Migrant families still being separated at border
Dubious claims of danger to kids often used as justification
The 4-year-old sat in the defendant’s chair in front of a Michigan immigration judge last month, her chubby legs dangling inches from the floor. She chatted with the jurist through an interpreter about Rapunzel. Then, as she had practiced with her lawyer, she said she wanted to be with her father, who was 1,600 miles away in a Laredo federal detention center and about to be deported to El Salvador.
Father and daughter had not seen each other since March, when federal immigration agents took Briana after detaining them together for about eight days in an overcrowded Border Patrol processing center in McAllen. The agents told 23-year-old Wilber Castillo that his child would go to a cousin in California, but when he desperately called the relative, Briana wasn’t there. No one could tell him where she was.
It wasn’t until weeks later that Castillo discovered his daughter was with foster parents in Michigan — a state he had never heard of — and could arrange to speak to her by phone. By then, the young father had been imprisoned for 25 days in a Border Patrol facility without any formal charges, according to testimony in federal court. The facts of the case enraged the McAllen district judge
overseeing Castillo’s punishment for crossing illegally into Texas after having been deported five years ago, when he was 18.
“Have we forgotten something about parents’ rights?” Judge Ricardo Hinojosa asked the court. “If this was an American in some other country, we would be quite shocked.”
A year has passed since President Donald Trump signed an executive order ostensibly ending his controversial policy of broadly separating immigrant families at the souther border and a federal judge ordered the government to reunify more than 2,800 children it had removed from their parents. The judge allowed the government to continue separating families if the parent posed a danger to the child or had a serious criminal record or gang affiliation. But no guidelines were imposed.
As a result, hundreds continue to be removed from their parents — often, advocates say, for unclear reasons or with little apparent justification.
More than 700 children were taken from their parents or, in a few cases, from other relatives between June 2018 and May 2019, according to the most recent data the government provided to the American Civil Liberties Union in the ongoing federal court case overseeing family separations. They are placed in federal shelters or with foster parents until they can be reunified or resettled with relatives or sponsors. Sometimes they languish for months in federal care.
“In the last few months these types of separations have risen drastically,” said Lee Gelernt, lead lawyer for the ACLU case. “The government is trying to drive a truck through what was supposed to be a very narrow exception.”
He said many cases involve children as young as toddlers whose parents are accused of criminal history as minor as a traffic violation.
“The government is unilaterally deciding parents are a danger and then separating them without informing the children’s facilities that the child has been separated, without telling the parent the basis of the separation, and without affording any due process to the family to contest the separation,” Gelernt said.
If the government doesn’t agree to change that practice, he said the ACLU would challenge it in court this summer.
A Customs and Border Protection spokesman declined to comment, citing the pending litigation. The Department of Homeland Security didn’t respond for this story.
Under the administration’s original policy, most children were removed because their parents were prosecuted under “zero tolerance” for crossing the border illegally, usually a misdemeanor with little or no jail time. Children cannot be kept in prison, but once families were separated, it was difficult to reunite them as the government at the time had no tracking system in place. Nearly 500 parents were deported without their children, and court-mandated reunification efforts are ongoing a year later.
The judge has also asked the government to locate potentially thousands more children who may have been separated after a pilot program in the El Paso area and before the policy officially went into effect last spring.
Since the court ordered that the government reunite parents and children immediately after adults served any criminal sentence, the U.S. Attorney’s Office has appeared to prosecute far fewer parents traveling with their children for entering illegally. Instead the government has ramped up separations by alleging the child could be at risk or the parent is a criminal.
According to federal data released to the Houston Chronicle by the Office of Refugee Resettlement, officials listed a parent’s gang membership or criminal history as the reason for separating 65 percent of about 400 children between the June 20 executive order and March 2019. In only 3 percent of cases, according to that data, were children described as separated because of questions about the parent’s relationship to the child or issues of child safety. The remainder were mostly removed after parents were prosecuted for entering illegally or returning after being deported.
ORR declined to comment on its data, citing the ACLU litigation.
Attorneys and advocates handling such cases said the government often uses claims that would not be permitted to remove American children from their parents — relying on minor crimes, questionable accusations of gang membership, and unverified safety concerns. They say the process needs far more oversight, and that there is no systematic way to inform advocates and attorneys that a separation has taken place.
“When it happened under prior administrations there were usually strong indicators of real and legitimate child welfare concerns,” said Lisa Koop, associate director of legal services for the National Immigrant Justice Center, which is representing several separated parents. “What we’re seeing right now is of an entirely different character. These are gratuitous separations.”
