America no more

Immigration lawyers talk Trump policies and migrant families

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Susan France

At 2 a.m. on the morning of his 18th birthday, Carlos was transferred into Immigration and Customs Enforcement (ICE) custody and brought to the adult contract detention facility in Aurora. The oldest of five siblings from a small, poor indigenous community in Guatemala, Carlos came to the U.S. at the age of 17, alone. 

“He wants to be able to support his family back at home because they can’t make ends meet, don’t have permanent housing, sounds like there may be some food insecurity,” says his lawyer Shalyn Kettering. “His father abandoned him and his mother.”

For both safety and economic reasons, Kettering says, Carlos made the journey north. After crossing into the U.S., Carlos was found by federal authorities wandering in the desert after his coyote left him at an abandoned hut without food or water, Kettering says. Two months shy of adulthood, Carlos was first sent to a facility run by the Office of Refugee and Resettlement (ORR), under the Department of Health and Human Services (HHS), the federal agency charged with caring and housing unaccompanied minors who cross the U.S. southern border and, more recently, thousands of kids separated from their parents as part of the Trump Administration’s zero tolerance border policy.

“It was more comfortable in ORR because everyone was his age,” Kettering says. “The adult detention feels a lot like jail, and it is really intimidating. There are guards, and it feels like a very punitive environment.” 

While he’s trying to appear tough, Kettering says Carlos is the youngest and smallest detainee at the Aurora facility. 

“Some people are watching out for me and nobody has harassed me,” Kettering says he told her. “The fact that is something he is aware of I think belies a larger discomfort and vulnerability.”

Boulder Weekly heard about Carlos’s story through lawyers at the Rocky Mountain Immigrant Advocacy Network (RMIAN), a nonprofit organization based in Westminster that provides pro bono services and legal orientation five days a week at the Aurora facility. After meeting Carlos, RMIAN was able to connect him with Kettering, an environmental lawyer in Denver, for pro bono representation, and they are now working to get Carlos released on bond. 

In light of his story, and those of thousands of families who have been separated at the U.S. southern border in recent months, we sat down with RMIAN’s Laura Lunn, managing attorney of the detention program, and Ashley Harrington, managing attorney of the children’s program, to talk about what they’re seeing as federal immigration policies have changed under this administration. We also followed up with both lawyers after President Trump signed an executive order on June 20 to end family separation, while continuing to criminally prosecute people for crossing the border. The following Q&A is a consolidation of those interviews. It has been edited for length and clarity.

     

Boulder Weekly: An ICE spokesperson told me they don’t have a way of tracking detainees who age out of ORR custody and are transferred to adult detention. But you said there are at least a handful of recent 18-year-olds who were recently transferred from ORR custody to the Aurora contract facility. Is this something you’ve seen before?

Laura Lunn: That’s a shift. We have not previously been seeing kids transferred directly from ORR custody and taken to the detention facility. None of the ones that we’ve seen has a criminal history so that’s really atypical for them to put them straight into an adult detention facility.

Ashley Harrington: It goes very much in line with the broader increased enforcement and it also goes very much in line with the way this administration views unaccompanied children. It’s shifted from a sympathetic, humanitarian view that these are children fleeing horrific violence and creating laws and policies to try and give them additional protection. Under this administration they are viewed as gang members, they are viewed as abusing legal loopholes to defraud the system.

BW: What’s the difference between ORR custody, run by the HHS, and ICE custody at the adult detention facility?

AH: It’s a bifurcation of purposes on the highest level. ICE’s job is to enforce and remove and deport. HHS is the agency, whether we’re talking about undocumented kids or U.S. citizen kids, in charge of foster care systems throughout the country, in charge of caring for unaccompanied youth. It’s a completely different mind-set and treatment philosophy.

BW: The thousands of kids (most recent numbers estimate there are more than 2,500) who have been separated from their parents at the border in recent months are being taken care of by ORR. The agency doesn’t operate any facilities in Colorado, but are there kids being released to sponsors here?

AH: Not that we know of. They’ve made it really difficult to release children. There’s also the Memorandum of Understanding that the New York Times reported on between ORR and ICE that means that anyone who is trying to reunify with a child, their fingerprints will go to ICE and any other adult’s in the household will go to ICE. Even if there are sponsors in Colorado who are trying to step forward for these kids, they’ve made it much more unlikely that will happen.

BW: According to ICE, there are about 800 immigrants currently being held at the Aurora detention facility. How many of them are parents separated from their children in recent months?

LL: Our numbers are close to 50 now. … We’re having to screen all of the cases coming in the door because you never know who are the parents of a child. It’s also important to recognize that there are other parents there who just weren’t separated at the border. Everyone in there is being separated from their family.

BW: Of the people separated from their children at the border in recent months, you’re representing three women. Are they all from Central America?

LL: They are all from Guatemala. They all have delightful children that they told me about. All three of my clients have been here for two months, and their kids were taken within days of entering the country.

