The Trump administration’s family separation policy was officially ended by court order in June 2018. But the judge allowed a loophole through which the administration has jammed more than 900 children, the ACLU charged in a court motion on Tuesday.
After ruling that the implementation of the zero tolerance policy itself was unlawful, U.S. District Judge Dana Sabraw said that the government could continue to separate families on a case-by-case basis in instances where a parent had a communicable disease, when there was a determination a parent was unfit, and if the criminal history of a parent required it. “Of course,” Sabraw said in a July 6 hearing shortly after issuing his ruling, “all of this assumes good faith.”
He continued: “It assumes that the government is using the criteria that it properly used before with respect to criminal history. Some criminal history, I understand, does not result in separate detention of the parent and thus separation of the family; other criminal history could. … Here again, it assumes absolute good faith on the part of the government that if it elects to separate a family based on criminal history that it is doing it under its criteria that it ordinarily follows.”
This past February, U.S. Border Patrol Chief Carla Provost elaborated on that criteria in testimony before Congress, saying that they would separate children from their parents if the parents “have a serious criminal conviction.”
After the administration’s family separation policy was ended by Sabraw’s order, the number of separations dropped significantly and swiftly. In the months since Provost’s testimony, though, they have surged—it seems to about four times the level they were at the end of Barack Obama’s administration—with almost no notice taken by the public.
In the ACLU’s latest court filing, the organization accuses the government of violating Sabraw’s order, pointing to 911 family separations that have occurred since the end of the administration’s “zero tolerance” policy last June.
The ACLU has identified hundreds of examples where the government’s interpretation of “serious criminal conviction” involved decade-old cases, convictions for minor offenses like “traffic violations, misdemeanor property damage, and disorderly conduct violations,” and cases where there was no conviction at all. “Hundreds of children, some literally just babies, are being irreparably damaged because their parent may have committed a minor offense in the past, even a traffic offense,” the ACLU wrote, requesting that Sabraw clarify the standards by which the government can continue separations.
Reading through the government’s current separation determinations, it’s clear that children are being taken from their parents—and, in the words of one administration official, possibly traumatized for life—for truly baffling reasons.
Here are just a few examples of what the government considers its appropriate fulfillment of Sabraw’s “good faith,” according to the ACLU.
• A 2-year-old was recently separated from his father in New Mexico and taken to New York because of the father’s two past DUI charges. The father and son were not allowed to communicate for two months. When the boy was taken to the hospital due to breathing problems, the government did not update the father on the child’s medical condition.
• A 6-year-old was separated from her mother after the parent had to have emergency surgery for an injured leg. The child was sent to New York, the government initially refused to reunite them, and they were only reunified after two and a half months because the ACLU intervened.
• A 10-year-old who only spoke an indigenous language was separated from his father for six months after an allegation of sexual assault against someone else was mistakenly applied to the father. During that time, the boy “began to forget his family’s native language, and he suffered extreme isolation because of his inability to speak Spanish, English, or any language common in the shelter” where he was held.
• A girl who had just turned 17 was separated from her father for what the government described as his having committed a “malicious destruction of property value $5.” She was kept in custody for nearly four months before eventually being released to her mother.
• A 9-year-old was separated from her father because of an apparent clerical error after a CBP official wrote the name of the wrong person as the parent on the intake form.
• A father was deemed unfit to take care of his 1-year-old after he delayed changing her diaper while she slept in his arms because she was recovering from a fever and he wanted to let her rest. The CBP guard took the girl from his father’s arms, told him “you are a bad father” and asked him “why did you bring your daughter here?” The guard then separated the father and 1-year-old. They were separated on Christmas Day and kept apart for three and a half months.
• In October, 5-year-old KL was separated from his father because of a 2001 conviction for carrying a concealed knife and selling marijuana. They were kept apart for 228 days.
• A woman who was raped by a gang member in front of her 3-year-old was separated from her son because she had been arrested while she was with the gang member in question. Despite the government of El Salvador confirming that the mother had “no criminal history,” the mother and son have not been reunited after five months.
• In December, 2-year-old JA was taken from her father because she couldn’t walk or crawl. The family was from the Q’anjob’al Maya community in Huehuetenango, Guatemala, where it is not uncommon for small children to be carried on their mother’s backs in a Mayan wrap continuously until the age of 3 or 4, which can delay developmental milestones like walking.
