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Blitzer writes: "Immigrants-rights advocates have argued that the government is making eligibility determinations based on nebulous evidence."

Central American family at the border. (photo: Getty Images)
Central American family at the border. (photo: Getty Images)


The Case for Reuniting "Ineligible" Families Separated at the Border

By Jonathan Blitzer, The New Yorker

14 September 18

 

arlier this summer, when Dana Sabraw, a federal judge in San Diego, ordered the Trump Administration to reunite more than twenty-five hundred migrant children with their parents, from whom they had been forcibly separated at the border, he granted the government some discretion. If parents were deemed “unfit,” either by the Department of Health and Human Services or Immigration and Customs Enforcement, then the government could skip over them as it moved to meet a series of deadlines to comply with Sabraw’s order. Now, a month and a half after the last of those deadlines has passed, more than four hundred children remain separated from their parents. Three hundred parents have already been deported without their children, and dozens of others, who are currently in federal custody, have been barred from seeing their children because of what the Administration is calling “red flags.” These cases, the government claims, involve some form of criminal activity—a past conviction for driving while intoxicated, charges for assault, an outstanding foreign warrant—and, as a result, the parents are ineligible for reunification.

Immigrants-rights advocates have argued that the government is making eligibility determinations based on nebulous evidence. But, for a number of reasons, lawyers have not yet had a chance to raise their specific concerns with the judge. On Thursday, that will change: attorneys from the A.C.L.U. and the Department of Justice are expected to brief Sabraw on two parents who’ve been deemed ineligible to be with their children, the first of some thirty cases that the A.C.L.U. may contest in the coming weeks, according to Lee Gelernt, the group’s lead attorney. “These two cases are especially pressing because they involve toddlers,” he told me earlier this week. “We’ve heard that the kids—and parents—are suffering horribly from the separation.”

On Monday, I spoke with one of the parents, a thirty-one-year-old asylum seeker from El Salvador who asked to be identified by her middle name, Ivette. She is in a detention center in Laredo, Texas. Her lawyers, from the National Immigrant Justice Center, a group based in Chicago, put money on her phone card so that she could talk to me. Every fifteen minutes, an automated voice interrupted us, in Spanish, to tell us our time was up. Ivette called back twice, speaking in a soft but unwavering voice.

Ivette travelled to the U.S. with her three-year-old son in March, two months before the government formally announced its zero-tolerance policy. Three days after they were apprehended while crossing the border near McAllen, Texas, Border Patrol agents separated them. Ivette was transferred to an ICE detention center nearby, while her son was sent to a children’s shelter in Chicago. It was a month before they spoke by phone, she told me, and their first call lasted less than ten minutes. “Before my son came on the line, they told me, ‘Don’t let him hear you cry, and tell him he needs to eat,’ ” she said. (He’d stopped eating after arriving at the shelter.) Since then, Ivette said, the government has arranged five phone calls between her and her son, each about seven minutes long. The first few times they spoke, he was more animated, she said, calling out to her and occasionally singing songs. But over the last few months he’s gradually stopped speaking. “I talk and talk to him,” Ivette said. “But he stays silent.” Her son’s case worker told her that he’s been struggling to understand people when they speak to him; he has also reverted to needing diapers, and frequently has accidents.

Judge Sabraw had set a deadline for the government to reunite parents with children under the age of five by July 10th. More than a week passed before Ivette was told that she was not considered eligible, which she only discovered after lawyers took up her case and pressed the government for an explanation. On July 20th, ICE finally produced an arrest warrant from El Salvador that accused her of being involved with “terrorist organizations,” an allusion to the country’s notorious street gangs. (In 2015, the Salvadoran Supreme Court declared the gangs “terrorist groups.”) Ivette told me, “It was the first time I had ever seen or heard about the warrant.”

