FAMILY SEPARATION IS NOT OVER
HOW THE TRUMP ADMINISTRATION CONTINUES TO SEPARATE CHILDREN FROM THEIR PARENTS TO SERVE ITS POLITICAL ENDS
June 25, 2020
EXECUTIVE SUMMARY
The Trump administration continues to separate families, taking children from parents, placing parents in adult immigration detention and children in shelters across the country. During the administration’s Zero Tolerance policy, the government separated nearly 4,500 children from their parents. Its stated motive: to deter families from seeking protection in the United States.
Since the end of this policy, another 1,100 children have been separated from their parents based on alleged criminal histories, which frequently have no bearing on a parent’s ability to care for a child. The Young Center for Immigrant Children’s Rights was appointed to a two-year-old who was separated from a parent after Zero Tolerance ended because immigration officials observed that the child had a diaper rash. In another case, a six-year-old was separated from a parent who had a charge of “breaching the peace” on his record. Teenagers and babies alike were taken from parents with years-old charges for driving under the influence. After spending months in federal custody, all these children were reunited with their parents for the purpose of joint repatriation (deportation).
Today, under the pretense of protecting public health, the border is closed and nearly no children are allowed in. Some families continue to wait in the Remain in Mexico program, which the government ironically calls the Migrant Protection Protocols. The program forces families seeking protection at the U.S. border to wait in Mexico for decisions on their immigration proceedings. Since the policy began in January 2019, nearly 60,000 people have been trapped in appalling conditions at the border. Others–including unaccompanied children–have been put on ICE flights and deported, in violation of federal law.
Separation from parents can cause severe, lifelong harm to children. In this report, we seek to galvanize renewed attention to the problem of family separation at the border and offer concrete recommendations to end these practices. We will also share how the Young Center employs its unique model of assigning independent Child Advocates—volunteers, attorneys, social workers, and paralegals—who work to reunify separated children with their families as quickly as possible and ensure that unaccompanied children can live with family in the community as their immigration cases proceed.
RECOMMENDATIONS
At the Young Center for Immigrant Children’s Rights, we are working towards the creation of an immigration system that is tailored to the needs and vulnerabilities of children. Even before substantial legislative reform, however, there are many steps decision-makers can take to ensure that whenever possible, families remain together, and that children’s needs do not come as an afterthought.
Every government agency must make the best interests of the child a primary consideration in every decision about a child. All federal agencies must be required to consider children’s best interests in every decision, regardless of immigration status or opportunity for legal relief. The Office of Refugee Resettlement is required by law to place children in the least restrictive setting in their best interests. This statutory obligation to consider the best interests of unaccompanied children aligns with the laws of all 50 states for cases in which children are separated from their families by government action. Every federal agency involved in an immigrant child’s case, from the time of the child’s apprehension through the final resolution of the child’s immigration case, should consider the best interests of the child—the child’s expressed wishes, and rights to safety, liberty, family integrity, development and identity—in every decision.
Congress and agency policy must prohibit family separation in all but the most exceptional cases. Children must not be separated from their parents or legal guardians unless there is verifiable evidence that the parent poses an immediate threat to the child’s safety or is otherwise unfit to care for the child.
Every decision to temporarily separate a child from a parent must be subject to prompt review by a court with expertise in child protection and parental rights—not immigration enforcement officials. Decisions to separate an immigrant child from a parent should only be made by an independent professional who is culturally sensitive, trained in child welfare, child development, immigration law, and trafficking concerns.
Federal agencies (DHS, DOJ, and HHS) should ensure that every child separated from a parent has an attorney and an independent Child Advocate. If DHS separates a child from a parent, the child should be referred for the appointment of an independent Child Advocate to champion the child’s best interests in all relevant decisions, from reunification with parents and other family members to whether the child can safely repatriate. The government should provide an attorney to both the parent and the child if they do not have counsel. Unless the child expresses a contrary desire, the government should ensure consistent, age-appropriate video and phone contact between the parent and child and facilitate regular in-person visits.
