The Trump administration has separated hundreds of asylum-seeking families in the last six months, but since shifting to a policy of prosecution for all undocumented people crossing the U.S.–Mexico border, a greater number of children and parents are being separated. What does the new emphasis on “zero-tolerance” mean for migrant and asylum-seeking parents and children, and how does it impact the prospects for family reunification?
“I knew that the asylum process could take a long time and that it was possible that my son and I would be detained while we waited for a judge to decide out futures. I never could have imagined that they would take him from me.”
Mirian G., Honduran asylum seeker
Mirian G. (not her real name) traveled from her native Honduras, and presented herself and her 18-month-old son for asylum at the Texas–Mexico border in February. She was sent to detention, and the following day, was forced to strap her child, who had never known a day or night without his mother, into a U.S. government vehicle to be transported to a children’s shelter. The boy screamed for his mother as the car drove away, and Mirian—a woman fleeing violence and seeking asylum who had committed no crime—spent the next couple of months grief-stricken and desperate, transferred among three detention facilities and unable to speak to or visit her baby. Though she was given a phone number, she had no access to a phone, and her sister in the U.S. maintained phone contact with her pre-verbal nephew to comfort him with gentle words and her on-screen image. Once Mirian was found to have a credible asylum claim, mother and son were reunited after two months and eleven days, every second a torment. Still, Mirian was fortunate—not all asylum-seeking parents can count on being reunited with their children, even after an initial credible finding in their cases.
As prosecutions of undocumented immigrants entering the U.S. have ratcheted up over the past year and with last month’s announcement by Attorney General Sessions of a “zero-tolerance”/100%-prosecution policy for all unauthorized entrants at the southwest border, Mirian’s story of abrupt and prolonged separation from her son will become the story of any family—asylum seekers included—crossing into the U.S. with minors. It has already become the case for over 700 children ripped from their parents or guardians between October 2017 and April 2018, more than 100 of them under the age of 4, though mostly for reasons other than prosecution during that period.
PROSECUTION OVER PROTECTION: This shift in policy and practice represents a form of state-sanctioned cruelty against asylum seekers and other migrants. Family unity is a basic human right. Though deportations skyrocketed and prosecutions increased under the Obama administration, Immigration and Customs Enforcement (ICE) attempted to keep parents and children together in family shelters if detained, or released them on humanitarian parole with an appointment to report back to ICE. The official policy, though not always applied, was to prioritize children’s interests and at least endeavor to preserve family cohesion. Prosecuting asylum seekers was less frequent.
Nevertheless, separation of families at the border has been a long-standing concern in the U.S. detention and deportation system. Family members could be separated due to lateral repatriation (deportation to different cities along the border), and repeat border-crossers could be detained while first-time entrants they traveled with were released. According to KBI research conducted among migrants at the comedor in 2014-2015 (published in Our Values on the Line), 65% of migrants traveling with family members were separated from them; of these, 13% involved separation from a child.
But since Trump took office, the tenor and intent of these protocols has changed. Prosecutions are steadily rising, and the federal courts are overwhelmed with more than 700,000 cases, more than half of which are immigration-related. To accommodate this agenda, Attorney General Sessions sent 35 federal prosecutors and 18 immigrant judges to the southwest region this spring. In Brownsville, Texas, the magistrate’s court docket has become an immigration prosecution assembly-line, handling cases en masse in the manner of Operation Streamline.
Now that prosecutions are required in all cases of illegal entry and reentry, asylum seekers are being jailed, and children are being wrested from their parents or guardians. In the two weeks following the implementation of this program, another 658 children were taken from their parents, placed in federal shelters where there is space, sometimes in another state, hundreds or thousands of miles away, and with little, if any, information on where they are and how long they’ll be there.
DETERRENCE AND FAMILY SEPARATION: Department of Homeland Security (DHS) Secretary Nielsen claims that the augmented prosecution policy is not meant as a form of deterrence and that DHS does not have a family separation policy. This is a misrepresentation of the realities. In March 2017, when then DHS Secretary Kelly floated the idea of separating children and parents, he explicitly called it a “tough deterrent.” He went on to say, “The children will be taken care of—put into foster care or whatever.” The proposal was scrapped at the time due to outcries from Congressional representatives and the public. It was simply unthinkable, even for immigration hard-liners, to use the horror of being separated from one’s children as a means of preventing people who have fled violence or death threats in their homelands from crossing our borders; they have migrated with their children to save them. Moreover, the current prosecution policy is in effect a family separation policy—when someone is referred to criminal prosecution, they are separated from their children.
