Why children are being sent to “foster care or whatever” while their parents are sent to jail.

By Dara Linddara@vox.com   VOX    Jun 11, 2018, 2:40pm EDT

As a matter of policy, the US government is separating families who seek asylum in the US by crossing the border illegally.

Dozens of parents are being split from their children each day — the children labeled “unaccompanied minors” and sent to government custody or foster care, the parents labeled criminals and sent to jail.

To many critics of the Trump administration, family separation is an unpardonable atrocity. Articles depict children crying themselves to sleep because they don’t know where their parents are; one Honduran man killed himself in a detention cell after his child was taken from him.

But the horror can make it hard to wrap your head around the policy.

Family separation isn’t sudden, nor is it arbitrary. While the Trump administration claims it’s taking extraordinary measures in response to a temporary surge, it is entirely possible this will be the new normal. Here’s what you need to know to understand it.

1) How is the government separating families at the border?

To be clear, there is no official Trump policy stating that every family entering the US without papers has to be separated. What there is is a policy that all adults caught crossing into the US illegally are supposed to be criminally prosecuted — and when that happens to a parent, separation is inevitable.

Typically, people apprehended crossing into the US are held in immigration detention and sent before an immigration judge to see if they will be deported as unauthorized immigrants.

But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time. That’s where the separation happens — because you can’t be kept with your children in federal jail.

According to federal defenders, some Border Patrol agents are lying to families about why and how long they’re being separated. A federal defender told the Washington Post’s Michael E. Miller that parents were told their children were just being taken away briefly for questioning. Liz Goodwin of the Boston Globe cites a defender saying that in several cases, children were taken “by Border Patrol agents who said they were going to give them a bath. As the hours passed, it dawned on the mothers the kids were not coming back.”

Rep. Pramila Jayapal (D-WA), who visited a federal prison where some mothers were being housed on Sunday, recounted stories of women being told by Border Patrol agents that “their ‘families would not exist anymore’ and that they would ‘never see their children again.’”

First-time border crossers don’t usually do prison time. After a few weeks in jail awaiting trial, they’re usually brought before a judge in mass assembly-line prosecutions (according to Lomi Kriel of the Houston Chronicle, one courtroom in McAllen, Texas, has been hearing 1,000 cases a day in recent weeks) and sentenced, within minutes, to time served — as long as they plead guilty. Michael E. Miller depicted the scene for the Washington Post:

As [the federal defender] consulted with Nicolas-Gaspar, dressed in the same dirt-caked tennis shoes and mud-stained shirt in which he’d been detained, the immigrant in his late 20s began to sob. She told him the best chance he had of seeing his son soon was to plead guilty.

Culpable,” he told the judge when court resumed minutes later. “Culpable. Culpable.”

There are also some cases in which immigrant families are being separated after coming to ports of entry and presenting themselves for asylum — thus following US law. It’s not clear how often this is happening, though it’s definitely not as widespread as separation of families who’ve crossed illegally.

Upon being separated from their parents, children are officially designated “unaccompanied alien children” by the US government — a category that typically describes people under the age of 18 who come to the US without an adult relative arriving with them. Under federal law, unaccompanied alien children are sent into the custody of the Office of Refugee Resettlement (ORR), which is part of the Department of Health and Human Services. The ORR is responsible for identifying and screening the nearest relative or family friend living in the US to whom the child can be released.

ICE has now released a flyer for parents separated from their children at the border.

A flyer.

And it’s in English.

2) How many families have been separated at the border?

We don’t exactly know.

Lomi Kriel of the Houston Chronicle first reported last fall that families were being separated by Border Patrol after arriving in the Rio Grande Valley in Texas. The New York Times later reported that from October 2017 to April 20, 2018, 700 families were split by the Trump administration. (The Trump administration claims it piloted its “zero-tolerance” prosecution policy in the Rio Grande Valley in summer 2017, which would have led to family separations over that period; Reuters has reported that nearly 1,800 families were separated between October 2016 and February 2018, suggesting that the practice may have been going on for some time.)

In early April, the Department of Justice announced that any migrant referred for illegal entry by DHS officials would be prosecuted. On May 7, DOJ and DHS announced that any migrant caught by Border Patrol agents after crossing illegally would be sent to DOJ — and, therefore, prosecuted.

