Last week, a federal judge ordered that immigrant families separated at the border must be reunited. This followed a hazy Trump executive order that purported to end the policy of child separation, but according to the New York Times, there remain more than 2,000 children, spread out over the United States, who are still separated from their parents. The mechanics of reuniting these families are complicated and difficult, especially without a major effort from the people responsible for their separations in the first place.
To talk about all of this, I spoke by phone recently with Neha Desai, director of immigration at the National Center for Youth Law, which represents immigrant children in custody as laid out by the 1997 Flores settlement that put rules and restrictions around the treatment of detained immigrant minors. During the course of our conversation, which has been edited and condensed for clarity, we discussed exactly how the government makes it difficult for parents to get in touch with their kids, why immigrants without money are further penalized, and how the United States is supposed to treat those seeking asylum.
Isaac Chotiner: Can you explain why it is so difficult to unite parents and their kids?
Neha Desai: One thing that has been the case for many, many years that is particularly problematic as it relates to reuniting families is that ICE tends to move people in its custody frequently. In the time that a parent is in ICE custody, he or she might be in four different facilities in very, very different parts of the country, moved with no warning, without having any sort of attorney that’s tracking their whereabouts. I am familiar with an attorney who was representing an ICE detainee who couldn’t locate their own client. This has been a common practice within ICE. I am trying to facilitate communication right now between a dad and his daughter. He has already been in a couple of different facilities and doesn’t have anyone that is representing him, and therefore his daughter, who is currently across the country from where he is located, hasn’t been able to get in touch with him. She has a caseworker through the Office of Refugee Resettlement who has called ICE multiples times, left ICE multiple messages, and nobody has called back.
Do you have some sense of why ICE does this?
This entire system is designed to make things impossible for immigrants. Many of these [ICE facilities] are for-profit institutions with people that are receiving horrible, substandard care and are often unrepresented. There is very little oversight into what happens in ICE detention facilities and that has been true for a while.
Besides what you are describing with ICE, why, exactly, is it so difficult for kids and parents to get in touch?
There is no clear database that links the parents and the children. There is no one person who is assigned to track where the parent is and where the child is. There is often no one working with the parent to do anything. At least for the child there is usually a caseworker through ORR, so there is some link to being able to communicate to the outside world, but many of these ICE detainees literally have nobody. It’s this giant maze, it’s this bureaucratic nightmare, and there is no process in place that I am aware of—unless one has popped up in the past number of hours—that really coordinates and facilitates communication or awareness of where a parent is located or where a parent has moved to.
What is the process for a child to get released to a family member?
If a child is going to be released to their parent, they still need to go through a fairly extensive process through the ORR. It’s a vetting process, but also a process by which ORR is at times—more often, recently—doing a home study of the parent. Obviously now we are not talking about a parent detained in ICE custody, but if it is a family member in the community, there is paperwork they have to fill out, fingerprints they have to provide. More recently, the government is doing home studies. We referenced this in the lawsuit we filed released last Friday, but the government has increasingly been putting obstacles in the way of sponsors, which keeps people from having their family members released to them. Some of these obstacles are financial, some are them are frankly making it difficult for families that are poor, having pretextual reasons that really go back to poverty. We have had potential family members being rejected as sponsors because they were told their house wasn’t big enough, or they didn’t have enough money to provide psychotropic medications that the government believes the kids should be on. One potential sponsor was rejected because she already had two children in her home.
Yeah, two children. None of this is written into regulations or law saying that you have to have XYZ things to have your child or family member released to you, but the government is placing an increasing amount of barriers.
And from news reports, it seems like poverty is an even further barrier, because the parents or someone in the family have to pay to be reunited.
Yes. If a kid is lucky enough to have an attorney involved in the case, some of those fees can be waived. We got involved in a case a while back and the government was initially asking for the family to pay and we knew that wasn’t possible, so we were able to advocate on that child’s behalf and that family’s behalf and had the government cover that expense. But such a significant number of these children and families are unrepresented, and so they don’t have anyone advocating for them. Honestly, so much of this comes down to the fact that so many of these children and families have nobody advocating for them. As Flores counsel, we have the ability to monitor what is happening systemically, but there are many, many children and families that no one’s eyes are on. And so, whatever is happening, no one is even bearing witness.
What does being Flores counsel mean in practice?
What that means in practice is that as part of the settlement agreement that was signed in 1997, Flores counsel are the attorneys representing Flores class members, which is all children in federal immigration custody—almost 11,000 now. We have access to go into any facility where these children are housed, and interview them.
The child-separation policy was new, but our immigration policy has been very problematic for a very long time. In terms of reuniting families and making things difficult for immigrants, have you seen notable differences in this administration, or is it on the continuum?
Let me first clarify something that you said at the outset: that the family-separation policy is new. The scope and breadth of the policy is new, but family separations at the border are not new, and they even predate this administration. They have been happening for quite some time, but once the policy was announced and the “zero tolerance” arrest and prosecution of parents began, the policy expanded significantly. It’s incredible seeing the outrage and folks speaking out across the country now, but some of us have been screaming about this for quite a long time.
What was the lawsuit you filed on Friday, and how does it relate to some of these issues?
The case that we filed is really based on ensuring that children in federal immigration custody have the appropriate due process protections when transferred from a less secure to a more secure facility—adequate due process in terms of being released to sponsors. Also, we have addressed the inappropriate use of psychotropic medications without informed consent. We are grounding this in the Constitution in addition to the Flores agreement. Before the government is providing psychotropic medications to children, they should also be involving an independent decision-maker in determining whether the child should be on these medications, and in terms of ongoing review. And there is one more claim, and that has to do with blocking access to counsel. Some children in custody have attorneys that are provided to them that are government-funded and that focus on the immigration relief that the child is pursuing, but in many ways those lawyers have been blocked from a broader scope of representation, which would include the release of the child to the family, or against the administration of psychotropic medications without informed consent, or against a child being moved from a shelterlike facility to a secure detention facility. In fact, many of these attorneys aren’t even told before a child is “stepped up.”
Is there some aspect of our immigration system, or the way it is enforced, that you think people might be unaware of, that is especially important?
I certainly think that in the larger political discussion around immigration, one thing that is often forgotten is that it is not unlawful to appear at a point of entry and request asylum, per international law, per federal law. These are refugees, effectively, that have not yet been granted refugee status in their home countries, that are fleeing persecution, torture, and are arriving at our borders requesting help. The vast majority of detained families in family detention, the vast majority of children in federal immigration custody, are eligible for some form of immigration relief. These are not children and families that are just showing up because they feel like trying out something new. In the interviews that we have done over many, many months, I have interviewed children who at 5 years old witnessed their parents being assassinated with 18 gunshots to the head. Five years old. I have spoken to kids who have been gang raped repeatedly at 6 years old. I have spoken to kids that have seen their sibling being murdered in front of their eyes. These are children and their families fleeing unspeakable violence. And that seems to get forgotten.
I’ve read that at a lot of the points of entry where asylum-seekers register, the Trump administration is telling them not to, or creating all kinds of logistical and bureaucratic barriers to prevent people from even applying for asylum.
Yes, that’s correct.