The incident that gave rise to the warrant dates to 2016, according to a Salvadoran lawyer hired by Ivette’s legal team to investigate the case. That spring, she rented a room in a house in a small municipality along the western coast of El Salvador. She was selling beauty products at the time and lived alone with her infant son. One night, in July, she was in her room, a small space with a window at the back of the house, when she heard a commotion outside. “There were gunshots,” she said. “I could see people running. Then I heard the sounds of cars pulling up. I heard the voices of the police. They shouted, ‘Get out of there, come out!’ I had my son in my arms.” When she emerged, she told me, one of the policemen pointed a gun at her and demanded to know where the people outside had gone. “I told them I didn’t see anything, that I didn’t know. They said, ‘You don’t want to tell us because you’re a gangster.’ ” The policemen led her back inside, where they took photographs of her identification documents. “ ‘If you don’t want to collaborate with the police, this is what happens,’ ” she recalled one of them telling her. She insisted that she wasn’t involved in the gang, but, according to her, the policemen were not interested. “They didn’t arrest me or take me in. They said they didn’t have a place to put my child.”

A few nights later, as she was returning home from a local market, a group of young men accosted her. They beat her, and threatened to kill her for having talked to the police. “There were houses all around us, and people knew me, but no one came out to help,” she said. “I thought I was going to die.” Eventually, a car pulled up, and the group scattered, leaving her bleeding and vomiting on the street. The next day, she left town to stay with her mother, in San Salvador, where she immediately faced another problem. MS-13 dominated the town she fled, but, in her mother’s neighborhood, a rival gang, called Barrio 18, was in charge. Gangsters frequently stop residents to examine their identity documents, and they sometimes kill those whose home addresses correspond to neighborhoods controlled by a rival outfit. Ivette, who hid her documents and rarely went out, eventually decided to flee north with her son. “I never knew about the police charges,” she said. “I was moving to stay away from the gang, and so I never received any papers telling me I was in trouble.”

By law, the U.S. government is responsible for insuring that the children in its custody are reunited with parents who will not cause them harm. But serious questions remain as to whether the Trump Administration is going too far in denying these parents the right to see their children, particularly since the government separated the families in the first place. At the end of last month, the Trump Administration listed thirty-five cases in which parents had disqualifying criminal histories. According to the A.C.L.U., the number is closer to fifty.

Ivette’s hearing on Thursday is a bellwether of sorts: it is the first time that Judge Sabraw will weigh the legitimacy of the Trump Administration’s claims about this group of parents. Many of the separated parents in federal custody with “red flags” have been charged with a crime, but never convicted of one; others have old convictions or pleadings for crimes that shouldn’t keep them from seeing their children. Ivette’s case brings another issue into view. Some separated parents have been accused of belonging to the very gangs they insist they were fleeing. In the U.S., federal authorities are quick to label Central American migrants as gang members and rarely have to substantiate their allegations in court. The reality on the ground in Central America can make it impossible for a migrant to shed associations with the gangs even after being victimized by them. “It’s very common that the police pick up people who aren’t really part of the gang,” Juan José Martinez d’Aubuisson, an anthropologist who studies the Salvadoran gangs, told me. At the same time, “It’s very hard, given the total dominance of the gangs in certain areas, for someone not to be linked to them in some way or another. This is what happens if you want to survive. It’s an incredibly complex situation.”

The warrant for Ivette’s arrest, issued by a provincial judge, is an odd document. The language is vague, and the information is riddled with inconsistencies. (A second date is written in by hand; her father’s name is misrecorded.) On July 31st, an immigration judge in Texas, who will be hearing Ivette’s full asylum claim next month, examined the warrant and found that she did not pose any danger to the public. (Nevertheless, he denied her bond, because he considered her a flight risk.) “Ivette and her son are really deteriorating,” Kate Melloy Goettel, one of Ivette’s lawyers, told me. “It’s hard when you juxtapose that with the lack of information and the lack of justification she’s received from the government.” Twice a week, for the last several months, ICE officials have visited Ivette and the other detainees in her cell block to bring legal documents and field questions. “I can’t come forward to ask them about my case because when I do they always say, ‘Oh, you’re the gangster. What does the gangster want to know?’ It doesn’t matter who’s nearby or many people can hear; they say it in a loud voice.” (An ICE spokesperson declined to comment, citing ongoing litigation.)

This past week, Ivette got sick. Her blood pressure spiked, her body has been shaking, and she hasn’t been able to sleep. “The truth is, up to now I’ve been strong,” she said. “But I’m scared to close my eyes. I don’t want to fall asleep, because when I do I dream about the moment they took him from me. I dream about how it felt to hold him.”

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