Kids in cages: What family separation was, what happened to the children, and what the Biden administration can do today

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David Xol-Cholom, of Guatemala, hugs his son Byron at Los Angeles International Airport as they reunite after being separated during the Trump administration’s wide-scale separation of immigrant families, in Los Angeles on Jan. 22, 2020. AP Photo/Ringo H.W. Chiu

The United States’ official narrative is that it is a nation of immigrants. But the poor and downtrodden have often found the country to be less hospitable than advertised, its roads having been dug up to pay for walls and Border Patrol, with even liberal administrations boasting of their capacity to deport.

Still, Donald Trump’s presidency achieved, in the area of migration, an abysmal new high in officially sanctioned cruelty: the systemic, unapologetic tearing apart of families that crossed the US-Mexico border to seek asylum – as was their internationally recognized legal right.

We need to take away children,” US Attorney General Jeff Sessions reportedly instructed staff at the Department of Justice in May 2018. Thousands of confused, sobbing children, some just months old, were then taken from their parents, many of whom were quickly ejected from the country.

The harm was recognized immediately, shocking even hardened prosecutors. “We have now heard of taking breastfeeding defendant moms away from their infants,” one prosecutor wrote during a 2017 pilot of the separation program. “I did not believe this until I looked at the duty log.”

In the years since a 2018 court decision ending the practice of family separation, hundreds of children remain thousands of miles from their mothers and fathers. The trauma they have suffered, in the view of medical professionals, “rises to the level of torture.”

Lee Gelernt is a lecturer at Columbia Law School and deputy director of the Immigrants’ Rights Project at the American Civil Liberties Union. He spoke to Insider about family separation: what it entailed, where those kids are today, and what, if anything, the new administration can do to remedy the situation.

Charles Davis: What was the family separation policy and how did it differ from what prior administrations did?

Lee Gelernt: The family separation practice of the Trump administration was an attempt by that administration to deter asylum-seekers from coming to the United States by taking children away from their parents. We now know that more than 5,500 children were separated from their parents, some under a year old, and hundreds just toddlers. Despite claims by the Trump administration, no prior administration, Democratic or Republican, had ever systematically separated children from their parents.

I have been doing this civil rights work for nearly 30 years and it’s by far the worst immigration practice I have ever seen. What the medical community has said and what the American Academy of Pediatrics has said is that this was flat-out child abuse.

CD: When we talk about family separation, what exactly did that entail? I understand that most of the parents were immediately deported. But what happened to the children? Were they just kept in cages or placed with sponsors?

LG: When parents arrived at the border with their children, the children were taken away and sent to government facilities all over the country. Often the parent was not even given the chance to say goodbye to the child, or had to wave to the child through a glass window. The children were placed in facilities and then given to what’s called “sponsors,” which could be a relative or foster family. Many of the parents were then deported without their children. Often they would be told their child would meet them on the plane before takeoff, and then the plane would take off without the child.

Other parents were arrested for the misdemeanor of illegal entry into the country and put in jail for time served, often 24 to 48 hours. Then when they exited jail, they would find out – often days later or months later – that their child had been sent halfway across the country, and were then not permitted to speak with their child or permitted only infrequently.

What the administration said in those cases was, “Well, when anybody goes to jail in this country, they’re separated from their child.” The difference was that the very reason the government was prosecuting for these misdemeanor offenses was solely to separate the parent and child, as we now know from memos that have been released.

But equally as important, when someone goes to jail in America, they may be separated from their child, but when they leave jail, they get their child back. What happened in these situations was that the parent was placed in jail for 24 or 48 hours for the misdemeanor of illegal entry, but then did not get their child back – often for months and months. One of our lead plaintiffs went to jail for the misdemeanor of illegal entry. When she got out of jail after time served, she did not get her child back for eight months.

And so we now know that this was a deliberate attempt to take children away, to make it so horrific that parents would give up their asylum claims. And, in the administration’s hope, the word would get back to Central America, that you don’t want to come to the United States to seek refuge because you’ll lose your child.

