Biden Brings Back Family Separation - This Time in Mexico

By Jack Herrera, POLITICO

23 March 21

U.S. agents no longer tear apart parents and children, but families are having to make painful decisions—just on the other side of the border.

ach night as Janiana tries to sleep, she wonders about what’s going to happen to her baby grandnephew. The woman, a 26-year-old from Honduras, lives in a tent together with her 20-year-old niece, the baby’s mother, in a tent village of hundreds of asylum seekers like them that formed right next to the pedestrian bridge that leads from Mexico into California. They’re among the tens of thousands of people crowded in dire conditions across the length of the border who have fled violence, extreme poverty, natural disaster and other circumstances in their various home countries in the hope of being given asylum in the U.S. And as more keep coming, the number of tents keeps growing.

During the day, young children play in the center of the encampment, kicking miniature soccer balls, as their parents watch. At night, when the temperature drops, Janiana can hear the coos and cries of babies throughout the camp, including the one in her own tent. In recent weeks it has rained heavily, and the camp has flooded. There are no bathrooms or showers, and many migrants get by on very little, often forced to skip meals. Tijuana also has one of the highest crime rates of any city in the hemisphere, and the migrants are often the targets.

“We are waiting patiently; we want to cross the right way and obey all orders,” says Janiana, who spoke on the condition that we only publish her first name. “But Tijuana has become a jail city for us. Do you know how degrading it is to sleep outside?”

Across the border, the situation looks different. Thousands of unaccompanied minors have shown up in the United States in the last few months, creating something of a political firestorm. As the Biden administration scrambles to process the children, temporarily housing them in some of the same overflow facilities made infamous during the previous administration, the “kids in cages” critiques have roared back to life. There was a similarly large arrival of unaccompanied minors in 2014 and 2015, but unlike then, when almost all of the migrant children made the entire journey on their own from Central America, today many are splitting from their families right here, in the squalid shelters and camps of Northern Mexico.

The door to the U.S. has been shut tight to asylum seekers since last March, about the time when Janiana first arrived in Tijuana, when the Trump administration issued an order at the onset of the coronavirus pandemic that every migrant — child or adult — would be immediately “expelled” back to Mexico or their home country if they attempted to cross the border, without even a chance to make a case that the persecution they face qualifies them to stay. After he took office this year, Joe Biden kept the policy largely in place, but began to admit unaccompanied minors even while continuing to expel both adults and children who enter with families. Since the shift in policy, some parents and guardians have made the devastating decision, calculated only out of desperation, to send their children off ahead of them, alone, to cross the border.

The result is a new form of family separation — but instead of happening at the hands of federal agents in American government facilities, it’s taking place, family by family, in camps like the one Janiana lives in. The fact that minors won’t be expelled like everyone else has rapidly spread by word of mouth across the length of the border. And while many families choose to stick together, the pressure to separate weighs heaviest on the most vulnerable — families who fear death, whether from persecutors who have followed them to the border, or from extreme hunger.

For Janiana, the possibility of being sent back to Honduras reads as a death sentence. She shows me the scars from her torture at the hands of a powerful gang back home that her family got on the wrong side of. Fearing further reprisals, Janiana fled with her sister’s children, a teenage nephew and teenage niece as well as the niece’s several-month-old son. The children haven’t been reconnected with their mother yet, who successfully entered the U.S. to begin the process of claiming asylum in 2019, before the pandemic. Staying in Mexico, Janiana says, was never an adequate long-term solution and increasingly feels intolerable. She says the family already tried to make a new life in the southern state of Oaxaca, but danger pursued them there, where her nephew was murdered.

Today, Janiana says her only hope is that the U.S. will begin to accept asylum seekers again, especially as the country gets a better hold over the pandemic. At the moment, she says with resignation, “all we can do is wait.” Though there is one painful exception on her mind: If she were somehow able send the baby across alone, he might be allowed to stay.

“It breaks my heart to even think about it,” she says.

Every family with children that I managed to speak to in Tijuana — families that have come from Honduras, Haiti, El Salvador, Guatemala, Nicaragua, southern Mexican states and other countries around the world — admitted they’ve thought about sending their children ahead of them; some have referenced people they know who already made that choice. One Honduran woman described a defeated father so determined to save his daughter that he literally heaved the child over a low portion of the wall into the U.S.; others described coyotes coming into the camp at night, offering to take families’ children alone, so that they can present themselves as unaccompanied minors to the border agents who come to arrest them when they cross.

