Testifying before lawmakers last month, the deputy chief of Customs and Border Protection, which oversees the Border Patrol, said he anticipates that the government will continue separating families at a rate of roughly 650 cases every two weeks into the foreseeable future. The Border Patrol chief in the nation’s busiest sector, meanwhile, is pushing his agents to ramp up arrests and prosecutions even more, telling the Washington Post over the weekend that his office has not yet reached 100 percent enforcement — as the administration has called for — but that they are working to get there.
Such an increase would require overcoming the mounting political and public pushback the administration’s efforts are currently receiving. But even if zero tolerance ended tomorrow, thousands of families have already been separated, so the question remains: Is there a functional mechanism in place to insure those parents get their kids back?
For attorneys and advocates on the ground, the answer at the moment is no. In a series of interviews over the last week, federal public defenders and legal advocates working within the immigrant detention system and at the ports in Arizona, as well as providers of care to migrant kids nationally and U.S. immigration officials, were unanimous in their criticism of the system — or lack thereof — currently in place to reunite migrant children with their parents.
Dona Abbott is the branch director of refugee services for Bethany Christian Services, a leading organization involved in placing children in ORR custody in foster care. With more than 40 years of experience dealing with children fleeing violence and persecution, she told The Intercept that there is simply no system in place for the reunification of families to criticize or praise. Instead, she said, there is a never-ending list of questions that people who deal with the fallout of family separations have been forced to answer on their own: How do you reunify children with parents who are being deported? Can we reunify them before they’re deported? What does the parent want? What does the parent say is in the child’s best interest?
“Just finding the parent sometimes is a challenge,” Abbott explained.
Photo: John Moore/Getty Images
No System in Place
Sometimes arresting agencies are handing kids over to ORR with identifying information, Abbott said, and sometimes they aren’t. Again, she said, there’s no system in place. “There’s a lot of families and a lot of kids affected by this — a lot,” she said. At the same time, none of the child welfare organizations that deal with unaccompanied minors, which the administration is creating more and more of each week, were consulted or warned before “zero tolerance” became the official enforcement posture of the federal government in early April. “We didn’t have a chance to ask questions and talk about how will the system work,” Abbott said. “Typically, you like to do that.”
Currently, the government’s solution for parents whose children it has taken is a 1-800 number. This also presents a problem, Abbott said, because often parents in detention have little to no access to phones. “What we’re finding is that we’re having to call detention centers,” she explained. As an example, Abbott pointed to the case of an 8-year-old girl who Bethany Christian is currently providing care for. “She’s been separated from her mom about a week, and we just keep calling all of the detention centers,” she explained. “Do you have someone by this name?” they ask. “The 1-800 number hasn’t been called, probably because mom hasn’t been allowed to make the call and we’re just not sure where mom is,” Abbot said.
For little kids, certainty about a parent’s whereabouts is of critical importance, Abbott said. “When you’re 8, a week is a long time,” she said. “You just don’t know, is my mom safe?” The issue of state-enforced separations, involving armed men in uniforms with guns, she added, can be particularly jarring for children from areas in Central America and Mexico where the line between organized crime and government security forces is nonexistent, and the entire purpose of the journey north was to escape precisely those kinds of scenarios. Abbott described the case of 10-year-old boy who tells the story of seeing his father handcuffed before they were separated. “That is scary for someone coming from a country where we know, it’s been reported over and over again, police are corrupted,” Abbott explained.
This particular boy’s ordeal also involved another troubling development emerging in recent cases, Abbott added: agents in the field, specifically Border Patrol agents, making on-the-ground calls about who gets to try to claim asylum and who does not. “Border Patrol seems to have a lot of independence and autonomy in their decisions,” Abbott said. “In the case of this little 10-year-old, there just didn’t seem to be anything other than they didn’t think dad had an asylum case and they immediately deported him, but they didn’t deport his son, and they didn’t make sure they went together. So now we have to try to reunite them. And the son is indigenous, which adds another layer of issues.”
Rather than install a system that reunites children with their parents, the administration has imposed at least one new measure that could decrease that likelihood. Earlier this month, McClatchy reported that ORR had entered into a new agreement with the Department of Homeland Security, in which the agency would share fingerprints and run immigration checks on potential sponsors who come forward to take custody of kids. “It’s not just the parent,” Abbott explained. “The new rule is everyone in the household, every adult in the household, must be fingerprinted, and those fingerprints, all those fingerprints, must be handed over to the Department of Homeland Security for criminal investigation. That means, probably, detention and deportation.” Already, as McClatchy reported, “the percentage of unaccompanied youths claimed by parents has dropped from 60 percent four years ago to 41 percent in 2017 after increasing crackdowns.” Abbott expects more of that to come.
