The facts about family separations on the border

It’s all over the news. As of early May, more than 2,000 children have been separated from their parents upon crossing the border illegally — a consequence of Trump’s newly enacted “zero-tolerance” policy. Children as young as four months old are being held at detention centers. Images of children lying on mats and covered in foil blankets are circulating on social media. A “tent city” in Tornillo, Texas has been erected with more than 400 beds for detained children. Why is this happening? Reporter Sasha von Oldershausen sat down with federal public defender Chris Carlin and assistant federal public defender Shane O’Neal to better understand what exactly is going on along our southern border, how policy has changed since before “zero tolerance,” and why so many children are suddenly being separated from their parents. Here is what she found out:

Are family separations really a new thing?

The short answer is no. However, the frequency of separations has skyrocketed, and many of the children who are being detained are much younger than before. “They are separating more people from younger children,” said assistant public defender, Shane O’Neal. In fact, the separation of families is, and has always been, part of the criminal process when a person charged with illegal entry is prosecuted. However, in the past, the federal government could exercise prosecutorial discretion. Meaning, they could choose to prosecute, but also had the option not to. Since illegal entry into the United States is a misdemeanor offense for first time offenders, in most cases, the government opted not to prosecute these cases. Instead, the government would place the person charged into immigration proceedings. “That doesn’t mean that the person would be free to just walk around,” said public defender Chris Carlin. “They would be placed into an immigration detention facility that’s capable of handling families. Those facilities filled up and so then what immigration started doing is giving people notices to appear. The family would have to regularly check in with immigration either in person or by phone, and then they would be given a hearing for deportation proceeding sometime in the future.”

Would these people invariably be deported?

Not always. They could receive an order of deportation but they would be given what’s called a “non-priority status,” which meant that they were deportable, and that the government could come and deport them at any time, but in the meantime they could also attain a sort of quasi-legal status. They could, for example, attain a work permit. “You’re given a letter that literally says, ‘Ok — you’re deportable, and we’re not going to allow you to stay but you’re a non-priority because we have limited resources and we want to deport people that actually need deporting, not you.’ That happened a lot,” said Carlin.

How has Trump’s “zero tolerance” policy changed things?

In early May, Attorney General Jeff Sessions announced the U.S. would take a stricter stance on illegal border crossings by prosecuting 100 percent of people charged with illegal entry. Even if it was just a first-time, misdemeanor offense, they would be prosecuted. The fallout from this new policy is that any child who had been traveling with the person charged with the crime, would be separated. “If you don’t like that, then don’t smuggle children over our border,” Sessions said at a law enforcement event in Arizona in early May. “We used to get a smattering of child separation cases, but not very many here,” Carlin said. “When the person arriving is actually a felon, they had always done this and they had been doing it for a long time and we’re not too excitable about it because it’s not something that is going to affect the majority of the people. It’s a relatively small number.” In the past, Carlin said he and his associates could ascertain a child’s location fairly easily. “We would just call Border Patrol prosecution to find out where the children were, we would always get a very quick response the same day,” Carlin said. “Almost invariably the answer would be that the kid was with a contract foster care facility in El Paso because they do have contracts with these places in El Paso that are appropriate for the care of these children.” He added, “If the kid is in El Paso, then in all probability the child and the parent are going to be reunited. If they were facing a quick turn-around deportation, they would at least be deported together.”

Where are they taking these kids now?

This is where things get especially weird. Many of these children are being sent far away from where they’ve been apprehended, and from where their guardian has been detained. A “tent city” was erected in Tornillo, Texas, with some 450 beds for detained minors. Others, like the children of Carlin’s clients, have been sent as far away as New York City. “When I got the three women from last week, I went to go find their kids using the normal channels that we’d always utilized,” Carlin said. “We couldn’t find the kids. Which was a new one on me. It was like, ‘What happened to these kids? Where’d they go?’” After some investigation, Carlin discovered that the three children ended up in a place called Cayuga Centers, which is an Office of Refugee Resettlement (ORR) foster care contractor in New York.

Is it true that the children they are separating are younger than before?

“From what I saw, pre- “zero tolerance,” the kids that got separated tended to be older,” said O’Neal. Carlin confirmed: “Yes, it’d be teenagers. It’d be very rare for us to get a five-year-old and eight-year-old. It’d be very rare.”

Why would the government do this?

“Procedurally, if you’re the immigration authorities in the United States, why would you take three kids from Presidio, Texas, drive them to El Paso, put them on a plane and fly them to Manhattan?” Carlin said, “Procedurally, it makes no sense whatsoever.” “There is no sensible policy reason. There is no reason to do this. There’s no reason that makes sense under any scenario. No matter what your politics are, who would come up with a system? It’s the craziest thing I’ve seen since I’ve been doing this job.” O’Neal had his own take on the situation: “I’m pretty sure this is designed to be a punishment to deter people,” he said. “The problem is, terror outweighs deterrence.”

Why don’t the people who are trying to cross the border attempt to seek asylum?

“The majority of people that arrive this way are not sophisticated,” Carlin said. “They know nothing about immigration law. They have no idea how our byzantine system works and when they show up, the vast majority do not even have the sophistication to ask for asylum. They don’t know how to make a credible fear claim.” He added, “The ones that are sophisticated enough to ask for asylum, of course they’re going to be treated slightly differently after they get the criminal conviction. But what they’re doing is, they’re using this process of separation against both types of people, regardless of whether you claimed asylum or whether you said, ‘No, I don’t have a credible fear claim.’ They’re still separating the kids, in both cases. And the outcome, the actual outcome, the actual impact on those families and those kids is going to be the same, no matter what they claimed.” There have also been reports in El Paso and McAllen of people who have attempted to seek asylum but are being turned away by U.S. Customs and Border Protection officers. El Paso-based journalist Debbie Nelson reported earlier this week that customs officers stood in the middle of the pedestrian bridge connecting El Paso and Juárez and turned away people who had approached them to ask for asylum.

Why is this policy so problematic?

No matter where you stand on the political spectrum, separating families with little hope of reunification is inhumane. From a legal standpoint, the punishment hardly fits the crime. “A consequence of a conviction for a petty misdemeanor should not be lengthy or possibly permanent separation from your own kid,” Carlin said. “There’s nothing under the law of the United States that countenances that outcome in a trial of this nature.” “We can go to trial all day long, we could possibly even get not guilty verdicts, but it doesn’t matter because the bureaucracy itself is a weapon in these cases. The bureaucracy of immigration enforcement as it pertains to young children has been weaponized and it’s now being used as a criminal deterrent.”