Ask an Immigration Lawyer: Migrant Parents Face a Long, Complicated Road Ahead to Get Their Children Back

After the official launch of Jeff Sessions’ “zero-tolerance policy” in April, which mandates the criminal prosecution of everyone who crosses the border without authorization, at least 2,300 children—over a hundred of whom are under the age of four—have been forcibly separated from their parents. (The Trump administration has insisted that those seeking asylum ought to simply cross at sanctioned ports of entry, but media reports have shown that asylum seekers are being repeatedly turned away, subjected to wait times of days or weeks in the desert heat.) Officials told reporters on Tuesday that they do not know how many of those children have been reunited with their parents. On Monday, ProPublica published a recording of young Central American children, aged approximately 4-10, sobbing for their parents inside a U.S. Customs and Border Protection detention facility.

There are, as of right now, no set protocols for reuniting families who have been separated; children and parents are funneled into two separate and highly complex systems, which immigration attorneys, advocates, and aid groups have been attempting to navigate. I spoke with Maria Woltjen, the executive director and founder of the Young Center for Immigrant Children’s Rights at the University of Chicago Law School, and Kelly Albinak Kribs, Immigrant Child Rights Fellow and staff attorney at the Young Center, to get a better idea of what this process actually looks like.

Once a parent can locate a child, they come to a crossroads.

Once a parent is charged with illegal entry, they’re taken into U.S. Marshal custody, then returned to ICE custody, and their child is handed off to the Office of Refugee Resettlement, which is part of the Department of Health and Human Services. They’ll face different legal timelines and potentially be moved around to separate parts of the country. With no internet, limited phone access, and extremely limited access to legal representation, it can be very difficult for a detained parent to find out where their child is in the first place—and once they do, their desperation to be reunited can impact their legal trajectory.

“Once a parent can locate a child, they come to a crossroads,” Albinak-Kribs told Jezebel. “There’s a crucial decision they have to make: Whether they want to stay and fight their legal case, fight for the right to stay here in the United States with their child, or whether they would just prefer to return home with their child. Depending on what the parent chooses, depending on their own personal circumstances, the process for reunification looks very different.” But both paths can take months.

This conversation has been lightly edited and condensed for length and clarity.

---

JEZEBEL: Can you start off by telling me a little bit about what you do at the Young Center?

MARIA WOLTJEN: We serve as child advocates for unaccompanied and separated kids. We are attorneys and social workers in our office, but we are not the legal representatives for the children. Our role is advocating for the best interests of the child, and we advocate all along the continuum: From detention, release, family reunification, to making sure kids have attorneys. The ultimate question is whether or not it would be safe for a child to return, if they have no choice but to return or if they’re asking to return to home country.

We get appointed as child advocates by the Department of Health and Human Services’ Office of Refugee Resettlement, and typically we’re appointed first while the kids are in custody, but we stay with the children’s cases throughout, so even after the children are released, our appointment as child advocate continues.

KELLY ALBINAK KRIBS: Our immigration system is incredibly complicated, and there are countless stakeholders that have the capacity to make decisions that affect these children’s lives, both kids who come here unaccompanied and kids who are separated from their parents. So our role is really to make recommendations to all those various stakeholders, from immigration judges to ORR officials that decide when a kid can be released from government custody, to individual attorneys for children to consulates to ICE officers, at times. We make recommendations to all those different parties about what is in the best interest of the child.

Kelly, have you been working directly with any of these families or children over the past few weeks?

K.A.K.: Yes, and actually I have been working on some of these family separation cases since the fall. It’s something that’s been increasing, but obviously has just experienced a dramatic uptick in the last couple of months.

Being able to get to a point where you can call the 1-800 number and find where your child has been transferred to can be much more challenging than you might think.

What does it mean, in practice, that there are no protocols in place to reunify parents with their children? What does it mean for these families, and what does it mean for advocates and attorneys who are trying to work on these cases?

M.W.: Let me first start by saying that my understanding is that the government is working on a protocol, but we have not seen it yet. So now I’ll turn it over to Kelly, who can speak to the reality of working in a system without a protocol that any of us know anything about.

K.A.K.: First of all, let me say that for these parents who are separated from their children, access to representation—either as part of their criminal proceedings if they’re charged with illegal entry, or as part of their immigration proceedings—access to legal representation is incredibly limited, not just because there are limited organizations and limited funds for that type of work, but also because these parents are detained, and it’s very hard for them to interact with the outside world. They have limited ability to make phone calls and in most cases have no internet access, so it can be very hard for them to be an advocate for themselves in finding additional supports to help them navigate these highly nuanced and complicated systems.

