FEATURE: 20 Facts That You Should Know About Current Immigration Policies and Procedures Including Child Separations, Loss of Children in the System, and Asylum Seeking

By Karen Smith Rotabi and Carmen Monico

Fact 1: In recent years, families entering the United States without authorization have been separated by the Department of Homeland Security (DHS) in many cases. Adults and parents with children (family units) have been held in over 100 immigration detention facilities across the U.S. Those children declared “unaccompanied” were transferred to the care of the Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services. Unaccompanied minors released from Customs and Border Protection (CBP) custody and ICE facilities have been sent into foster care and group home scenarios, costing $700 per bed/per day. Some children were flown to states as far away as Michigan where Bethany Christian Family Services (an adoption agency under scrutiny) have placed children into foster families. Some of these families were also on waiting lists for adoption. Another notable fact is that Bethany Christian Family Services is connected to Betsy Devos, the Secretary of the U.S. Department of Education.

Fact 2: On April 6, 2018, U.S. Attorney General (Jeff Sessions) announced the “Zero-Tolerance” policy aimed at affirming the criminalization of illegal entry into the United States. Sessions directed the U.S. attorney’s offices in the southern districts of California, New Mexico, and Texas implement a policy of prosecution of all Department of Homeland Security referrals of section 1325(a) violations. This means that people entering the US in a manner that is consider “illegal” would be prosecuted for a crime. By June 20, 2018 President Trump suspended the Zero Tolerance policy, however thousands of children and their families had already been harmed with the trauma of separation. It is also notable that this policy, of parent-child separation, was openly called a “deterrent strategy” by Sessions and others in the Trump Administration.

Fact 3: The vast majority of people affected by the Zero Tolerance policy originated from the Central America Northern Triangle—Guatemala, Nicaragua and El Salvador. These countries which have significant and persistent patterns of extreme violent acts, a history of narco-trafficking and they are known nexus points in human trafficking, in addition to being stricken by poverty and natural disasters. Crimes in these three countries are often met with impunity—rarely are crimes like homicide prosecuted effectively and this leads to environments of uncertainty and fear. Gangs are a real and persistent reality for families in these Central American countries and many families flee urban areas for Mexico and the United States to spare their children from being recruited into gang networks. In fiscal year 2018, over 90 percent of children under ORR care were from these countries.

Fact 4: The facts above combined with reports of immigration agents hastily administrating zero-tolerance-like policies and procedures have essentially turned the current system into a pipeline for child relinquishment and endangerment. The implementation of the 2019 Migrant Protection Protocols has involved a screening at the border of those seeking asylum. Reportedly, CBP and ICE has been requiring parents under custody to sign over their parental rights under duress. That means that an unknown number of parents forced to sign their children into custody of the U.S. government without any rights of their children’s return/reunification, even under the current public health crisis. This CBP screening process at the border plus the choice ICE has been giving to families between family separation and long-term detention, known as the Hobson’s choice, are evidence of the family separation through force, fraud and coercion, also found present in practices of child trafficking and child abduction.

Fact 5: Many people from the Northern Triangle countries have experiences of violence and credible fear for their lives as per regulations related to seeking asylum in the US. For example, women experiencing extreme family and/or societal violence have the right to seek asylum. Also, individuals that identify as anything other than heterosexual are at grave risk of violence, including sexual assault. As such, many of the people being charged with a crime for “illegal entry” to the U.S. are actually eligible to seek asylum—their cases are supposed to be handled underneath international standards for asylum seeking. However, it was consistently reported that asylum seekers found the process to be very difficult—being barred from even approaching a ‘legal’ border crossing—and some mothers and fathers reported being threatened with the loss of their child to foster care (and potentially adoption) if they filed for asylum.

