Family Separation Update: Searching for Parents in Guatemala (ep. 13)

September 13, 2018
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More than a month ago, a federal court ordered the Trump administration to reunite immigrant children and parents it had separated at the U.S. border. Yet hundreds of children remain on their own in government custody, and many of their parents have already been deported. Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project and attorney for the separated families, just returned from a trip to Guatemala to find some of the parents whose children are still being held in the U.S.

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LEE ROWLAND
[00:00:04] I'm Lee Rowland. From the ACLU, this is At Liberty: the podcast where we discuss today's most pressing civil rights and civil liberties issues. Today, the latest update on family separation.

It's been more than a month since a federal court ordered the Trump administration to reunite immigrant children and parents it had separated at the U.S. border. Hundreds of children still remain on their own in government custody. Many of their parents have already been deported. Now, a group of advocates and attorneys are leading the effort to track down these parents abroad and give them legal counsel. Helping to lead this extraordinary work is Lee Gelernt, deputy director of the ACLU Immigrants Rights Project and attorney for the separated families. He's just returned from a trip to Guatemala to find some of the parents whose children are still being held in the U.S. Lee, thank you so much for coming back to update us on this fight for family reunification.

LEE GELERNT
Thank you for continuing to follow this story.

LEE R
So why don't we just start by asking you about your trip to Guatemala. What did you see down there?

LEE G
Umm, what we saw was that the parents are in bad shape, and just how difficult it is for people on the ground — for human rights defenders who we're working with — to locate these parents and talk to them. I think there's two issues: one is finding all the parents, and that's understandably received the most attention and we can talk about just how difficult it is to find all the parents. But the other issue that's received less attention, but I think is equally important, is once we find them we need to advise them of their rights. And that is very difficult because we need to build trust with them. They don't know us, and the options they have are complicated and often not good ones. And so we had some agonizing discussions while I was down in Guatemala with parents facing choices you would never want to face as a parent.

LEE R
[00:02:27] I want to talk through all of those issues, Lee. Can we start with a little background? How many parents are we talking about that have been deported without their kids?

LEE G
We have had varying numbers from the government. At one point we believed it was over 400 parents who had been deported without their children, which is an astonishing number, including many parents who were deported after the court had ruled that reunification should occur. At this point, we believe there may be slightly more than 300, but on the other hand we have no way to independently verify all the numbers. But, either way, we're talking about hundreds and hundreds of parents who were deported without their kids. And so the battle has been to get enough information from the government — or on our own — to track down these parents. At this point we believe we've made contact with all but about 80. There are 80 parents out there who we have not yet spoken to and need to find immediately.

LEE R
So Lee, who is the “we?” Who is helping you find these parents?

LEE G
Right. So what happened was that the focus had been on the parents who were in the United States initially. We had hoped that there would be parallel tracks and the government would also be providing us with information about the deported parents so that we didn't have to wait ‘til the very end to start this process of tracking them. Unfortunately, that didn't happen. So now we're focusing on these deported parents, and what the ACLU quickly realized was whatever resources we had were not going to be enough to track all of these parents in Central America, and some are actually worldwide.

[00:04:20] So we formed a steering committee led by the law firm of Paul Weiss, with three NGOs: Justice in Motion, which has people on the ground in Central America, an NGO called KIND that works with children in the immigration system, and the Women's Refugee Commission. And that steering committee has been responsible for tracking these parents and advising them of their rights. And the steering committee has also brought in other NGOs to help. But, ultimately, we need the resources of the United States government as well. And at some point the government actually went to the judge and said, you know, this is the ACLU’s job to find these parents. And the judge put his foot down on that and said absolutely not. The government made this mess, you bear ultimate responsibility. The ACLU is willing and wants to help but needs the government’s information on how to track these parents, and any resources. And in fact when I got back from Guatemala, the judge said, “Why are you in Guatemala without the government? What is the government doing?” And so we will be asking the government to start assisting us more on the ground.

LEE R
So let's turn to that second piece, which is what is happening after you locate some of these parents. What is your goal with them? and and how is that going, based on this trip?

LEE G
The difficulty is that a lot of these parents were misled or coerced into giving up their own asylum cases, believing that that was the way to see their children, or being told that they didn't have asylum claims.

