Reports of mistreatment of migrant children at the U.S. border have been all over the news recently. Hashtags and social media mobilization have brought remarkable attention to children seeking U.S. protection from persecution in their home countries. But the coverage has drummed up its share of confusion, despite multiplying “explainers” — here are some from The Washington Post, the New York Times and Mother Jones. The situation remains complicated, messy and often misunderstood. Let’s sort it out:
Yes, it’s new that children are separated from their parents upon entry into the U.S.
The most important of the recent stories is the separation of children from their parents at the border. This is a new policy of the Trump administration and, notwithstanding the president’s tweet about it over the weekend, no law compels it.
When a parent arrives at the border with a child, whether they are apprehended by Border Patrol or seek asylum at the port of entry, the administration separates the parent from the child and takes both into custody. Parents who arrive between ports of entry are separated from their children and sent for criminal prosecution. They are housed in Justice Department criminal facilities until they serve their sentence, then transferred to Immigration and Customs Enforcement (ICE) custody and placed into immigration proceedings.
However, even when families lawfully present themselves at a port, the administration still separates children from parents. The children enter the custody of the Department of Health and Human Service’s Office of Refugee Resettlement (ORR) and are placed into immigration proceedings. Many are babies and toddlers. This report by the American Academy of Pediatrics provides evidence that the forced separation has grave consequences for both parents and children.
The administration has offered a number of explanations for the separations, but officials keep on returning to a common theme — that this policy is designed to discourage parents desperately seeking safety from persecution and danger from bringing their children to the United States. In other words, this policy is designed to be punitive.
The administration is less than forthcoming about what is happening
Parents apprehended by Border Patrol are being prosecuted for crossing the border without authorization, under what Attorney General Jeff Sessions has called a new “zero tolerance” policy. Homeland Security Secretary Kirstjen Nielsen has insisted that separating children when parents are prosecuted for crossing the border is no different than separating children from parents who have been criminally convicted and sent to prison.
This badly distorts the facts. For one thing, the parents haven’t been convicted — they have just been charged — and most have the valid defense that they are legitimately fleeing persecution. Seeking asylum at our borders is a legal right protected under U.S. law. When Nielsen and Sessions say that families who do not want to be separated should cross at points of entry, they are ignoring how families who have done this, and asked for asylum, have been turned away, while others have been separated even while attempting to go through the appropriate legal process.
The system for caring for kids is overburdened
ORR is taking on an unprecedented role. Historically, it has mostly been responsible for older children, who arrive at the border unaccompanied by parent. Under U.S. law and child welfare best practices, ORR tries to release the children in their care to a family member — preferably a parent. Until now, it held kids temporarily while working to find an appropriate sponsor who would take care of the child as he or she went through the immigration process. Only a small proportion of ORR placements remained in ORR custody.
Now, the children are younger, and with parents in detention, it will be much harder to find safe environments for kids, especially as ORR has announced new procedures that make it more difficult for undocumented parents to sponsor their own children (See this timeline of policy changes that affect children seeking asylum). This means that it will be harder to find arrangements for children, and more of those arrangements are likely to be abusive.
Parents whose children are taken from them at the border are not told how to find them, communicate with them or reunify with them. Even ICE and ORR do not track the whereabouts of separated children in any systemic manner. Parents can eventually call a hotline — after they serve any criminal sentence and are transferred from DOJ to ICE custody. That hotline might be able to tell them where their child is being detained or to whom they have been released, and may be able to facilitate a phone call, but that hinges on the cooperation of detention center officials. Communication is rare and often insufficient even when it does occur (it’s hard for toddlers to talk on the phone).
Children are left to fend for themselves
Both the parents and their children face deportation, but the children are left to fend for themselves, without an adult who knows anything about them and their situation. Some children are too young to speak, much less explain the social and political basis of their asylum claim, and the immigration system is incapable of adjudicating their cases. This contributes to the overwhelming backlog in the immigration courts, as one family case becomes two or three or four individual cases. If either or both the parents and kids are deported, they may be deported separately; children, including infants, can be sent back to their home country and turned over to officials there. In these cases, reunification is next to impossible, and children’s welfare and even lives may be in grave danger.
The problem of ‘missing’ children is poorly understood
Recently, a story of nearly 1,500 migrant children supposedly lost by the administration has caught on like wildfire in the press and in social media. The children that ORR failed to find are not the same children being separated from their parents. They are children who crossed the U.S.-Mexico border unaccompanied by a parent or other relative and were sent to ORR for care and custody while their immigration cases proceed. They were then released to a sponsor — typically a parent or other close relative.
At a Senate hearing in April 2018, Steven Wagner, the HHS official who oversees ORR, testified that the federal agency had lost track of 1,475 of these children. On closer examination, though, it is less clear how many of these children are actually “missing.” What Wagner actually said was that for those approximately 1,500 kids, ORR phone calls did not lead to actual conversations with sponsors. It is possible that many, and perhaps the overwhelming majority, of these kids are precisely where they should be — with their parents.
In short, the problem is not that kids are missing, or that 1,500 sponsors didn’t return ORR’s phone calls. It is that children who are with their parents are being separated and that children who are truly unaccompanied are only infrequently offered vital follow-up support services, including access to attorneys. ORR is not offering the services that would help children and sponsors to stay in touch.
There are other problems with the system
Finally, new reports have surfaced of alleged abuses of unaccompanied children by Border Patrol. The American Civil Liberties Union of San Diego released thousands of documents obtained from the DHS Office for Civil Rights and Civil Liberties through a Freedom of Information Act (FOIA) request.
The reports are mostly allegations — DHS did not release the results of most investigations. But there is no doubt that Border Patrol is not a suitable custodian for children; that’s why the law requires prompt transfer of custody to ORR. On the ground, transfers are frequently long-delayed, leaving kids to sit around for days and days, crowded and idle, in cold law enforcement “hold rooms” — universally called hieleras (iceboxes), because the air conditioning runs so high — rather than being housed in appropriate child-friendly facilities.
Hold rooms, which have no beds, no showers, and nothing to do, are not supposed to house children for long periods of time — indeed, they are not supposed to provide more than the briefest detention for adults. However, the administration seems less interested in improving the conditions for these children than in removing their protections, and making deportation without due process easier.
Michelle Brané is director of Migrant Rights and Justice at the Women’s Refugee Commission.
Margo Schlanger is professor of law at the University of Michigan, and served as head of the DHS Office for Civil Rights and Civil Liberties in 2010 and 2011.