Last December The New York Times reported that the Trump administration was considering a new policy of “Separating Families to Combat Illegal Immigration.”  As the NYT article notes, previous administrations have stopped short of resorting to policies like family separation, because of concerns that it could force people into the hands of dangerous smugglers who sell themselves as a way to evade the Border Patrol, or force people with legitimate claims for asylum to remain in life-threatening situations in their home countries.
The practice would require that parents be put into detention while their asylum claims were determined while their children would be put into shelters and have “sponsors” (other relatives residing in the United States) sought for their custody while the children’s right to remain would be decided.
It is unclear whether this “policy” has been formally implemented by published Department of Homeland Security guidance, but in fact that is already happening. The Houston Chronicle “has identified 22 cases since June in which parents … with no history of immigration violations were prosecuted for the misdemeanor crime of improper entry and had their children removed. Minors cannot be kept in federal prison.”
A particularly horrifying case is detailed by The Houston Chronicle in an article titled “Her husband murdered, her son taken away, a mother seeking asylum tells a judge, 'I have lost everything.'”
I have a number of such cases going back years where mother and child entered the United States illegally and were apprehended at the border, put into removal proceedings, and released where “credible fear interviews” disclose that the mother had brought the child to the United States because of family-based persecution in which the child was targeted to get at the parents. In one such case a gang pursuing a vendetta against the Guatemalan family called the home, and the child picked up. The gang member said: “Tell your mother that we will kidnap you and deliver you back to her in pieces in a plastic bag.”
I don’t see how prosecuting the mother for an alleged unlawful entry or “alien smuggling” (i.e. the child) and separating the child from her is anything other than a lawless subterfuge to deny this family the right to claim asylum. How can such a child possibly advance asylum claim on his or her own? Are we as a society willing to deprive this family of a basic right to claim asylum because the Trump Administration is unhappy with the influx of refugees (many of whom are admittedly just economic refugees) and doesn’t care if lives are lost in the process?
The American Immigration Council, a nonprofit public advocacy arm of the American Immigration Lawyers Association, together with other human rights groups has filed a complaint with the Department of Homeland Security detailing how this practice is both illegal (a due process violation of a foreign citizen’s right to claim asylum) and immoral. One hopes that reason and humanity will prevail and that this despicable practice will be discontinued.
In the meantime, I urge all who know of foreign citizens who must flee to the United States to seek asylum to do so properly. The preferred way to make the claim, and one that should prevent the Department of Homeland Security from separating families (because no criminal charges can be filed) is simply to have the have the family directly approach a recognized border crossing and port of entry, where they can directly approach immigration officials and claim asylum.
I’ve had a number of clients do this. It is the best way seek asylum where we see that the US Government will now resort to any legal artifice it can to deny foreign citizens their right to make asylum claims.