In the deepening crisis over the Trump administration’s decision to separate migrant families at the border, immigration lawyers and child advocates say that one of its most pernicious features is a haphazard system for reuniting families after they are divided.
As the administration faces growing outrage over its “zero tolerance” crackdown at the border, Trump officials say they are committed to helping parents find their children and avoid being deported without them. But the measures have proved far more efficient at splitting up families than putting them back together again.
On Tuesday, Homeland Security officials said they separated 2,342 children from their parents along the border between May 5 and June 9, reclassifying them as “Unaccompanied Alien Children” and placing them in foster care with the Department of Health and Human Services (HHS). Trump officials could not say how many of those children have been reunited with their mothers and fathers.
“I don’t know how many separated kids have been placed or reunited with parents,” Steven Wagner, a Trump appointee at HHS, told reporters. “This policy is relatively new, and we’re still working through the experience of reunifying parents with their kids after adjudication.”
Under the Trump administration’s separation system, parents who are prosecuted and held in immigration detention to await deportation cannot regain custody of their children.
Those who are released may spend weeks or even months trying to get them back. The government’s new flier offers no assurances that children will be returned.
Instead, the process requires coordination between Immigration and Customs Enforcement (ICE), which holds many of the parents, and HHS, which takes custody of children and places them with adult “sponsors.” Usually, those sponsors are close relatives, but sometimes they are in foster homes hundreds of miles away.
“There is complete chaos,” said Lee Gelernt, an ACLU attorney whose organization is suing to force the government to promptly return children to their parents.
The ACLU filed the suit in February on behalf of a Congolese woman whose 7-year-old daughter was taken from her after they entered the United States seeking asylum. The daughter was placed in foster care 1,000 miles away, and the two were apart for four months.
A federal judge in San Diego this month allowed the suit to go forward, writing that the separation “arbitrarily tears at the sacred bond between parent and child” and appears to violate a “constitutional right to family integrity.”
Legal experts anticipate a ruling on the ACLU’s request for a nationwide injunction in the coming weeks.
On Tuesday, a Guatemalan woman filed suit in federal district court in Washington to force the government to give back her 7-year-old son, whom she was separated from after crossing the border illegally and requesting asylum on May 19. The woman’s attorneys say that she has not been able to speak with the boy since her release from custody last week and that she doesn’t know where he is.
Trump administration officials say that the allegations of bureaucratic disorder are overblown and that they have a legal obligation to thoroughly screen adults who apply to gain custody of children in government care, particularly to ensure that alleged family relationships are real and that minors will not become trafficking victims.
Because U.S. courts have ruled that children cannot generally be held in detention, letting their parents out would be tantamount to treating children as “get-out-of-jail-free cards,” according to Homeland Security Secretary Kirstjen Nielsen, who said that such treatment would only tempt more lawbreaking.
On Monday, Nielsen gave a fierce defense of the prosecution policy, saying that the government’s aim is to protect children. She said the number of adults and children arriving at the border who fraudulently claimed to be a family group rose 314 percent between October 2017 and February, without specifying the number of cases.
A Homeland Security official later said the agency detected 46 such fraud cases during the government’s 2017 fiscal year, or about 0.06 percent of the more than 70,000 families taken into custody. The figure rose to 191 during the first five months of the current fiscal year.
Nielsen has also defended the practice by arguing that migrant parents who break the law face the same criminal justice that would apply to U.S. citizens.
“If an American were to commit a crime, they would be referred to jail and separated from their family,” she said.
Gelernt, the ACLU attorney, said that claim is dishonest. “In America, when you get out of jail, you get your kid back,” he said.
Migrant parents face significantly more bureaucratic hurdles once they lose legal custody to the U.S. government. Some parents have panicked or suffered breakdowns, including Marco Antonio Muñoz, an asylum seeker from Honduras who took his own life in a padded jail cell last month after being forcefully separated from his wife and 3-year-old son.
Those arrested for crossing illegally are taken into custody by the U.S. Border Patrol and informed they will be charged with the crime. When the parents are taken to federal courtrooms by U.S. marshals, their children are sent to HHS foster care.
In most cases, parents who plead guilty are sentenced to time served. They may be transferred to detention facilities run by ICE or released with some form of electronic monitoring, such as an ankle bracelet, while pursuing an asylum claim. The government says parents who agree to a rapid deportation are more likely to get expedited reunions with their children.
The government has set up a new hotline to help parents locate children, but if a child is placed at a shelter or foster home in another state or hundreds of miles away, HHS does not provide transportation. The parent has to be approved as a suitable sponsor, then go to the shelter to claim the child.
“The potential sponsor of an unaccompanied alien child has to be vetted and available to come pick up the child and care for the child and take the child to immigration court proceedings,” said Kenneth Wolfe, a spokesman for HHS.
That disqualifies parents who are no longer facing criminal charges but remain in ICE detention.
“If the potential sponsor is incarcerated, that’s not going to be the person who is chosen,” Wolfe said.
Immigration advocates have documented instances in recent months of parents deported to Central America while their children are left behind in U.S. foster care.
Parents awaiting deportation can request that their children be sent home with them, but those arrangements have to be made by a deportation officer in writing and coordinated with their country’s consulate, according to Danielle Bennett, a spokeswoman for ICE.
“If the parent chooses to have his or her children accompany him or her, ICE accommodates, to the extent practicable, the parent’s efforts to make provisions for their children,” Bennett said in a statement. “As appropriate, ICE will work with the adult to have the child return to their country of citizenship with them.”
Parents who wish for their children to remain in the country with a relative who sponsors that child may do so, Bennett said, especially if the child intends to make an immigration claim such as an asylum petition.
HHS says it places nearly 90 percent of children with a parent or a close adult relative. But a new information-sharing agreement allows Homeland Security to obtain personal information on all potential sponsors, including their immigration status, a change that advocates say will have a chilling effect that discourages those living in the country illegally from picking up the children.
The latest HHS figures show that the government is taking more migrant children into custody and holding them for lengthier periods — 57 days on average.
At least 2,500 children have been separated from their parents in the past two months, the latest statistics show. The number of children separated from their parents and sent to HHS has increased to about 70 per day.
The agency had 11,785 children in its care as of Monday, with its shelters at 94 percent capacity. According to Wolfe, the agency spokesman, HHS has more than 700 “open” beds and an additional 1,000 it can quickly add to meet growing demand.