Families are being offered an impossibly cruel choice: fight to stay in the US apart, or give up and get sent back together.
On Saturday night, the Trump administration finally announced its plan for reuniting the 2,053 families who are still separated thanks to President Donald Trump’s “zero-tolerance” prosecution policy: The administration will reunite children with their parents — in order to deport them both.
Over weeks of chaos and confusion, it became clear that the various departments and agencies involved in family separation — chiefly the Department of Homeland Security (DHS), which handles immigration enforcement, and the Department of Health and Human Services (HHS), which takes separated kids reclassified as “unaccompanied alien children” into custody — were so badly coordinated that it was nearly impossible for parents and immigration attorneys to locate children.
The Trump administration is promising to fix that — but only in some circumstances.
Parents in immigration detention will be helped to get in touch with their children and speak to them regularly, and the Trump administration will make sure — from a “reunification and removal” facility in Port Isabel, Texas — that when a parent is ordered deported, her child will be sent back to their home country beside her.
For parents who are trying to fight to stay in the US (for example by pursuing asylum claims, as they are legally entitled to do), though, this isn’t much of a promise. It’s a horrible choice.
Either a parent can keep fighting for asylum and accept that he won’t be able to see his children for the months or years his case might take — or he can give up, waive both his own rights and the rights of his child, and agree to be reunified with his child en route to the country both of them fled to begin with.
DHS is telling parents they can see their children again if they stop trying to stay in the US
The “fact sheet” released Saturday night by DHS and HHS claimed that the Trump administration “knows the location of all children in its custody and is working to reunite them with their families.”
But the process that the government has in place for reunification isn’t for all families separated by the administration between May 5 and June 20, when the “zero tolerance” policy separated more than 2,300 children from their parents at the border. It is solely “to ensure that those adults who are subject to removal are reunited with their children for the purposes of removal” (emphasis added).
There is no such assurance for parents who are fighting deportation because they are trying to claim asylum (or another form of relief) in the United States.
What this means, in practice, is that a parent who is currently trying to pursue an asylum claim but wants to see her child as quickly as possible will have to waive two sets of rights: her own and her child’s. She’ll have to withdraw her own asylum case and agree to be deported instead. And she’ll have to agree that her child should withdraw their own case to remain in the US — which is a separate case in the legal system because the child is now considered “unaccompanied” — in order to accompany her back to her home country.
Lawyers are already seeing this at the Port Isabel facility. “We have people in there who are considering not continuing on with really strong asylum claims because they think they’ll get reunited with their kids faster if they give up their claim,” civil-rights lawyer Sirine Shebaya told the Washington Post.
This is a choice that some untold number of parents have already made. Even before family separations became widespread in early May, lawyers told reporters of cases where parents had felt pressured to withdraw their asylum claims so that they could be reunited with their children. And Jacob Soboroff of MSNBC reported Sunday morning that “separated parents were quickly given the option to sign paperwork leading to deportation” — and that “many” chose to do so.
We don’t know how many parents were deported before President Trump signed an executive order June 20 that has resulted in an end to widespread family separation (at least for the moment, as the various agencies involved try to figure out how the heck to implement Trump’s instructions).
We do know that not all of the parents already deported were, in fact, deported with their children. In fact, reporters have unearthed many cases in which they were deported without their children — and even cases in which parents agreed to deportation to see their children again, only to be deported alone.
Parents might have to choose between access to their children and access to lawyers
While “zero tolerance” was in full effect, a pile of logistical problems often made it impossible or near-impossible for parents to even find out where their children were being held, much less communicate with them. Some immigrants couldn’t call government hotlines for a slew of reasons: they lacked money to make the call; hotline calls went unanswered; parents couldn’t receive calls in immigration detention; a parent who was successfully able to call her child once might not be able to get anyone at that number to pick up the next time she called; or government officials were unwilling to give information about a child’s location to her parent’s lawyers.
The Trump administration is now promising to streamline this process. According to Saturday’s fact sheet, parents separated from their children will be held in a single immigration detention facility, where staff will coordinate with HHS to make sure parents are put in touch with their children (at least, if HHS feels there’s enough information to prove the parent really is related to the child) and allowed to speak to them at least twice a week.
But people who are apprehended crossing the US between ports of entry don’t usually stay in immigration detention very long. They’re generally subject to deportation without a court hearing and deported in a matter of days. The only parents likely to be in immigration detention for any length of time are those who are fighting to stay in the US legally by making, for example, an asylum claim.
Even in a best-case scenario, an asylum-seeker is likely to get held in detention for at least six weeks: She has to have a screening interview scheduled, conduct the screening interview, wait to see if she has passed the screening interview, and then, if she passes, wait to get a hearing with an immigration judge at which the judge can set bond, so she doesn’t have to stay in detention during the months or years it will take for her full asylum claim to be approved or denied.