Golden McCarthy, an attorney with the Florence Immigrant and Refugee Rights Project in Arizona, said the number of separated children in shelters has been increasing steadily since January.
“They are carving out the judge’s exceptions to separate more children,” she said.
When Border Patrol agents found Tomas and his 14-year-old son near Calexico, Calif., in February, they alleged that the birth certificate the father was carrying for the boy was fake and said “inconsistencies” emerged in their interviews. Federal officials have said there has been an uptick in Guatemalans crossing with minors who are not their own so that they can more easily ask for asylum, though the government hasn’t provided statistics.
“Immigration told me that he wasn’t my son,” said Tomas, who asked that his last name be withheld for his safety. “I said, ‘He is my son. We can do a blood test. I have his birth certificate.’ But they didn’t listen to me.”
Tomas, who farmed a small plot of maize in the Guatemalan Western Highlands, had never been in the United States and had no criminal record. He was held in an immigrant detention center in California and his son sent to a federal shelter for unaccompanied children in Chicago. A month passed before advocates helped them find one another and facilitated a phone conversation.
“It was really hard. Imagine. You’re thinking, ‘Where did they take him?’ ” Tomas said. “You worry about your son without knowing where he is.”
The 36-year-old had paid smugglers $5,000 to come here; he said he was concerned for his son after gang members killed some of his relatives. And there was no work. Tomas’ attorneys at the National Immigrant Justice Center thought he had a viable asylum case, but after three months in detention without each other, the father and son opted to return to Guatemala in April rather than face months apart to pursue the claim.
Attorneys said Border Patrol agents often appear to take questionable criminal allegations as fact to justify separating parents and children.
A 19-year-old Salvadoran woman who asked to be identified only as Maria had been abused by adult gang members since she was a young teen, said Koop, her attorney. She was with one of these men when he started a gang fight and Salvadoran police detained them. Maria was released after a few days and never charged with a crime, and the Salvadoran government confirmed she has no criminal record.
But the interaction was enough for U.S. border agents to imprison her and take away her 2-year-old son when she crossed near Laredo in February. She was released five months later and reunified with him in Virginia in June.
“She is really traumatized,” Koop said. “The reunification was really hard. Her son didn’t seem to recognize her.”
In some cases, lawyers say criminal involvement could be key to the reason migrants seek asylum and they should not be penalized for it. Diana, a 25-yearold Salvadoran mother who also asked that her last name be withheld, said she had been forced into relationships with gang members after she moved from one gang-controlled territory to another held by a rival group. She said they accused her of being a snitch and made her prove her allegiance by delivering an ounce of marijuana to a leader in prison during visitation.
She asked a prison guard for help, but was arrested and spent about a year in prison. After her release, she began receiving death threats from the gang.
In March, she crossed the Texas border near McAllen with her 18-month-old, whom she was still breastfeeding. Border Patrol agents took away the girl, citing her marijuana charge, according to her lawyer. The Department of Homeland Security has broad information-sharing capabilities with Central American governments. It was a month before Diana found out the girl had been placed in foster care in New York. When they finally spoke by phone, the toddler said nothing. She just cried.
The girl is now in the care of a family friend, but “she is not the same,” said Diana, who remains in the Webb County detention center fighting her case.
Attorneys say government allegations of gang affiliations can be particularly problematic. Often, they say, little evidence is offered.
Carlos Arias was detained in November when he crossed illegally into Texas and federal agents accused him of belonging to the notorious Salvadoran gang MS-13. He handed them a copy of an official document from El Salvador’s Justice Department confirming that he had no criminal record. He had a new passport and driver’s license, which might have been difficult to obtain had he been flagged with gang membership, and a letter from his employer in San Salvador vouching for his character.
The agents didn’t believe him. They took him to McAllen’s federal courthouse to plead guilty to illegally entering the country, and the judge sentenced him to time served since he had never been in the United States. When Arias returned to the Border Patrol processing center, his 11-year-old daughter and 7-year-old son were gone, placed in a federal shelter more than 100 miles away.
“I didn’t even have a chance to say goodbye,” he said.
Five months later, in March, a Washington, D.C., federal judge ordered the government to give Arias another chance at an initial asylum interview. An official found Arias had a “credible fear” of returning to El Salvador, where he said gang members had extorted him for money and threatened to “chop up” his children.
The government submitted only one piece of evidence, under seal, to prove Arias’ gang affiliation, and his attorneys said they weren’t able to see it. But federal officials did not contest Arias’ release on an immigration bond last month.
