The Fight For Separated Children Is A Fight For Our Humanity And The Rule Of Law
As we all prepare to march today, it’s worth recapping what is happening in Trump’s American gulag. We know that children are being separated from their parents and held in cages, although the media has not been given access to actually provide photos of the reportedly horrific conditions in which they are kept. And we still don’t really know where all the children and young women are still being held, nor have an accurate number of how many there actually are.
We also know that members of Congress and state and local officials, some of whom have regulatory oversight over state-licensed facilities contracted with by ICE, are still being refused entry into these facilities, although it remains unclear on what legal grounds they could be denied.
We also know that children as young as three are being brought into immigration court without their parents and often without legal representation. According to a DOJ spokesperson, “Executive Office for Immigration Review (EOIR) records show that there are respondents in removal proceedings who are juveniles, some as young as three -years-old, who do not currently have any attorney of record on file. Please note that this does not mean that these children will appear before an immigration judge alone or will be unrepresented during their proceedings. All immigration judges provide a list of pro bono legal service providers to respondents during the initial hearing and many of the respondents who are initially unrepresented obtain representation as removal proceedings progress.”
That may sound somewhat reassuring, but Jeff Sessions actually won a case earlier this year in which the courts determined that immigrant children who come to the US with their parents are not entitled to a court-appointed lawyer. And even under Obama, there were immigration judges who believed that children as young as 3 and 4 years old could understand immigration law. So the chances that at least some children under the age of five who are going through deportation hearings without the benefit of any legal representation, pro bono or otherwise, is actually quite high.
In New York, ICE has suspended in-person hearings at immigration courts and instead the detained immigrants will only appear by video conferencing. Considering that many pro bono and court-appointed attorneys often meet with their clients for the first time just minutes before proceedings, this new policy will effectively deny that opportunity and significantly reduce those attorneys’ effectiveness in court. In addition, any discussions with their client over video are not deemed confidential, as opposed to any in-person meeting.
These pro bono and regular immigration lawyers do tremendous, valuable work, with little monetary reward compared to much of the legal profession. And just like in the criminal defense area where lawyers briefly meet their clients just minutes before a hearing, it is often and understandably the case that the legal representation given is hardly robust. But imagine doing that work without being able to talk to your client at all, either because they are a three year old who is frightened and scared and unable to understand what is happening and only wants to be reunited with their mother or because you simply aren’t allowed to meet with them at all.
We also know that parents are being blackmailed into signing deportation orders in order to be reunited with their children. In one case at least, a CBP agent threatened to put the separated child up for adoption if the parent did not sign the order.
We also know that the government never had any intention of reuniting these separated children with their parents. As many have noted, FedEx packages and personal property in prison are tracked far better than these children. And then yesterday we learned that the policy of family separation was instituted under a pilot program almost as soon as Trump took office, in July, 2017. This means that there are approximately 2,000 other separated children that we know nothing about.
John Kelly has proven himself to be a lying racist already during this administration. This pilot policy was set up and implemented during his tenure as head of Homeland Security. He lied to Congress when he told Claire McCaskill there was no plan to separate children from their mothers in April, 2017 when the policy was clearly being considered. He did not notify Congress when the pilot program began a mere two months later. And he lied to the American people when he claimed that the children would be “well cared for” under the “zero tolerance” (read intolerance) policy when he knew they were being held in cages and would never be reunited with their parents. He lied when he said a law passed by Democrats required family separation when he was the very one who instituted the policy change that began that process. In addition, it appears that government lawyers may have lied to the federal judge who ordered that the families be reunited by not notifying the court of these previously separated children.
We also now know that the government is going to use this reunification ruling to violate the Flores settlement and keep families in indefinite detention. Because of the backlog of cases and the length of the legal process, this means families may be held in detention for years before their case is finalized.
And lastly, we know that Donald Trump doesn’t even believe that immigrants and asylum seekers should be entitled to any due process at all, a policy that would put at risk two-thirds of America’s population for deportation without due process.
These policies are inhumane, cruel, abhorrent and represent institutional child abuse done by the Trump administration in our name. Even beyond this abject cruelty, which is hard to get beyond, the Trump administration’s continual attempts to hide and obfuscate and intentionally deny due process for these immigrants and asylum seekers speaks to the authoritarian nature of this administration.
Forcing three year-olds to provide for their own legal defense, denying physical access to an attorney, blackmailing parents to get back their children, and simply holding families indefinitely are all policies of this administration. In many ways, this administration makes the old Soviet show trials look like a beacon of judicial rectitude. And history has taught us that when legal rights are stripped from one group, it won’t be long before it happens to others.