Notably, every expert on immigration, as well as every Republican and Democratic administration prior to the Trump administration, knew that taking children away would never deter people in real danger from coming to the United States. More fundamentally, even if it were a deterrent, which it plainly was not, in the United States we simply don’t use children as political pawns. And that’s why you saw such a swift reaction from the American public across the ideological spectrum, from conservative religious leaders to the Pope to Laura Bush, all of whom said, “In the United States, we just don’t do this to little children and toddlers.”

And when I spoke to parents who had had their children taken away, I would ask them, “Would you have come anyway, if you had known your child was going to be taken from you?” And invariably they shrugged and said, “What choice did I have? It would have been even worse if I had stayed because my child would likely have been killed or I would have been killed.”

CD: You mentioned it taking up to eight months for one of your clients to be reunited with their child. What took so long? What was the actual process of reuniting them? Did the Trump administration aid that, or was it entirely up to the parent?

LG: We brought a lawsuit in March of 2018 called Ms. L v ICE. And in June of 2018, the federal court in San Diego ruled that the practice of separating parents and children was unconstitutional and ordered the government to reunite all of the families. But it turned out that many of the parents had been deported without their children and were no longer in the United States. The government said that those families should not be part of the lawsuit because the parent was already out of the country. The judge properly and swiftly rejected that contention. The government then said, well, we’re not going to find those parents abroad. So I stood up in court and said, “The ACLU will then find these families.” And we created a steering committee to help us. And unfortunately we are still looking for the parents of over 500 children, largely because the names of many of the families that were separated were not given to us until more than a year after the judge ordered the practice stopped.

And then the government failed to disclose contact information – phone numbers, and addresses for the families. We have been trying to reach the families with whatever information we have received from the Trump administration, but it’s also required difficult, dangerous, on-the-ground searches in Central America.

CD: Obviously we no longer have a Trump administration and we no longer have a policy of family separation. So what is the ongoing litigation about, and what do you hope to achieve?

LG: We will continue the litigation until the Biden administration provides full relief to all of the families. Right now, the litigation has focused on finding the remaining families, as well as bringing parents back to the United States to reunify with their children. The Trump administration refused to bring parents back to the United States to reunify with their children, and only permitted the child to return to Central America to reunify with their parents.

But that’s the very reason they left Central America: because they were in such danger. We have very specific asks of the Biden administration, which has now created a family separation task force. We would like the Biden administration to provide any additional phone numbers and contact information they may have for the more than 500 families that have yet to be located. We would like the administration to allow parents who are abroad to reunite with their children in the United States.

And to be clear, we have not located 500 families, but we have located hundreds of other families that remained separated because the Trump administration gave the families only two brutal choices: remain separated or bring your child back to the very danger from which they fled.

So we would like the Biden administration to reunify families in the United States, starting with the hundreds we have already found. And then, as we find the additional 500, allowing them to reunify in the United States. We also want the Biden administration to begin exploring mechanisms to provide the families with permanent legal status, given what they have suffered under our government. We would like to see restitution for the families: provide for basic necessities, as well as trauma-care help. We would like to see transparency and accountability, and to have the Biden administration investigate precisely what happened, as well as support congressional efforts. And finally, we want the Biden administration to put in permanent procedures so that family separation never occurs again in the future.

CD: There are still over 500 families that have yet to be found, but that does not mean that other families have been reunited – they’ve just been found. So I’m just curious how many families have been found and actually reunited?

LG: There is, roughly speaking, three groups: There is a group that we have found and reunited, and that’s well over 2,000; then there are the families we have found, but remain separated, and that’s likely more than a thousand, we believe; and then the third group is the 500 we haven’t found – we haven’t located them, but it’s possible, through self-help, some have reunited, especially if the parent is in the US.

CD: And do you have any idea how many of the children are in foster care or in a state institution or a nonprofit versus being with a distant family member?

