By Anita Ortiz Maddali
There has been widespread public outcry following the administration’s “Zero Tolerance” policy, which called for criminal prosecution of parents crossing the border without proper documentation and forced separation from their children. The President recently issued an Executive Order ending the separation policy. Now, parents will be detained with their children.
But what about the 2000 plus children who have already been separated because of the zero tolerance policy? How will they be reunited with their parents? Initially, and, understandably, from an outside perspective, there seemed to be an impression that this should be a quick fix: reunite these children immediately with their parents – crisis over.
This crisis, however, tears the veil off of a much larger problem – executive orders, policy changes, legislation, and enforcement have and continue to tear immigrant families apart. For years, when these families seek to reunite they face incredible hurdles.
When children arrive at the border without an adult relative – unaccompanied – or when they are separated intentionally at the border, as the administration recently did, they are placed in the custody of the Office of Refugee Resettlement (“ORR”). ORR contracts with non-profits that operate facilities throughout the United States where these children are detained. Thus, an unaccompanied child apprehended at the border, for example, could find herself in Chicago.
In the 1980s several lawsuits were filed challenging the treatment of unaccompanied minors detained by the government. One case went up to the Supreme Court in 1993, and then a few years later, the plaintiffs and government entered into a consent decree, known as the Flores Settlement agreement, which, among other things, requires the government to 1) detain children in the “least restrictive” setting and 2) release children “without unnecessary delay” to specified sponsors – generally, family friends or relatives.
When children are released, they are still required to attend court hearings while their immigration case remains pending. In 79.5% of cases (pending and closed) involving children in the custody of a parent or guardian, who had either been released from detention to relatives or who had never been detained, they showed up for court. For children who had a lawyer, that number increased to 95%. As this data shows, most children who are released do attend their hearings, and having a lawyer improves those numbers even more.
Under President Trump’s administration, however, releasing an unaccompanied child to a relative or family friend in the United States has become more difficult, resulting in longer stays in detention. ORR is now required to share information about the sponsors with Immigration and Customs Enforcement (ICE), including information about the immigration status of the sponsor and all members within the household.
This change in operations is an obvious and intentional threat – an undocumented relative runs the risk of being deported by trying to sponsor the child. And, if the child is nearing 18 years of age, remaining in detention poses an additional risk. On her 18th birthday, the child will be transferred from the custody of ORR to ICE custody – an adult jail.
With longer detentions come psychological effects. And let’s not mince words – these detention facilities are not daycares or summer camps. Children, many of whom have experienced trauma before being apprehended, cannot leave. Hopelessness builds the longer a child stays.
A child detained for a longer period of time, who may be eligible for immigration relief, might choose not to assert those claims because they lose hope. Even worse, Attorney General Sessions’ decision in Matter of A-B– denying asylum to a woman who endured years of abuse at the hands of her husband, makes it even more difficult, if not impossible, for children who are fleeing gang violence and abuse at the hands of private actors—namely, gang members—to obtain asylum. These are the very types of harm the majority of children coming to the United States are fleeing. For unaccompanied minors who are granted asylum, they cannot obtain derivative asylum status for their parents, unlike a parent, who, after receiving asylum, can apply for derivative status for her spouse and children.
Now, what about children who were separated from their parents before the most recent Executive Order? There is obvious trauma caused from a parent and child being separated. As has been observed, some younger kids do not understand what has happened and think that a parent purposefully abandoned them. Our nation’s immigration policies and ICE’s enforcement of them therefore inflicts another kind of harm – perhaps a deeper one – distrust between parent and child.
Though a federal judge in California recently ordered the federal government to reunify parents and children, and prohibits DHS from deporting parents without their children unless the parent chooses to do so, some parents who were separated from their children have already been deported. The only option available to these families is to reunite in their home country. But how? Reunification in the home country requires a coordinated effort between U.S. officials and officials in the home country – coordination that simply does not exist. Fortunately, there are lawyers and non-profits providing assistance, but these efforts require a tremendous amount of resources for people and organizations already stretched thin.
In the past, immigration enforcement has also led to actions that have permanently separated parents from children. From 2000-2009, the Applied Research Center (ARC) found that there had been approximately 5,100 children in foster care who had a parent who was detained by ICE or a parent who had already been deported. In 2011, ARC wrote, “If these rates continue through the next five years, at least 15,000 additional children will face threats to reunification with their detained and deported mothers and fathers.”
I’ve written about this issue extensively– but the sad bottom line is that parental rights have been terminated because of deportation and also as a result of a parent’s undocumented status. To be clear, a parent’s action of entering the country without documentation – often an action taken to provide for their child – has been used as evidence of parental unfitness in termination of parental rights proceedings, and for some undocumented parents, they have lost the right to raise their children forever. Indeed, as this zero tolerance policy was being implemented, the administration characterized parents, many of whom are trying desperately to keep their children safe, as bad parents.
Asylum seekers, undocumented immigrants facing the threat of family separation because of deportation, families separated because of the travel ban, DACA recipients and their parents, families who will be separated because of the termination of TPS, and families separated for decades because of exceptionally long wait-times for immigrant visas all face animosity from an administration fueled by xenophobia. And legislation is now pending to cut the family-based immigration system by half, which, among other things, would remove an adult child’s ability to sponsor a parent for an immigration benefit. This legislation is in line with the President’s framework for immigration reform.
Ultimately, what has been happening for some time is the devaluation of immigrant humanity and, most significantly, family integrity for immigrants. These laws and policies do not just impact family members at the border, but also those we encounter in our daily lives, whose struggles are largely invisible.
Anita Ortiz Maddali is an Associate Professor of Law and Director of Clinics at Northern Illinois University College of Law.