Politics

Why Did the Government Separate This Family?

Salvador and Rosita were separated a year ago. They still don’t understand why.

Salvador and Rosita stand together in a parking lot, smiling. Rosita is holding a Hello Kitty toy.
Courtesy of Immigrant Families Together

The video, shot hurriedly on a cellphone, is grainy and short. In it, a little girl peeks her head from behind a door, clutching a Hello Kitty plush toy. She grins widely and makes a nervous sound as she enters the room. She then turns and sees the person she’s been waiting for, lets out a giggle, and rushes into the man’s arms. This is Rosita, 8, and her father, Salvador. The video was taken at a foster facility in Southern California. This was the first time Rosita had seen her father in the five months since the two were separated by Immigration and Customs Enforcement shortly after crossing the border.

For many Americans, the family separation saga seemed to have quietly passed after June 2018, when the administration’s policy of “zero tolerance” prosecutions that led to widespread border separations was ruled unconstitutional by a federal judge. But new separations have steadily continued due to loopholes in the court order that ended the practice, resulting in more than 1,150 immigrant children being separated from their parents after arriving at the border between the end of zero tolerance in June 2018 and this March, when the southern border was closed in response to the COVID-19 pandemic.

Rosita was one of the children separated after the policy nominally ended. She and her father, who requested that their last name be withheld since their claim is still pending, left their home in El Salvador in 2017 in order to seek asylum in the United States. They left Rosita’s sister—Salvador’s stepdaughter—with his family because he feared that U.S. border officials would separate them without DNA proof that they were related. Rosita’s mother, Salvador’s former partner, also had to stay behind. The journey took half a year. Having fled gang violence at home, Salvador spent three months working in a restaurant in Tapachula, Mexico, just on the northern side of the Guatemalan border, saving money to afford bus fare to the American border. The pair arrived in Tecate, California, in March 2019. When their group was approached by Customs and Border Protection agents, they requested asylum. Two days after arriving, Salvador and Rosita were released together and allowed to travel to Los Angeles to stay with a cousin of Salvador’s while the case was adjudicated.

But then, within days of getting to L.A., the father and daughter were torn apart. At his first check-in with immigration officials there, Salvador says, the officers confronted him with an accusation that he sexually abused his two daughters. “I was stunned and I said, ‘What, no, who?’ ” he told me through an interpreter. “And the official said, ‘It’s appearing here in front of my screen.’ ” Salvador had no idea where the claim could have come from, he said. He had recently pulled his record of criminal antecedents in El Salvador, which he needed to apply for work there, and there was nothing on it. (Slate has viewed the record and confirmed this.) All the ICE officials could tell him, he says, was that there was an accusation of abuse. They didn’t say from whom. They didn’t say what evidence might exist. Even attorneys working directly on Rosita’s behalf have not been given details of the allegation beyond the claim that one was made.

To be sure, if the government had a credible report of sexual assault or child abuse, separation would be warranted. The ACLU, which sued to end family separation, has itself acknowledged in court that separation is justified in cases of serious crimes, particularly sexual violence against children. Still, the ACLU and other attorneys allege that hundreds of families have been unjustly separated on the basis of flimsy to nonexistent evidence of such criminal history. Salvador and Rosita’s would appear to be one of these cases.

Attorneys for undocumented immigrant children told me that the lack of information Salvador and Rosita received from the government about the allegations that were used to justify their separation is typical in recent family separation cases. Slate has reviewed a copy of Salvador’s latest records from the Salvadorian bureau of prisons and the National Civil Police registration and records unit, dated Oct. 18. According to the documents, he has no record based on a criminal conviction “or on account of a criminal offense” and he “lacks any pending police or judicial process to which he is subject.” The Office of Refugee Resettlement did not respond to questions from Slate about Salvador and Rosita’s case, and ICE did not respond to questions about the process it uses to determine when to separate families and the information it provides to families who want to challenge their separations.