“It’s happening at the border, where parents discover they have no viable way to enter with a child, and they recognize the danger they’re in,” says Lindsay Toczylowski, the executive director of the Immigrant Defenders Law Center, a legal aid organization that is currently assisting dozens of children whose families chose to send them across the border on their own in the last two months alone. “This kind of information spreads like wildfire: If you hear about a child successfully making it, and your kids are desperate or sick or in danger, there are a lot of reasons why you would make that incredibly difficult decision.”

When asked about the results of the new policy, an administration spokesperson didn’t directly address the separation of families, but told POLITICO that the White House still considers the border closed, and discourages sending anyone over: “We have been clear, from president on down, that the border is closed, and that the vast majority of adults and families are being turned away. We are still enforcing [the pandemic closure] for adults and families, and that message has been very clear. We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders.”

At the heart of the current situation, as well as the previous family separation crisis, is a longstanding tension between U.S. laws that give special protections to migrant children and immigration laws that allow the government to aggressively punish adults for crossing the border — a prerogative that’s become increasingly popular on the right.

In many ways, Donald Trump simply exploited this fundamental contradiction to forcibly inflict family separation at the border, but it’s that same contradiction that undergirds Biden’s border policy today, which is pushing some families in Mexico to opt for separation. And it’s unlikely to go away anytime soon.

The roots of this tension between how the government must treat migrant children and how it would often prefer to treat migrant adults go back more than two decades, to the George W. Bush administration. Practically, a person cannot cross the border at a port of entry without the proper paperwork, but while there’s been a law against crossing the border outside ports of entry since 1929, it wasn’t actively enforced for many years. Instead, many undocumented migrants from Mexico and elsewhere who were apprehended in the United States were immediately returned by border enforcement agents through a process called expedited removal, or were detained and processed through the civil immigration system, at the end of which they would either have successfully made their case to stay or would be formally deported.

In the early 2000s, however, as immigrant detention centers filled with people awaiting their days in court, more and more apprehended migrants would simply be given a notice to appear before an immigration judge on a certain date and then be released into the U.S. on a bond or “an order of recognizance.” But in an effort to combat and deter unauthorized immigration, President Bush’s newly created Department of Homeland Security decided in 2005 that instead of routinely releasing border crossers to go through the civil immigration process, they would start to route many to criminal prosecution and imprisonment. The new policy was called Operation Streamline. Importantly, exceptions were generally made for migrants traveling with children and migrant children, who would continue to be processed through the civil system but wouldn’t be charged or detained as criminals.

While President Barack Obama later sought to reform the immigration enforcement system to more narrowly focus criminal prosecutions on those who had committed non-immigration related crimes, he largely maintained the system put in place by his predecessor. But by the summer of 2014, Obama faced a unique situation: a massive influx of Central American migrants, many of whom were families or unaccompanied children and almost all of whom were seeking asylum and thus had a right to a civil immigration hearing of their claims, which could take years, before they could be removed or criminally prosecuted.

The thousands of children arriving on their own often found themselves in harsh conditions in Customs and Border Protection holding cells, originally built to jail single men. From there, they entered into a complex child welfare system: In 2008, Congress had passed an anti-trafficking law that required DHS to refer unaccompanied minors from countries other than Canada and Mexico to the Department of Health and Human Services, which would in turn place children in the care of a family member in the U.S., a foster home or an Office of Refugee Resettlement shelter while they waited for their cases to be adjudicated. This remains the process for handling unaccompanied minors.

Completely unprepared to process large numbers of families, the Obama administration attempted to detain them together indefinitely, but a court order in 2015 quickly blocked that policy. A 1997 consent decree, known as the Flores Settlement Agreement, outlines the conditions under which migrant minors can be detained. Designed to safeguard the basic human rights of children, Flores holds that minors can only remain detained for a maximum of 20 days. To comply, the Obama administration faced a choice: They could either parole parents and children together or release only the children. Rather than separate families, the administration opted to parole parents and children together, and have them return for their court dates.