BW: Where are their kids? Can they talk to them? Do they know when they will be reunited?

LL: Most of the kids are either in New York or in Arizona. No one I have spoken to has received any type of information about being reunited with their children. There’s an ORR hotline that DHS is handing out to people saying, “you can find your kid if you call this number.” Everybody is telling me the hotline number doesn’t work.

One of my clients still does not know where her child is, her 6-year-old. The last time she saw him, the social worker was taking him to go give him a bath. He was just never brought back. 

One client, her little boy is six and they were separated for his birthday, which really upsets her. She told me, “He’s so chatty and he’s vivacious, and when I talk to him on the phone now he just responds in one-word answers, and it’s nothing like my son. I’m having to ask so many questions because he’s not himself.”

BW: What’s the status of your clients’ legal cases?

LL: I have two clients who sound like they were federally prosecuted but no one has a piece of paper that says anything about it. We’re trying to look up their cases online. They don’t have any information from Immigration, they don’t have any information from their federal criminal offense. All of them should have been charged as misdemeanors. I’m not sure if that was the case. I think they were prosecuted at the time of the crossing, two of my clients. The third woman was not prosecuted, she did not see a judge, that’s what she says, but yet her son was taken away from her.

BW: And all three of your clients are seeking asylum?

LL: Yes, but all three of my clients were never asked if they had a fear of return, they were placed in expedited removal proceedings. If you have a fear of return, that puts the brakes on this process because you have a right to try for fear-based relief. One of my clients told me, “I was being held in a detention facility, I told the guard I have a fear of going back home. The guard looked at me and said, ‘Your fear doesn’t matter here,’ closed the door in my face and then never told anybody that I had a fear.” But, she has one of the strongest [asylum] cases I think I’ve run across. (Lunn declined to provide more details in order to protect her clients.)

BW: Does it seem like the process of seeking asylum is different in light of changing policies?

LL: One thing that I would say I’m surprised by, and again it’s a policy shift, is they are doing credible fear and reasonable fear interviews at asylum offices at the border. It would usually happen at our detention facility, and then the asylum seekers have the opportunity to talk to us, (and) we give them information: this is what asylum is, this is what’s important to share about your case. And they don’t have that opportunity if they’re getting the interview at the border.

BW: I also heard, according to the Sunlight Foundation, that in the first few months of 2017 asylum officer training manuals were taken off of the Department of Homeland Security website. Government transparency is obviously an issue here, but how has it affected your work?

LL: People would know what the officers are looking for. It’s not supposed to be an adversarial setting when they are being interviewed. It is up to the asylum officer to see whether or not the facts that they have is enough for them to move on in the process.

How do you know [asylum officers] make an error from what they have been trained on unless you are privy to what the training says? It was such a great tool to be able to go to the asylum training manual and then quote to them this is the standard, this is why it wasn’t met in this case, this is why this person needs another opportunity for [their case] to be heard.

AH: You’re left to only cite published case law as opposed to be able to cite back, “Your own guidance says you are to adjudicate this in this way, or you are supposed to consider these factors.”

LL: The Attorney General has also certified a number of cases to himself and really doing everything in his power to unravel asylum law in particular, especially any case law that has traditionally afforded protections to the exact populations we’re talking about.

BW: Like his recent decision to reverse an immigration appeals court ruling that granted asylum to a Salvadoran who experienced domestic violence. And you’ve said he’s reviewing a few other cases himself as well. What does this do to the immigration system?

LL: My best analogy for all of this is that it’s like a game of Jenga. They are taking out the blocks that are strategically keeping it in place, and they are just trying to topple the system that we have constructed to provide any type of protection for asylum seekers, specifically.  … They see that the asylum law is what it is and that’s what they are trying to deconstruct. But in deconstructing it, they are recognizing that this is the law. And so it’s almost providing additional validity to the fact that these are asylum seekers, and they do have protections under the law. While they are trying to change that, that still is the law today.

AH: This administration is actually brilliant in terms of instituting comprehensive immigration reform without instituting comprehensive immigration reform. These changes are so comprehensive and huge and impacting so many people without any act of congress or rulemaking.

LL: But there are various ways for people to qualify for asylum and what the attorney general did does not preclude people from being eligible for that relief. It just means it’s going to prolong these cases because people are going to have to appeal and fight to get actual justice because they are trying to coopt the judicial system.

BW: The Trump administration has said it wants to cut the backlog in immigration courts in half by 2020, and has increased the number of both immigration judges and asylum officers at the border. (Currently there are about 700,000 pending immigration cases around the country.) How do these new policies affect that?

AH: Well, for every family of three, you just created three separate cases that are now going to go through the system separately and clog it up that much more as opposed to keeping [each family] together as one consolidated case.

