Why is the US still separating migrant families at the border?

Mario Perez-Domingo’s 2-year-old daughter was taken from him around July 5, more than a week after a federal judge in California ordered the Trump administration to stop systematically separating migrant children and parents at the US-Mexico border.

They’d just arrived in Texas. As Indigenous Guatemalans, the pair’s primary language is Mam. But Customs and Border Protection officials interviewed Perez-Domingo in Spanish, which he hardly speaks. He did not understand when a CBP officer accused him of not being the girl’s biological father and forging her birth certificate — then took away his little girl.

The full scale of the damage from the Trump administration’s controversial “zero tolerance” policy is now coming to light in reports, Congressional hearings and court filings. 

The policy — which prosecuted parents for illegally crossing the border and, in the process, separated families — was halted by a presidential order on June 20, then a June 26 court injunction in California. But Perez-Domingo and his daughter are one of 38 parental separations that occurred in McAllen, Texas, after the ruling, according to a report last week by the Texas Civil Rights Project. And government data released last week shows at least 245 family separations since the policy was halted in June 2018.

The new Democratic-controlled House kicked off a series of oversight hearings this month in which Trump administration officials are being grilled for not stopping the implementation of the policy, despite warnings it would traumatize children. Through aggressive and sometimes angry questions, lawmakers have examined the botched rollout of “zero tolerance,” who gets to determine a child’s best interests and why children are still being taken from parents who have no known criminal history or discernible “fitness” issues.

Related: The ‘real’ border crisis: The US immigration system isn’t built for kids and families

The hearings have revealed some of the murky process in which Border Patrol agents make life-altering decisions for families, even after “zero tolerance” has officially ended.

“When a stranger rips a child from a parent’s arms without any plan to reunify them, it is called kidnapping.”

“When a stranger rips a child from a parent’s arms without any plan to reunify them, it is called kidnapping,” House Judiciary Committee Chairman Jerrold Nadler said in opening one of two hearings Tuesday that addressed family separations.

Rep. Karen Bass of California pointed out the relative ease of taking a migrant child from his or her parents at the border, compared to removing a US child from his or her home.

“At the border, the decision to remove a child is determined solely by Border Patrol agents in the field,” she said. “In our nation’s child welfare system, if a parent is deemed to have neglected or abused their child, a whole process takes place. No one person decides right there on the spot, …‘you’re ineligible to receive your child back.’”

And once a parent is deemed ineligible, the allegations against them are hard to disprove. Perez-Domingo and his daughter would not be reunited for another month, after lawyers stepped in and arranged for a Mam interpreter and DNA test to prove his paternity. Other separations have lasted much longer.

How ‘parental fitness’ is driving separations

Last June, Judge Dana Sabraw ordered the government to reunite some 2,700 migrant children with their parents in Ms. L v. ICE, a lawsuit brought by the American Civil Liberties Union.

He also ordered the government to stop separating families, but made an exception in cases where the parent “is determined to be unfit or presents a danger to the child.” That could be why family separations continue at their current rate.

Related: When it comes to family separation, healing can take decades

Lawyers say that exception wasn’t supposed to allow CBP to separate parents or legal guardians with any criminal history — meaning officials may be interpreting the court order too broadly. Though separations are down drastically from their height during “zero tolerance,” advocates say children are still being taken from their parents at much higher rates than they were during Barack Obama’s administration.

“There’s no uniform process for determining parental fitness.”

“There’s no uniform process for determining parental fitness,” and the child’s best interest, said Laura Peña, the attorney who authored the Texas Civil Rights Project’s report and represented Perez-Domingo.

That’s a high-stakes determination that Border Patrol agents are not equipped to make, Peña and other immigrant advocates told The World. CBP’s justifications for separating families are often vague or unsubstantiated, and could violate the Ms. L court order, they say.

“We are seeing an overuse of separations based on what they call ‘law enforcement’ purposes,” said Eleanor Acer, senior director for refugee protection at Human Rights First. “And in some cases, there is really no basis for that. There’s no process for any of this, or independent review for any of this.”

Of the 245 parental-separation cases the government reported since June 2018, “law enforcement” reasons were cited in 225. 

“We make that determination. Of course, we do utilize our office of chief counsel and work with the consulates of the countries” where migrants come from, Border Patrol Chief Carla Provost told members of Congress on Tuesday, adding that the agency’s officers are not trained in social work or child welfare.

