The Pain of Family Separations Is Still Being Felt. What Could Biden Do?

This post has been updated.

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Perhaps no immigration policy of President Trump has provoked more emotion than the practice of separating migrant families at the border.

It’s one of many of Trump's immigration initiatives that President-elect Joe Biden has pledged to reverse in his first 100 days in office. At the final presidential debate in October, Biden voiced outrage over the policy, in which border agents were instructed to take children away from their mothers and fathers to facilitate criminal prosecutions of the parents and send a message intended to deter future migration.

“Their kids were ripped from their arms and separated. And now they cannot find over 500 sets of those parents,” Biden said during the debate. “And those kids are alone. Nowhere to go. ... It's criminal.”

Biden was referring to the parents of 545 children who were separated in 2017, and who lawyers and advocates say they’re still unable to locate.

In fact, the total number of families who have not been reunited — in some cases more than three years later — is believed to be far greater than that.

Since Trump took office in 2017, more than 5,500 children have been separated due to administration policies. And while more than 3,000 parents have been located, that leaves a great many kids still in limbo.

Biden has said that on his first day in office, he’ll create a federal task force to reunite families separated under the Trump administration. But fully addressing family separations won’t be a straightforward process — and questions remain about how far the new administration will go to address the long-term effects of these separations on the children and parents involved.

Thousands of Separated Children

In June 2018, lawyers with the American Civil Liberties Union and the federal government appeared before U.S. District Judge Dana Sabraw in San Diego as part of a months-long battle to end family separations at the U.S.-Mexico border.

Sabraw issued an injunction, ordering an end to separations and requiring the federal government to swiftly reunify children with their parents (setting a deadline of 14 days for children under the age of 5 and 30 days for older children).

The government eventually identified 2,814 separated children. These families are known as the "original class" in the class-action lawsuit Ms. L. v. U.S. Immigration and Customs Enforcement. In some cases it took many months, but almost all of those families were reunited.

In early 2019, however, the Office of Inspector General for the Department of Health and Human Services, the agency responsible for the care of unaccompanied migrant children, issued a watchdog report charging that border separations began much earlier than previously known — as early as July 2017.

On Sabraw’s orders, government officials spent months investigating and finally reported there were as many as 1,556 additional separated children. As a result, Sabraw included this “expanded class” of parents in the lawsuit.

“Like the current class members, they too were separated from their children,” Sabraw wrote in the decision. “They were not reunited with their children despite the absence of any finding they were unfit parents or presented a danger to their children.”

These families make up the majority of those still separated today. Most of the parents are difficult to find because the separations occurred so long ago and many have since been deported.

Parents Who Can’t Be Found

Of those the children in the expanded class, plaintiffs' advocates have reached the parents of 570, according to a December report to the court. They're still working on finding the parents of 628 children, nearly 300 of whom they believe to have been removed from the U.S. after their kids were taken away.

ACLU attorney Lee Gelernt, who is lead counsel representing separated parents in the case, said the search for parents has been delayed because the government often provided outdated contact information or none at all.

“We couldn't even begin the searches by phone, trying to contact these families,” Gelernt said.

Without contact information, a committee of lawyers and advocates in charge of the search have few options. They try to find parents online or through records in their country of origin, and when all else fails, they enlist a network of human rights lawyers and nonprofit organizations in Honduras, Guatemala, El Salvador and Mexico, who conduct door-to-door searches. This effort has been further complicated and hampered by the ongoing COVID-19 pandemic.

Despite the challenges, Biden says his task force is committed to prioritizing the reunification of any children still separated from their families. But the details of how that might happen are still unclear.

What Else Can Be Done?

In addition to the Biden administration committing additional resources to the search, there are several other policy changes that would also help, Gelernt said.

First, he suggests allowing those parents to return to the U.S. and take the time they need to be reunified with their children — without fear of being deported.

