Originally published by The New Yorker
Last Friday, two weeks after a federal judge in San Diego ordered the U.S. government to reunite more than twenty-five hundred migrant families who had been forcibly separated at the border, lawyers from the Department of Justice and the American Civil Liberties Union arrived in court for a hearing. The judge, a George W. Bush appointee named Dana Sabraw, had set a series of deadlines for the government. One of them was for July 10th—this past Tuesday—when children under the age of five were supposed to be reunited with their parents. Sabraw wanted the government to say how many children it planned to reunite, but the D.O.J. attorney couldn’t give him a firm answer. The numbers “are sort of always a little bit in flux,” the attorney said. And, meanwhile, she added, some of the parents were no longer in government custody, which made finding them difficult and reuniting them with their children impossible by the deadline. In the next hour, the extent of the government’s disorganization grew increasingly clear. Lee Gelernt, the A.C.L.U. attorney who’s led the litigation effort against the Trump Administration’s family-separation policy since the winter, left the hearing with a new sense of urgency. “We needed concrete information for when we walked back into court on Monday,” he told me. “The government’s tracking system was not even close to acceptable.”
Later that afternoon, Gelernt got in touch with a group of immigrant-rights advocates. Together, they came up with a plan to assemble their own list of the children and parents who remained separated. It was a complex undertaking that immigration attorneys have been discussing, in mostly aspirational terms, for months. Now, in order to hold the government to the judge’s deadline, they had a single weekend to pull something together. “The A.C.L.U. wanted this by Sunday night,” Michelle Brané, of the Women’s Refugee Commission, told me. “And it was a holiday weekend.”
The main obstacle to reuniting families has been the fact that, when the government initially separated them, there was no plan for keeping track of where the parents or children ended up. The adults were sent, first, to criminal custody and, from there, to immigration detention, which is overseen by the Department of Homeland Security; the children were transferred to the Office of Refugee Resettlement, a division of the Department of Health and Human Services. When Sabraw issued his injunction late last month, the closest thing the government had to a comprehensive list of the separated families were records based on information from O.R.R. (Those numbers suggested that there were about three thousand children who’d been separated from their parents since last year.) “The government was getting lists of kids in O.R.R. custody when it started responding to the judge’s order, and then they were working backwards to try to find the parents,” Brané told me. “But that list was incomplete.” Not only were there gaps in O.R.R.’s records, but D.H.S. still had not created a comprehensive list of parents in detention who claimed they’d been separated from their kids. It seemed likely that families were falling through the cracks.
A plan among the advocates took shape by Saturday morning. There would be two subcommittees—one that focussed on gathering information from separated parents in D.H.S. custody, and another devoted to children in shelters run by O.R.R. Brané, at the Women’s Refugee Commission, became the point person for the first list, and Wendy Young, the president of Kids in Need of Defense, coördinated the second. A network of advocacy organizations—including the Vera Institute of Justice, Catholic Charities, raices, and the Florence Project—had access to parents and children in government custody. Each of these groups could share information about specific cases with the teams overseen by Brané and Young, which would then collate their findings. “We were doing what the government should have been doing all along,” Young told me. The goal by the end of the weekend was to send a unified spreadsheet to the A.C.L.U. so that its lawyers could better monitor the government in the course of the following week.
Sorting the information as it came in posed its own challenge. “There was a lot of duplication,” Maria Odom, a lawyer with Kids In Need of Defense, told me. One organization might have information about a mother in ice custody, while another had details about her child in O.R.R. custody. Odom and the others had to compare the two lists as they were being assembled to make sure that individual families weren’t being counted twice. “The government has the benefit of being able to run fingerprints and names. For us, it was a constant exercise in cobbling things together,” Odom said. “We’d get a combination of spreadsheets, encrypted e-mails, and messages sent through Signal.”
On Saturday night, in accordance with the judge’s instructions, the government shared with the A.C.L.U. its list of children under the age of five who have been separated from their parents. There were a hundred and two names on it. The A.C.L.U. needed special clearance from the judge before it could share the list with the other advocates, and, after signing waivers, some of them gained access to the government’s information by Sunday afternoon. By then, they had an inchoate list of their own. “Ultimately, we collected twenty-eight names in less than two days,” Brané told me. “We cross-checked the names we’d come up with with the names the government had.” The advocates immediately identified ten that were not on the government list. “The A.C.L.U.’s question to us was, ‘Are you one-hundred-per-cent sure there’s nothing weird about these cases to explain why they’re not on the government’s list?’ ” Brané said.
No one could be sure of anything. When the lawyers reconvened in court, on Monday, the advocates were still trying to investigate whether the government had left names off its list. Brané worried there were whole categories of children—such as those released to sponsors in the U.S.—who may not have been counted. The ten discrepancies had narrowed to three cases that looked concerning and required further scrutiny. “It’s too early to know about these cases,” Gelernt, the A.C.L.U. attorney, told me. “But the government now knows that we’re working toward getting more information.”
On Tuesday, the day of the deadline, the government identified seventy-five children under five who were eligible to be reunited with their parents. The parents of sixty-three of them were still in the U.S., leaving twelve without parents in the country. The government argued that twenty-six of the children were ineligible to be reunited for a range of reasons. One parent had a communicable disease and needed treatment; others had criminal histories or remained in criminal custody. (An additional case involved a child who was a U.S. citizen but had been separated from his mother at the border more than a year ago.) In court, Sabraw seemed much less impressed by the government’s effort than he was by the work of the volunteers. The A.C.L.U., he said, “has marshalled an army of N.G.O.s, faith-based groups, [and] citizens all over the country.” The government needed to avail itself of their help, he said.
By the end of the day, the government still hadn’t disclosed how many children it had actually managed to reunite by the deadline. But, on Thursday, two days after the deadline, the government had an update. It had reunited fifty-seven children. Forty-six had been deemed “ineligible for reunification,” some because their parents had criminal histories, others for reasons that were harder to parse. Mario Russell, the director of Immigrant and Refugee Services at Catholic Charities in New York, said that of the two dozen separated children under five who were in shelters in New York City, only half have been reunited. “Clarity is missing,” he told the City Council.
The advocates are still working to build out their database in anticipation of the next deadline. By July 26th, the government is supposed to have reunited all the other separated children, twenty-nine hundred in total, with their parents. “Based on the really disappointing number of reunifications Tuesday, and the chaos, we anticipate it will be a mess,” Brané told me. A major concern involves parents who have been deported. The government had already deported twelve parents of children under the age of five before it could reunite them, and the over-all number is expected to be much higher when all the families are taken into account. The government has claimed that it can’t locate parents who have been deported, and that it shouldn’t have to try. Gelernt and I spoke again on Wednesday night. He told me, “Now the government is basically saying, Help us find all the parents.”