For this mother and daughter, separated a year ago at the southern border, Trump’s ‘zero-tolerance’ policy isn’t new

When Maria was six in August 2017, she was separated from her mother, Magdalena, by border patrol agents near El Paso, Texas.

“I didn’t understand them,” Maria says. She and her mother speak Akateko, an indigenous Mayan language. “I kept saying, ‘Ummm ummm ummm.’ And then when they took my mom, I got scared and didn’t understand anything.”

We are only using the first names of both mother and daughter in order to protect the identity of Maria, who is currently in immigration proceedings. We corroborated their stories with documents from government agencies and immigration court and through interviews with their lawyers and experts.

Maria and her mother spent two nights in custody with three other parents and their children. Then, two woman gave Maria and the other kids teddy bears and put them on a plane to a government facility 2,000 miles away, in upstate New York. Maria says she used the bear to wipe the tears from her face.

Magdalena and Maria have not seen each other since.

According to a memo obtained by the Washington Post and signed by the heads of Immigration and Customs Enforcement (ICE), US Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), when Maria and Magdalena were separated, the Trump administration was conducting a pilot program at the border. Government agencies were prosecuting all adults apprehended while crossing the border outside a checkpoint between West Texas and New Mexico from July to November 2017, which the memo claims reduced the number of families attempting to cross. According to the memo, the adults who crossed the border were detained for criminal prosecution and possibly deported, while any children they arrived with were sent to government facilities run by the Office of Refugee Resettlement (ORR).

Over the past year, the Trump administration has gone back and forth about whether it would detain parents and separate them from their children.

In March 2017, John Kelly, then secretary of the Department of Homeland Security (DHS), told CNN that he would do “almost anything to deter the people from Central America to getting on this very, very dangerous network that brings them up through Mexico and to the United States.” He said in the interview that he was considering separating parents and children who arrive at the US border. A few weeks later, Kelly backtracked and told Senate Democrats that he wasn’t considering such a policy.

In April, the New York Times analyzed data from the Department of Health and Human Services and found that about 700 children had been separated from their parents since October 2017. This number does not include families like Maria and Magdalena who were separated earlier.

On May 7, 2018, Attorney General Jeff Sessions held a news conference in front of the border fence near San Diego, affirming that the government has indeed committed to separating children from their parents if they cross the border between checkpoints.

“I have put in place a zero-tolerance policy for illegal entry on our southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” he said.

Also: This is what the ‘zero-tolerance’ policy on the border means for people fleeing violence

A week later, Homeland Security Secretary Kirstjen Nielsen testified to Congress that her agency’s policy is to prosecute “anyone who breaks the law,” including parents traveling with their children who cross the border outside of a checkpoint. “The child under law goes to HHS for care and custody.”

From May 6-19, as the policy was broadly implemented, 658 children were separated from their parents at the border, according to a CBP official’s testimony to a Senate committee.

In an email to PRI at the end of May, a spokesperson for USCIS said the policy is not new at all. Instead, USCIS said, it “continued a long-standing policy by the previous administration” that “separation may occur only when we are unable to determine the custodial relationship, when we determine that a child may be at risk with the custodian, or when the custodian is transferred to a criminal detention setting due to criminal charges. That has not changed.”

What has changed, though, is the policy to bring criminal charges against everyone who crosses the border between checkpoints, even if they claim asylum. Magdalena doesn’t know where she was when she was picked up by border agents for entering the US illegally. She says she walked across a stream with Maria on her back and a few moments later, she was confronted by immigration officers. The “zero-tolerance” policy meant that homeland security would prosecute her as a criminal.

Hear an interview with Jennifer Podkul of Kids in Need of Defense.

“Deterrence does not work when people are fleeing for their lives,” says Jennifer Podkul, director of policy for Kids in Need of Defense, a non-profit that helps migrant children. “I think that the government decision to viciously prosecute even first time entrants who are just coming here to seek asylum is not only horrific for the parent themselves. But it really dissuades them from asking for their protection that they’re legally entitled to ask for.”

Podkul and other immigration attorneys worry this new policy will end up splitting families and sending parents back to dangerous situations. “Oftentimes, what we’re seeing is that the parents are going to accept removal because of the strain of detention and being separated from their child — even if they have a legitimate case.”