Arias, now in Washington state with his children, remains puzzled about the allegations. His lawyers submitted filings in his federal case indicating that Arias may have been confused with another Salvadoran man who is accused of gang ties and shares the same name.
“You should have to show evidence if you’re accusing someone of a crime,” Arias said. “My kids were sick when they released them. The separation really impacted them.”
Lawyers and advocates say the government continues to share little information about each instance and sometimes doesn’t identify children in an online federal portal as having been separated. Even when children tell advocates they have been separated, it can be a Herculean task to find their parents.
“We’ve had the government unable to tell us where the parent is in government custody and that remains really troubling,” said Koop, the attorney. “It’s not to the degree that it was last summer, but there’s still a complete absence of information.”
Late last month, Acting Homeland Security Secretary Kevin McAleenan told Congress that about one to three separations occur every day when the care of the child is at risk. He described these cases as “extraordinarily rare” given the record 84,500 migrant families who crossed the border last month.
“It’s a very rare situation and it’s got defined criteria that we’ve, by policy, mandated for our personnel in the field,” McAleenan testified.
In many instances, separations clearly are in the best interest of the child. This month, federal prosecutors indicted a 24-yearold Honduran man for human smuggling and making a false family claim. They said he crossed the Rio Grande with a 3year-old boy he said was his child, presenting a fake birth certificate.
Neither the U.S. Attorney’s Office nor Customs and Border Protection provided statistics on how many migrants have been accused of fraudulent family claims and human smuggling this year. An Immigration and Customs Enforcement spokesman said in a statement that the agency identified 242 “fraudulent families” in an operation between April and June, but those included children traveling with grandparents, aunts, uncles, siblings, cousins and stepparents. The government only considers a parent and child to be a legal family unit, and other relatives are not covered by the ACLU court injunction.
In McAllen, the nonprofit Texas Civil Rights Project screens migrants prosecuted for illegal entry to see how many were separated from their children. Between June 21, 2018, and June 12, 2019, attorney Efrén Olivares said, they identified 523 separated families. About a third were parents and children.
Azalea Aleman-Bendiks, an assistant federal public defender in McAllen, told Judge Hinojosa in court last month that her office was seeing about 15 to 20 family separations a week and was never notified by the government that they had occurred. She said the lack of information not only makes it difficult to find her clients’ children, but also to represent the parents on their criminal charge.
The judge appeared infuriated that Castillo, the Salvadoran father, had been held without charges for three weeks and that it took so long for him to receive any information about his daughter, Briana. He was able to find her eventually through the Texas Civil Rights Project.
“Have we decided all of a sudden in this country that parents have nothing to do with their children?” Hinojosa asked. “If it means I’m not taking a guilty plea from someone who doesn’t know where their child is and what the likelihood is that the child is going to be released and when that child is going to be released … I think that’s a coerced guilty plea.”
The government agreed to share a list of children who had been separated from charged adults with the public defender’s office each day so they could help find them.
In court, Assistant U.S. Attorney Robert Guerra Jr. never explained the weeks-long delay in indicting Castillo but argued the government had a right to detain him that long because he had previously been deported. The prosecutor said the government was obligated to remove Castillo’s daughter because he is an MS-13 gang member with a criminal history in El Salvador.
The judge gave the government several chances to offer more evidence to support that claim — even granting an extension — but prosecutors never did so. They also did not fight the judge’s sentence of time served for the two months Castillo had already been detained.
In a telephone interview from detention, Castillo said he was deported in 2014 after being apprehended while trying to cross the Arizona border. Months later in El Salvador, he said, police accused him of killing a man near his work. He denied ever having been a gang member or having anything to do with the murder.
After seven months he was released, according to Salvadoran judicial records and his lawyer, Concepción Moreno Hernández. Another teen was charged with the homicide, she said.
“The person who committed the crime wasn’t him,” the attorney said in a telephone interview. “The judge absolved him of the crime and he no longer has a record.”
Castillo said he came to the United States because he wanted to work and save. With little money, his family decided Castillo and Briana would go to California, where he has relatives, until he could afford to bring his wife and son.
“Had I known what would happen, I never would have come,” he said.
In video calls with her mother in El Salvador, Briana wept.
“When is my papi going to come get me?” she said. “I don’t want to be here.”
Last week, Castillo and his daughter were deported together to El Salvador. Despite the government’s accusations, advocates in charge of Briana’s care determined her father didn’t pose a danger to her after all.
“In the last few months these types of separations have risen drastically. The government is trying to drive a truck through what was supposed to be a very narrow exception.”
Lee Gelernt, lead lawyer for the ACLU case against family separations