“I can’t imagine it won’t exacerbate a difficulty with sponsors not feeling safe coming forward to claim their family member, their child,” she said.
Photo: Alex Wong/Getty Images
False Claims About Separations
In a call with reporters last week, public affairs officials with the various Trump administration agencies responsible for separating migrant kids from their parents defended their actions on the grounds that they have no other choice, falsely claiming that the law requires such separations. Demanding that they not be quoted in their effort to “correct the record,” the flacks blamed the media for irresponsible reporting. In particular, they claimed that the federal government is not separating babies from their parents and denying that government agents have used false pretenses to take kids from their parents, never to be returned again. Abbott said both claims were false.
For one, she said, the government has definitely separated babies from their parents. “The average age now of a child we have in care is 7, but we have children from 8 months all the way to 17,” she said. Second, she said, Bethany Christian provided care for a 6-year-old girl, who, along with her mother, described the pretense of a bath being used to carry out a separation. “Her mother was told, ‘We’re going to give her a bath,’ and they took her and never brought her back. Put her in foster care. I’m sure some immigration officer thought that saved the trauma of the separation, crying and screaming, but I can’t imagine what that mom thought,” Abbott said. “Maybe what the government is trying to say is, ‘We’re not systematically condoning that,’” Abbott said, but the fact remains: “We’ve heard it directly from a parent and a child.”
The chaotic implementation of “zero tolerance” is leading to all sorts of experiences like this, Abbott argued, and the public is only hearing a fraction of them. She described another, about a little boy who came to Bethany Christian carrying a belt. “An adult belt just rolled up and clung in his hands,” Abbott explained. “We were like, ‘Oh, what’s this about?’ We finally get the belt away from him and inside, as we unravel it, is dad’s name and phone number.” For Abbott, the presence of the number sent a clear message. “Dad had in one last desperate moment” said to himself: “What can I send with my son that tells somebody where to find me?”
“So he writes it on his belt,” she said. “We’ve just had too many kids have those kind of separation stories to suggest that it is anything but a little chaotic. More than a little bit — it is chaotic.”
Abbott is hardly alone in her concerns. Two sources The Intercept interviewed regarding the government’s family separation program — including an attorney who has represented children in ORR custody and a senior DHS official working on immigration issues — spoke on condition of anonymity because they are not authorized to speak to the press. They, too, pointed to the absence of an effective system to reunite parents with their kids.
Contrary to claims from the administration, the attorney said the government is indeed separating parents from children even when those families present themselves at lawful ports of entry. “We’re definitely seeing that, even though sometimes the administration says they’re not doing that,” they told The Intercept. Similarly, they added, the government’s claim, relayed in a background call with reporters last week, that it is not separating babies from their parents, is simply not true. “That’s wrong,” they said. “We’re seeing babies.”
Photo: U.S. Customs and Border Protection via Getty Images
No Way Home
The likelihood that those children will find their way back to their parents is entirely uncertain, the attorney added. In cases where a parent expresses a desire to be deported with their child, Immigration and Customs Enforcement promises to coordinate on reunification, they said, but has routinely failed to follow through. “We’ll get a promise of coordination and then it doesn’t happen,” they said, adding that instead attorneys come to learn that a parent has already been deported just as the reunification process is unfolding. “There’s just not any commitment to the coordination of removal or reunification before removal. There doesn’t seem to be any plan.” The DHS official agreed with that assessment. “It’s all up in the air,” they told The Intercept. “There’s no way this ends well. I feel like now that we’ve crossed this precipice, there’s no limit as to how far Trump and his people will go.”
In the absence of clarity, defense attorneys involved in the prosecutions that lead to family separations have turned to federal magistrate judges for relief, and in some cases, the judges are taking action.
In Tucson, upwards of 70 migrants are criminally prosecuted, in group hearings, for illegally crossing the border every day under the government program known as Operation Streamline. With those prosecutions spiking 71 percent over the last year, and family separations becoming routine, federal defense attorneys have begun asking judges presiding over the hearings to take unusual steps in order to increase the chances that parents will be reunited with their children. “One of the things we were asking for the judges to order, and the judges have been receptive to ordering, is that our clients be kept here, even if they receive a sentence of time served, and they’re subject to deportation — that they be kept here in order to be reunited with their kids,” Molly Kincaid, a federal public defender in Tucson told The Intercept. “They’d literally rather be kept in custody and reunited with their children.”
