A little girl from the Democratic Republic of the Congo spent her seventh birthday in an immigration facility in Chicago, where she’s been held for the past four months.
Her mother who brought her to the U.S. was being held in a facility two thousand miles and two time zones away. She was released Tuesday from the Otay Mesa Detention Center in San Diego, according to The Washington Post, but it is unclear when she will be reunited with her child.
The mother and daughter were split apart just four days after presenting themselves to border guards upon entry into the country. Their contact with each other has been limited to about half a dozen phone calls since then.
This wasn’t some gross government oversight, where the wedge of incompetent and inflexible bureaucracy came between a mother and child. This was an intentional separation that is no one-off instance of cruelty on the part of law-enforcement, but rather an emblem of a systematic approach taken by immigration enforcement agencies in the name of deterring immigration.
The American Civil Liberties Union filed for a preliminary injunction Saturday to reunite the mother and daughter, and it appears the government was willing to at least release the mother, referred to as Ms. L in the ACLU’s the memorandum. “The government has never offered any reason why Ms. L.’s daughter was taken from her,” the memorandum read. “There was no accusation that Ms. L. was an unfit parent, much less that she had engaged in abusive behavior toward her daughter.”
The ACLU also filed a lawsuit last week against the U.S. government for “unlawfully separating” the young Congolese girl and her 39 year-old-mother. The Department of Homeland Security has declined requests for comment on the suit from the press.
The mother went directly to the authorities upon entering the country with a plea for asylum. They fled a country experiencing violent civil unrest and government brutality since the DR Congo’s President, Joseph Kabila, refused to step down from office and hold elections when his term expired. Bloomberg reports that 5 million people have been displaced due to the conflict. According to the lawsuit, Ms. L is Catholic. Fearing for her life, she and her daughter, referred to as S.S., took shelter in a church before fleeing the country.
The lawsuit claims the government has violated Ms. L’s right to due process. As stated in the memorandum, it has “been established for more than a century that the Due Process Clause,” which the Supreme Court has ruled applies to “all persons” on U.S. soil, “prohibits the government from separating a parent from her child absent the most compelling reasons,” and the government’s actions have violated due process “because there has been no allegation, much less evidence, that Ms. L. is an unfit mother.”
According to the lawsuit, the mother’s initial screening revealed she had a “credible fear” of returning to Congo. Despite the turmoil of her home country, “credible fear” is generally a low bar for those seeking asylum, according to Homeland Security secretary Kirstjen Nielsen. In a Senate hearing in January, she told Sen. Dianne Feinstein: “There are those who truly do fear for their lives.” But, “There are many other — many others, unfortunately, that we find who are trained by those who are trafficking them to just use those words. And given the laws in court cases, we must immediately treat them as if they are seeking asylum and put them into the system.”
Loopholes like this have likely contributed to the backlog of pending asylum applications, and may be encouraging people to come here. Pending applications have climbed to nearly 270,o00 for U.S. Citizenship and Immigration Services (USCIS) and 250,000 for Executive Office for Immigration Review (EOIR) as of January of this year. But instead of making it a priority to raise the standards of “credible fear” or otherwise close the loophole, the government has implemented a “deterrence” strategy of separating families.
I spoke with Christina Remlin, who worked on the lead amicus brief for this case with several advocacy organizations. She contends, as does the memorandum, that Ms. L and S.S. should have been put in a family immigration facility or moved to a shelter. Remlin says there are even shelters that “specialize in care of African asylum seekers,” which clearly would be a more suitable place for a mother and small child seeking asylum.
There was no compelling reason to separate the mother and daughter, legally speaking. In fact, there were compelling legal reasons to do just the opposite. There are rules in place “confining government to keep families together, to only remove them in extreme circumstances, only after a ton of effort has been made to keep families together,” Remlin explained. Numerous court rulings presenting family unity as a “fundamental liberty interest,” are detailed in the ACLU’s memorandum, as well as evidence the government’s “arbitrary” and “capricious” actions had violated the Administrative Procedures Act, which requires an agency to “supply a reasoned basis for the agency’s action.”
The evidence suggests the government went well out of its way to tear a family apart.
Current “informal” practices also run counter to the Flores Settlement Agreement of 1997 currently binding on U.S. immigration services. It states, “The INS [now USCIS, ICE, and CBP] treats, and shall continue to treat, all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors. The INS shall place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs.”
In the case of the little Congolese girl, it certainly doesn’t look like the government has been showing “special concern” for her “particular vulnerability.” The ACLU’s lawsuit is based on due process, but the stark contrast between the Flores Agreement and the government’s actions in this case merits discussion, especially since the administration is seeking to end the agreement.
An amicus brief filed by Lisa R. Fortuna, Director of the Section (Division) of Child and Adolescent Psychiatry for the Boston Medical Center (BMC) and Assistant Professor in the Department of Psychiatry at Boston University School of Medicine, sheds light on the psychological damage the government could be inflicting on the young Congolese girl.
