Statement to U.S. Commission on Civil Rights regarding Family Separation

UPDATE- On October 24th, the Commission released a 200-page report in which it found that the administration’s policies “have created an unnecessary human and civil rights crisis at the southern border” and that “the institution of the Zero Tolerance Policy and decision to forcibly and deliberately separate children, including infants and toddlers, from parents or adult family members on a mass scale is a gross human and civil rights violation.” The report highlights the obstacles of reunifying families, confirms continuing separations, and outlines the trauma inflicted on children and families when separation is used as a means of deterrence and not child safety. In its report, the Commission adopted recommendations advanced by the Young Center, including a prohibition against family separation unless there is “a proven serious risk to the best interests of the child,” and the need for legislation prohibiting separation unless a competent court or child welfare specialist determines that the child has been trafficked or is in danger of abuse or neglect. Read the report here.

On Friday, April 12, 2019, Miriam Abaya, Policy Associate at the Young Center for Immigrant Children Rights, provided the following testimony at the U.S. Commission on Civil Rights’s Public Session on Immigration Detention Centers and Treatment of Immigrants.

Good morning. My name is Miriam Abaya and I’m representing the Young Center for Immigrant Children’s Rights. Our mission is to promote the best interests of unaccompanied immigrant children according to the Convention on the Rights of the Child and United States law, and we are working to create a system that ensures the safety and well-being of every child.

Since 2003, we have been appointed by the Secretary of Health and Human Services to serve as Child Advocate, or best interests guardian ad litem, for thousands of child trafficking victims and other vulnerable, unaccompanied children seeking protection in the U.S. In that capacity, we make recommendations regarding the best interests of individual children to federal agencies—including the Departments of Justice, Homeland Security (DHS), Health and Human Services and State—and work with those agencies to create and implement policies that facilitate the consideration of each child’s best interests.

In the past 18 months, we have worked on hundreds of cases where DHS officials unlawfully separated children from their parents. The following comments are based on our undesired expertise in advocating for the reunification and protection of these children.

In 2017, nearly a year before zero-tolerance was formally announced, the Young Center began to receive referrals for children deemed unaccompanied after being taken away from their parents at the border. Though we had received referrals in the past for separated children where the adult’s relationship with the child was unclear, what happened in 2017 was different. Some of the children referred to us were toddlers and babies. In all of these cases, there were no doubts about the relationship between children and their parents. But DHS still separated them.

In response, the Young Center’s policy team reached out to child welfare and health organizations, and more than 500 of them joined a letter spelling out the specific harms that family separation would inflict on children and families. We now know that career child welfare officials within the administration also raised concerns about the trauma children would suffer if taken from their parents. But that didn’t stop the administration from moving forward with zero-tolerance in April 2018.

By the time zero-tolerance was announced, the Young Center had been referred hundreds of separation cases at all eight of our program sites. Our attorneys and social workers faced many hurdles in reunifying these families. The government intentionally separated families without any plan to reunify or track them. We received no information about whether children had arrived with parents and had to repeatedly call CBP and ICE detention centers to gather information. Once we located a parent, we then had to convince DHS officials to allow parents to communicate with their children. In some cases that communication was denied, but even when it was approved, there were no systems in place to ensure regular contact between children and parents.

Worse yet, many parents were deported without knowing where their child was before we were appointed. Parents told us that they abandoned valid asylum claims because they were told that it would help their children or allow them to be reunified. In some cases, children believed their parents willingly abandoned them.  Although the Young Center successfully reunified many children with parents—here in the US or in home country—the damage to these children and families was extraordinary.

Though a court order halted the government from separating families as a matter of policy, for the last ten months the Young Center has received increasing referrals for newly separated children. In most cases, we have been told that the parents have alleged “criminal histories” that require separation from their children. However, in many of these cases the government separates families based on unverified arrests or suspicions. Even when there is an actual criminal history, it is usually unrelated to the child’s safety or the parent’s ability to care for the child, such as re-entering the United States after deportation or a DUI from before the child was born. We have even seen separations for no reason at all. DHS officials with no child welfare expertise are making split-second decisions, and these decisions have traumatic, life-long consequences that take months to undo. We are deeply concerned that family separation continues to be used solely to deter families from exercising their legal right to seek protection.

Family separation has impacted the entire infrastructure of care for children in federal custody. It has increased the number of children in the Office of Refugee Resettlement’s custody, increased the need for intensive services for those traumatized by separation, and increased the risk that parents or their children will abandon valid asylum claims to be reunified.

Any discussion of renewing family separation or giving families the false “choice” between being separated or indefinitely detained together should be recognized for what it is: a clear policy to inflict harm on families and deter them from seeking protection in the US.

The Young Center thanks the Commission for investigating this important issue. We urge you to also closely consider other comments related to the government’s compliance with the Flores Settlement Agreement and the vital protections for immigrant children under the Trafficking Victims Protection Reauthorization Act. Thank you.