The international community has been critical of the new policy as well. On June 5, the Office of the United Nations High Commissioner for Human Rights censured the US and called for a halt to the separations. “The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles,” says spokesperson Ravina Shamdasani.

US Ambassador to the United Nations Nikki Haley responded defiantly.

“We will remain a generous country, but we are also a sovereign country, with laws that decide how best to control our borders and protect our people. Neither the United Nations nor anyone else will dictate how the United States upholds its borders,” Haley wrote in a statement.

Magdalena has since been deported back to Guatemala, where she says she is in hiding from the man she fled.

“I told immigration officials that I fled Guatemala because of my husband,” Magdalena says on the phone from her parents’ home in a small town in Guatemala’s highlands. “That I couldn’t go back because my husband was abusing me.”

The man was Maria’s stepfather. Magdalena says he would come to her parents’ house, where she lived with her daughter, and force her to leave with him.

“He hurt me so many times. He would punch and kick me,” she says. “Once, he choked me when I was sleeping. And when he let go, I ran to a car and escaped.”

But, Magdalena says, her husband always found her.

Maria remembers the abuse, too. She says she would find burn marks on her mother’s legs and arms from where her father had thrown hot food on her.

“She would bleed from her face,” Maria says. “The man would be drunk and he would hit her. He would take her. And when he went to work, she would come back and hide.”

Once, he came to the house with a gun and threatened to kill Magdalena. That’s when she decided they had to leave.

Magdalena says she told this to officers at the border. After her daughter was taken away, Magdalena was first sent to a jail for 15 days and then to an immigration detention facility near San Antonio, Texas.

After Magdalena was separated from Maria, she was given no information about where Maria was taken or how she could get in touch with her daughter. Magdalena says that another woman who was in detention with her told her that she needed to write a letter to immigration. Magdalena says she does not read or write well. She says with the help of a woman who spoke Akateko and Spanish and another woman who spoke Spanish and English, she was able to send multiple letters to authorities. After two weeks, she was finally able to speak to her daughter by phone.

Magdalena says she was given a credible fear interview and was told that she passed the interview, and that USCIS had determined that she did have grounds to seek asylum.

More: How does seeking asylum work at the US border?

But then Magdalena was sent to immigration court, where she was told by a judge that she needed to find a lawyer in order to apply for asylum. Unlike other court proceedings, immigrants who do not have or cannot afford attorneys are not given counsel. There are no public defenders in immigration court. Magdalena spent five months in detention near San Antonio and was unable to find a lawyer. Documents from court proceedings show that the judge wrote that she had “declined asylum” and waived her right to appeal.

“A judge is supposed to ask you, ‘Do you have a fear? Why did you withdraw that asylum application?’” says Richard Hujber, a lawyer in Florida who is advising the family. Hujber points to 2014 decision by the Board of Immigration Appeals that says women from Guatemala who have been abused by their partners can qualify for asylum. He thinks that Magdalena’s case is a textbook example.

“This is not just a bona fide, viable asylum case. This is a case you win,” Hujber says. “So the idea that this lady with a case that compelling is basically strong-armed into signing paperwork and going back home, without having a chance or a day in court — it’s troubling. It’s so troubling.”

Sessions is personally reviewing the 2014 decision — in immigration courts, the attorney general has the power to overrule or modify judge’s decisions — which could change how the US interprets international agreements on refugees and asylums. Advocates worry that he will roll back years of work that have allowed some victims of domestic violence to be granted asylum.

Government officials, including Thomas Homan, the acting director of ICE, have said that immigrants with “credible fear” will be given the chance to seek asylum. But asylum can be almost impossible to get for women in detention who don’t have legal representation. According to a 2015 study by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, only 1.5 percent of women who sought asylum without a lawyer won their cases and were allowed to stay.

Which judge hears the case can make all the difference. The judge who processed Magdalena’s claim in El Paso has a 94.6 percent rejection rate, according to government data collected by TRAC.

No agency within the Department of Homeland Security responded to PRI’s requests for comment on Magdalena’s case or the practice of separating parents from children. Officials from ICE, HHS and CBP all declined to comment on the record. Instead a CBP official pointed to remarks made by Homan at a congressional hearing on May 22. Homan argued that many asylum claims are fraudulent and that the government must “elevate the threshold standard of proof in credible fear interviews.” He criticized the 1997 settlement to a class-action lawsuit, Flores v. Holder, which said children must be promptly released from detention to family members.

