Law and the Border
This past week, against the endless, rueful din of new astonishments that is the work product of the Trump administration, emerged a single truth: the U.S. government had taken children from their parents without ensuring they had the information needed to reunite them. Two years after the Trump administration implemented its “zero tolerance” policy of arresting and deporting every migrant and separating children from their parents at the United States-Mexico border, lawyers did not have a direct way of reuniting family members.
Understanding how this happened requires wading back through the muck of the administration’s inventive cruelties to 2017, when it began a secret pilot program authorizing migrants to be separated from their children. In April of 2018, the “zero tolerance” program became policy, and more than 4,200 children were separated from their parents as a result. Of these, more than one thousand children had been separated during the 2017 pilot program. Once the program became public, the public revulsion was so intense that Trump rescinded it in June of 2018. That same month, a federal judge, in the case of Ms.L v. ICE, which was filed by the ACLU on behalf of a Congolese immigrant separated from her seven-year-old daughter, ordered the government to stop the practice, find the children, and reunite them with their parents.
Since then, the American Civil Liberties Union claims to have reunited two thousand families. In a recent court filing, the ACLU said that about two-thirds of the parents were believed to have been deported back to their country of origin. In the rush of ICE officials to carry out Trump’s draconian policy, no attempt was made to record the correct information about home addresses and telephone numbers of the parents, and three years after separation many cannot be found. Other reports allege that the mistake was made because the pilot program was implemented covertly, and the children were handed off to Health and Human Services. ICE officials and HHS allege that they were not fully informed of contact information at the time.
Of the thousand-plus kids who were separated in 2017, about half have been reunited with their parents under a court-ordered scheme. But the remaining 545 may never see their parents again. Since it has become obvious that federal authorities will not be able to reunite these children, volunteer groups are now working with “often inaccurate and inadequate information” from the government to conduct searches for the families in local communities. These groups, including Justice in Motion and others, are actually carrying out on-the-ground efforts in Central America and Mexico to locate these children’s parents. There are also radio ads that ask parents who are looking for the missing children to call a hotline. The facts, of course, are quite clear: as Nan Schivone, legal director of Justice in Motion, put it, “The Trump administration had no plans to keep track of the families or ever reunite them and so that’s why we’re in the situation we’re in now, to try to account for each family.”
If Americans who care wish to ensure that these cruelties do not re-occur, it is not simply enough to hope that Trump loses the election.
Trump, of course, refused to acknowledge the humanity of these families when given an opportunity in this week’s final presidential debate to address concerns about separated children. Instead, he falsely claimed that the children were brought to the United States by smugglers “and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country.” And what’s the big deal anyway? he seemed to ask: “They are so well taken care of, they’re in facilities that are so clean.”
That the Trump administration does not value the lives of Black and brown people has been clear in the constant violence it has imposed upon them during its tenure. The president encouraged groups like the Proud Boys during the first presidential debate, insisted that there are very fine people on both sides while referring to white supremacist violence in Charlottesville, decried immigrants from “shithole countries” coming to the United States, and told Congresswomen of color who are U.S. citizens to go back to where they came from. It is no surprise that the Trump administration’s policies are racist, but the malice of children thrown into cages, wrested from parents, and even attempting suicide because of the separations they have been made to endure makes one gasp with terror.
Gasping, however, just will not do. If Americans who care wish to ensure that these cruelties do not re-occur, it is not enough to simply hope that Trump loses the election. Long before the Trump administration came into power, the United States Citizenship and Immigration Service, and before that its predecessor the Immigration and Naturalization Service, had slipped into some of the most negligent and inept practices of any federal agency. Since the late 2000s, immigration lawyers have been dealing with lost forms, lost evidence, misplaced files, or even files that disappear entirely. The latter may not be as terrible as the ultimate cruelty of separating children from their mothers, but it can mean the annihilation of an entire family’s attempt to get asylum, or the disruption of their patient wait to obtain a green card. As an immigration lawyer, I can attest that reconstructing these files is nearly impossible; the agency that loses them with regularity has never much cared. Recent reports, following backlogs made ever worse by the pandemic, show doubled processing times and a mountain of rising cases that must be resolved on an ever-dwindling budget.
The specific issue of separating parents from children also has precedent. As fact-checkers pointed out after the first presidential debate, family separations were also taking place under the Obama administration, when parents accused of serious crimes were separated from their children. There were also instances in which separated children were put into cages. This information should not be reiterated to create moral equivalency between the Obama and the Trump administrations, but rather to make the important point that the way America treats migrants is cruel, unfair, and often racist. Also, that it has been this way for a long time.
It is crucial to underscore this point because in the event that Vice President Joe Biden wins the election, a great deal of work will still have to be done to erase this legacy of degradation. In addition to inheriting a USCIS whose regulations have been twisted and toyed with by Trump’s white nationalist immigration czar Stephen Miller, and an Immigration and Customs Enforcement agency that has even employed individuals with neo-Nazi ties, there is the burden of figuring out how to carry out the arguably always inhumane task of exclusion in a humane manner. Without a national debate over the policies and procedures of such a system and an overt acknowledgement of how past policies have insured and guaranteed racist treatment, a path forward seems elusive.
The precedent of European countries, which have instituted illiberal measures aimed at keeping migrants off their shores, even if the consequence is little boys like the Syrian Alan Kurdi washing up dead on beaches, is no help. In this moment, of course, the United States is the winner in the sordid struggle between the rich, white, and Western, and the brown, poor, and helpless. Alan Kurdi was already dead; in the American version of the story, hundreds of helpless and bereft children roam the beach, weeping for their lost parents who cannot be found.