Kincaid explained, “Most of our clients who are affected by this are getting the misdemeanor, they’re only being charged with the misdemeanor because it’s their first entry.” Normally, she said, people charged with the first-time offense take the plea, accept the time served, and are quickly deported. Now that parents and children are in the mix, she said, an increasing number of defendants are expressing that they want to remain in the country. “It’s very bizarre because most of the time that’s what our clients want — they want the misdemeanor and to go back home as soon as possible, but when you have a child here, obviously that’s the most important thing,” Kincaid said.
So far, the magistrate judges in Tucson have appeared receptive to the effort. “In every single case where an attorney is requesting that recommendation, our magistrate judges are making them,” Christina Woehr, also a federal public defender in Tucson, told The Intercept. In an effort to bolster recommendations, Kincaid has additionally sought orders requiring the government to disclose the locations of children in custody. Any increase in transparency would be a welcome change, the two attorneys said.
Earlier this month, Kincaid appeared before Magistrate Judge Bruce G. Macdonald’s during a Streamline hearing. Her client, Cerafino Perez Andres, a Guatemalan father, had crossed the border with his 15-year-old daughter five days earlier. Following his arrest, Perez Andres’s daughter was taken by the government and, standing before Macdonald, Kincaid explained that he had no idea where she was. Federal prosecutor Christopher Lewis told Macdonald that CBP and the U.S. Attorney’s Office have “no knowledge or control as to where they will place those children,” and that the kids are the responsibility of ORR, which does not have a mechanism for reporting back on the whereabouts of the children it receives from DHS agencies.
“I’m hoping, though, that you can ask them to at least provide you with that information,” Macdonald told Lewis, according to audio of the hearing obtained by the Arizona Daily Star.
“I can inquire, but there’s no mechanism on the part of ORR to report that back,” the prosecutor replied.
“Well, I’m asking for you to ask them to report that back,” the judge said.
Cosme Lopez, a spokesperson for the U.S. Attorney’s Office, stressed that the judge’s words were not an order. “I think the pivot point here is ORR,” Lopez told The Intercept, downplaying the Department of Justice’s role in family separations. “Our involvement has really not changed that much,” he said. “We have nothing to do with the children or the apprehension,” he added. “Our piece is so minute, it’s not even funny,” he insisted. The DOJ does not literally apprehend then process children, but the department’s role in family separation is not “minute.” Family separation is the consequence of a “zero tolerance” directive initiated by Sessions, who is head of the Justice Department. This change in prosecutorial priorities is at the very core of the national scandal that family separation has evolved into. The DOJ is just as implicated as all of the other enforcement agencies.
Kincaid and Woehr, the federal public defenders, point out that judges placing detention recommendations on their clients’ cases is hardly a solution to the situation at hand. They describe the measures more like a band-aid intended to staunch the enormous due process and emotional damage currently being done to migrant families. “It’s a pretty terrible choice to have to make as a parent,” Woehr said. “Do you want to be held in indefinite detention hoping you are reunited with a child who, you don’t know where they are, or do you want to ask to be deported and let your child’s immigration case wind its way through our system?” Woehr added, “The issue we run into with asking the government to disclose the location of the children is ICE says, ‘Well, they’re not in our custody anymore; they’re in ORR custody, so we have no way of finding their location,’ which shifts the burden of finding the location of the child to our detained or deported clients, which just adds to the terrible situation that they’re facing.”
“It’s Kafkaesque,” she said. “It’s just a nightmare.”
Kincaid agreed. “It’s one of the things that we’re struggling with right now and that we’re trying to address — is basically how to follow up with our clients to see if this reunification is happening, to see if they’re actually staying here, or they’re just getting deported immediately and their kids are staying here, which is obviously the worst-case scenario for most of our clients,” she said. “I can tell you that the whole situation seems to be shrouded in mystery for us.” Both pushed back on arguments, such as those from the Trump administration, that the migrants impacted by family separation bring their kids to U.S. in order to exploit a loophole and thus, gain entry into the country. “I don’t get that at all,” Kincaid said. “I’ve never heard that from any client,” Woeher added. Describing the experiences her clients have recounted, Kincaid said, “It really is more of a situation of real desperation.”
