Family Separation & Detention
I have been struggling for a while to write this blog post. The most recent developments have piled onto what seems like a never-ending attack on immigrants in this country. The Trump Administration’s “zero tolerance” policy and the harsh separation of families at the border has left us rattled and stunned. As an attorney, as a human being, this is the most shameful immigration policy I have seen by an administration in my career.
For months, the Trump Administration has been systematically separating asylum-seeking parents from their children as they arrived at the southern border, ultimately forcibly taking more than 2,300 children from their parents.
The horrors don’t end there. Children are being held hostage. Terrorized and traumatized babies, toddlers, and young children are being moved to different states and facilities in the middle of the night. Appallingly, some parents are being pressured to give up their claims to asylum so that they can be allowed to see their children.
In response to public outcry, Trump signed an executive order that, in addition to being inconclusive and vague, does not end all forms of family separation and the order ramps up indefinite family detention, an insidious alternative to family separation that immigration attorneys have been fighting for decades (including under the Obama administration).
These developments are an abhorrent violation of legal standards, long-standing practices, and our moral and ethical principles.
OUR LAWS DO NOT REQUIRE SEPARATION.
Let me be clear, as an attorney, I fully appreciate that we are a nation of laws. So, let’s talk about laws.
This bears repeating. Despite the rhetoric from the President and the GOP, there is NO legal recruitment that children and parents be separated. Rather, the increase in child detainees separated from their parents is a direct result of the change in enforcement policy – specifically the Trump Administration’s “zero tolerance” policy announced in April 2018 by Attorney General Jeff Sessions in which all parents illegally crossing the border will face prosecution (even those seeking asylum).
This Trump-created crisis is a departure from the practice of the Obama Administration, which refrained from prosecuting cases involving adults who crossed with children—limiting prosecution primarily to those engaged in criminal activity or repeat offenders.
Not only is there no legal recruitment to do so, this practice violates US asylum and refugee laws. Under our laws, if you express a fear of returning to your home country, you have a right to a credible fear screening. If the asylum officer finds you have a credible fear of persecution in your home country, then you have a right to have an Immigration Judge hear your case.
This practice has been condemned by the international community as well, including the United Nations, which stated the separation of children amounted to “government-sanctioned child abuse.”
ALTERNATIVES TO FAMILY DETENTION EXIST.
There are cheaper and humane alternatives to family detention. These alternatives also have extremely high compliance rates, and most importantly, do not terrorize and torture children. For years, immigration attorneys have been fighting against family detention, including under the Obama administration, and will continue to urge for effective alternatives.
President Trump is now asking taxpayers to pay billions of dollars to establish new facilities on military bases to detain families and engage in wasteful misdirection of prosecutorial resources. Despite the fact that, based on the Department of Homeland Security’s own findings, the daily average cost of alternatives to detention are 7% of that of detention.
Alternatives to detention are also extremely effective. Asylum seekers and those with credible legal claims have a strong incentive to appear in immigration court. Over 95% of those in alternative- to-detention programs appear for their final hearings. Holistic programs that offer case management services and facilitate access to legal counsel, such as the Family Case Management Program or “FCMP” (which was shut down by the Trump administration) as well as safe and affordable housing have been shown to substantially increase program compliance. FCMP in particular had a compliance rate of 99.6% and cost a family $36/day (compared to $319.37 for an individual in family detention).
THIS IS SIMPLY IMMORAL.
Not only does this offend national and international law, these abhorrent practices offend our moral fabric as a nation. The detention of families (parents and children) who pose no flight risk or danger to the community is simply unacceptable – it abrogates our international responsibilities to refugees and asylum seekers and violates our country’s fundamental principles. We must embrace America’s legacy as a safe haven for the persecuted (“the tired, the poor, the huddled masses yearning to breathe free”) and refrain from subjecting bona fide refugees to further torture and trauma by incarcerating them as they pursue lawful claims.
On a personal note, I am about to become a mother.
As I have watched these atrocities unfold on the news along with all of you, I look down at the baby inside my growing belly. Tears falling, I struggle to think of what I would not do to keep you safe. Even having never met you, your life has become my core mission. I will do everything in my power to keep you free from harm and to give you the childhood that all children deserve—one that is carefree, secure, and showering of love. I would travel to the ends of the world. I would give up all my possessions. I would leave behind all that I know. I would ask help from a nation even if I do not understand the legal process. I would seek refuge in a place where I did not speak the language. I would even break laws. I would do any of these for you, my daughter. Without reservation.
I pray you never have to consider these measures against your own child’s life. However, we live in a world where some parents must.
This past weekend over 700 rallies took place across the United States and around the world. I am briefly comforted by the overwhelming outrage and show of support for this vulnerable community. Whether you’re a parent or not, I hope these atrocities have rocked you to your core. I ask you to continue to be involved.
WHAT CAN I DO?
Call your elected representatives. Tell them why this offends you and that these issues matter to you in the upcoming mid-term elections. Urge your family, friends, and colleagues to do the same. You can find out who represents you here. Don’t be nervous to call. The ACLU has made a helpful script if you’d like to read one.
Donate. Give to organizations that are supporting these communities and representing children. Examples include the ACLU and RAICES. ActBlue has also created a portal to multiple organizations that support children at the border.
Talk to your friends and family. Educate yourself and respectfully share these facts within your own networks.
Lastly, and perhaps most importantly, vote. Make sure your friends and family are registered and are voting. Offer to give rides to voting polls or accompanying someone who might need help getting there. Plan an election day party or event after you do. Historically only 40% of the voting population turns out for the midterms. Let’s change this!
 Attorney General Jeff Sessions' recent remark that lawyers are “coaching” asylum seekers reveals his ignorance and/or disrespect of our fundamental principles of due process and right to counsel. Terrified asylum seekers using attorneys to understand their rights and our complex legal system gives them a fair chance to protection. It is NOT immigration fraud.