This practice of paroling undocumented immigrants into the U.S. instead of detaining them while they awaited their civil immigration hearings, which was the norm for decades before 2005, became one of Trump’s most-repeated attacks against liberals in 2016: In campaign speeches, he frequently derided it as “catch and release.” Ending the practice was No. 2 on his ten-point immigration plan, right behind “build the wall.”

From the beginning of 2017, in addition to restricting asylum in a number of ways, the Trump administration sought to use its executive authority to push the country’s immigration law to its enforcement extreme — calling it “zero tolerance” — and attempted to detain essentially everyone crossing the border for as long as their court cases lasted. Throughout his tenure, Trump repeatedly tried to undermine protections for immigrant children. And when it came to families who were apprehended after crossing the border, Trump decided to do what Obama had not: His administration routinely separated children from their parents, so that the parents could be detained indefinitely. The 20-day detention limit created to protect children became the Trump administration’s justification for separation. As migrant families were apprehended, parents would be sent to jail and children would be handed off to HHS as “unaccompanied minors.”

“Family separation,” as the policy split more and more families, became one of the most troubling byproducts of Trump’s push to deter immigration, a rallying cry for Democrats and a political liability even for the most hardline anti-immigrant Republicans. By the summer of 2018, the stories of children — many of them infants — ripped from their parents’ arms had spread across the news. Child psychologists visiting with children in shelters reported that the kids, forcibly separated from their parents, were experiencing a dangerous level of trauma that would affect the rest of their lives. (“We know that separating parents and children … causes toxic stress and is particularly damaging for a child’s brain,” Colleen Kraft, then-president of the American Academy of Pediatrics told me at the time.) Outrage continued to grow, and eventually, under public pressure, Trump signed an executive order reversing his own policy and demanding that DHS keep families together.

However, the underlying policy approach that pushed children away from their guardians was never overhauled. As a result, the executive order prevented children from being separated from their direct parents, but children traveling with other family members — aunts, uncles, godparents, even older siblings — were and still are often separated. DHS justifies these separations by arguing that adults who could not prove they were the children’s legal guardians might be human traffickers. Trump also tried to overrule the Flores agreement to detain families together indefinitely, but the courts blocked him from doing so. The Trump administration then experimented with another form of family separation, offering families in detention a binary choice: Parents could opt to be deported with their children or they could opt to be deported without them, acknowledging that in the latter case HHS would place the now-unaccompanied child with a sponsor or in a shelter as they continue to go through the immigration process on their own.

When the Trump administration implemented the Migrant Protection Protocols — better known as the “Remain in Mexico” program — in December 2018 to force asylum seekers to wait for their hearings outside of the U.S., the policy exempted unaccompanied minors, and many parents released to Mexico with their children made the same decision migrant families are making today: to send their children to cross the border alone so they at least could wait in the U.S.

Then the pandemic hit. In March 2020, the White House strong-armed the Centers for Disease Control to invoke an obscure public health order, Title 42, which gives the executive the power to close the border in a time of health emergency. Citing Covid-19, the U.S. began to immediately turn away thousands of people who would normally be able to make their asylum cases in court — including unaccompanied children. For families in detention, in the midst of the pandemic, the Trump administration also brought a new form of the binary choice back: It made parents choose between staying on their own in detention indefinitely, while their child would be separately processed through HHS, or keeping their child with them in the dismal and potentially deadly conditions of detention during a pandemic, essentially “waiving” that child’s right to parole.

Children arriving at the border alone or with family continued to be expelled until November of last year, when the American Civil Liberties Union convinced a federal judge to issue a stay on the expulsion of unaccompanied minors, arguing that it was illegal under U.S. laws that protect both children and human trafficking victims. That stay was lifted in late January 2021, but, by then, Biden had taken office, and the new administration announced that, while it would keep Title 42 largely in place, it would not expel unaccompanied minors.

“We well understand that out of desperation, some children might not wait. Some loving parents might send their child to traverse Mexico alone to reach the southern border,” Secretary of Homeland Security Alejandro Mayorkas said earlier this week. “I hope they don’t undertake that perilous journey. But if they do, we will not expel that young child. We will care for that young child and unite that child with a responsible parent.”