Fighting for Reunification
Beyond the horror of seeing parents separated from their kids, the attorneys said the current situation raises serious due process and proportionality questions. “Parents in this country who are citizens and are going through a process to potentially have their parental rights terminated — they have a lot of rights,” Kincaid pointed out, and yet, in the case of migrants, parents are losing their children through rapid-fire procedures in remote, closed-off government facilities. There’s also the question of how the punishment fits the crime, when the crime is a misdemeanor and the punishment is indefinitely losing your child. “You’re looking at a day in custody as your sentence, but oh, as a collateral consequence of your sentence, you’re going to lose your child for maybe a year — we don’t know,” Woeher said of the current practice.
For now, the public defenders’ focus remains on reunification, though it’s a campaign they wish they did not need to undertake. “We’re fighting for reunification right now but really, I think, the best thing that could happen is to go back to prosecutorial discretion, where you just don’t charge these cases,” Kincaid said. “Let’s not put ourselves in this situation to begin with, where we’re separating families.”
Part of what’s making the impact of “zero tolerance” and family separation so profoundly difficult to respond to, especially in terms of reunification, attorneys say, is that huge numbers of the people involved are little kids, toddlers, and babies — all of whom now have their own immigration cases, and no parents around to help.
With three offices and nearly 70 people on staff, the Florence Project has been the sole provider of free legal representation for people in immigration detention in the state of Arizona for nearly 30 years. Since January, the organization has documented 350 cases of family separation, and attorneys there are feeling the effects of representing very young clients. “Our kids program used to work mainly with 16-, 17-year-old Guatemalan boys, unaccompanied minors,” Lauren Dasse, the project’s executive director, told The Intercept. “Now we’re seeing a lot of young children. A lot of our clients are young and separated from parents.”
Those clients, Dasse said, have included a blind 6-year-old girl who was separated from her mother, and other preverbal, nonverbal, and disabled children and babies. The difficulty of sorting out these newly unaccompanied kids’ individual immigration cases, and reuniting them with their parents, is immense, Dasse said. “This is the most challenging thing I’ve seen,” she explained. “And I’ve heard that from staff cohorts in the field for a long time doing immigration defense and criminal defense, that this is the most challenging that they’ve had to do, is prep an inconsolable 4-year-old for their asylum hearing. You can imagine.”
And it’s not just the young kids, Dasse pointed out. “We have an older client, I think she’s 13, and she feels very guilty about her dad being detained because her dad was fleeing with her to keep them both safe,” she explained. “She’s put in a place where she has to make very adult-like decisions, with us representing her. She shouldn’t be in that place where she has to think of her own asylum case at this moment, because she has her guardian, her parent, as opposed to the unaccompanied minors that we’ve worked with for 20 years.”
Dasse described what’s felt like “a perfect storm of things that have happened over the past few months that have made our work and fighting your case so much more challenging.” She fears the combined impact of Trump administration efforts are aimed at increasing the time people spend in detention, so they will become more likely to abandon their cases, even if those cases involved potentially legitimate asylum claims. “Everything’s pointing to prolonged detention, and then the pressure is on people to give up on their cases,” she said. The DHS immigration official agreed, adding that the message from the administration appears to be “if you aren’t willing to be torn from your kids, spend six months or more in detention, and suffer humiliation and a complete upheaval of your life, then you don’t really need asylum.”
In response to the crackdown, the Florence Project is staffing up and building a rapid response team to handle family separation. Due to the government’s utter lack of transparency, much of that work involves combing through volumes of Streamline hearing transcripts, searching for parents whose children might have been taken. “It’s all very time-consuming,” she said. “Time-consuming and urgent. There’s an urgency right now that we’re all feeling.” The stakes right now couldn’t be greater, she argued.
“We are creating immeasurable trauma — immeasurable trauma, that will have lifelong effects on people,” Dasse said. “I’ve never seen anything like this.”
Abbott, of Bethany Christian, echoed that sentiment. “I’ve worked with unaccompanied children since 1977,” she said. “Forty years in child welfare, I’ve never seen anything quite like this. It’s so systematic.” Normally, she explained, the kids she works with have become unaccompanied for a reason. They are fleeing a war, for example, or a natural disaster, or some other crisis that causes them to enter the system without their parent. This is something different. In the U.S. context, she said, “people have managed to make it all the way to somewhere where they’re asking asylum and then are being separated.”
“This is purposeful, not part of the chaos of fleeing for your life. This is purposeful separation after you arrive at a border asking for safety,” Abbott said. “Quite honestly, I’ve never experienced where we use children as a deterrent.”
Top photo: U.S. Border Patrol agents detain a group of Central American asylum-seekers near the U.S.-Mexico border on June 12, 2018, in McAllen, Texas.