When I wrote about the Artesia Family Detention Center in this space in 2014, I was convinced that I had seen the worst of the worst. At that time, the government detained immigrant moms and children together. While providing pro bono legal assistance there, I was outraged as I witnessed rampant violations of due process, failures to provide kids with education while they languished in detention, disregard for the mental and physical well-being of children, and overall disregard for the rights of asylum-seekers under international human rights law.
But, as we all know by now, I hadn’t seen the worst. What I’ve witnessed this past week providing legal counsel in a South Texas detention center to immigrant parents forcibly separated from their children, goes beyond the pale. Some aspects of the administration’s zero tolerance policy have been experimented with before, such as criminal prosecution of asylum seekers for the misdemeanor of unauthorized entry, and coercive techniques to break the will of refugees so that they will give up their asylum claims. But the unprecedented separation of families has led to a palpable sense of desperation among parents who have not seen their kids in weeks, and who were taken away from them in some of the most cruel circumstances one can imagine.
“They lied to you”
One father I spoke with, Eduardo, didn’t realize that, when he went to court, he was saying goodbye to his 5-year-old daughter for much, much longer than just a few hours.
“The last time I saw my daughter, I thought we were only going to be apart for 2 hours. The agents said we were going to court and then I’d be back with her.” Eduardo and his daughter crossed the border on June 11. He was proud as he explained to me that he had made a good living in Honduras, and had no desire to leave, until gangs started extorting him for money because of his successful small business. When the death threats targeted his daughter, he left. After crossing the border on June 11, the next day, the father was taken to the federal courthouse in McAllen, TX. There — wearing leg irons, handcuffs, and waist chains — he was criminally prosecuted for the misdemeanor of illegal entry. After being sentenced to time served, he and dozens of other immigrants were driven back to DHS’s Central Processing Station, a building also known as the “perrera” or the dog kennel, because inside, migrants sleep on the floor and are surrounded by chain fences.
Eduardo explained to me how he realized his daughter was gone. “The agents instructed some of us to remain on the bus. But, slowly, we noticed that everyone staying on the bus had children.” As the bus began pulling away from the compound where they had last seen their children, chaos ensued. Parents started screaming, banging on the windows, crying as they realized they had been separated from their children. Eduardo asked the bus driver what was happening. “Te mentieron – they lied to you,” was all the driver would say, over and over.
Desperate to Reunify with Children, Parents give up Asylum Claims
Not only are parents and kids being separated from each other, but parents are being forced to give up asylum claims in clear violation of international law. While working at the Port Isabel Detention Center, near Brownsville, Texas, I met several parents who had signed orders of removal, upon the understanding that doing so and thereby foregoing an asylum claim would expedite reunion with their children.
Some parents clearly felt that they had been coerced to sign orders of removal. Other parents simply shrugged their shoulders and said that no one had told them they had to sign their removal; they just understood, or just hoped, that it would result in seeing their children sooner.
One mom, Alicia, had tried to proceed with the Credible Fear Interview, the threshold conversation with an asylum officer that gives an immigrant in expedited removal the right to have an immigration judge evaluate her asylum case. Through her tears, she told me that the interview had occurred the day after she’d been separated from her girls. She couldn’t concentrate. She couldn’t focus. She could barely breathe. She just wanted to get through the conversation as quickly as she could – it felt like a betrayal to her daughters to spend even 30 minutes talking about her fear, rather than being laser-focused on reuniting with her daughters. Despite what I later learned was a strong claim for political asylum, she received a negative finding of credible fear.
Clearly, U.S. and international law protecting the right to claim asylum are being patently disregarded in circumstances that involve indefinite detention of asylum seekers, punitive measures for seeking asylum, or subjecting asylum seekers to expedited removal processes.
Scrambling to Reunify Parents and Children, Leaving them in Legal Limbo
As I write this, the U.S. government is scrambling to comply with a court-imposed deadline requiring family reunification by July 26. Yet, based on the numbers, it seems highly unlikely that the government will be able to realize the court’s mandate to reunify families. This crisis was manufactured by the government, as it separated parents from children with no tracking system in place, nor any clear plan for how – or if – to reunite them. Non-profit legal and social services organizations are picking up the pieces of the puzzle, locating and matching children and their parents, and providing the legal services that they will need to navigate their complex legal statuses.
This week, at the Port Isabel Detention Center, attorneys from around the country worked to locate their clients who had gone missing in ICE’s Online Detainee Locator. One attorney there met with her client in the detention center on Monday, prepared for a hearing before an Immigration Judge on Tuesday, only to arrive to court on Tuesday to find that her client was no longer at the center. No more information was offered. Some of those immigrant parents, we later learned, were released to be reunited with their children, who were simultaneously being flown to Port Isabel from children’s shelters across the country. Parents were suddenly given their civilian clothes, and ushered out to the detention center parking lot, where their children waited for them in large white ICE buses. Reunions were ecstatic, but tempered by the sense of complete and utter uncertainty as to what happens next.
I visited some of these reunified families who are in legal limbo at a Texas shelter run by Catholic Charities, where the scene was joyous and chaotic. Each reunited family had paperwork reminding them to report for ICE check-ins or court dates, but the legal status of these family units remains unclear. Many parents had forcibly signed removal orders, which were then vacated as families were released. Many were unclear: Were their removal orders still valid? Some parents had received negative CFI determinations while separated from their children. Were those determinations valid, or might attorneys manage to secure another shot at their claim for asylum, free from the mental trauma of family separation? Will these families be allowed to pursue asylum claims while they are released, or, must they fear the possibility of family detention at every moment? Clearly, pro bono legal counsel will be critical to supporting these families through their complex engagement with immigration law, whether these families remain in detention, or scatter to cities across the United States.
Today’s Human-Rights-at-Home Crisis
As an international human rights lawyer who is immersed in the human-rights-at-home crisis of immigration law in the U.S., my current work with the Tahirih Justice Center inevitably leads to intellectual tensions. Human rights law and refugee law lay out the contours of the world as we aspire for it to exist. And yet, as I represent asylum seekers, employing the domestic legal realization of those international law standards, the imperfections of the Refugee Convention and various human rights instruments are profound. I have watched as our revered international treaties are trampled on all too frequently.
Last week, I sat in federal court in McAllen and watched a U.S. Attorney prosecute 43 immigrants – many of whom may have valid asylum claims — for the section 1325 misdemeanor of “failing to enter with proper inspection.” And yet, Article 31 of the Refugee Convention prevents a signatory to the Convention from penalizing unauthorized entry for refugees fleeing persecution. This blatant disregard for the Refugee Convention is just one stark reminder that through zero tolerance, through prosecution of refugees for illegal entry, through separation of parents from children, and through the commodification of large-scale immigration detention, the U.S. government’s immigration policy flaunts international human rights and refugee law on a daily basis.
NB: For a more in-depth legal analysis of the international law implications of family separation, please consider this piece by ILG Jillian Blake.