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The Trump administration ripped almost 3,000 children from their parents without any regard for basic principles of family law and policy. Officials have shown a stunning disregard for the best interests of children, documentation of family units, plans for keeping separated parents and children in contact with each other, and plans for reunification.
Now, without details or transparency, this same administration is claiming that a third of the parents are either not eligible, or “not yet known to be eligible,” for reunification by today’s court-imposed deadline. Lawyers for the parents have repeatedly asked the government for information regarding the people who the administration claims are “ineligible” in order to, where appropriate, challenge the decision to keep child from parent – standard due process in family law before a child is taken from a parent. No such information has been forthcoming. To obtain what should be readily available information, separated parents have resorted to seeking a court order to force the government to provide information related to its “eligibility” decisions.
According to a Vivek Sankaran, professor and director of the University of Michigan’s Child Advocacy Law Clinic, federal and state law “reflect[s] our national consensus that children should only be taken from their parents when it is absolutely necessary to protect them.” He explains that the law generally presumes families should stay together unless there are exceptional circumstances such as “imminent danger of serious or substantial harm, and that no other condition short of removal can safeguard the child’s well being.”
Furthermore, DHS policy clearly presumes families should stay together, absent exceptional circumstances. The U.S. Customs and Border Protection National Standards on Transport, Escort, Detention and Search (TEDS) states, “CBP will maintain family unity to the greatest extent operationally feasible, absent a legal requirement or an articulable safety or security concern that requires separation.”
Professor Sankaran explains that the Trump administration has turned basic family law principles upside-down. Under the family separation policy, government officials evidently believe they have no requirement to “demonstrate that the children face any risk of being harmed by their parents. No court must review the decision to determine whether the government’s actions serve the children’s best interests. No lawyers are appointed to advocate on behalf of the child or the parent.”
DHS policy also requires, “In circumstances where family units must be separated due to different immigration dispositions, such separation mu[st] be documented in the appropriate electronic system(s) of record.” Again, the Trump administration has failed to meet this standard when, according to the New York Times, “Records linking children to their parents have disappeared, and in some cases have been destroyed, according to two officials of the Department of Homeland Security, leaving the authorities struggling to identify connections between family members.”
Professor Sankaran explains that basic family law says, “Frequent contact between the child and parents must be maintained, even when a parent is incarcerated.” Under the Trump family separation policy, multiple reports have documented parents in despair after their children were abruptly taken by DHS, sometimes using deception. Once separated, most were given little to no information on the whereabouts of children and how to communicate with them.
The Department of Health and Human Services says, “When children must be removed from their families to ensure their safety, the first goal is to reunite them with their families as soon as possible.” Yet, the Trump administration has repeatedly failed to follow this basic family unity principle at every step. Although Trump issued an executive order that purportedly ended his family separation policy, it said nothing about reunifying families already separated. Shortly after the executive order was issued, CNN reported that, “The agency…said any further plans to reunite families were still in development.” It took a federal judge to order the government to expeditiously reunite families. Still, according to the judge in this case, the government has been dragging its feet and counsel for the parents have explained that the administration has been slow to provide facts for families to reunite quickly. Furthermore, the Trump administration deported 463 parents which makes it more difficult, if not impossible, to expeditiously reunify families.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “From the inception of the family separation policy, the Trump administration has repeatedly violated basic principles of family law and policy. It has failed to consider the best interests of the child at every step, thereby proving that this administration cannot be trusted to make decisions regarding the best interests of children. Given this administration’s track record, any process that could result in children being kept from their parents needs to be done by independent experts knowledgeable about the principles of family law, not administration officials who victimized these families in the first place. Moreover, this entire scandal needs to be investigated and corrected — not just by one federal judge, but also by Congress. Congressional oversight, investigation, and if needed, stronger legislative language is the best way to ensure that no such scandal reoccurs. We need this administration to abide by law and policy, keep families together as a matter of course, and swiftly reunite severely traumatized families. Unfortunately, we cannot trust them to do so on their own.”