The unthinkable has happened, and is now DHS “policy.” Since the beginning of this year DHS has started separating children from parents, even when they arrive at the US border seeking to make claims for asylum.
The original justification for this policy applied to adults crossing the border at places other than official points of entry. The parent or parents were criminally charged with unlawful entry and/or “alien smuggling,” and sent into federal detention facilities for those charged with crimes. The children were separated from the parents and sent to other facilities, certainly a highly traumatic experience for parent and child alike.
In the past common sense and simple humanity werer the guidelines. Where such individuals expressed a fear of returning to their home country they were simply civilly charged with an unlawful entry and placed into removal proceedings, where they could litigate their asylum claims. Under past practice many such families were also released to relatives in the US who could care for them while their cases were pending.
No more, apparently. Public statements made by the US Atty. Gen. make clear that this new federal policy is pure “deterrence,” which is to say a way to terrorize perspective Asylum claimants with the risk of family separation so that they will not claim asylum at the US border. This is both contrary to US law, morality and human decency, even if there is a paper justification for the federal criminal charges, which in most cases amount to simple federal misdemeanors. (I have had prior asylum claimants actually have convictions for presenting false documents of the border, but even they have been granted asylum in the past where they made the claim in a timely manner, because under asylum law such convictions are not for “particularly serious crimes.”)
Now, DHS has taken the process a step further and gone into an area of pure illegality. Asylum claimants who with their children present themselves at authorized ports of entry to claim asylum now run the risk of having their kids separated from them for no reason other than the illegal one that it will deter them from making lawful asylum claims.
The ACLU has fought back against these illegal policies, rightfully claiming that they violate the federal due process clause, federal law protecting asylum-seekers, and the government’s own directive to release asylum-seekers.
The complaint in Ms. L v. ICE, can be read at this link.
Significantly, the federal district court in San Diego hearing the case has refused to dismiss the lawsuit, indicating that the constitutional claims have merit.
I can state based on a number of cases I am handling now that it is impossible for a child to assert an asylum claim on his or her own. In these cases the children are the targets of persecution, not merely derivative claimants of their parents’ claims. Separating the parents from such children makes it impossible for the kids to advance their asylum claims. This is as plain and manifest a denial of due process of law as it is possible to imagine.
The ACLU was now seeking to create a class action to enjoin this practice of separating parents and children in all cases, by filing a motion for class certification.
The motion can be read at this link.
https://www.aclu.org/legal-document/ms-l-v-ice-motion-class-cerfication Of course, it is being fought by the Justice Department.
It is also highly noteworthy that United Nations representatives have also weighed in. On June 5, the United Nations human rights office condemned the U.S. practice of separating migrant children from their parents at the border as “a serious violation of the rights of the child.”
“The practice of separating families amounts to arbitrary and unlawful interference in family life,” said UN spokeswoman Ravina Shamdasani, who called on the U.S. to “ immediately halt this practice of separating families.”
When I made the transition to immigration practice in 2002 I did so because I saw this area of the law as one where I could, in my own way, help “make a difference” in people’s lives. I never dreamed that I would see policies embraced by our Government which are illegal and a disgrace to the idea that we respect human rights and welcome those claiming asylum. I fervently hope that the courts grant relief and that this inhumane and illegal policy is stopped dead in its tracks. It must be if we are to preserve our basic values as Americans.