From the earliest days of Trump’s “zero tolerance” border policy, which systematically split migrant families at the border, there has been widespread failure to monitor and protect detained children. Now that lawsuits and public outrage have led to a suspension of the family-separation policy, the White House is grudgingly revealing that no one in the government knows just how many children have vanished over the past year into the legal black hole the administration has carved into the southern frontier.
A recent report from the Office of the Inspector General of Health and Human Services shows starkly that separation was never intended for the “welfare” of the children or due to unreasonable legal hurdles, as White House officials previously suggested. Rather, the means were the ends: The aim was always to punish families mercilessly for the “crime” of crossing the border.
Katharina Obser, senior policy adviser of the Migrant Rights and Justice program at the Women’s Refugee Commission (WRC), tells The Nation that, in her view, “given the policies that it implemented, [this administration] intentionally created policies and created practices to generate chaos, to devastate these families without any plan for what would happen next. And what’s so devastating now is that there’s the opportunity for that to continue.”
The Inspector General’s report documents more than 2,700 children separated from their parents by the Border Patrol, as of mid-2018, following a court order to halt the program. But the audit revealed that there’s even more we don’t know. Of the group covered by a class-action lawsuit, about three-quarters were eventually reunited with their families. However, “thousands of children may have been separated during an influx that began in 2017, before the accounting required by the Court.” And all along, the HHS “has faced challenges in identifying separated children”—a major understatement, given the documented concatenation of bureaucratic neglect and incompetence that contributed to the mass trauma inflicted on families and children, some of them just babies.
The class action, Ms. L v. ICE, focused on children who were detained up to the time of the suit, around July 2018. But since then, according to the HHS audit, an additional 118 children turned up in Office of Refugee Resettlement (ORR) custody following their separation—an indication that the policy in fact continued long after the court order. And left out of the reunification mandate were parents found to have criminal records, so those who failed to pass a criminal-background check—which could have resulted in misinterpretation or errors—were barred from reunification. The whole process was a legal morass, exacerbated by the ongoing separation of parents and children across borders, if the parents were deported earlier. And even when reunification within the United States is possible, some families and relatives may be too scared to come forward, wary of being harshly vetted by Homeland Security and exposed again to deportation. ORR records indicate that more than 120 parents were turned down for reunification, some because they were labeled “unfit or [as posing] a danger.”
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It remains unclear whether the government is making any progress in ending its separation policies. According to the ACLU, there have been widespread reports of parents’ accidentally signing away custody rights when immigration agents used “coercive and misleading” tactics to pressure them into signing incomprehensible legal forms—sometimes giving them to believe their signature would reunite them with their kids, instead of leading to prolonged detention.
The HHS report reaffirms a petition issued last month by WRC and other advocacy groups, denouncing the policy as “cruel and unlawful,” fueling chaos and brutality that “would only drive vulnerable migrants further into the hands of unscrupulous smugglers or traffickers when fleeing violence for safety but fearing the prospect of family separation at the hands of U.S. immigration agents.” Advocates cited studies showing that the most significant determinant of whether a child migrated was not border policy at all, but “the number of homicides in locality of where the child lived…. for every 10 homicides in a locality, 6 more additional children would migrate.”
Migrants will continue facing danger wherever they end up, whether imprisoned in the United States or deported back home where the troubles that have driven mass migration, poverty, criminal and state violence, sexual abuse and human trafficking show no signs of abating.
The children fleeing in terror from their communities in El Salvador, Guatemala, and Honduras aren’t listening to Trump’s racist diatribes about the wall. Refugee families are undeterred by Trump’s threat to hold aid funds hostage to somehow force Mexican and Central American authorities to aid his crackdown. Further underscoring the administration’s reluctance to treat migrants like human beings, Republicans used the shutdown as an occasion to push legislation to further roll back protections for undocumented youth, longtime residents, and new arrivals at the border. The bill calls for a “de facto asylum ban” for Central American migrant children, restricting their access to the asylum system and relegating their claims to countries outside the United States—despite children’s internationally recognized human right to claim asylum at the border. The measure would also further restrict renewals of two keystone protections against deportation, Deferred Action for Childhood Arrivals and Temporary Protected Status.
Though the children and parents jailed at the border may be the primary targets of Trump’s assault, a different kind of damage has been done to the institutions that have traditionally held the immigration regime together. While the immigration courts were already besieged with a monstrous backlog, the justice system virtually ground to a halt during the shutdown, further bleeding courts of funds and resources, potentially delaying some cases for years, and denying asylum seekers due process.
There may soon be congressional oversight investigations into Trump’s immigration policy. Nonetheless, as the border grows more hostile to migrants every day, the immigration regime grows more closed to civil society and the impunity of Trump’s zero-tolerance crusade intensifies. Without laying down a brick for his border wall, the administration has triggered the savage political end-game for its self-created humanitarian crisis: to break the asylum system, and then “fix it” by shutting it down completely.