[00:06:00] And so what we are exploring with some of these parents is whether they have the right to come back to the United States. But the government is insisting they don't. And so it's very difficult at this point, given that contingency, to advise them of whether they have the right to come back to the United States. Given that, what they're facing — at least the definite choice they have — is an agonizing one: They can either leave their child in the United States for the child to pursue asylum, or they can have the child come back to the home country. But then the child must give up their asylum claims. And, a number of parents have chosen to leave their children in the United States.

And people ask me, and indeed the court asked, why are they doing that? And the truth is that they are agonizing over it. They are certainly not making it a decision lightly. But what they are saying to us is, it's just too dangerous for my child to come back. I can't have my child come back here and then be killed in Guatemala, or Honduras, or wherever it may be. And so they are choosing, in the best interests of their child, to leave the child in the United States. Often that can be an older child, hopefully the child has a relative in the United States that they'll be able to live with, and hopefully they've been advised properly if the child has a viable asylum claim. When the child's younger, they're often having the child come back to them. But it's just the most brutal possible decision a parent could have to make: to either give up their child or have their child come back and face such danger.

The other thing, just to circle back just on the logistics of finding parents and actually talking to them: I mean, I was only in Guatemala a short amount of time, and we have people who are there permanently, and they obviously are facing these obstacles day to day. But in the short period I was there it's clear why it's so difficult to track the parents and to talk with them. To begin with, the parents are spread out and it's difficult to get to very remote areas where a lot of the parents are. You often need introductions, especially in indigenous areas, from community leaders who can allow you to go into those regions to talk to families. The other thing is that there's often a very limited amount of time during the day to actually talk to a parent. One father we wanted to talk to could not talk during the day because his employer wouldn't let him off work. But, on the other hand, he said we can't come at night because it's just too dangerous in his neighborhood — the gangs impose a curfew and don't let anybody on the street including him, and we certainly wouldn't have been allowed to come at night to talk to him. So we had to find a few minutes when he actually could talk. So there's enormous obstacles to finding families and then to actually talking to them.

LEE R
[00:09:04] Is there a concern that these parents actually don’t want to be found? Or even a risk that they’re afraid to be found by someone coming like you from the United States?

LEE G
There's certainly a risk and that's one of the big obstacles, is building that trust. You know, what we mostly have to do just out of necessity is call people from the United States because, in the time period that we want to work with, we can't actually get to see all these hundreds of parents. It would take too long. So we're reduced to calling them from the United States. And those are essentially cold calls. And it takes a while to build trust and you never really know what's going through the parent’s mind. When we were in Guatemala one of the benefits is that we do have local human rights people there. And so when we go to visit the parents we do have local people. And so we hopefully build some trust that way and the local people can can talk to them and explain that we are not from the United States government, we've been doing this lawsuit there to help them. And we also need to build trust with community leaders, especially in indigenous communities, so that they can make introductions for us. But it's absolutely an issue.

LEE R
You're speaking about the danger that these people are experiencing in their home countries. What kind of danger are you talking about? Is it gang violence? Is it political violence?

LEE G
It can be all different types — certainly gang violence. And that raises another question about what the administration is doing, trying to to eliminate asylum for people fleeing gangs. The administration talks about the gangs here constantly. But then when you have a family that stands up to one of these gangs and flees, what do they get when they get here? They get their child taken away or potentially indefinite detention. There's no question that people are fleeing serious danger. And for them to get here and then not only not get fair asylum hearings, but then have their children taken away is extremely troubling.

LEE R
[00:11:12] Does having claimed asylum in the U.S. once potentially put some of them in more danger if they're deported back to their home countries? That is, do folks in their communities know that they are folks who tried to claim asylum? And does that increase the risk that they may be in danger back home?

LEE G
It absolutely can. It depends on the country and it depends on the region. But certainly if it gets back to whoever the persecutor was — whether it's a gang, whether it's the government — that they've fled and told their story, but then ultimately not gotten asylum, it certainly could put them in increased danger.

LEE R
So do you have a sense yet, of the parents you've spoken with, about what percentage is making the choice to attempt some form of reunification and which of them are saying, it's just too dangerous and I have to stay here and my kid has to stay in the United States?

