The unrelenting saga of family separation: What now?

Between April and May of 2018, nearly 3,000 immigrant children were separated from their parents at the southern U.S. border — many, if not most, of them are bona fide refugees, fleeing torture, harm and persecution. In June, a court order obligated the U.S. government to reunite nearly all children younger than 5 within 14 days and older children within 30 days. The Trump administration manufactured this crisis, engaging in unprecedented rates of criminal prosecution at the border and resultant family separation, and the failure to collect even rudimentary biographical information that might have ensured their eventual reunification.

And now, like a petulant child, the administration wants someone else to clean up its mess.

{mosads}When taken to task for its inability to meet the aforementioned court-ordered, 30-day deadline, the government, demonstrating a remarkable lack of self awareness, suggested that it was the American Civil Liberties Union (ACLU), and not the U.S. government that had both the resources and the obligation to undertake the considerable effort necessary to reunite the remaining families. Judge Dana Sabraw, the George W. Bush appointee overseeing the case, didn’t miss a beat. Placing the onus squarely on the government, Judge Sabraw declared that,  “for every parent that is not located, there will be a permanently orphaned child and that is 100 percent the responsibility of the administration.”

Beginning in April, the Trump administration imposed a “zero-tolerance” policy aimed at deterring predominantly Central American families seeking safety and refuge at the southern U.S. border. The government’s “zero-tolerance” policy took as its mandate the decision to criminally prosecute every unauthorized entrant into the United States — an unprecedented exercise of law enforcement authority. Dubiously, the government claimed that a necessary and natural byproduct of this criminal prosecution was the separation of immigrant children from their parents.

Following widespread public outrage over the execution and impact of zero-tolerance, President Trump on June 20, 2018, signed an Executive Order, “Affording Congress an Opportunity to Address Family Separation.” The order purported to put an end to family separation by inviting Congress and the courts to amend the law to allow for prolonged and indefinite family detention — thereby trading away one parade of horribles for another.

Specifically, the administration asked the attorney general to file a request to amend the 1997 Flores settlement, which has been interpreted by a district court judge to forbid the detention of immigrant children for longer than 20 days. The order further suggests that, assuming Flores is amended to allow prolonged and indefinite family detention, the Department of Homeland Security is instructed to detain migrant families “throughout the pendency of … immigration proceedings.”

In July, another federal judge refused to let the Trump administration off the hook, calling the government’s attempt to free itself of the obligations of Flores to be “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”

Notwithstanding the actions of the courts, by July 26, more than 700 children remained separated from their families, though the government contended this was the result of “ineligibility” on the part of parents. In fact, of those parents declared “ineligible,” more than 460 already had been deported, primarily to Guatemala and Honduras. Another 127 parents apparently had “waived” their right to be reunited with their children.

In fact, serious, concerning questions remain about whether such waiver was knowing, with the ACLU arguing that the government acted in a “coercive and misleading” manner that led parents to sign documents without understanding the impact of their waiver: that they might never see their children again. Worse still, allegations have emerged that some parents appear to have been reunited with their children only to be separated a second time — as they sat on a bus, alongside their traumatized children, and were asked to sign forms with a pre-checked box indicating that they wished to be deported while their children remained behind in the United States.

In the meantime, the continued detention of children has shined a light on their abysmal treatment in custody — spoiled food, inadequate potable water, and the forcible administration of psychotropic medication, among other conditions. A federal judge had ordered the parties to agree on an independent detention conditions monitor.

In early August, the government all but abdicated responsibility for the remaining separated families, arguing that it was up to the ACLU to bring the remaining children and parents back together. So what now? Last week, Judge Sabraw ordered a temporary hold on deportations, recognizing that many of these families have not had a full or fair opportunity to present their legal claims for protection from harm in their home countries. But the saga of separated families — and their future both here and in their native countries — continues.

For now, the government appears increasingly interested in distancing itself from the policies and subsequent chaos the Trump administration has engineered. All while our federal courts, and tireless advocates on the ground, are doing everything possible to hold them accountable.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.