Originally published by The NY Yorker
Before the Trump Administration ended its policy of forcibly separating immigrant parents from their children at the border, late last month, more than twenty-five hundred children wound up in federal custody. Whether and when these children will be reunited with their parents is now the subject of a court fight. In June, a federal judge in San Diego, Dana Sabraw, gave the government until Thursday at 6 p.m., Eastern time, to reunite the families it had split up. No one expects the government to meet this deadline in full. But even if it did comply with the judge’s order, hundreds of children who have been without their parents for weeks, or even months, would remain in federal custody, because the government has determined that their parents are “ineligible” for reunification. Earlier this week, attorneys with the Department of Justice provided Sabraw with a list of nine hundred and fourteen parents who were, in the words of a court filing, “either not eligible, or not yet known to be eligible, for reunification.” These parents fell into several rough categories. Some have been accused or convicted of a crime; others appear to have already been deported to their home countries without their children. Still more, the government said, required “further evaluation.” At a hearing on Tuesday, a government attorney struggled to offer specifics when Sabraw asked what “further evaluation” meant. Immigration advocates believe the government is finding ways to minimize the reunification work it has left to do. “The government keeps trying to narrow the class of families covered by the judge,” Michelle Brané, of the Women’s Refugee Commission, told me. “It is weeding out cases based on lots of things that are not always legitimate or final.”
Sabraw has, so far, accepted the government’s premise that some parents are ineligible for reunification, but he’s also agreed to hear arguments about whether the government has erred in some of its determinations. Each of the four categories of ineligible parents that the government has identified raises its own set of questions. The categories are as follows:
1. The government says that a hundred and twenty-seven of the nine hundred and fourteen ineligible parents have waived their rights to be reunited with their children since being taken into custody. Yet it’s unclear whether these parents fully understood what they were agreeing to. “These parents urgently need consultations with lawyers, so that they do not mistakenly strand their children in the United States,” lawyers with the American Civil Liberties Union said in a court filing earlier this week. On Wednesday, the A.C.L.U. released more than a hundred pages of affidavits from attorneys and, in some cases, detained parents, who together described an atmosphere of complete chaos inside facilities across Texas. Some feel they were misled about the forms the government gave them to sign. In some cases, they signed forms waiving their reunification rights after Sabraw had already ordered the government to begin reunifying families. A Honduran woman named Wendy Santos recently told me that while in immigration detention, in West Texas, she met women who were illiterate and who signed such papers because officials told them that doing so would allow them to see their children sooner. Fifty-two parents who waived reunification are currently being held in the El Paso area. Over the past few weeks, the American Immigration Council has travelled there with a team of attorneys to interview parents in detention at three different facilities. The stories they collected are of parents being rushed, intimidated, or deceived into making life-changing decisions. One group of fathers was led into the chapel at a New Mexico prison called Otero, just outside of El Paso, where, after a few minutes, they were all made to sign forms waiving their rights to be reunited with their children. Another parent, a father from Guatemala, told officials he wanted his daughter to remain in the United States because her life was in danger. They told him that she could only stay if he signed a document printed in English, which he couldn’t understand but felt obligated to sign. “These parents had no information about where and when they might see their kids again,” Royce Murray, the American Immigration Council’s policy director, told me. “We don’t even know exactly what some of them signed because they were not given paperwork.”
2. Sixty-four parents who were flagged as ineligible were deemed to have a “prohibitive criminal record” by either Immigration and Customs Enforcement or the Office of Refugee Resettlement, the agency which took custody of children separated from their parents. A person’s criminal history may be relevant to the reunification effort if it raises questions about his or her fitness as a parent, but immigration attorneys representing families in detention have said the government is using an overly broad definition of “criminal record” in order to disqualify more parents. “Sometimes, we’re just dealing with allegations of criminal activity, not actual convictions,” Kate Melloy Goettel, an attorney with the National Immigrant Justice Center, told me. “The government isn’t always sharing the evidence, so we’ve been hampered in how we can contest the charges.” The closest the Administration has come to defining what, precisely, it considers a "prohibitive criminal record” is a list it provided earlier this month to explain why eleven parents were ineligible to be reunited with children under the age of five. Among the reasons provided were two convictions for driving while intoxicated, “criminal charges including assault,” and an “outstanding criminal warrant in El Salvador.” In one case, the entirety of the explanation was the phrase “wanted by El Salvador.”
3. Four hundred and sixty-three parents have been deemed ineligible because, according to the government, they are currently “not in U.S.” This almost certainly means they’ve already been deported, without their children. These parents are supposed to be covered by the judge’s reunification order, but the government doesn’t know where they are and has claimed it can’t begin to guess how long it will take to try to find them.
4. The final two hundred and sixty parents fell in the “further evaluation” category. At the Tuesday hearing, a government lawyer haltingly offered the judge a few possible explanations for why people would end up in this category. In some cases, she said, these were parents who had already been released from immigration detention. The government was still trying to locate them, she said. Other “further evaluation” cases involve children who have already been released to a non-parent family member in the U.S. What the government will do with these cases is still a question. “It’s been very clear that the government hasn’t been working in unison,” Wendy Young, the president of Kids in Need of Defense, told me.
Sabraw is in a position to decide whether the government has inappropriately excluded parents from the reunification process. But other issues will likely slow him down. “He’s got so much on his plate as it is,” Goettel said. On Wednesday night, the A.C.L.U. accused the Administration of planning to deport scores of parents immediately after they have been reunited with their children, before they could consult with lawyers to figure out what was best for them or their families. It’s the latest crisis in Sabraw’s court. In the meantime, the families whom the government has written off as “ineligible” will continued to languish apart.