LG: We know they’re out of government detention. Now they’re largely with relatives, but that can range from a close relative to a very distant relative – someone they may have known to someone they had no idea who was their relative. And some of the kids are so young that they wouldn’t even really be aware of anybody who was a distant relative. And then some are with foster families. But the bulk are with relatives.

CD: As you mentioned, the Biden administration has created a task force to try to find some of these families. And I believe the president has publicly committed to bringing them back to the United States, the parents. I’m wondering what can the administration do to locate these families that the ACLU and others are unable to do?

LG: That’s a good question. We welcome the Biden administration’s assistance in finding the remaining 500-plus families, but we don’t believe that should be their primary focus. We will find the families, but if the Biden administration has additional contact information, we would like that information. We would also like the Biden administration to continuously update us with new information they receive, something that the Trump administration did not do.

But ultimately the Biden task force needs to focus on what only the government can do, which is to provide parole to the families to come back to the United States, to reunify with their children; to provide restitution; and to provide legal status. Those are things that only the government can do. We will continue finding the families. There’s no silver bullet for locating the families.

CD: Obviously this issue received a lot of attention. There was a big uproar, not just in the United States, but internationally. I’m curious, though, if there’s any aspect of this story that you think is important that has been overlooked or you just think that the media should focus on more.

LG: What I worry about is that aggregate statistics and abstract policy questions will blur the human dimension. I think the uproar domestically and internationally resulted from people’s visceral reactions to the horror of a parent losing their child. But I do worry that if the stories of the children, pictures of children, are not kept in the news, people will become desensitized to what actually happened. I think the horror of what happened is probably so much greater than we have been able to illustrate thus far. People have generally understood it viscerally, and I think they also understand aspects of the medical part, but I’m not sure the medical part has completely come through yet. What doctors are saying is that the stress, the trauma, on these children was so great that it literally changed their brain structure.

I think there’s going to be more to try and understand about just how much damage we did to these children, just how deliberate it was, and how it continued for so long even after people were telling the White House and DHS that the pilot program they started in the beginning of the administration was having such horrific effects

It has received enormous coverage, but I do think at some point it’s become a little bit abstract because there were no cameras there to see our government literally tearing children from their parent and a three- or four-year-old child begging not to be taken away, and the parent being helpless to stop it. That horror needs to remain in the forefront.

CD: I think something that maybe has contributed to not grasping the horror of the situation is a little bit of cynicism – on the right, primarily, but also a little bit on the left. That kind of looks at immigration policy and is like, “Well, it’s horrible under all administrations, ergo it’s equally horrible.” I wonder if you have any thoughts on that – that everyone “puts kids in cages.”

LG: What I’ve tried to say throughout the family separation saga is that reasonable people can disagree about macro immigration policy, and both Democratic and Republican administrations have done things in the immigration area that the ACLU has strongly condemned. But having done this work for nearly 30 years, I do think there is something about the family separation practice that is qualitatively different than anything we’ve seen before. I think there are people who can feel like many of the things that the Trump administration did at the border were OK, but still condemn taking punitive measures against children who were six months old, a year-and-a-half, two-and-a-half years old. I can’t tell you how many people have approached me and said, “I’m a Republican. I’m conservative, I generally think we need more border enforcement, but I am sickened by taking little children, little babies away from their parents – that’s not something that I would ever approve of.”

I think that’s why the family separation practice caused such outrage across the ideological spectrum. I think, of all the issues I’ve worked on for 30 years, this is the one where the traction was so immediate and so broad because people were really repulsed by hearing about a six-month-old child being taken away – and when finally reunited, not even recognizing their parents. Little children being in facilities, not knowing where they were, not knowing if they would ever see their parents again; the parents not knowing where the child was, not getting to speak to the child every night, thinking, “Where is my child? Are they OK?” I think that’s why, whatever else people may think is appropriate in the immigration area, there were very few people I’ve met who said, “It’s OK to do this to little children.”

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