PHOENIX – It’s been six weeks since a federal judge ordered the Trump administration to reunite all families separated at the border under its “zero tolerance” immigration enforcement strategy, but hundreds of children remain in government custody.
What’s more, it now appears increasingly likely that hundreds of those families will never be reunited because parents that were deported from the United States intentionally or mistakenly waived their rights to reunification, their lawyers say.
“The parents face a brutal decision of whether to bring their child back in the face of potentially serious persecution or to leave a child in the United States to pursue asylum which may mean they never see their child again,” said American Civil Liberties Union attorney Lee Gelernt, who led the class action lawsuit that halted family separations at the border.
“It’s a decision that no parent should have to face and one that hundreds of families are now agonizing over because of the government’s family separation policy,” Gelernt said.
In all, 416 children of the 2,654 separated from their parents under the “zero tolerance” policy remain in government custody, figures contained in the most recent status report filed by lawyers for the Department of Justice and the ACLU show.
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The slow pace of reunifications comes as the number of all migrant children detained by federal authorities has risen this month to 12,800, a fivefold increase since the summer of 2017, according to data from the Department of Health and Human Services. The majority of those children in federal custody attempted to cross the U.S.-Mexico border as unaccompanied minors, meaning they were traveling without their parents.
The HHS data, first reported by the New York Times, was given to members of Congress and confirmed by HHS to USA TODAY. In a statement, the department said the number of children in its custody has grown because of the lengthy process it must undergo to vet potential sponsors for each child, who are often exploited by human smugglers.
“The number of families and unaccompanied children apprehended are a symptom of the larger problem, namely a broken immigration system,” the HHS statement read.
Most of the families that remain separated have been harder cases to resolve because the parent was deported without their child.
It’s now up to the parents and the children to decide whether the child should be sent back to their home country or whether the child should remain in the United States to seek asylum on their own, said Golden McCarthy, director of the children’s program at the Florence (Arizona) Immigrant and Refugee Rights Project.
“Each case is different as far as what the child wants, but I think the older the child typically the more likely they would like to remain in the U.S. and seek legal relief,” said McCarthy, whose Florence project provides legal representation to some of the 61 unaccompanied minors still being detained in Arizona.
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Those children who decided to seek asylum in the U.S. after their parents were deported will remain in shelters until they are placed with sponsors or in long-term foster care, she said.
The latest status report showed that 304 of the 416 children still in government custody had not been reunited because their parents had been deported without them.
“More than 300 parents were deported without their children leaving their children behind to languish behind in government custody,” Gelernt said. “We need to find these parents as quickly as possible and we also need to determine why children whose parents remain in the United States haven’t been reunited. This continues to be a crisis that has gone on far too long.”
Figures provided by Justice Department lawyers in the most recent status report show that 199 parents waived rights to be reunified with their children before they were deported. Advocates are trying to determine whether those parents waived their reunification rights intentionally or whether they were pressured by the government.
“We are going back and asking each parent to tell us what their decision is so that we don’t have to rely on the government’s claim that the parents are waiving reunification,” Gelernt said. “We are concerned that the government may have obtained waivers in a misleading or coercive manner.”
Homeland Security lawyers and the ACLU are scheduled to file an updated status report Thursday ahead of Friday’s weekly hearing in front of U.S. District Judge Dana Sabraw in San Diego, who gave the original order to halt family separations and reunite all those children with their parents.
Sabraw has vowed to hold weekly hearings until the government reunites all children separated from their parents at the border, while acknowledging that may not be possible in some cases for a variety of reasons, including those whose parents have been deported and waived reunification, and those whose parents are facing criminal charges and remain in local, state or federal custody.
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The Trump administration separated 2,654 children from their parents after crossing the border illegally together under a “zero tolerance” policy aimed at stemming the flow of families, mostly from poverty and violence-plagued countries in Central America or regions of Mexico, arriving without documents in hopes of staying permanently in the United States by asking for asylum.
Data released this week by Border Patrol show the number of those families crossing the border has instead increased, with the number of family members arriving in the U.S. reaching 12,777 in August, the highest monthly total of the Trump presidency.
Of the 2,654 children who were separated, 2,181 are no longer in government custody, either reunited with their parents or placed with other sponsors. Another 57 remain in custody because the government alleges they were not separated from their parents. That leaves the 416 whose parents are either deported, in jail on separate criminal charges, or facing further scrutiny because the government is concerned they may pose a danger to the child.