By Nick Miroff
The Washington Post
On a simple flier printed in Spanish and English, the Trump administration now provides migrant parents who cross into the United States illegally with a step-by-step guide explaining what to do after they’ve been separated from their children.
The leaflet tells them they’ll be charged with a crime, and provides a hotline number to call to help them locate their kids.
What it does not tell them is whether they’ll get their children back.
In the deepening crisis over the Trump administration’s decision to separate migrant families at the border, immigration attorneys and child advocates say that one of its most pernicious features is a haphazard system for reuniting families after they’re divided.
As the administration faces growing outrage over its “zero tolerance” crackdown at the border, Trump officials say they are committed to helping parents locate their children and avoid being deported without them. But the measures have proven far more efficient at splitting up families than putting them back together again.
Parents who are prosecuted and held in immigration detention awaiting deportation cannot regain custody of their children. Those who are released spend weeks or even months trying to get them back. The government’s new flier offers no assurances that children will be returned.
Instead the process requires coordination between Immigration and Customs Enforcement (ICE), which holds many of the parents, and the Department of Health and Human Services (HHS), which takes custody of children and places them with adult “sponsors.” Usually those sponsors are close relatives but sometimes they are foster homes hundreds of miles away.
“There is complete chaos,” said Lee Gelernt, an ACLU attorney whose organization is suing to force the government to promptly give parents their children back.
The ACLU filed the suit in February on behalf of a Congolese woman who whose 7-year-old daughter was taken from her after they entered the U.S. seeking asylum. The daughter was placed in foster care 1,000 miles away and the two were apart for four months.
A federal judge in San Diego this month allowed the suit to go forward, writing that the separation “arbitrarily tears at the sacred bond between parent and child” and appears to violate a “constitutional right to family integrity.”
Legal experts anticipate a ruling on the ACLU’s request for a nationwide injunction in the coming weeks.
Trump administration officials say the allegations of bureaucratic disorder are overblown and they have a legal obligation to thoroughly screen adults who apply to gain custody of children in government care, particularly to ensure alleged family relationships are real and minors will not become trafficking victims.
Because U.S. courts have ruled that children cannot generally be held in detention, letting their parents out would be tantamount to treating children as “get out of jail free cards,” according to Homeland Security Secretary Kirstjen Nielsen, who argues such treatment would only tempt more lawbreaking.
On Monday Nielsen gave an fierce defense of the prosecution policy, insisting the government’s aim is to protect children. She said the number of adults and children arriving at the border who fraudulently claimed to be a family group rose 314 percent between October 2017 and February, without citing firm numbers.
A Homeland Security official later said the agency detected 46 such fraud cases during the government’s 2017 fiscal year, or about .06 percent of the more than 70,000 families taken into custody. The figure rose to 191 during the first five months of the current fiscal year.
Nielsen has also defended the practice by arguing that migrant parents who break the law face the same criminal justice that would apply to U.S. citizens. “If an American were to commit a crime, they would be referred to jail and separated from their family,” she said.
Gelernt, the ACLU attorney, said that claim is dishonest. “In America, when you get out of jail, you get your kid back,” he said.
Migrant parents face significantly more bureaucratic hurdles once they lose legal custody to the U.S. government. Some parents have panicked or suffered breakdowns, including Marco Antonio Muñoz, an asylum seeker from Honduras who took his own life in a padded jail cell last month after being forcefully separated from his wife and three-year-old son.
Those arrested for crossing illegally are taken into U.S. Border Patrol custody and informed they will be charged with the crime. When the parents are transported to federal courtrooms by U.S. Marshals, their children are sent to HHS foster care.
In most cases, parents who plead guilty are sentenced to time served. They may be transferred to detention facilities run by Immigration and Customs Enforcement, or possibly released with some form of electronic monitoring, such as an ankle bracelet, while pursuing an asylum claim. The government says parents who agree to a rapid deportation are more likely to get an expedited reunion with their child.
The government has set up a new hotline to help parents locate children, but if a child is placed at a shelter or foster home in another state or hundreds of miles away, HHS does not provide transportation. The parent has to be approved as a suitable sponsor, then go to the shelter to claim the child.
“The potential sponsor of an alien child has to be vetted and available to come pick up the child and care for child and take child to immigration court proceedings,” said Kenneth Wolfe, a spokesman for HHS.
That disqualifies parents who are no longer facing criminal charges but remain in ICE detention. “If the potential sponsor is incarcerated, that’s not going to be the person who is chosen,” said Wolfe.
Immigration advocates have documented instances in recent months of parents deported to Central America while their children are left behind in U.S. foster care.
Parents awaiting deportation can request that their child be sent home with them, but those arrangements have to be made by a deportation officer in writing and coordinated with their country’s consulate, according to Danielle Bennett, a spokesperson for ICE.
“If the parent chooses to have his or her children accompany him or her, ICE accommodates, to the extent practicable, the parent’s efforts to make provisions for their children,” Bennett said in a statement. “As appropriate, ICE will work with the adult to have the child return to their country of citizenship with them.”
Parents who wish for their children to remain in the country with a relative who sponsors that child may do so, Bennett said, especially if the child intends to make an immigration claim such as an asylum petition.
HHS says it places nearly 90 percent of children with one of that child’s parents or a close adult relative. But a new information-sharing agreement allows Homeland Security to obtain personal information on all potential sponsors, including their immigration status, a change that advocates say will have a chilling effect that discourages those living in the country illegally from picking up the children.
The latest HHS figures show the government is taking more migrant children into custody and holding them for lengthier periods — 57 days on average.
At least 2,500 children have been separated from their parents in the past two months, the latest statistic show. The number of children separated from their parents and sent to HHS averages about 70 per day.
The agency had 11,785 children in its care as of Monday, with its shelters at 94 percent capacity. According to Wolfe, the agency spokesman, HHS has more than 700 “open” beds and another 1,000 it can quickly add to meet growing demand.