From May 7 to May 21, according to statistics provided by Customs and Border Protection (CBP) to Congress, 658 children were split from 638 adults put into the “prosecution process.”

It doesn’t look like all families apprehended by Border Patrol get separated — or even most of them. According to Border Patrol statistics, 9,485 migrants were apprehended in “family units” in May 2018 — 306 a day — while the CBP statistics on family separations suggest that 93 people were separated from their children or parents a day after the zero-tolerance directive went into effect.

But the pace may be picking up. Federal defenders in McAllen counted 421 parents coming into court between May 21 and June 5 — and that represents just one Border Patrol sector, though admittedly the highest-traffic one for family crossings. (Many of those parents could have been apprehended and split from their children during the May 7-21 period and counted in the Customs and Border Protection stats.)

3) Is the policy of separating families new?

Yes. But it’s building on an existing system, and attention to family separation has brought more awareness to problems with that system that have been going on for some time.

For the past several years, a growing number of people coming into the US without papers have been Central Americans — often families, and often seeking asylum. Asylum seekers and families are both accorded particular protections in US and international law, which make it impossible for the government to simply send them back. Those protections also put strict limits on the length of time, and conditions, in which children can be kept in immigration detention.

When the Obama administration attempted to respond to the “crisis” of families and unaccompanied children crossing the border in summer 2014, it put hundreds of families in immigration detention — a practice that had basically ended several years before. But federal courts stopped the administration from holding families for months without justifying the decision to keep them in detention. So most families ended up getting released while their cases were pending — which immigration hawks have derided as “catch and release.” In some cases, they disappeared into the US rather than showing up for their court dates.

The Trump administration has stepped up detention of asylum seekers (and immigrants, period). But because there are such strict limits on keeping children in immigration detention, it’s had to release most of the families it’s caught.

The government’s solution has been to prosecute larger numbers of immigrants for illegal entry — including, in a break from previous administrations, large numbers of asylum seekers. That allows the Trump administration to ship children off to ORR, rather than keeping them in immigration detention.

4) What happens to the children?

In theory, unaccompanied immigrant children are sent to ORR within 72 hours of being apprehended. They’re kept in government facilities, or short-term foster care, for days or weeks while ORR officials try to identify the nearest relative in the US who can take the child in while his immigration case is being resolved.

But the system for dealing with unaccompanied immigrant children was already overwhelmed, if not outright broken.

ORR facilities were already 95 percent full as of June 7; 11,000 children are being held. (Remember, most of these are probably children who arrived in the US without their parents.) According to the New York Times, the government “has reserved an additional 1,218 beds in various places for migrant children, including some at military bases.”

The agency has been overloaded for years; its backlog in 2014 precipitated the child migrant “crisis,” when Border Patrol agents ended up having to care for kids for days. An American Civil Liberties Union report released in May 2018 documented hundreds of claims of “verbal, physical, and sexual abuse” of unaccompanied children by Border Patrol.

This picture is from 2014, when a surge of unaccompanied children crossing the border caused Border Patrol to use temporary holding centers to house immigrant children before sending them to the Office of Refugee Resettlement to be placed with relatives. Often, the children’s parents were already living in the US. John Moore/Getty Images

There are questions about how carefully ORR vets the sponsors to whom it ultimately releases children. A PBS Frontline investigation found cases of teenagers getting released to labor traffickers by ORR. The agency told Congress in April that of 7,000 children it attempted to contact in fall 2017, 1,475 could not be contacted — leading to allegations that the government “lost” children, or that they’d been handed over to traffickers.

For the most part, though, it’s probable that the families ORR was unable to contact made the deliberate decision to go off the map. People who came to the US as unaccompanied children were usually teenagers who had close relatives here to reunite with. In 2014-’15, according to an Office of the Inspector General report, 60 percent of unaccompanied children were released to their parents; 99 percent were released to relatives or close friends. (The other 1 percent were put in long-term foster care.)

That isn’t true of children who come to the US with their parents — children who don’t have to be old enough to make the journey on their own — and are then separated from them. ORR isn’t used to changing diapers.