LL: When families are together, their cases are joined. It’s a complete waste of judicial time to separate the cases out especially when you have kids who are not able to articulate clearly why they are afraid. They don’t have a right to free counsel so what 2-year-old is going to be able to hire him or herself an attorney?

BW: Does the executive order signed by President Trump last week change any of this?

AH: This is not a solution for the parents and children who have already been separated. There’s nothing in the order about how, or when or if those parents and children are going to be reunified. It doesn’t help the parents in Aurora right now with their children spread out all over the country. It trades one evil: putting asylum-seeking families in separate jails to a different evil of putting asylum-seeking families in jail together. Yes it’s better that babies are with their parents. But we’re still imprisoning them when they’re coming to ask for our protection.

BW: What about consolidating the cases so parents and children can pursue asylum together?

AH: You don’t necessarily need a lawyer to do it, but you need to understand the law at least in order to get the cases transferred to the same city and consolidated to one proceeding. … It’s not automatic. It will take work to not only reunify [the thousands of families separated since May] physically but also unify their cases.

BW: There’s been outcry over family detention in the past, mostly from immigration and civil rights advocates. Do you think that will continue in light of the executive order?

AH: Don’t be fooled, this is not over, this is not good. He (President Trump) did not solve any problems. I hope people are still outraged and people will fight family detention. In some ways I think people are going to think that the problem is solved because the problem was framed around them being separated instead of around the issue of putting them in prison-like facilities when they come here.

BW: It sounds like there are a lot of unanswered questions and unknowns. How are the parents you’ve spoken with coping?

LL: They came here to fight for their kids and they’re still doing that, in the most adversarial context I could ever imagine. And the fact that they are still here and still fighting really shows that they are afraid to go home. Why would you subject yourself to this unless you thought that being separated from your kid and in prison was better than the other option?

That is what’s so profoundly upsetting about this policy. The very people they were trying to protect (their kids) are the ones who have been torn away from them. They are being dehumanized in such a horrific way and they are just caught in this web of politics. They’re turned into a symbol of how powerful the government can be. They have the authority to take people’s babies from them.

       

Pediatricians across the country have spoken out against both the family separation policy, and holding children in immigrant shelters, expressing concern about the short and long-term health affects these policies will have on the kids.

In 2016, RMIAN came across a rare — at the time — case of a mother separated from her daughter after crossing the U.S. southern border. “That was horrifying to us at the time, and definitely seemed to be just an error or one particularly egregious case,” says Harrington, who is representing the mother/daughter, and the two are currently pursuing asylum together. They now live on the Western Slope, reunited after Luciana, the mother, was released from immigration detention. Her story is emblematic of what thousands of families have experienced in recent months.

Fleeing threats from MS-13 gang members, Luciana came to the U.S. to protect her daughter, she says. They were demanding money, “a fee,” otherwise they would kill both her and her daughter. “At the time I had no other choice, they really came after me, they came to my house, they were moving fast, and I had no choice but to come to the U.S.,” Luciana says. “It was the only way to keep my daughter safe.”

After the pair crossed into the U.S., they were met by border patrol and taken to a small room, where Luciana was separated from her daughter, given that it was her second time crossing the border, and she would be detained for unlawful reentry.

“We were both crying,” Luciana says. “I was showing them the messages that the gang members had sent me and tried to explain why we were here, why we were crossing the border. When they took my daughter away, they didn’t tell me anything. They didn’t tell me where they were going, they didn’t tell me how long it would be until I could see her.”

Her daughter was 5 years old at the time, and she was in ORR custody for a month before being released to relatives on the Western Slope.

“I had one five-minute phone conversation with her in that time,” Luciana says. “In truth it was really hard especially because they eventually told me that we would either be separated or we would both be deported and (coming here) was the only thing I could do to keep my daughter safe.”

While in ORR custody, Luciana says her daughter was taken outside to play, was being taught English and how to read. But at night, the little girl “was always found underneath her bed and that’s where she would curl up and cry, and the workers would find her there a lot.”

“It’s something she will never forget, especially because what they would say to her over and over again is, ‘Don’t cry, don’t cry, your mom will be here soon,’ and I never arrived,”  Luciana says.

Her daughter lived with relatives for another month before Luciana was released from detention and the two could be reunited. But she says, the trauma of their separation is something both of them are still affected by.

“Especially between night and morning, there are just things that you never forget,” Luciana says. “Anytime she remembers or is triggered to think about the experience, her little eyes well up like she wants to cry.”

Luciana just tries to take things day by day, but the uncertainty of how shifting immigration policies could affect both her and her daughter gives her a near-constant anxiety, she says. Plus, the daily news about the border crisis is a near-constant reminder of her own experience.

“When I see the news, when I see the parents crying, and I see the kids crying, it makes me really sad because I’ve lived through the pain and I know what it feels like,” Luciana says. “It is a trauma and it is something they will never forget. I’m living proof of that, and my daughter is living proof of that.” 

Carlos and Luciana are pseudonyms.