What the legal process looks like for an immigrant child taken away from his parents

Philip Bump

There’s been an avalanche of grim news centered on young immigrants apprehended at the border with Mexico. On Wednesday, the American Civil Liberties Union published a report documenting abusive encounters between young people and border agents during the administration of President Barack Obama. Last month, the government admitted it had lost track of more than a thousand children who had been placed with sponsors after being caught crossing the border alone.

In recent days, though, attention has been focused on a new crisis for immigrant children. Earlier this month, Attorney General Jeff Sessions announced a new policy in which families arriving at the border would be forcibly broken up, with children and parents separated from one another and detained separately. MSNBC’s Chris Hayes explored the practical ramifications of the policy: children as young as 1½, too young to form complete sentences, much less care for themselves, torn away from their parents and sent to government detention facilities.

It’s a policy specifically meant to serve as a deterrent to future immigrants, as White House Chief of Staff John F. Kelly made clear in an interview with NPR a few weeks ago. Sessions tried to argue that it was meant to prevent trafficking and abuse, but Kelly’s insistence that it was a deterrent matches reporting that indicates President Trump himself authorized the change to limit a recent increase in the number of families seeking entry to the United States. 

On Saturday, Trump tweeted that the policy of ripping apart families was a law being supported by Democrats. That’s not true. It’s a policy he supported and implemented, apparently because of its “horrible” — his descriptor — deterrent effects. The organization Kids in Need of Defense (KIND) has for a decade been supporting minors who are detained after entering the country. Its president, Wendy Young, spoke with The Washington Post by phone on Friday to explain how Trump’s policy shift affects young immigrants — and how it fits into his broader shift in how the country deals with immigrants. Her organization provides pro bono legal services to immigrants who arrive at the border without a parent — unaccompanied children, in the parlance — once they leave federal detention facilities to join family members already in the country. “This is the really sad and ironic and tragic part of this new policy of family separation,” Young said. “Obviously, from both a child welfare perspective and from the perspective of the U.S. immigration system in terms of its adjudication of cases when people arrive, it is much better to have a child arrive with a parent, because that’s a natural source of care and support for the child and that also means that the child’s case is attached to the parent’s case, and typically the parent is the one who has the information and the resources to inform the immigrant judge about what’s going on.”

“Now they’re making it a very formal policy to separate the child from the parent,” she said. “Because of that, the child is reclassified as unaccompanied.”

There are special protections under the Trafficking Victims Protection Reauthorization Act of 2008 that apply to unaccompanied children. After all, young people may lack the ability to advocate for themselves in the way that an adult might. KIND helps provide representation to between 50 and 60 percent of those young people — but Young fears the percentage will drop now that the pool of unaccompanied children is being deliberately expanded. “It has very serious consequences for the underlying case,” she said. “Because now you have a child — and this is being done with infants, even, babies — now you have a child with a much more challenging case detached from the parent. Very often they’re not being allowed to even communicate, and in some cases, the parent’s being deported and the child’s being left behind.” When the child is meeting with an attorney or appearing before a judge, their ability to explain why they are there and the reasons they might be seeking refuge are limited. There’s a parent who could potentially answer those questions — but that parent was moved by the Department of Homeland Security to another facility. The child, detained by the Office of Refugee Resettlement, has probably had no contact with his or her parent.

It’s tricky for the attorneys to make contact, too.

“It can be extraordinarily challenging to figure out where that person went, to establish communication,” Young said. “If that parent is deported in the meantime, then you have the added challenge of trying to find the parent back in the home country.” “From humanitarian perspective, we’re quite concerned about this,” she added, “but also from a government efficiency perspective, it’s creating an additional case in a backlogged system and it’s making it more challenging for the immigration judge or the [Citizenship and Immigration Services] officer to sort out what’s going on in this child’s life.” Remember: Those legal complications begin only once the child is released from detention. That period in detention is problematic for its own reasons — and Young says that the amount of time children are spending in detention is increasing. Under Obama, children were held for about a month, Young said, while the government tried to find family members who could take them in. The law, she said, “is really grounded in the notion that children are better off cared for by their families than they are in a detention center by the federal government.” That month-long detention is getting longer. “We’re starting to see that creep up more into the 45- to 55-day range,” she added. “Which is also concerning to us because obviously locking children up is not a good thing.” In part because of the new policy of child separation, the government is exploring opening detention centers on military bases, housing hundreds or thousands of kids. But such mega detention centers already exist. “I actually was down at the border a few weeks ago,” Young said, “and saw a facility that opened in the past year or so, that’s actually a permanent facility, a converted Walmart with 1,200 beds.”

“Generally what we’re seeing there, through a whole lot of administrative changes, is they’re turning what were intended to be protection tools under the trafficking act into law enforcement tools,” Young said. She added, “The framework of protection is starting to really fragment.” KIND recently released a report documenting recent changes to immigration policy. She said that her organization had seen an increase in the number of children separated from their families. Asked if she thought it would at least be an effective deterrent for future immigrants, she said it wouldn’t.

“This is truly a refugee crisis,” Young said. “People become refugees when they’re desperate to escape violence. The violence is throughout Honduras, El Salvador and Guatemala, and the governments are too weak or too corrupt to control it. So people make the only choice they feel they have available, and they run. “You’re not going to be able to stop that,” she added, “until conditions in the home country improve.”

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