“What I think a lot of people don't realize is that, [in addition to the parents we haven’t found] there are many more families that are [still] separated. We found them, but the Trump administration will not allow the parent to come back to the U.S. to join their child,” Gelernt said.

Second, he said, providing families with some sort of legal immigration status to stay in the U.S. would help undo some of the harm caused by their forcible separations.

“They have been through so much,” he said, “and I think the least we can do now is to provide them with some status.”

Third, Gelernt recommends the government create a fund to help families access physical and mental health care.

Back in February, the nonprofit Physicians for Human Rights published a study on parents who’d been separated from their children by the Trump administration. The study found that parents often experienced behaviors and symptoms “consistent with trauma,” and that most people in the study met the conditions for “at least one mental health condition,” such as post-traumatic stress disorder or major depression.

Another paper, recently published in the medical journal Pediatrics, calls the federal government's handling of migrant children at the border "consistent with torture."

“I would describe cages and sleeping on the floor and being forcefully separated from their parents as severe pain or suffering, no different than I would if someone was beaten with a truncheon,” said the paper’s co-author, Coleen Kivlahan, a family medicine doctor at UCSF and co-chair of the UCSF Health and Human Rights Initiative.

Last week, White House officials blocked the Department of Justice from making a deal that would have provided separated families with mental health care.

Finally, Gelernt recommends the Biden administration put an end to continued separations at the border.

Child Welfare Issue

Sabraw’s injunction stopping family separations included a provision that allows Homeland Security officials to separate parents from their children if the parents are considered “unfit” or “a danger to the child.” In 2019, the ACLU asked Sabraw to reconsider that provision, but the judge ultimately sided with the government.

As a result, more than 1,100 children have been taken away from their parents by U.S. Customs and Border Protection officials under this provision, sometimes because the parent had a minor criminal conviction, or even just contact with law enforcement. Gelernt said he’s hoping these cases can be added to the ongoing class-action lawsuit against the Trump administration.

“We do not want the kinds of separation decisions that occur under the Trump administration made by CBP and ICE officials where they are unilaterally declaring — without evidence most of the time — that the parent is a danger to the child,” he said.

Advocates for migrant children say that any decision to take a child from their parents' custody should be made by child welfare experts, not immigration officials.

“If the government's attempting to remove a child from their parents in the dependency court context, there's a hearing. The parent has a right to counsel, as does the child. There's child welfare experts doing evaluations, maybe mental health experts doing evaluations,” said Erika Pinheiro, director of litigation and policy at Al Otro Lado, a California-based nonprofit working on behalf of immigrant families. “None of that is happening when CBP makes a decision to separate a parent and child.”

An Impossible Choice

But even families who gained some legal protection from the case are still suffering as a result of the family separation policy and the terrible choices it forced them to make, Pinheiro said.

She described the story of a Guatemalan man who came to the U.S. with his 7-year-old son to seek asylum in 2018, where they were subsequently separated. Although the man had suffered violence and discrimination back home, Pinheiro said after reviewing his case, she thought it was unlikely he would qualify for protection.

“He had definitely suffered violence and was being threatened, but it was really difficult to fit his story into any category that confers eligibility under U.S. law,” she said.

He ultimately made the painful decision to accept deportation, while his son stayed in the U.S. with an aunt. Pinheiro said he sometimes doesn’t speak with his son for weeks, and has suffered from the decision he was forced to make.

“So the only choices are to bring your child back to a situation where you are receiving deadly threats or leave them in the United States and potentially never see them again,” she said.

‘A Definite Opportunity’

Despite the difficult task ahead, Pinheiro said she’s hopeful that Biden is committed to repairing the damage.

“We see a definite opportunity with the Biden administration, much more of an opportunity than we would have had with the Trump administration, whose [Department of Justice] was fighting reunifications every step of the way,” she said.

And, Pinheiro added, she’ll be watching to see who will be on the next president’s task force, and how far they’ll be willing to go to make these separated families whole again.