Fact 6:  The Flores Settlement Agreement (FSA) reached between government and plaintiff in higher courts in 1997, requires that children and their families not be detained for more than 21 days, after which unaccompanied minors be placed in “child-friendly” facilities until placement with relatives in the U.S. or legal guardians if finalized. While this has been a norm for over 20 years, the Trump Administration technically suspended the FSA with the short-lived Zero Tolerance policy. On September 27, 2019, U.S. California District Judge Dolly Gee dismissed the administration’s claim to end the FSA. As the apprehension of family units have more than doubled from 22 percent in 2016 to 51 percent in 2019, the zero-tolerance-type policies and administrative procedures adopted continue to result into parent-child separations at the border or in the prolonged detention of family units.

Fact 7: Under these conditions, thousands of children were separated from their families. Although the government acknowledges that 4,368 children were separated from their relatives or guardians under the Zero Tolerance policy. A January 2020 Government Accountability Office (GAO) report confirmed that CBP estimates at 2,700 families were separated from their families between April 2018 and March 2019. However, immigrant rights groups claim to have documented the cases of well over 10,000 children affected by family separation under and after the policy. Massive immigration facilities continue to imprison youth and the disposition of their cases is not clear. Government transparency related to the well-being of these children and youth continues to lack even with concerted efforts of immigrant rights groups to bring about change through the justice system.

Fact 8: Children have died as a result of inhumane immigration policies. Migrant children, from the Northern Triangle, have been separated indefinitely from their families through “separation by death,” which is a family separation category identified by the second author. Many children and their families have been denied basic health care that may be life-saving. Quite simply, there are many instances in which basic health and human rights have been violated and continue to be violated today. To date, the Trump administration has continued to return children and their families to their countries of origin without regard for their safety and well-being, and many times after having experienced separation. Recently documented has been the death of 24 immigrants in detention with children have died in immigration detention or soon after being released.

Fact 9: Also, the Department of Health and Human Services has admitted that at least 1,500 children have been ‘lost’ in the system. These children are being treated like mis-placed objects when in fact their rights as children have been violated. The sloppy records keeping, in this age of digital case files, is suspect and some question if the loss of children has not resulted from a system that, by design, is broken. Congressional investigations and oversight into ORR administrative failures do not justify the responsibility of government agencies for these children, including the current status of minors placed with relatives or legal guardians. To date, ORR has not provided a full account of the whereabouts of these children or an updated report about their efforts to locate them.

Fact 10: When the “Zero Tolerance” policy was instituted, the American Civil Liberty Union (ACLU) quickly filed a lawsuit. California Federal Judge Dana Sabraw immediately ordered children be reunited with their families. For the separated children who were a part of this particular policy window, almost all of them were reunited with their families. As of July 26, 2018, a total of 463 parents of the original 1,500 children affected by the Zero Tolerance policy, were reported. In September 5, 2019, Judge Sabraw ordered the return of the returned parents of 11 of these children, who were brought back to the U.S. soon after with the support of a commission of immigrant rights organizations established to assist in the reunification process.

Fact 11: Immigrant detention has turned into part of the prison-industrial complex, run by a set of private companies in largely remote prison facilities with the overrepresentation of people of color who are victims of the existing punitive justice system. As of December 9, 2019, 43,826 adults, youth, and family units were reported under detention in over 100 ICE-run facilities. During the fiscal year of 2019, 14,000 children declared unaccompanied were reported having been under ORR custody. By March 28, 2020 there were more than 5,000 minors in ORR shelter-facilities and ICE family detention centers. As of May 11, 2020, 1,500 minors have been reported to remain in the custody of ORR in shelter facilities, even if some of these children have been held for months and years while waiting for a determination of their cases. In addition to the inhumane detention conditions the immigrant population faces in these facilities (Fact 8), the judicial system has been punishing asylum seekers through the lack of representation and of interpretation services applicants, among them, adults, youths, and children as young as 3 years old.