Congress must protect the Flores Settlement Agreement and the Trafficking Victims Protection Reauthorization Act (TVPRA) which provide critical protections for children. Congress should reject any effort to dismantle or otherwise narrow the Flores Settlement Agreement or the Trafficking Victims Protection Reauthorization Act (TVPRA), which provide critical protections for children, including the right to placement in the least restrictive settings in their best interests and the appointment of independent Child Advocates to identify and advocate for the best interests of the child.
The Executive Branch must end the Remain in Mexico program/Migrant Protection Protocols and restore access to asylum. The Young Center has been appointed to multiple cases of parent-child separation resulting from Remain in Mexico. The government fails to track family relationships or parents’ contact information, making communication and reunification nearly impossible. The Remain in Mexico program must end immediately, and access to asylum for all seeking protection must be restored. At the very least, children who cannot safely remain in Mexico should be admitted in the custody of their parents, not separated from them.
TABLE OF CONTENTS
Executive Summary and Key Recommendations
What Happens to a Child Apprehended at the Border?
Stakeholders in a Child’s Immigration Process
Remembering Zero Tolerance
Key Findings in Government Report about the Zero Tolerance Policy
The Phases of Family Separation
A Timeline of Family Separation
A Parallel Family Separation Crisis
The Young Center’s Efforts During Zero Tolerance
Separations Continue Outside of Public View
Beyond Zero Tolerance: The Young Center’s Unique Role in Helping Unaccompanied Children
New Separations as a Result of the Remain in Mexico Program (MPP)
Using COVID-19 as Cover to Deny Children Safety
Anatomy of a Child Advocate’s Role in Family Separation Cases
Recommendations
Only some parts of the report have been included in this web page. Please download the PDF file for the complete report and citations.
A Parallel Family Separation Crisis
The Convention on the Rights of the Child guarantees that all children have the right to know and be cared for by their parents. The United States Supreme Court has declared that the Due Process Clause of the Fourteenth Amendment “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Indeed, the right to care for one’s child is “perhaps the oldest of the fundamental liberty interests recognized by [the] Court.” But throughout U.S. history, the government has sanctioned the separation of children from their parents. Black children were sold into slavery away from their parents. Indigenous children were forcibly separated from their families and sent to “Indian schools.” Newly arrived immigrant children were sent on “orphan trains” to families in the west. These racist practices persist today. Black people are over-represented in every legal system in the United States, whether immigration, school suspensions, arrest and incarceration, or in child welfare proceedings. While the child welfare system is in theory dedicated to ensuring the safety of children, racial disparities exist at every stage of decision-making, inflicting untold harm on families. As renowned scholar Dorothy Roberts writes:
The child welfare system claims to be a non-adversarial legal system dedicated to ensuring the well-being and safety of children. This claim obscures the oppressive political role it plays in monitoring, regulating, and punishing poor families and Black, brown, and indigenous families. The mass removal of Black children from their families in some ways parallels the U.S. criminal legal system’s mass removal of Black men and women from their communities.
While efforts have been made to correct for racial bias in state child welfare systems, children of color, and poor children continue to be disproportionately removed from their parents. Too often these separations become permanent. Federal law says that any parent whose child spends 15 out of 22 months in foster care can lose their parental rights. Enforcement of these laws ignores the reality of mass incarceration in the United States and disproportionate sentencing. In New York, for instance, a woman’s median sentence is 36 months. Loss of parental rights can strip parents of any opportunity to stay in touch and play a role in their children’s lives.
New laws may help reverse some of these trends and limit the damage caused by incarceration and the child welfare system. Primary caretaker laws seek to expand the use of community-based alternatives to incarceration for parents, enabling them to care for their families while serving a sentence. The Families First Prevention Services Act offers funding for a range of services to be delivered to parents in their homes, seeking to reduce the use of foster care whenever possible.
But more needs to be done. Across the country systemic bias and deeply embedded racism ensures that Black and Brown people, including children, are policed, monitored, judged, and prosecuted for a range of issues that do not affect white peers similarly. Just as we raise the alarm about separating children from immigrant parents, the Young Center is committed to working with advocates across social systems to ensure that no child faces the trauma and lifelong consequences of family separation.
Our report, our work to reunite families forcibly separated by the government, and our advocacy to protect legal safeguards for children are only made possible with your support. Please consider donating to the Young Center's work here.