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By Sylvia Longmire
Columnist, In Homeland Security
As a result of the Trump administration’s “zero tolerance” immigration policies, children of all ages have been taken from their parents. These parents have been referred for criminal prosecution for crossing the U.S.-Mexico border illegally.
Due to a recent court order, those parents must be reunited with their children under the age of five within a specific time frame. Despite the cessation of family separations and moves towards reunifications, deportation proceedings continue. Some of the proceedings are even forcing toddlers to appear in immigration courts alone to plead their case.
Apprehended Adults Can Either Be Processed for Immediate Deportation or Request Asylum
When adult migrants are apprehended at the border for attempting to cross illegally, they can either be processed for immediate deportation (usually under something called “voluntary departure”) or request asylum and undergo a “credible fear” interview. The “credible fear” interview has historically resulted in either the migrants’ release on bond or placement in detention, depending on their history. Now these border crossers are more often than not placed into criminal proceedings while awaiting an asylum decision.
In either case, these migrants have the right to appear before an immigration judge to plead their case as to why they should be allowed to remain in the U.S. with legal status. Sometimes they have legal counsel to help them — usually immigration attorneys working pro bono.
Children Forced to Appear in Immigration Hearings without Their Parents
But more often than not, migrants do not have legal representation. As a result of family separation policies, the immigrant children of parents who remain in criminal custody are being forced to attend their immigration hearings without their parents being present.
This situation isn’t unprecedented, nor is it illegal. However, it’s happening much more frequently now that approximately 2,000 minors are in U.S. government custody without their parents.
“We were representing a 3-year-old in court recently who had been separated from the parents. And the child — in the middle of the hearing — started climbing up on the table,” Lindsay Toczylowski, executive director of Immigrant Defenders Law Center in Los Angeles, told NBC News. “It really highlighted the absurdity of what we’re doing with these kids,” Toczylowski said.
Illegal Immigrants’ Children Are Not Entitled to Legal Representation in Court
As is the case for adult immigrants, the children are not entitled to legal representation. They are given a list of organizations that might be able to help them.
In the meantime, officials from the Department of Health and Human Services (HHS) have confirmed that they are in the process of reuniting separated families. However, they have not provided a timeline for how long this might take.
Megan McKenna, a spokeswoman for Kids in Need of Defense, said the children arrive at HHS care facilities without a parent’s tracking number, and parents don’t tend to have their kids’ numbers. CNN reported that DNA tests are being performed to verify parental identity and expedite reunifications. No information has been provided on the legality of such tests, how the DNA data is specifically being used or how it will be stored.
Making the process more difficult for very young children going through deportation proceedings alone is the fact that no one knows how many of them have begun this process. Immigration attorneys from all over the country are flying into Texas to help, but it’s hard for them to accurately assess the task ahead.
George Tzamaras, a spokesman for the American Immigration Lawyers Association, said, “There have been reports of kids younger than 3 years old and others as old as 17.” Attorneys are working on reuniting as many families as possible so they can go through the court process together.