The Department of Homeland Security (DHS), the nation’s largest law-enforcement agency, has systematically and purposefully separated children from their immigrant parents and used them as bargaining chips in order to coerce their parents to accept deportation. This practice is meant to send a ripple of fear to other families considering coming to the United States that the same thing will happen to them if they try to seek asylum here.
If that claim sounds outrageous, here are the facts:
First, DHS systematically separated vulnerable families arriving at the U.S. southern border, taking nearly 3,000 children from their parents. Many of these families fled to the border in pursuit of asylum after escaping death, violence, and persecution in the Northern Triangle of Central America; where rates of murder and sexual violence are among the highest in the world.
Second, DHS has leveraged the threat of continued separation to coerce parents into abandoning their asylum claims. ICE is actively pressuring them to withdraw their cases if they want to see their kids again. This plan causes a great deal of despair among mothers and fathers over their children’s well-being—despair that drove one parent to kill himself and has retraumatized many others.
Attorneys volunteering for the Immigration Justice Campaign, a joint project of the American Immigration Lawyers Association (AILA) and the American Immigration Council, uncovered the tactics DHS is using to execute its coercion campaign in interviews with many detained parents. In one widely reported practice, Immigration and Customs Enforcement (ICE) agents have foisted upon parents a form containing two options: get deported with their children or without them. Both alternatives preclude their ability to make a claim for asylum. While the form itself states that it should be used only for parents with final orders of removal, accounts indicate that ICE handed it to parents who still have pending asylum claims—even parents who received positive credible fear determinations entitling them to full hearings with immigration judges. The message is clear: asylum and family unity are mutually exclusive.
More recently, our volunteers discovered that ICE is using another form with three options: get deported with your children, get deported without them, or wait to see a lawyer. While this may sound more accommodating, there’s a catch: ICE has presented the form to parents with the first option already marked. When parents tried to undo ICE’s pre-selection, they “were yelled at by the ICE agents or told they were not allowed to select another option.” In one instance, an ICE officer instructed a parent that “if he did not sign a Form with Option 1, he would never see his child again.”
In several more cases reported to attorneys, ICE obfuscated and outright lied to extract these signatures and compel deportations. Many forms signed by Spanish-speaking parents contain English-only sections that make it impossible for individuals to understand what they’re agreeing to. Reportedly, ICE has falsely told some parents that “they had no rights” and could not seek asylum if they had been previously removed.
At the core of DHS’s strategy is an ultimatum: if you want your child, drop your case. Not only is DHS taking child from parent—it’s using that separation to prevent both from obtaining potentially life-saving relief. Instead of affording them protection, it’s coercing their return to countries from which they fled because they faced the prospect of harm or death.
These practices also violate fundamental legal principles. The Immigration and Nationality Act ensures a noncitizen’s right to apply for asylum, while the Fifth Amendment guarantees the due-process rights attending that application. Nowhere do the Constitution or any statute condition those rights on giving up a child. Forcing a mother to choose between life-saving protection and her daughter is an affront to our laws, the Constitution, and values. The solutions? As a start, we need more lawyers to represent the families, but the solutions run deeper. We need an independent immigration court that has the authority to review the facts of these cases to determine eligibility without fear of or manipulation by the Attorney General, and enough resources to make these determinations in a timely fashion, rather than having backlogs that last years.
In the meantime, here’s how AILA members and others can help prevent DHS from getting away with family separation practices:
- If you’re an attorney, volunteer through the Immigration Justice Campaign to represent separated parents and children.
- Contact your member of Congress and explain how ICE is taking children from their parents. Congress should immediately exercise its oversight powers by conducting a full review into these ongoing due-process abuses and putting a stop to them.
- Support the efforts of the American Immigration Council to litigate cases of family separation. Those efforts have already yielded key victories, but there is much more work to be done.
I never thought that, in the United States of America, I would see a policy of family separation enforced on such a massive scale. But it’s happening. It’s real. And it’s time to put a stop to it.