Detainees may not have much (or any) access to a lawyer during that period. There’s no right to a lawyer in immigration court, and especially before the initial screening interview, it can be hard for pro-bono lawyers to get in touch with asylum-seekers in time. In general, it’s much easier for a lawyer to help an immigrant put her case together once she’s out of detention — and asylum-seekers who have lawyers are much, much more likely to have their cases approved.
But the Trump administration isn’t making any promises about keeping parents in touch with their children even after they’ve left detention. It’s not clear that it’s going to be any easier for released parents to locate, talk to, and reunite with their children than it has been for the last several weeks — when it’s been nearly impossible.
Parents who are freed from detention might lose access to children
Immigrants and lawyers alike have assumed that the best chance for a family to be reunited is for the parent to get released from immigration detention on bond while she fights her case, then get her child back from the Office and Refugee Resettlement (ORR).
But under the government’s new “reunification for removal” plan, a parent freed from detention might lose the ability to communicate regularly with her child, much less be reunited with him.
In theory, the ORR — the office within HHS tasked with taking care of the children — isn’t supposed to keep “unaccompanied alien children” in its custody for any longer than necessary. It’s supposed to place them with sponsors: either their parents, close relatives, family friends, or some other form of long-term foster care (in that order of preference).
But ORR is also responsible for carefully vetting potential sponsors to make sure that they are who they say they are — and that the child isn’t being put at risk by being placed with them. The office has recently come under attack for “losing” hundreds or thousands of children (a story that blew up into a brief social panic when some critics falsely assumed that losing contact with a child meant the child had been placed with human traffickers).
Vetting requires the sponsor to submit extensive documentation proving their own identity, their relationship with the child, and their own address. It also requires them to demonstrate they can provide “adequate care, supervision, access to community resources, and housing” for the child — something an immigrant who’s just been released from immigration detention may not be able to prove to the satisfaction of government officials.
The federal government isn’t guaranteeing that ORR will release children to their parents if the parent has been released from detention while her asylum claim is pending. Instead, the agency maintains it’s going to keep its typical screening process in place.
In other words, the Trump administration is making no distinction between a parent who was separated from her 6-year-old child just a few weeks ago and the parent of a 17-year-old who arrived unaccompanied. And it’s going to hold parents who have just been released from immigration detention to standards of care provision designed for people who are well established in the US.
Furthermore, it’s not even clear if relatives of separated families who could qualify to sponsor the children will be allowed to do so.
Because ORR’s first preference is to reunite children with their parents, HHS officials have implied that they are trying to keep children in custody close to where their parents are being detained so that if the parent is deported it is easy to send the child with them. (This hasn’t always happened in practice.)
Some relatives of separated children have tried to apply as sponsors — to little success. The Wall Street Journal reported on one case last week:
For 30 days, Ms. Serrano and her husband, who live in suburban Maryland, have been struggling to gain temporary custody of (their nephew) Danny. They have navigated a bureaucratic thicket to get Ms. Serrano named Danny’s “sponsor”: A home inspection; fingerprinting for background checks; frequent phone calls with Danny’s social worker in New York, Lupe in Texas and relatives back in Honduras. Ms. Serrano said she is still waiting for approval.
The government isn’t saying categorically that it won’t reunite children with their parents if the parent is out of detention and waiting for her asylum case to be resolved. But we know from the past several weeks how apparently insurmountable the obstacles can be for such parents. And those obstacles are not being removed under the new policy.
Parents who choose between asylum and reunification might end up getting neither
The government’s stance is that parents who accept deportation will be reunited, and parents who do not — who choose to continue the fight for asylum instead — may not.
But the artificial choice between asylum and reunification doesn’t actually mean that parents are guaranteed even one of the two.
Parents who choose to stay in the US and pursue their asylum claims, even if they pass their initial screenings, may well find those claims ultimately denied and face deportation anyway. The approval rates for asylum claims among Central Americans are a lot lower than the pass rates for the initial screening — which is why Attorney General Jeff Sessions and other Trump administration officials are trying to tighten standards to pass the screening interview. And Sessions is currently trying to make it harder for asylum-seekers to have their claims approved based on being the victims of domestic or gang violence — the basis on which many parents’ claims are likely to rest.
A parent who waits in detention for weeks or months, or is released from detention while her case takes months or years, might find that she is ultimately ordered deported anyway — and has just wasted all that time separated from a child for exactly the same result she would have gotten if she’d chosen quick deportation and reunification.
On the other hand, the government can’t guarantee that accepting deportation means being reunited with children.
It can’t guarantee that because we already know that some parents have accepted deportation and been deported alone.
According to DHS and HHS, some parents have agreed to be deported alone. But reports from the New York Times, Houston Chronicle, and others have documented that some parents who were deported alone thought they had agreed to be deported with their children. Maybe they misunderstood what they were agreeing to; maybe some parents agreed to be deported alone, but in other cases, the government failed to reunite families prior to deporting them.
The only assurance the government is making now is that parents who accept deportation will be rewarded with reunification. Even that assurance may not be a reliable one. And to get that assurance, parents will have to give up — on their own behalf and that of their children — the thing they came to the US to seek: humanitarian protection and the ability to stay.