CBP officers attributed JA’s inability to walk to parental neglect, she was separated from her father on that basis, and the father was deported.
• Three-year-old M was separated from his mother for three months because she had once been arrested in El Salvador. Only after legal aides obtained a letter from El Salvador confirming that she had “no criminal record” was she reunited with her son. When they were reunited, the boy “did not appear to recognize his mother.”
• An Angolan mother was separated from her 7-year-old and 5-year-old children in April for participating in a peaceful demonstration in support of human rights, which the government initially claimed made her inadmissible to the country on terrorism-related grounds. The family has not been reunited.
The story that emerges from these anecdotes is also supported by an analysis of the raw numbers that CBP was required to turn over to the ACLU as part of the Ms. L lawsuit. Since Sabraw’s injunction one year ago there have been 911 reported family separations. So, of the roughly 76,288 unaccompanied minors taken in by the government since family separation was supposedly ended over a year ago, 1.2 percent of them have been children who were separated from their parents. This is four times the rate that the Health and Human Services Department’s inspector general reported had occurred in late 2016 under the previous administration, when the government first started attempting to track the numbers. The numbers have particularly skyrocketed in the last five months: More than 650 of the 911 separations have apparently occurred since February.
The ACLU’s own data analysis also paints a damning picture beyond the individual stories. Six parents were separated because of old marijuana possession offenses, eight parents were separated for old fraud or forgery offenses, 14 parents were separated for DUI offenses or unspecified traffic violations, and one parent was separated for “theft by shoplifting” and “driving without a license.” In the 179 cases where reliable information about timing was provided, the most recent offense was on average 10 years old. There were 15 cases where a parent and child were separated based upon charges that were more than 20 years old.
Further, CBP is separating particularly young children at a much higher rate than it did even during the zero tolerance period. Of the 911 separated children, 185 are under the age of 5. During zero tolerance, just 107 of 2,814 separated children—less than 4 percent—were in this “tender age” group. The average age in the current group of separated children is 9 years old. More than half of the 911 separated children were under 10 years old at the time of the separation.
Again, many of these separations appear to be in violation of Sabraw’s order. Indeed, as Slate reported in April, there are a number of cases that—even without further clarification—appear to be in direct violation of Sabraw’s own words, not just the spirit of the order. The ACLU reported that 48 children were separated solely for illegal entry or illegal reentry offenses. Last year during a hearing, Sabraw specifically said that he assumed these would not be considered criminal history for the purposes of ongoing separations. According to Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project, even the government accepts that illegal entry and reentry are not a lawful basis to separate kids from their families.
It still remains unclear why there has been such an enormous uptick in these separations, particularly of children in the tender age group. (The Department of Homeland Security would not comment to Slate.) In April, NBC reported that former Homeland Security Secretary Kirstjen Nielsen had been pushed out after resisting calls from President Donald Trump to reinstate family separation. According to NBC, her acting replacement, Kevin McAleenan, was at the time more open to renewed separations but he has since said that a separation policy was not being brought back. Meanwhile Brian S. Hastings, CBP’s chief of law enforcement operations, recently defended family separations in congressional testimony. Hastings also said in an April interview on Fox News that the main problem that his officers face is an inability—due to “outdated laws”—to “apply a consequence” to the “demographic” group of “family units and children.” According to LinkedIn, he was promoted to his current position in January 2019.
While it’s unclear why the administration appears to be quietly increasing family separations, the ACLU is trying to put a stop to it.
“What we’re asking the court to do is clarify the standard for separations to make clear that there has to be objective evidence that the parent is truly unfit or a danger, and that mere criminal history is not a basis for separation,” said Gelernt. “If we need a process going forward where there’s someone to resolve individual disputes, [Sabraw] ought to appoint someone, a child expert […] whether it’s a court monitor, or a magistrate, or someone else. But we’re hoping that if he clarifies the substantive standard that we won’t continue to see these separations in these numbers.”
Gelernt fears the public is largely unaware of what’s happening to this new batch of children.
“The challenge for us is that everyone thinks the family separation crisis is over,” he told me. “It’s not, and our challenge is to make sure the public knows that it’s still going on and these kids are not forgotten.”