When Salvador was told he was going to be detained without Rosita, his only request was that ICE not handcuff him in front of his daughter.

Salvador and Rosita were split up: He was sent to a detention facility and she ended up in a temporary foster care facility.

“My daughter was crying when she left,” Salvador recalled, beginning to cry himself. “We had never been separated before.”

No one would tell Salvador where his daughter was or how to find her again.

In January, Judge Dana Sabraw—the district court judge who issued an injunction against family separation in the 2018 case Ms. L v. ICE—denied an ACLU motion to put stricter guidelines on the family separations that have continued under the loopholes in his initial ruling, which allow for continued separations in cases of alleged criminal history, communicable disease, and parental fitness.

As a result, the process and evidence used by government officials to decide whom to separate is a mystery. A Health & Human Services inspector general report released in March said that even HHS finds it difficult to learn information from the Department of Homeland Security about separated parents whose children are in HHS custody. “HHS also continues to experience difficulties obtaining information from DHS about parents’ criminal backgrounds, impeding HHS’s ability to provide appropriate care and identify sponsors to whom children can be safely released,” the report stated.

A DHS inspector general report released in November, meanwhile, revealed that before the practice was halted, DHS had intended to separate 26,000 families in a six-month span with no means of reunifying them. The border has been closed to all asylum-seekers as part of the Trump administration’s response to the COVID-19 pandemic, but the government was continuously separating families through March while putting little effort into reunifying anyone.

Salvador and Rosita were among hundreds of new families to be separated since 2018. The government has already reunited at least 125 of the more than 1,150 separated families under this practice, suggesting a more than 10 percent error rate. The ACLU says the error rate is much higher, with hundreds more wrongfully separated for very old and minor crimes, like “vehicle offenses, traffic infractions, drug possession convictions (including marijuana), shoplifting, destruction of small amounts of property, and resisting arrest,” or separated for allegations for which there is no evidence or corroboration.

Rosita was luckier than most. She was ultimately released to her father’s custody. As for the accusation against Salvador, multiple attorneys who have worked on family separation cases told me that it was extremely unlikely that an immigration judge would release a migrant on parole if there were any corroboration for a claim of child abuse, and similarly unlikely that the Office of Refugee Resettlement—which conducts a thorough vetting before releasing children to parents and sponsors—would hand over a child to a parent were such a claim corroborated. According to ORR’s guidance documents, if a parent has been “investigated for the physical abuse, sexual abuse, neglect, or abandonment of a minor, he or she must provide related court records and police records, as well as governmental social service records or proof of rehabilitation related to the incident” in order to retake custody of the child. “I am not aware of any case in which ORR released a child to a parent with recent, documented criminal convictions for child sexual abuse,” says attorney Catherine Weiss. In the ACLU’s family separation litigation, Weiss represents legal service providers—organizations providing legal services to undocumented immigrants—who have been denied information about the separated families they represent.

“I myself have never seen them release a child to a parent whom they believed to have criminal history unless that criminal history has been proven untrue,” Weiss told me. “I’ve never seen them do it.

“So few parents are released for reunification with their children at all in the ongoing separation world,” she added.

The government initially did little to help newly separated parents find their children post-separation and only in the past eight months began to implement procedures that might help parents keep track of separated children. The public still doesn’t know if those new tracking policies are working, though. The ultimate decision to reunify still rests with ORR, but advocacy groups also help assess children in government custody and make recommendations to ORR about a given child’s best interests.

Jennifer Nagda, the policy director for the Young Center for Immigrant Children’s Rights, which worked on Rosita’s case, would not comment on her case because of issues around representing a minor. But, she told me generally, “when ORR releases a child to a parent they’ve made a determination that it’s in a child’s best interest to be with their parent.” Nagda further explained the process by which an organization like hers might help ORR determine parental fitness. These efforts include visiting children in government facilities to build rapport and make determinations about potential abuse, talking to family members and members of the child’s previous community, reaching out to consular offices to request information about potential criminal history, speaking with ORR staff, and attempting to get information from ICE about potential allegations. After the Young Center assessed Rosita’s case, she was released by ORR to Salvador. How families like Salvador’s come to be separated in the first place, though, remains a black box.