In May, according to the New York Times, the government put out a request for proposals for “shelter care providers, including group homes and transitional foster care,” to house children separated from parents. One organization coordinating placements is placing children with foster families in Michigan and Maryland — and planning to expand to several other states.

Some of these foster families have experience fostering unaccompanied children. But they’re not used to children who’ve just been separated from their parents.

5) Are families being reunited?

Some have been. But the government is sending very mixed signals about how families can be reunited — and whether the Trump administration is even trying to make that happen at all.

In an ACLU lawsuit over the separation of families in immigration detention, a DOJ official told the judge that “once a parent is in ICE [Immigration and Customs Enforcement] custody and the child is taken into the Health and Human Services system, the government does not try to reunite them, and instead attempts to place the child with another relative in the United States — if the child has one.”

That isn’t what ICE and DHS say. They claim that once parents have finished their criminal sentences for illegal entry or reentry, they can be reunited with their children in civil immigration detention while they pursue their asylum case.

They don’t appear to have a system to bring families back together.

This family was reunited in Houston after being separated upon crossing into the US from El Salvador. Others aren’t so lucky. Michael Stravato/The Washington Post via Getty Images

One flyer given to parents in Texas offered a number to call to locate children. But the number was wrong: Instead of being a number for ORR, it was an ICE tip line. (The flyers had to be corrected in pen.) And even if a parent can call ORR and ORR can identify the child, they might not be able to call the parent back — because immigrants in detention don’t have phone access. (Federal judges sentencing immigrants have urged the government to make sure that they have access to phones so they can relocate their kids.)

The plaintiffs in the ACLU’s family-separation lawsuit are one woman separated from her child for eight months after she presented herself for asylum at a port of entry, and another woman who was sentenced to a brief jail term for illegal entry but couldn’t be reunited with her child for months after her release back to DHS custody.

Some parents are being deported without their children. And some small children, according to advocates in Central America, are getting deported without their parents.

6) Why does Trump say there’s a “Democratic law” requiring families to be separated?

President Trump has responded to criticisms of family separation by claiming that a “Democratic law” requires him to do it, and that if Congress doesn’t like it, they can change the law.

“Separating families at the Border is the fault of bad legislation passed by the Democrats. Border Security laws should be changed but the Dems can’t get their act together! Started the Wall.”

This is not true. There is no law that requires immigrant families to be separated. The decision to charge everyone crossing the border with illegal entry — and the decision to charge asylum seekers in criminal court rather than waiting to see if they qualify for asylum — are both decisions the Trump administration has made.

Other administration officials back up Trump by pointing to the laws that give extra protections to families, unaccompanied children, and asylum seekers. The administration has been asking Congress to change these laws since it came into office, and has blamed them for stopping Trump from securing the border the way he’d like. (Those aren’t “Democratic laws” either; the law addressing unaccompanied children was passed overwhelmingly in 2008 and signed by George W. Bush, while the restriction on detaining families is a result of federal litigation.)

In that context, the law isn’t forcing Trump to separate families; it’s keeping Trump from doing what he’d perhaps really like to do, which is simply sending families back or keeping them in detention together, and so he has had to resort to plan B.

7) Does family separation deter people from coming illegally, or coming at all?

John Moore/Getty Images

Some administration officials say they’re prosecuting immigrants (and separating families) for a simple reason: They want to stop people from coming into the US illegally between ports of entry. “You have an option to go to a port of entry and not illegally cross into our country,” Homeland Security Secretary Kirstjen Nielsen told a Senate committee last month.

It sounds like common sense — and it allows the administration to avoid awkward legal or moral questions about trying to keep out people fleeing persecution.

But there isn’t evidence that strategy will work. In early May, rolling out the zero-tolerance policy, the Trump administration claimed that a pilot of the program along one sector of the border had reduced border crossings in that sector by 64 percent — but failed to produce numbers to back up that claim and instead produced numbers about something else.

Furthermore, the administration sends mixed signals about whether it actually wants people to use ports of entry to seek asylum legally.

Some asylum seekers have been separated from their children at ports of entry, though advocates don’t believe it’s happening systematically. The Trump administration has promised to prosecute anyone who submits a “fraudulent” asylum claim — and Attorney General Jeff Sessions has made it clear that he suspects many, if not most, asylum claims are fraudulent.