LEE G
Right now it seems as though about two-thirds of the parents are choosing to leave their children in the United States. And, you know, that surprises people. But on the other hand, when you hear these parents talk about what their children would face if they came back, it's understandable. You know in the abstract it seems like, well of course you'd want your child to come back with you. But fortunately most of us never have to make that kind of decision. And so they know very well that they're giving up the chance to see their child, and potentially permanently see their child, depending on how things work out. I think a lot of them feel that that's the only choice that they realistically can make for their child.

We are hopeful that with at least some of the parents who were in equal amounts of danger, they will be allowed to return to the U.S. What we're hearing are that parents signed forms, that they had no understanding of what they were signing, that they were coerced into signing the forms, that they were told they didn't have asylum rights. And so for those, for those parents we're hopeful to get them back to join their children so that they could seek asylum. And so that would eliminate that agonizing choice. But, for a lot of parents, I think what we're looking at are either maybe permanent separation or them bringing their children back to serious danger.

LEE R
[00:13:30] Do the kids have any say in this, in the process? And should they?

LEE G
We are, as the steering committee, getting the parents’ wishes and we're also talking to the children's advocates. Each child now, for the most part, has a lawyer or a child advocate and we are consulting with them. We are not seeing real conflict between the parent’s and child’s wishes. And so what we're simply doing is making sure we get all the information from the child's attorney about the child's asylum claim to make sure the child understands what's happening. And usually the parent and child are on the same page. The older the child, the more the child will have something to say about what, what's going on.

LEE R
For those parents that do make the heartrending decision not to reunify with their kids — you mentioned that for most of those there would be an attempt to find other legal guardians or relatives. But what if those kids truly are alone, and don't have blood relatives in the United States? What will happen to them?

LEE G
They will be placed with whatever sponsor the government can find for them. And if there's no relative whatsoever, they could end up with a foster family, potentially be permanently adopted at some point. If they turn 18, you know, they could be released.

But it's unfortunate and that's why I think one of the factors going into this is does the child have a relative, even if it's a distant relative they don't really know. But for the families it's better that the child is placed with some relative than being sent to a strange family.

LEE R
[00:15:18] And are there limits on how long these kids can be kept in custody? You know, right now it's my understanding that most of these kids are still in detention. Is that right?

LEE G
There are no limits. And during our case we have seen children who were separated from their parents for close to a year. So the children can languish there for long long periods of time.

LEE R
There was a video that I saw recently, and I know many people did, that was so difficult to watch. It was a woman who had been separated from her child and was reunifying with her toddler. And the kid was rejecting her — obviously had been traumatized to the point where the kid didn't have the same trust or relationship with his mother. And I'm wondering, what do we know about how this how the separation process and this level of trauma affects kids in the long run?

LEE G
I think we're looking at thousands of kids potentially being permanently traumatized. What happens is that the child — understandably but unfortunately — blames the parent for what's happened. Especially if they're too young to understand what's going on. They see the parent watching as they are taken away. They're screaming for their mother or father to stop them from being taken away, and the parent is just standing there. And so what goes through their mind is, “my parent doesn't want me” or “my parents letting this happen to me.” And it creates enormous resentment and anger. It's exactly what the medical community predicted would happen — is that the entire relationship between the parent and child is change potentially forever.

The child especially at a young age views their parent as all-powerful and can protect them from anything and then they see that the parent can't protect them — the parent has to stand there and watch as they're taken away screaming and crying. It's a heartbreaking situation to watch what happens even when the families are reunited. And I think these children are going to go through life now with this deep seated sense of vulnerability. And you know we need to get trauma help to mitigate it. But I don't know that we're ultimately going to be able to ever make them whole again.

LEE R
What happens next in the lawsuit over family separation?

LEE G
[00:17:55] I think the big issue is of course finding all the parents. And we're hopeful that will get done. I think people were skeptical we would ever find all the parents. I remaining hopeful just because I have no choice but to remain hopeful. But there are additional issues that need to be litigated that are getting less attention, one of which is an issue that we're going to be raising with the court over the next couple of weeks, which is that the government has unilaterally decided that some parents are too dangerous or unfit to have their child back. Sometimes the most minor crimes — it could be a fraud crime from years ago — and the government is saying, well we think the parent has a criminal history so we're not going to return the child to them. We believe that unless it's the most serious crime that goes to the parents fitness, then the child needs to be returned to them. We don't just take children away from their parents because the parent may have committed a crime in the past. If we did that the number of children in this country who were taken away from their parents would skyrocket. So that remains an important issue, and dozens and dozens of children are still languishing in detention because the governments unilaterally declared that the parent is unfit.