But while Mayorkas can see how parents’ desperation can lead them to send their child all the way through Mexico, it seems that the administration did not account for that same sense of desperation to lead families already at the border to send their children across without the adults. Even as more and more children arrive with as many as 13,000 reportedly expected to come in May, the Biden administration continues to insist that it will not turn unaccompanied minors away.

Soraya Vázquez, subdirector of Al Otro Lado, the largest legal aid organization in Tijuana, says that from what she’s seen in the shelters and across the city, the number of children recently arriving to Northern Mexico by themselves has not spiked significantly. As for the increase in minors crossing the border into the U.S., “I don’t think it’s kids arriving by themselves” she says. “Kids are arriving with their families, and then they’re crossing by themselves.”

Mayorkas has resisted the “crisis” label for the present border situation, distinguishing what’s currently happening from the recent past under Trump: “A crisis is when a nation is willing to rip a 9-year-old child out of the hands of his or her parent and separate that family to deter future migration,” he said this week during a House hearing. But while immigration is a complex issue, particularly when it comes to children, and while the Biden administration says humanitarianism rather than deterrence guides its policies, families today are in fact being separated, albeit not by force.

The White House has, as its spokesperson indicated, repeatedly told migrants that “now is not the time to come.” But for would-be asylees like Janiana, the act of leaving home to travel thousands of miles northward in a perilous journey in search of safety isn’t something they can just delay for a more convenient time in the calendar. And, like her, many didn’t leave recently. They’ve been waiting at the border for months.

Yliana Johansen-Méndez, the legal services director of the Immigrant Defenders Law Center, says the organization has seen a significant uptick in unaccompanied minors in shelters in the U.S. who say that Title 42 forced them apart from their families. Many, she says, have parents or family members still waiting in Mexico. Starting in December, the month after the ACLU case originally stopped unaccompanied minor expulsions, through February, Immigrant Defenders saw the number of migrant children whose guardians sent them ahead to cross the border while staying behind make up 33 percent of the total children lawyers met with in shelters. Johansen-Méndez says this number of “Title 42-impacted” children they’ve encountered, which also includes children separated from non-parent guardians who were expelled after crossing the border, continues to rise, increasing in March by 26 percent from February.

“It really speaks to the inhumanity of the system that exists that families have to make these kinds of heart-wrenching decisions,” Johansen-Méndez says of the voluntary separations happening at the border. “People are desperate and fleeing for their lives. They feel like this is their last option to keep their children safe.” She says the Biden administration should take its obligations to improve the asylum system seriously, and fully rescind Title 42, so that families can enter together. It also, she believes, should revert to the past norm of paroling almost all asylum seekers rather than routinely detaining adults.

In Tijuana, Janiana says she’s grappled seriously with the idea of separating from her niece’s son. (Her niece, who is too old to be considered a minor, wasn’t available to comment for this story.)

“It is a truly heartbreaking choice to make,” she says, as tears start to well in her eyes. “After everything they have gone through with me. We have gone days without food, together.” On a bus ride to Tijuana, she says the baby went three days without anything to eat or drink besides flour tortillas and bottled water that a kind Cuban migrant shared with them. Sometimes, when she’s feeling at her lowest, Janiana says she has been most tempted to send the baby to cross the border alone, but she remains resolute for now that they must remain together. However, she can understand how others have made the decision already.

“It is everyone’s own choice to make,” she says. “The families that choose to make this decision are the families that feel imminent danger, that feel cornered and imprisoned. They [the adult migrants] come to prefer that whatever happens, happens to them but not their children.”

As we spoke in the shadow of the wall between Mexico and the U.S., Janiana said she knows that Biden doesn’t have the power to fix larger forces at play overnight. The contradictions of U.S. immigration laws that create a wedge between children and their guardians will continue even after the border opens, and Janiana may well be separated from her grandnephew when they can enter together. But the longer she and her young family members are forced to wait in destitution in Mexico with no sense of change on the horizon, the harder it becomes to hold on to the conviction to not let the baby go forward alone.

There is something Biden can do, Janiana suggests. “We are here waiting for our turn to enter,” she says. “We are here because we respect the process.” But she says her ability to make decisions about the future — and to simply maintain faith — is crippled by the silence on when, if ever, the border will open for asylum seekers again. “The only thing we ask at this time,” she says, “at the very least, give us some information.”