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According to a court filing last week, the Trump administration claims the parents of 711 children separated under Trump’s family separation policy are “not eligible for reunification” or the children are “not available for discharge.” These cold, bureaucratic terms gloss over the real reasons why these children remain separated from their parents – a dangerous mix of bureaucratic incompetence and the desire of Trump appointees to keep families separated as a form of deterrence.
In the filing to the court overseeing the family reunifications, the Trump administration broke down the reasons why 711 children remain separated from their parents:
The largest group of children – 431 – have parents “outside the U.S.” In other words, the government deported them, most without the choice to depart with their child. We learned last week from Politico that, “Homeland Security officials may have neglected to give a choice to as many as three-quarters of all migrant parents removed from the United States about leaving their children behind, contradicting repeated public assurances from Homeland Security Secretary Kirstjen Nielsen.”
The Trump administration should use all of its tools to expeditiously reunite families and that includes using well-established parole authority to return deported parents.
Similar to the reports in Politico of deported parents not being given the choice to depart with or leave their child behind, reports have emerged that the parents of 120 children may not have intentionally and knowingly “waived” reunification. Multiple affidavits filed in court suggest that parents may have been coerced into “waiving” reunification. In some cases, immigration officials may have misrepresented the facts; in some cases, the government misrepresented the documents parents were signing; and in some cases, parents may not have understood the documents they signed, because they did not speak, read, and/or write English (some speak indigenous languages and not Spanish).
The filing states that 94 children have parents whose “location is under file review.” This is bureaucratic-speak for DHS losing track of them in spite of the fact that these parents were arrested, detained, and in the custody of the government under the family separation policy. Because the government included the number of children with parents who were released into the interior U.S. (79) and the number deported (431), it is possible the government is telling the court in its filing that these parents are still in DHS custody, but DHS has lost track of them. This is not surprising given a New York Times report that, “Records linking children to their parents have disappeared, and in some cases have been destroyed.” It is also not surprising that 79 children of parents released into the U.S. cannot be reunited. If DHS is having trouble locating parents of 94 children within their custody, it is likely they similarly lost track of parents released into the U.S.
As the judge in this case stated, it is a “startling reality” that the government “readily keeps track of personal property of detainees” but “the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children.”
The Trump administration claims 67 children have not been reunited because background checks or case files suggest there is a “red flag” regarding the parent’s suitability for reunification. Basic constitutional, family law, and policy protect family integrity. According to Vivek Sankaran, professor at the University of Michigan Law School, “children should only be taken from their parents when…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.” When a child is taken from a parent, parents are generally entitled to the information used to assess the danger or harm, a hearing, and in many cases counsel. Under the Trump administration’s zero tolerance policy, none of these standards are being followed. Instead, the government simply claims a “red flag” without details and has provided no avenue for appeal, hearing, let alone counsel for parents and children.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “It’s appalling to see this administration hiding behind cold, bureaucratic terms that suggest parents are to blame for their continued separation from their children. Administration officials claim many parents are ‘not eligible for reunification.’ But the reality is that this administration has tricked or coerced parents into deportation, making it infinitely more difficult to reunite families; they have tricked parents into waiving reunification; they have have lost track of parents and children; and they have made opaque claims about parental fitness without any transparency or due process. None of this is acceptable. Unless it is clearly proven through a fair process that a child would be put in harm’s way if kept with their parent, then kids and parents should be reunited promptly.”