She argues in her brief that children separated from their primary attachment figure in an already traumatic situation, such as fleeing one’s home and being detained in a foreign country, may suffer “irreparable harm” to their mental health.
“Trauma exposure in children and adolescents can impede personality development, causing disturbances in sense of self, impairment of basic trust, attachment disorders, and sharp deterioration in functioning,” she wrote. “The more terror inducing the trauma is and the longer its duration is, particularly when combined with the absence of a parent, the more devastating its effects on children.”
In one of nine declarations presented by the ACLU in their petition for injunctive relief, Dr. Alan Shapiro, who co-authored a paper on the detention of immigrant children and visited detention facilities firsthand, stated, “Typically, I would be told by children, ‘I would rather die than be separated from my mother.’” He continued, “I can say confidently that separation can lead to further trauma of this child (and her mother) with possible irreparable damage.”
Indeed, anyone with children can imagine the gut-wrenching pain of forceful and prolonged separation from them.
The Flores agreement further states, “The licensed program in which the minor is placed shall make and record the prompt and continuous efforts on its part toward family reunification … Such efforts at family reunification shall continue so long as the minor is in INS custody.” Additionally, the agreement stipulates that, “Every effort must be taken to ensure that the safety and well-being of the minors detained in these facilities are satisfactorily provided for by the staff” (emphasis added.)
The Trump administration is seeking to end the Flores agreement as part of its efforts to reform immigration laws. While the White House proposal suggests that legislation regarding the “care of minors” replace the agreement, they did not describe what such legislation should entail. If current actions are any indication, it would permit separation of parents and children for no greater reason than deterring immigration.
Family separation compounds the trauma of fleeing one’s home country, particularly for the young and vulnerable. To rip away their only sense of security and deprive them of the primal parent-child bond in the name of “deterrence,” for which the government hasn’t even supplied data to show its efficacy, for which they are not just violating due process (as the ACLU claims and to which the evidence overwhelmingly points), but ignoring the priority of family unity that undergirds the long-standing Flores agreement, should be unconscionable.
But is this case just a fluke? A maverick official with an ax to grind, who would do such a thing?
Unfortunately not.
Several immigration advocacy organizations claim the same in a letter sent to DHS in December, citing 155 cases of family separation at the U.S.-Mexico border as of late October 2017. Of those, “90 cases had occurred in the most recent quarter as of that time, indicating a significant spike in incidents of family separation.” That data is from a single legal service provider in Arizona, the Florence Immigrant and Refugee Rights Project.
Acting director of ICE, Tom Homan, told the Associated Press that “there have been some separations done.” What percentage of these are based on deterrence is unknown. Sometimes families are separated for as arbitrary a reason as needing to fill a bed space in a different facility (ICE has quotas for filling bed spaces).
“The government isn’t providing statistics on separations,” said Lee Gelernt, lead attorney and deputy director of the ACLU’s Immigrants’ Rights Project. “Children are being separated all over the country and detention centers are overwhelmed. What we’re hearing is there are hundreds of cases.” And he says they’re “arguing lots of other cases like this one [Ms. L’s] where people are presenting at the border.”
Democratic Sens. Richard Durbin and Tammy Duckworth sent a letter to DHS on Friday requesting data on the number of asylum seekers “separated from a parent since Trump took office,” as well as the duration of their separation.
A piece in the Houston Chronicle by Lomi Kriel outlines many instances of separation. Kriel quoted multiple public defenders who said they’ve seen an increase in the prosecution of parents. The detention of children can’t be “prolonged,” according to the Flores Agreement, so it amounts to “de facto separation:” The parents remain in a detention facility, and the children are moved to shelters or host homes. Not even so much as a hearing precedes this removal.
Lora Makowski, a spokeswoman for the U.S. Attorney’s Office for the Western District of Texas, said in a statement that the office “neither targets nor exempts defendants based on their parental status,” and that, “Any increase in prosecutions stems from an increase of cases brought by Border Patrol to the U.S. Attorney’s Office.”
Nevertheless, the effect of prosecution is that parents quickly plead guilty to the misdemeanor charge of improper entry so they can be reunited with their children. The Western District of Texas’ federal public defender’s office “contends such separations violate migrants’ rights to due process,” arguing the leverage of taking the children away amounts to involuntary confession.
But that’s only the half of it. Due to the gross inefficiency of immigration services, children separated from their parents are kept far longer than necessary at the taxpayer’s expense. Why? Because the three agencies involved in immigration (DOJ, HHS, DHS) lack comprehensive processes for tracking these individuals, they’re frequently “lost in the system.” The number of individuals, places, and decisions (often quite arbitrary) involved means sometimes they can’t be traced back to their parents. One party is untraceable to the other.