In a statement to The World, a CBP spokesperson called the Texas group’s report “flawed” and “misleading” and pointed to parts of US law justifying limited reasons for separating children, which include parental criminal history, illness or when the parent presents a danger to the child. 

The spokesperson did not answer questions on the process by which agency officials determine parental fitness; whether Border Patrol works with social workers to determine the child’s best interests when considering a possible separation; whether foreign-language interpreters are present during their assessments; or whether parents and children receive documentation on the reasons for their separations.

Also on Tuesday, the House Oversight and Reform Committee voted to subpoena records related to migrant family separations from the Departments of Justice, Homeland Security and Health and Human Services.

A report last month by the inspector general of the Department of Health and Human Services shows that the percentage of children referred to it “who were known to have been separated from their parents rose by more than tenfold from November 2016 to August 2017 (0.3 to 3.6 percent).” That means the “zero tolerance” began long before Sessions announced it in April 2018.

‘Law enforcement’ separations are often vague

CBP’s reasoning for continued family separations may violate the court order, said Lee Gelernt, the ACLU’s lead attorney in Ms. L.

“The court made clear that criminal history is only relevant to the extent it bears on a parent’s fitness to remain with their child,” Gelernt said. “But what we are hearing is that families are being separated for either minor crimes or unverified crimes — crimes that would have little bearing on one’s fitness to be a parent, such as driving without a license.”

By law, children cannot be held in adult detention, so during “zero tolerance” they were taken to shelters overseen by the Department of Health and Human Services as their parents waited in detention for their deportation hearings. The children are then considered “unaccompanied aliens” and fall under the purview of the Office of Refugee Resettlement, which attempts to release children from shelters to a “sponsor,” such as another relative, who may be in the United States.  

There are only limited cases where ORR would not return a child to his or her parents, even if the parent has committed a low-level crime, said Mark Greenberg, a former senior official with the Administration for Children and Families, which oversees ORR. But due to limited information-sharing by Homeland Security — a major point of contention at recent hearings — ORR usually does not know the reason a migrant child was removed from parental care. 

“The first concern is that it’s totally unclear what criteria CBP is using.”

“The first concern is that it’s totally unclear what criteria CBP is using,” said Greenberg, who is now a senior fellow with the Migration Policy Institute. “The fact that the number and share of cases due to parental separations was rising last year and was well above what it was a few years ago, and is still rising, raises the concern they are using broader criteria — if they are using criteria. But we don’t know what their basis is.”

That’s what makes it so hard for parents to get their kids back after they’ve been separated. It usually takes a lawyer to sort it out, and parents are often in detention for weeks or months during that time. 

The Texas Civil Rights Project’s report found instances where families were separated based on “uncorroborated allegations” of parental criminal activity.

In one case, a father was separated from his 11-year-old daughter and 9-year-old son based on unproven gang affiliation. In another, a mother fleeing sexual slavery in Honduras was found to be unfit because she shot, but did not kill, her captor in self-defense.

In at least 10 cases cited in the report, the parent or legal guardian had no known criminal history. In practice, Peña said, that means “zero tolerance” hasn’t truly ended.

“Under ‘zero tolerance’ — which is the reason they are separating families in the first place — they had to refer adults for criminal prosecution,” Peña said. “Now, when they separate, they over-include any parents with a criminal history and even parents who have never been in the US before.”

Report: Thousands of separated children were initially uncounted

The HHS inspector general’s report last month also found “thousands” more children were separated from their parents at the US-Mexico border than initially thought — and they had not been included in the government’s tally of 2,654 separated families as of June 2018. It found that families were being separated as early as July 2017, long before Sessions announced the “zero tolerance” policy in April 2018.

In a hearing last week in the Ms. L case, Sabraw indicated he may expand the class of children and families the government must account for dating back to the previous year. The June 26 injunction only ordered the government to track and reunite families that remained apart on that date, not those who’d been separated and released to a “sponsor.”

Justice Department lawyer Scott Stewart objected and said asking the government to track down all families the government had separated would “blow the case into some other galaxy of a task” — which Gelert calls “remarkable,” given that the government separated them in the first place.

Sabraw is expected to rule any day now on the class expansion — but it would not affect families that have been separated after the injunction.