Fact 12: The right to seek refuge and asylum in another country dates back to the 1948 United Nations Universal Declaration of Human Rights. First Lady Eleanor Roosevelt was particularly concerned with rights to seek safety. This was a sensitive subject following WWII when thousands of children were sent from war torn Europe to other countries. The families in the US, who took in these children of war, simply did not expect the children to remain in the US and become defacto adoptees. Most children were returned to Europe with the assistance of International Social Services. This little-known history is quite informative about past policies in contrast with current practice realties. This particularly problematic scenario tests the ethics of the social workers (or those calling themselves social workers without the credential) who are inevitably enabling inhumane policies in the current environment. As professional practitioners, we have remained largely unheard on this issue in the national discourse; this fact is related to the chaos and confusion created by the Trump Administration. However, in the end, we must speak loudly as we stand for social justice as per our ethical code of conduct and our obligations to promote human rights.

Fact 13: The 1989 United Nations Convention on the Rights of the Child upholds the best interest of children and the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption upholds the principle of subsidiarity which favors relative and kinship placement before national adoption and considering international adoption as a last resort. Complementary these conventions are the Guidelines for the Alternative Care of Children, calls countries to avoid family separation, and the 2000 United Nations Convention against Transnational Organized Crime and the Protocols Thereto, specifically, the Protocol against the Smuggling of Migrants by Land, Sea, and Air and the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children. All of these international instruments and guidelines apply to the parallel problems and the care of vulnerable children requires the imperative of do no harm. Sadly, this ethical conception is being ignored by the Trump Administration.

Fact 14: Under the Zero Tolerance policy and subsequently to its termination some children, whose parents were deported. remained in the U.S. in a foster care or group home scenario. These latter cases have been challenging as families must be searched for in Central America, in most circumstances. In addition to the challenges explained in Facts 8 & 10 regarding deported parents, children under care of ORR are not been referred formally to the child welfare system; instead, they have been withheld for prolonged periods, beyond what is permitted under the goals of safety, permanence and well-being.

Fact 15: According to the Immigration Research Center, California’s undocumented population decreased to 2.3 million—down 21% since 2010. New York had a 25% percent decrease in the same time period.  Even with arrival at the border of a large number of peoples from the Northern Triangle, particularly families fleeing violence, a larger proportion of undocumented people have arrived in recent years on travel visas and “over-stayed” the limit/timeframe. This fact contradicts the politics of building a physical wall; instead a procedural wall has been built with more punitive administrative measures at the border and in detention/care facilities. The lack of coordination between government-run agencies and facilities continues to reinforce the intended policy of deterring immigration while separating families and denying parental rights.

Fact 16: In detention centers today, the guards and other staff that oversee the facilities, have “qualified immunity.” That means that in the case of physical and sexual abuse of detainees or any other crime, there is no recourse to prosecute crimes against detainees. This environment of impunity, includes sexual abuse of children and cases of rape. While there have been attempts to bring the matter before the Supreme Court of the United States, the court has refused to hear the case that would challenge qualified immunity. As a result, detention centers—which are a for profit enterprise that is a part of the prison industrial complex—are operating outside norms of good practice in the housing of children and their families. Between October 2014 to July 2018, about 4,500 complaints of sexual abuse among immigrant children in custody were reported, of which 1,303 cases considered most severe, including 178 reports of sexual assault by adult staff of detention facilities where rape, fondling and kissing of minors, and watching while children were showering were alleged. 

Fact 17: The government has continued the family separation practice even after court orders to release incarcerated immigrants due to the risks they face in conglomerate facilities during the COVID-19 pandemic. In mid-May, hundreds of parents of an undetermined number of children continued to be held in three ICE family detention centers in Texas and Pennsylvania were given the “Hobson’s choice.” These mostly mothers were given the option to place their children with relatives or legal guardians while they remain in ICE custody continuing to live under the pandemic threat. It is believed that as much as 20 percent deported to these Central American countries have reported being tested positive for COVID-19 and sent back without a care plan, a grave health risk given the limited services provided to returnees and the weak health care system in their countries of origin.