“In almost all of these cases, there’s no way to know and then there’s no way to track that information down,” Nagda told me of the government’s separation determinations. “It’s really hard to undo those decisions without understanding why or how they were made and what evidence was relied upon.” The ACLU has fought to pry loose the government’s current standards for separation, but information sharing has been minimal. The government only acknowledged in December that it had finally started giving parents tear sheets—pieces of paper providing cursory information and an email address for parents who want to challenge separation or request reunification.

The situation is no better for the attorneys who represent the children. In January, Weiss filed a brief with Sabraw’s court describing the Kafkaesque experiences of the legal service providers attempting to find out any information about the separated children they represented. Weiss surveyed four child advocates and 63 legal service providers, who reported that in 68 percent of cases federal field specialists in ORR shelters did not provide them any information about a child’s separated parent, including their name or Alien Registration Number. In 70 percent of cases, these federal workers did not share the locations of separated parents. In 89 percent of cases, federal workers did not share contact information for separated parents. In 71 percent of cases, federal workers did not share information about the basis for the separations. According to the HHS inspector general, though, the government officials who are responsible for these children often don’t even have this information themselves. “ORR staff reported that they continue to face challenges in obtaining information from DHS regarding parents of separated children, including complete information about parents’ criminal histories; further, they reported that in some cases, key identifying information such as the parent’s name or alien registration number is also omitted,” the report noted.

In discussing the government’s lack of information sharing with me this past December, Weiss repeatedly broke into exasperated laughter. “There’s a family that I and others have been working with for weeks where—I kid not—in the reasons for separation indicated by the government for this family, the reasons for separation read like this: ‘Father was separated from daughter,’ ” Weiss told me. “And you’re like, ‘Yeah, we got that. Why?’ Nothing beyond that.”

Because there is so little being done by the government to reunify newly separated families, it’s fallen to private citizens to try to help put families back together. The group Immigrant Families Together, which helped reunite Rosita and Salvador, has helped reunify 118 families by posting more than $1 million in bonds raised through crowdfunding campaigns. The organization has also guided dozens of others through the elaborate reunification process.

“I think it’s outrageous that it takes millions of dollars to reunite [families],” Casey Revkin, who helps run Immigrant Families Together, told me. “We’ve helped reunite cases where the government has even conceded that the family shouldn’t have been separated. We’ve reunited a dad with his son where they’d performed a DNA test to prove that the dad was the father and they still required a $9,000 bond.”

Revkin recently launched a new organization called Every. Last. One., “dedicated to helping all migrant families with children in government custody go through the process to have their children released to them.”

As the inspector general noted in November, family separation did not deter undocumented families from continuing to flee violence in their home countries to seek new lives in the United States. Salvador, for instance, says his family faced the threat of gang violence back home. “If you don’t pay extortion, they kill you,” he said. In spite of the separation, he said his situation in the United States felt less dangerous than the situation his daughter was facing in El Salvador.

Throughout the first three months of Salvador’s detention, he had virtually no information about his daughter. He said he wasn’t sleeping at the time and that he had to see a doctor because he was racked with stress.

“I was worried that she was going to go in the foster care system and go with other parents,” he told me. He said he even contemplated suicide.

Finally, on June 18, 2019, Salvador was granted an immigration hearing. All he could do was try to tell his story “without a lawyer, without documents, with nothing.” Salvador presented an affidavit that laid out the details of his departure from El Salvador and his family’s separation. The judge granted his release and set bail for $10,000. He had no idea how he would get the money.

Two days after the hearing, he was granted a phone call with his daughter, hearing her voice for the first time in three months.

After that phone call, Rosita drew a picture of her and her father smiling together with a heart around their initials. There were stickers of a dog, a cat, and a pig. In Spanish, she wrote in the corner, “My first phone call with my papa made me very happy.”