LEE R
How many of those kids are left in detention at this point?

LEE G
You know, that's a good question. We're trying to find out the exact numbers and we're not sure. We believe that there are about 40 kids who still haven’t been reunified because of this. How many remain in detention, we're not sure. But certainly a number of them are still languishing in detention.

LEE R
Lee, at this point do you have a best guess on what your likely timeline is for identifying all of the parents of the remaining separated kids?

LEE G
I don't. I feel as though in the next couple of weeks we should identify — you know again I'm just speculating out of hope that we find almost all of them. What I fear is that there is going to be a certain number — whether it's a dozen or more — who are just going to be very very difficult to find because they're in hiding or because of some other reason. How long will it take to find them, I just don't know.

LEE R
[00:20:18] Let's turn to what's coming next. It's been reported that the Trump administration intends to defy an older federal court order that limits the length of time children can be held in immigration detention. Can you tell us a little bit about that order — what it does and what it means if the government stops abiding by it?

LEE G
Right, so that's called the Flores Settlement, and it came out of a case from the 1990s where the court, the government, and the plaintiffs decided there have to be limits on where children can be held. And the administration now is looking to upend the Flores Settlement and wants to be able to hold immigrant families, including children, indefinitely. If the new regulations actually are pushed forward we will, or others will, go into court and challenge those. We don't want to see a situation where we move from separating young children from their parents to now indefinitely detaining them. The medical community has said that separating children causes severe trauma. But they've also said that putting children and families in immigration jails for long periods of time will also cause severe damage. The government looks at it as a loophole, as a burden. We look at it as basic constitutional rights and basic humanity not to hold these immigrant families seeking asylum indefinitely, especially the children.

LEE R
If the government had the ability to hold families indefinitely, particularly combined with this administration's robust approach to criminalizing immigration, it sounds like that would really increase the number of people in, as you put it, immigration jails. Is that right? And what kind of facilities would those people be held anywhere in the government's plan?

LEE G
[00:22:14] Well I think that's a good question. I think we could be looking at tens of thousands of people held. And what kind of facilities? That remains to be seen. We've heard of everything from military facilities to, of course, private companies building more facilities and profiting from it. A lot of people talk about how costly it is for us to deal with immigrants crossing, but what's really costly is to detain them unnecessarily. It costs a fortune to detain them, and we have proven ways of assuring their appearance without detaining them. At the end of the Obama administration a plan was developed, the Case Management Program, which assured appearances for roughly 97 percent of families. So not only is it inhumane to indefinitely detain these families — and we believe unconstitutional — but just from a straight cost perspective it makes little sense.

LEE R
So Lee, if separating families claiming asylum at the border is unconstitutional, and if warehousing them together in immigration jails is unconstitutional, what is the constitutional and appropriate way to deal with families coming to the U.S. border seeking asylum?

LEE G
So let me be clear about one thing. We are not saying that detaining anybody — especially a parent — is categorically unconstitutional. What we are saying is that nobody should be detained unless they actually are a flight risk or a danger. In other words, is there some reason to be taking the drastic step of detaining someone? And so what we believe is that there ought to be a process to look at whether the person is a flight risk or a danger. If they're proven to be a flight risk or a danger through some meaningful process then they're going to be detained. But what we are hearing the administration propose is that people are going to be detained irrespective of whether they’re a flight risk or a danger. There is just going to be indiscriminate and indefinite detention of people regardless of whether they're a flight risk or a danger. And that, we believe, is unconstitutional.

LEE R
Ok, Lee, thank you so much for coming back to update us on the fight for family reunification and for cleaning up this horrific mess made by the Trump administration.

LEE G
Thank you for having me.

LEE R
[00:24:43] Thanks for listening to At Liberty. Join us again next week, and if you’d like to, write us a review — we’d love your feedback.

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