The government literally loses the children — it could take weeks or even months to reunite them. At a certain point, delayed separation necessitates the child’s own separate court proceedings, adding to the time and expense involved.
The White House proposed “amending current law to ensure the expeditious return of UACs and family units” in October, citing the monetary cost of sheltering them with the Department of Health and Human Services as a concern. But if the government can’t even keep track of the individuals, would the “deterrence measure” of family separation really make up for the extra resources spent on such separations? The fact that some parents now have misdemeanors on their records and are then sent back doesn’t necessarily mean they or others are being deterred from trying to enter the U.S again.
Not to mention, the logistics of moving the little Congolese girl halfway across the country would be an obstacle to resolving the case. “Does this girl need a separate lawyer?” Remlin asked. “It doesn’t make any sense. It’s very expensive, logistically difficult, and really bad for the child.”
So this strategy could do irreparable psychological damage to children, it spends additional resources to keep families separated, it’s routinely botched by immigration services resulting in children “lost in the system,” the government will not even release statistics on separations, much less their measurements of its efficacy as a deterrent, and it flies in the face of a longstanding legal structure centered on keeping families together.
Yet despite the catastrophic implementation of this informal “deterrence strategy,” there’s a chance that an iteration of this practice could become written policy. A proposal to separate families awaiting deportation has already been approved by Immigration and Customs Enforcement and is pending approval from Homeland Security secretary Kirstjen Nielsen. The previous DHS secretary, John Kelly, said last year that he had considered the policy change. He told Wolf Blitzer in an interview last March, “Yes, I am considering it in order to deter more movement along this terribly dangerous network. I am considering exactly that. They [the children] will be well cared for as we deal with their parents.”
Blitzer pressed him. “You understand how that looks, right?” To which Kelly responded, “It’s more important to me, Wolf, to keep them off this network.”
Remlin has a different perspective on the asylum seekers who make the journey. “This is an arduous, harrowing, dangerous journey. And people were making that because they fear for their lives,” she said. “Think about what you’d have to be running from.” As she sees it, it’s doubtful this is going to be much of a deterrent for people fleeing real hardship or danger.
After a backlash from members of Congress and immigrant advocates, Kelly resolved that families should only be separated in extreme cases, such as if a parent was putting a child in danger or had an illness.
In her Senate hearing, secretary Nielsen stated with regard to the proposal, “No policy decision has been made on that,” and that she would be “happy to work with [Congress] and look at other alternatives.”
Remlin says, “It’s chilling that the proposal is even on the table,” especially considering it’s being perpetrated on an already traumatized population.
But one must ask if it even makes a difference what the government officially decides. Separations are already happening, and they’re happening not just to aliens trying to sneak into the U.S. to remain illegally; they’re happening to asylum seekers trying to use the proper legal channels.
The administration cites safety and “the rule of law” as of primary importance in reforming immigration policy. These goals are generally viewed positively by the public; everyone wants to be safe, and most people want to live in an orderly society where the law is consistently and reasonably enforced.
“What [immigration] hardliners talk most about is rule of law,” Remlin said. “Separating children from their parents does not further that goal. Arguably, the child is an important witness and they should want to have the child close by. [Separation] is serving no legitimate government purpose except this vague idea that it will deter other immigrants from coming here and seeking asylum. If you want strict enforcement of immigrant laws, this does not further that goal.”
Gelernt sees it similarly. “I think this is a practice that everyone should rally against regardless of what positions you may take on macro immigration policy,” he said. “This practice is a step beyond anything we’ve seen from prior administrations. Everyone should draw a line at some point.”
Trump billed himself as a hardliner on immigration during the campaign, and his administration’s actions, coupled with his rhetoric, have thus far matched the intensity and spirit of his anti-immigration platform, if not the exact policies. He hasn’t sold Congress on the wall yet, but the “refugee ban,” his appointment of immigration hardliner Jeff Sessions as attorney general, the White House’s January proposal to eliminate family sponsorship of green cards (i.e. chain migration), the fact that even immigrants married to U.S. citizens with American children are now at risk for deportation, and his reported derogatory question of “Why do we want all these people from sh-thole countries coming here?” demonstrate he’s serious about cracking down on immigration — both legal and illegal.
No immigrant is insulated from that goal — not even a mother and seven year old child fleeing political violence in central Africa, who followed all the right processes. This asylum case should be a PR nightmare for Trump and his immigration team. To deliberately separate a young child from her mother for months, when they sought the government’s protection and consideration for asylum directly, is indefensible.
All this leaves one to wonder if the administration’s immigration stance is about the rule of law so much as suppressing immigration, even by unethical means. To make it a policy — not just a policy, but an unwritten policy to circumvent due process and separate parent and child in the name of deterring desperate souls from partaking in the blessings of American safety and prosperity is the very definition of undermining the rule of law. That’s something that should worry conservatives, liberals, and everyone in between.
