The cover story of Time this week takes a deep dive into immigration officials separating the families of undocumented immigrants. Families of undocumented immigrants that are taken into custody are kept separated with the parents in one detention center and the children in another. The goal of the practice is to discourage families from entering the U.S. illegally and to weaken the will to fight deportation in those already in the country.
The practice doesn’t come from policy, and DHS Secretary Kirstjen Nielsen has yet to sign anything that would formalize it, but the Trump Administration first advanced the idea when John Kelly was the Secretary of Homeland Security. He told CNN, “Yes I'm considering (that), in order to deter more movement along this terribly dangerous network. I am considering exactly that.”
Since then, spokespeople for the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have avoided addressing the practice directly. Tyler Q. Houlton, a spokesman for DHS commented, framed the measure as a humanitarian one to save foreign nationals from themselves when he commented on it. “The dangerous illegal journey north is no place for young children and we need to explore all possible measures to protect them,” he said.
The introduction of the practice and a decline in unauthorized border crossings correlate, but those concerned about human rights doubt its power to stop unauthorized immigration. “It’s hard to think that a family—a mother fleeing with her children who is quite literally trying to save their lives—is going to be deterred by being separated from her children,” says Maureen Meyer, the director for Mexico and migrant rights at the Washington Office on Latin America. “Those fleeing violence continue to seek protection in the United States and other countries in the region.”
Matt Albence, an executive director with ICE described the practice as a solution to a logistical challenge created by undocumented immigrants in detention. “It's a huge operational problem,” he told NPR. “We have hundreds of thousands of these cases clogging up the immigration court docket. A vast majority of these individuals that get to this country and served with a notice to appear in front of an immigration judge don't show up.”
Last Friday, the ACLU filed a class-action lawsuit that asks a judge to declare family separation unlawful. It argues that the practice violates the Due Process Clause and the Administrative Procedure Act as it separates children from their parents without demonstrating abuse or neglect. One of the plaintiffs fled the Democratic Republic of Congo with her 7 year-old daughter, and even though an asylum officer determined that she had a credible fear of persecution in the Congo, her daughter was taken from her days later and sent to a detention facility in Chicago “with the little girl frantically screaming that she did not want to leave her mommy,” the lawsuit says. “The government has never alleged that S.S. would not be safe with her mother, or that Ms. L. is not a fit parent. And yet Defendants has not allowed Ms. L. and her child to see each other for four months now. Each time they have been able to speak on the phone, S.S. has been crying and afraid. Ms. L. is likewise frightened, depressed, and unable to eat or sleep.”
According to Michelle Brané, director of the Migrant Rights and Justice program for The Women’s Refugee Commission, the practice “interferes with due process, and is really just cruel. Children feel that they are being abandoned, literally being ripped out of their parents’ arms.”
The case was filed in U.S. District Court in the Southern District of California in the Ninth Circuit, where the Trump Administration’s decisions have had a tough time. Because of that, there’s reason to believe the practice will face legal challenges, but they won’t come in time to help those families in the system that have already been separated. The lawsuit doesn’t call for any special treatment or results, only that the family be allowed to go through the process together as it did before the current administration.