Fact 18: It is impossible to estimate the sheer number of children (and their families) who have been treated in an inhumane manner on the border. It is estimated that thousands upon thousands of children have been adversely affected in 2019 alone. Parents are still being separated from their children based on minor legal offenses and the application of the best interests of the child principle as per the determination under the Trump Administration rules. As a result of a lack of transparency by the Federal government, it is impossible to accurately give recent facts for 2020. Nonetheless, the human rights abuses are continuing today and the best interest principle with a commitment to family life is clearly distorted.

Fact 19: In June, 2020 the U.S. Supreme court ordered that asylum seekers may be deported without a longer judicial review process, including rights of appeal. That means that a fast-tracking of the deportation process and the implications for vulnerable people are grave.

Fact 20: Within days of the aforementioned ruling, in order to comply with the FAS and given the severity of the current pandemic, Judge Dolly Gee (facts 6 and 17) ordered the release of all children apprehended in family detention centers (124 at the time of the order) by July 17, 2020 to comply with the FAS. In fact, an estimated 2,500 immigrants in ICE detention centers around the country have been tested positive for COVID-19.

As we all digest the catastrophe on the border, we recognize that the pathway forward is inclusive of evidence-based practices that honors current knowledge of trauma, culture and human rights. Movement forward requires a research agenda that better informs practice as social workers. As a profession, we will inevitably be response team for this humanitarian disaster, both in Mexico as well those working in our border states and beyond. This is ultimately a global crisis, with so many people on the move, and social workers around the world must be ready to respond to the inherent injustices playing out.  Meanwhile, those migrating continue to struggle to save their own lives in the current environment, while safeguarding their children.

About the Authors-

Karen Smith Rotabi is Professor of Social Work at California State University, Monterey Bay and Carmen Monico is Associate Professor of the Joint Master of Social Work Program of North Carolina Agricultural and Technical State University (NCAT) and the University of North Carolina Greensboro (UNCG). They have written extensively on immigration and child adoption policies, including the best interests of the child and child abduction into adoption. Two of their most relevant publications to the above facts are as follows.

Monico, C., Rotabi, K. S. & Lee, J. (2019). Forced child-family separations in the  southwestern U.S. border under the “zero tolerance” policy: Preventing human rights violations and child abduction into adoption (Part 1). Journal of Human Rights and Social Work. https://rdcu.be/btchE

Monico, C., Rotabi, K. S., Lee, J. & Vissing, Y. (2019). Forced child-family separations in the southwestern U.S. border under the “zero-tolerance” policy: The adverse impact on well-being of migrant children (Part 2). Journal of Human Rights and Social Work. https://rdcu.be/byEEe

Other relevant publications include:

Costantino, R., Rotabi, K. S., & Rodman, D. (2012). Violence against women and asylum seeking: Global problems and local practices applied to Guatemalan women immigrating for safety. Advances in Social Work. Available from http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewFile/1974/2465

Gendle, M. H. & Monico, C. C. (2017). The balloon effect: The role of US drug policy in the displacement of unaccompanied minors from the Central American Northern triangle. Journal of Trafficking, Organized Crime and Security, 3(1-2). http://brownwalker.com/ojs/index.php/JTOCS/article/view/84

Monico, C. & Méndez-Sandoval, J. (2019). Group and Child–Family Migration from Central America to the United States: Forced Child–Family Separation, Reunification, and Pseudo Adoption in the Era of Globalization. Special issue Genealogies of Inequality: Transnational Adoption and Kinship in the Era of Globalisation, Genealogy, 3(4), 68; https://doi.org/10.3390/genealogy3040068

Rotabi, K. S. (2012). El uso de la fuerza, el fraude y la coerción en algunas adopciones en Guatemala: Los casos graves de secuestros que cuestionan el principio del “interés superior del menor” [Force, fraud, and coercion in some Guatemalan adoptions: High-profile abduction cases challenge the ‘best interests of the child’]. Scripta Nova, XVII(395). http://www.ub.edu/geocrit/sn/sn-395/sn-395-24.htm

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