“I think the separation of children from their mothers used as a weapon to prevent people, to deter people from coming to the United States to plea for asylum is novel,” says Doug Massey, a professor of sociology at Princeton University who has been studying immigration for more than 40 years. Massey does not believe the zero-tolerance policy will deter families from coming to the US. Instead, he says, they will come illegally over more dangerous routes and try to live undocumented. Or they will try multiple times, risking their lives and their children’s lives.

“At this point, the women are still coming because they’re facing desperate choices. It’s conceivable in the longer term that they’ll give up, but it will be at a tremendous human cost,” Massey says.

Magdalena was deported and warned that she could not come back to the US for 10 years. If she tries to cross the border again, she could be detained again and charged with a felony for illegal reentry.

Also: She escaped violence in El Salvador, but there’s little time or resources to heal while seeking asylum in the US

When Magdalena was detained, Maria was classified as an “unaccompanied minor” and sent to a government detention center in upstate New York run by Cayuga Centers, a short term foster care center that has been housing unaccompanied minors since 2014.

“They created an orphan when they took the mother away,” says Angelina Castro, an attorney who was contacted by a local church to help with Maria’s case. “They basically made her an unaccompanied child.”

Maria doesn’t like to talk about the time she spent at Cayuga Centers, but Castro interviewed her for months in order to understand what happened. Maria was held there for more than two months. No one spoke her language, but another child who knew a few words of Akateko would help her ask for water.

Castro says the 6-year-old was bullied. “We do have information that there was a child there who was pinching her and hurting her. This other child would take her food and throw it.”

ORR did not return requests for comment about how unaccompanied minors are cared for, or how they are handling the increased number of children placed in their care. Cayuga Centers forwarded PRI’s questions to ORR.

Once Maria was in detention, Castro says, ORR got in touch with Maria’s great aunt, the child’s namesake. At first, the elder Maria says, she was scared to sponsor the little girl. She’s a single mom with four kids and not a permanent resident in the US. After Trump’s election, immigration agencies announced that, in an effort to crack down on human trafficking, they would be more closely scrutinizing the relatives who take in migrant children.

“I don’t want to get in problems with immigration,” Maria says. She is currently seeking permanent residence and does not want to jeopardize her case. She, too, asked that PRI not use her full name in this report.

The ORR told Maria’s great aunt that if she didn’t come forward as a sponsor, her niece could be put into permanent foster care or given to another family. So she sent all her information to the government and became Maria’s sponsor. Sponsorship is not the equivalent of being a legal guardian; Maria’s mother keeps her legal right to Maria. Sponsoring a migrant child only requires that the elder Maria takes care of her temporarily, makes sure that Maria is safe and shows up to her immigration court appointments.

“I know with the love of God I responded for Maria because I had to,” Maria says. “And now she is like a child of mine and I’ll treat her like one of my kids.”

Maria now lives with her great aunt in a farming town in Florida, in a small salmon-brick house on a cul-de-sac. She goes to school and is slowly learning English and Spanish. She turned 7 in April.

Sometimes she calls her great aunt “mom,” sometimes “grandma” in Akateko. The two have become very close. They make tortillas together and sing almost every evening in a small church choir.

Twice a week, Maria talks to her own mother through Facebook Messenger. But Aunt Maria says she’s worried because Maria is starting to lose their native language. She’s starting to mix English and Spanish words into sentences and sometimes when they talk, Magdalena can’t understand her.

At one point, as the sun starts to set, Aunt Maria calls Magdalena in Guatemala. Maria shouts “Mommy, mommy!” But the connection is poor so they don’t get to talk. When the call cuts off, Maria says she wants to become a policeman, a soldier or a doctor.

“I want to work,” she says in Akateko, holding open an empty change purse. “My mom’s money is here. I save my money and I am going to send it to her.”

The family’s hope is that Maria can apply for asylum and stay in the US. Maria wants to stay.

Magdalena also says she doesn’t want her daughter to be returned to Guatemala. She wants Maria to stay in the US, to be safe and to finish school.

Magdalena says she thinks that separating parents from their children at the border will scare some people from coming to the US. But not her. She says she is going to figure out a way to get back her daughter.

With additional reporting by Monica Campbell and Angilee Shah.