When a parent is working through this on their own, without representation, they’re facing some significant challenges. First and foremost, they have to find where their child is once they’re separated, and the separation, as we understand it, typically occurs when the parents has been charged with illegal entry, because it’s at that point when they’re transferred from ICE custody to U.S. Marshal custody where the children cannot accompany them. So it’s at that point that the children are rendered unaccompanied, by government action, and the children are placed in the custody of the Office of Refugee Resettlement within the Department of Health and Human Services. For the duration [of the parents’ criminal case], they’ll have their criminal court proceedings in federal district court. Overwhelmingly, they will agree to a plea bargain and serve some period of time in U.S. Marshal custody before they’re transferred back to ICE custody. So they’re moving around a lot in the system, it’s hard to get your bearings when you’re being moved from one system to another. Being able to get to a point where you can call the 1-800 number and find where your child has been transferred to can be much more challenging than you might think.

Once a parent can locate a child, they come to a crossroads. There’s a crucial decision they have to make: whether they want to stay and fight their legal case, fight for the right to stay here in the United States with their child, or whether they would just prefer to return home with their child. Depending on what the parent chooses, depending on their own personal circumstances, the process for reunification looks very different. So if they decide they want to stay and fight their legal case, in order to be reunified with their child while doing that they have to seek to be released from detention on parole or bond. Which again, if they’re doing this without the assistance of counsel, it can be really complicated, it requires them to identify a sponsor, to collect documentation related to their own identity and the sponsor’s identity, if they’re bond eligible then they have to collect funds, and again, this can be very challenging to do when you’re detained and have very limited access to communication.

If they decide they want to return home and take their child with them, it can still be many months before that actually happens, because both the parent and the child will have to go before a judge, in separate proceedings, to seek voluntary departure.

And if they are able to be released on parole or bond, they need to get themselves to a longterm stable housing situation so that they can initiate the family reunification process with the Office of Refugee Resettlement and persuade that agency to release their children from custody to the parents. And that requires the parents to fill out all sorts of forms, submit documentation, establishing their relationship with the child. Any other adult living in the same household also has to submit documentation and agree to be fingerprinted, so background checks can be run on those individuals as well, so as you can imagine, for a new immigrant, English may not be their first language, they’re not familiar with these systems in general, they’re just getting their sea legs under them in a new country, this process can take some time.

So that’s what it looks like if the parents decide they want to stay and fight their legal cases. If they decide they want to return home and take their child with them, it can still be many months before that actually happens, because both the parent and the child will have to go before a judge, in separate proceedings, to seek voluntary departure. And in the kids’ cases in particular, we’ve seen that it can take months of time for DHS to issue what’s called the Notice to Appear, the initial charging document that sets off removal proceedings. Then the court will schedule the hearing, and that can also take many more weeks. And then once the hearing occurs, even if the child is granted a voluntary departure order, it can still be many more weeks to coordinate with the consulate to get the child’s travel documents to make arrangements for the child to go home.

In an ideal situation, we coordinate with all these stakeholders to make sure that that parent is not deported before their child is, and that parent and child can be reunited here in the United States and safely travel to their home country together. But we know that there have been countless cases, particularly early on when all the different agencies were figuring out how this policy was going to play out, where parents have been deported to their home country while their children remain in ORR custody in the U.S. In those cases, we would work to then have the child return to their home country and coordinate with the parent on the ground in home country to make sure that they can find their child when they’re returned.

Access to legal representation is incredibly limited.

If you have a 3-year-old that’s been taken away from you, where is that 3-year-old going?

K.A.K.: There are children’s facilities all around the country. Typically but not always, the youngest children are ideally going to be placed in transitional foster care, so they might be transferred to New York or Michigan or elsewhere along the border where there are families and, in some cases group homes, for small children that can care for them during the duration. So some of the kids will be placed in that setting, other children are placed in the shelter facilities that are run by the Office of Refugee Resettlement.

How long could a reunification process potentially drag on for? What is the worst-case scenario here?

K.A.K.: Every case is unique, so it’s really hard to be more specific than to say “months.” For example, I worked on a case where at first the father wanted to stay and fight his legal case, but as the months passed, and as his desperation after being separated from his daughter increased, he ultimately decided to abandon his case and he returned home with her. And we were able to coordinate their reunification in the United States, actually on the very plane that they were on to fly back to Guatemala. So in that unique instance, they were separated for about seven months. If he had continued to fight his legal case, it obviously would have been longer.

Where do you see this going, moving forward?

M.W.: We’ve heard that there may be a ruling in the ACLU case [on Thursday], but we don’t know. There’s certainly public pressure from all sides right now, so that may also impact things but we don’t know.

K.A.K.: We have just been getting deluged with folks who want to know what they can do to help these children and their families, folks who want to just educate themselves, get more information on these issues so that they can be informed and be advocates in their own communities, so we’re definitely seeing attention on this issue increase.

To learn more about the Young Center for Immigrant Children’s Rights, click here. To donate, click here.