their claims. Toll, the guardians’ lawyer, said his team decided to pursue the cases separately. Both clients recently were released from detention.
In January, Mejia also was released and reunited with Esdras in Houston.
“When I entered this house, the first question he asked me was, ‘Why did you leave me behind?’ ” Mejia said. “I fought until the end for my boy.” 
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