Hands hold up a laminated piece of paper featuring block letters, stickers, and a drawing.
Jeremy Stahl

But they were still kept apart. Just two weeks after their first phone conversation, a large earthquake struck Los Angeles. Salvador was terrified that Rosita might have been affected. As the weeks passed by, he learned from a legal representative of his daughter that there might be a way to get him out and to reunite them. That’s when Immigrant Families Together, which connected with Rosita and her father through the Young Center, provided the bail money.

“Oh, my God, I’m going to be with my daughter again,” he thought when he learned of the bond. “But that was the beginning of the process.” The shelter where she was staying was also initially demanding a lengthy reunification process that would include a home visitation. Salvador had to wear an ankle monitor after being bonded out, and he was concerned the radius on the monitor would not allow him to attend a required visit with his daughter. He was able to visit her on Aug. 28, eight days after his release. “The first time that we saw each other, we hugged each other,” he recalled. After that, things began to move quicker. He had a second visit a week later, and, to his surprise, they told him two days after that they would release her to him.

Salvador started crying again at this recollection. “It was a lot,” he said.

The legal battles over family separation continue, even as the ACLU has lost its motion for clearer separation and reunification procedures. In his ruling rejecting that request, Sabraw did say that in cases like Salvador’s, where an immigration judge has made a determination to release on bond a parent who has been separated from his child, the government “should reunify that parent with his or her child in the same way they are reunifying families with resolved communicable diseases or long-term illnesses.” However, the judge left it up to the government’s good-faith efforts to make sure that happens. It did not happen in the case of Salvador, who was only reunified because Immigrant Families Together intervened.

Rosita and Salvador are now living together awaiting adjudication of their asylum cases in the Los Angeles area. Rosita’s school is closed due to the pandemic, and she is home with him now. Before the crisis, she was learning English, reportedly doing very well in school, and spending time with her father doing things like watching movies and reading together—she told me her favorite book was Huevos Verdes con Jamón, by Dr. Seuss. “She was very happy to be able to reunite with her father,” said Rosita’s previous attorney, Mickey Donovan-Kaloust. “She is clearly a wonderful and resilient young woman. I think she’s weathered this as well as anyone could.”

Still, the toll of these separations can manifest later in life, said Amy Cohen, an expert on child psychology and the mental health consultant to Flores Settlement Agreement counsel. (Cohen also serves as the executive director of Every. Last. One.)

“For a lot of these children, their trauma symptoms are delayed,” Cohen said. “But as time goes on, virtually all that I’ve ever spoken with start to demonstrate these symptoms. They start to become phobic, they start to become anxious, they start to become angry.” As the Center for Public Integrity and Texas Tribune reported, DHS was alerted precisely of these dangers as far back as 2016. “Separation can be acutely frightening for children and can leave children in ad hoc care situations that compromise their safety and well-being,” representatives of the American Academy of Pediatrics and civil rights groups warned DHS in a September 2016 report. “It can also be traumatizing and extremely stressful for the parent.”

Salvador’s and Rosita’s ability to stay together in the United States is still far from certain. Their cases have been consolidated, and they now have a new lawyer working for them. They had a case in family court scheduled for April 22 to determine sole parental custody, but that court date has been postponed indefinitely. Their next date in immigration court is scheduled for July 17, but immigration courts have been closed in light of the pandemic. On Monday, Salvador’s attorney, Cristel Martinez, was told that the immigration court closures would extend at least through May 29, but she is hopeful that her clients will be able to keep their next hearing date in July. The stakes are high. If Salvador’s asylum claim fails, then he and his daughter might have to return to a country where he fears for her safety.

Meanwhile, Rosita is saving her change in a piggy bank to send back to her sister in El Salvador. When asked if she’s happy to be back with her father, she says simply and with a smile, “.”

Mikhaela Cielo, Will Brown Hernandez, and Lili Loofbourow contributed interpretation to the reporting of this piece.

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