In addition, a study of child migrants from Central America conducted by the Center for Global Development (CDG) revealed that policy changes, whatever their nature, do not affect the numbers of children migrating. The biggest determining factor in child migrations is the number of homicides in the area where the child lived; for every 10 homicides, CDG found that 6 more children migrate. The notion that zero tolerance or family separation will keep people from fleeing their violent homelands and seeking safety elsewhere is simply false.
CHILDREN INDEFINITELY SEPARATED FROM PARENTS: The KBI has witnessed the profound pain and distress of family separation up close, as migrants have shared their stories of being separated from a partner, a sibling, or other relatives and travel companions. The new prosecution policy has now placed children, the most vulnerable among us, at risk, creating an indefensible situation of heartache and intensified trauma for their parents as well as imposing deeply scarring experiences on children which studies show can affect the rest of their lives. This, on top of the challenges and stresses already endured in their countries of origin and on their journey north.
The suffering is exacerbated by not knowing when, how, or if reunification will occur. Children often do not have documents that identify their family members, and parents are not necessarily notified of where their children are, leading to weeks or months of efforts to get that information or make contact. Cell phones are confiscated from detainees, and access to shared phones is limited or unavailable. Health and Human Services (HHS), in charge of housing the children, is not apprised of the status or whereabouts of parents. In addition, for parents seeking to reunite, navigating the agencies involved—ICE, the U.S. Marshal’s Service (which jails detainees), and HHS or their subsidiary agency, the Office of Refugee Resettlement (ORR)—is arduous and confusing. The average stay for children in shelters is 41 days, but that is sure to increase under the current policy. They may be released to relatives, but sponsorship is complicated by immigration status issues—if a potential sponsor is undocumented, they are often less inclined to step forward for the task, and children will languish in shelters for longer periods.
From a legal perspective, when they are taken from their parents, children are designated as “unaccompanied,” become wards of HHS, and their cases are conducted separately. This makes it more difficult to build strong cases or hope for a positive outcome in deportation or asylum proceedings. Parents are sometimes deported without their children; frequently, children must represent themselves, are unaware of the persecution or conditions they escaped (parents withholding these details to shield them), or do not have access to the evidence and testimony they need to present in court. When family members cannot locate each other or link their cases, these practical and legal obstacles deny these families due process, contribute to prolonged detention, and can prove insurmountable. For asylum seekers, criminal prosecution is a flagrant infringement of their legal and human rights, and ultimately, these challenges can lead to people being deported back to situations where they face death.
WHAT NEXT: In March, the lawsuit filed by the American Civil Liberties Union on behalf of a Congolese mother separated from her 7-year-old daughter in facilities 1,500 miles apart (Ms. L v. ICE) became a class-action covering all detained immigrants separated from their children. The United Nations human rights office has called on the Trump administration to “immediately halt” the separation of parents and children at the U.S.–Mexico border, denouncing the practice as an “arbitrary and unlawful” burden on families and a violation of children’s rights. Disturbingly, based on the rise in the number of families they served in May, the Florence Project (the KBI partner that co-sponsors our legal fellow) projects a 75% increase in the separation of children and parents.
The KBI stands with migrants and asylum seekers, and condemns the new prosecution policy as cruel, punitive, and a violation of family integrity. In addition to aiding migrants affected by family separation and advocating on their behalf, the KBI has helped connect immigration advocacy organizations in Washington, D.C. with Jesuit partners in Central America to give orientations on how to deal with family separation and accompany families. Here in the U.S., we can all—as citizens, voters, and advocates—call on our elected officials to (1) end the practice of separating children from parents at the border; (2) stop the prosecution of asylum seekers; (3) legislate humane alternatives to family detention and separation; and (4) eliminate funding for family separation. We urge you to act on behalf of those fleeing extreme violence and seeking better, safer lives to ensure their family unity. This month’s Call to Action provides one way to do that.