Meanwhile, at several ports of entry, asylum seekers are being told there’s no room for them and that they’ll have to come back another time. In at least one case, asylum seekers were physically prevented from stepping on US soil — which would have given them the legal right to seek asylum at the port of entry.

The statistics the Trump administration uses to back up the idea that there’s a “surge” since last year sometimes count both people getting caught by Border Patrol between ports of entry and those presenting themselves without papers at ports of entry for asylum. The implication is that the current crackdown will reduce both — implying that one point of the policy is to stop families from trying to enter the US to seek asylum, period.

8) How is family separation legal?

The Trump administration puts it bluntly: Criminal defendants don’t have a right to have their children with them in jail.

The question is whether the Trump administration has the legal authority to put asylum-seeking parents in jail awaiting trial to begin with, knowing they’re splitting them from their children.

Human rights organizations, including the United Nations, have argued that it violates international law to prosecute asylum seekers criminally. But no administration has agreed with that interpretation; the Obama administration prosecuted some asylum seekers too, just not as often.

Federal courts have, however, ruled that it’s illegal to keep an immigrant in detention in the hopes of deterring others, instead of making an individual assessment about whether that immigrant needs to be detained.

That might pave the way for advocates to fight back against family separation — or, at least, to force the government to start helping families get reunited after the parents have been sentenced.

The ACLU won an early victory in its case in June: The federal government asked the judge to throw out the case, and the judge refused. In his ruling, he made it clear he believed that if the allegations against the administration were true, they might very well be unconstitutional — violating family integrity, which some courts have found is implicitly part of the Fifth Amendment’s guarantee of “liberty” without due process of law.

This doesn’t mean that the case is definitely going to succeed, though the tea leaves are favorable. And, of course, any opinion will be appealed — and will likely go to the Supreme Court unless something else happens to change the policy before then.

Even if the ACLU does succeed, it won’t stop families from being separated at the border. The lawsuit argues that it’s unconstitutional for parents who are in immigration detention to be separated from their children — but not that it’s unconstitutional to charge parents with illegal entry and take them into separate criminal court.

Spencer Platt/Getty Images

A victory would merely obligate the federal government to reunite parents with their children once they’ve served their (brief) time for illegal entry. But whether the government will actually be able to do that is another question. And it’s certainly less preferable, for families, than not being separated at all.

 

9) How long will this last?

The Trump administration presents its crackdown as a temporary response to a temporary “surge” of people crossing the border illegally. But the “surge” is simply a return to normal levels of the past several years after a brief dip last year. It would be foolish to assume that the administration will be satisfied with border apprehension levels in a few months, and wind down the aggressive tactics it’s started to use.

If we had a different president running a different White House, the outrage that family separation has generated would probably make it more likely that the policy would be quietly ended or at least curbed. Not only is it galvanizing progressives, but some conservatives — including talk show host Hugh Hewitt and evangelical leader Samuel Rodriguez— have voiced concerns for the children.

But this administration very rarely backs down from something because people are mad about it — often, the president takes that as an indication he’s doing something right.

It’s possible the administration simply won’t have the resources to keep this many people in detention for this long — it’s already running out of space in ICE detention — or to keep prosecuting more and more people for a crime that already overwhelms federal dockets. But it’s also possible that it will simply burn through the money it has and demand Congress give it more, in the name of protecting the US from an invasion of illegality.

It is extremely unlikely that Congress is going to pass a law that stops the administration from separating families at the border. Democrats are scrambling to propose bills to limit prosecution and separation, but the issue isn’t even inspiring the bipartisan momentum that Trump’s decision to end the Deferred Action for Childhood Arrivals (DACA) program last fall did.

Indefinite family separation is almost certainly going to overwhelm the already precarious system for dealing with migrant children. Border Patrol and ORR aren’t going to get the resources they need to address the new jobs they’re being asked to take on by treating children separated from their parents as “unaccompanied” children. But the public and policymakers never paid much attention to that part of the immigration system anyway.

When it first became clear that the Trump administration was engaging in wide-scale family separation, White House Chief of Staff John Kelly waved off questions about the policy by saying that children would be sent to “foster care or whatever.” The vagueness and inaccuracy were telling.

The administration knows it is separating families. It does not appear to believe it’s its job to reunite them.