Faced with a pair of court orders restricting immigration detentions, federal officials said they could not hold all of the migrant families who were apprehended at the southwestern border. They said their hands were tied by dueling requirements to release children from detention after 20 days and also keep them with their parents or other adult relatives.
“Parents with children under the age of 5 are being reunited with their children and then released and enrolled into an alternative detention program,” Matthew Albence, executive associate director of ICE’s enforcement and removal operations, told reporters Tuesday.
He said that means the migrants will be given ankle bracelets “and released into the community.”
At the same time, the government said it was struggling to reunite 102 migrant children under 5 with their parents as required under a court order; only about one-third were expected to be reunited by the Tuesday deadline.
The reunification process was disorganized. Parents were warned that pickup and drop-off times could change throughout the day. Volunteers waited on standby in shifts, surprised by the addition of one more parent than they had expected. The federal agency that oversees the care of migrant children, the Department of Health and Human Services, was still conducting background checks on parents into Tuesday morning.
Citizens and politicians in Guatemala welcomed back 11 reunified families who had been deported from the United States. Among them was Donelda Pulex Castellanos, 35, who was separated from her 5-year-old daughter in early May after the two crossed the border near El Paso, Texas.
They remained apart for two months, with Pulex in detention in El Paso and her daughter sent to live with a foster family in Michigan.
“I thought that they were going to take my daughter away there,” she said. “It was a huge torment.”
The Justice Department has insisted that its “zero tolerance” immigration policy — which focuses on prosecuting all adults who illegally enter the United States but not necessarily detaining them — is still intact. The department has also maintained that it is prosecuting all of the cases it receives from immigration agents. Attorney General Jeff Sessions has predicted the tough immigration stance will discourage people from illegally entering the country.
Trump has for years railed against catch and release, blaming it for crimes and violence committed by unauthorized immigrants during the administration of President Barack Obama. But the Trump administration has similarly struggled with deterring waves of migrants from Central and South America — and, once they enter the country, processing them through the legal system humanely.
Migrants with children who are apprehended in the United States are now given a notice to appear in court and being told, “Welcome to America,” according to another senior Department of Homeland Security official, who spoke on the condition of anonymity because he was not authorized to be identified by name.
Albence said that the ankle bracelet monitor would track the families being released, but that ICE would consider other methods to ensure migrants show up for court. A total of about 80,000 migrants wearing tracking devices on their ankles currently live in the United States. They include migrants who were released from detention before the zero-tolerance policy was enacted in April.
Soon after the policy was announced, images of children in cages and audio of toddlers crying as they were separated from their parents sparked widespread public outrage, including from the Republican Party and Christian conservatives.
In response, on June 20, Trump issued an executive order that said migrant children could no longer be separated from their adult relatives. That effectively limited detention to 20 days — a timeline set under a 1997 court settlement known as Flores — for migrant adults apprehended with children.
The Trump administration has asked Judge Dolly M. Gee of U.S. District Court in Los Angeles to amend the Flores settlement to allow children to be detained for longer periods of time. It also has asked Congress for new laws to override the court order.
On Monday, Gee refused to amend the settlement.
“Defendants seek to light a match to the Flores agreement and ask this court to upend the parties’ agreement by judicial fiat,” Gee, who was appointed by Obama, wrote in her order.
She called the Justice Department’s request to amend the settlement “cynical” and said it was an attempt to “shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
The administration is expected to appeal her decision. But for now, it has little choice but to release families with ankle bracelets and hope they will show up for court appearances.
The practice of catch and release is a term with no legal definition and has been used as a pejorative alternative to jailing unauthorized immigrants. Leon Fresco, a former senior Justice Department immigration lawyer, said putting ankle bracelets on migrants is a return to what the Trump administration itself has described as catch and release; ending its practice was a top priority of the labor union that represents Border Patrol agents and endorsed Trump’s candidacy.
Chris Rickerd, a lawyer with the American Civil Liberties Union, accused the Trump administration of largely manufacturing the current immigration crisis.
“Border residents and people around the country realize it’s this administration making people stand in the sun, waiting to cross into the United States,” Rickerd said. “It’s this administration separating children from their families. And it’s this administration taking this zero-tolerance policy stance when illegal immigration numbers historically have declined.”
That chaos was underscored on Tuesday by the government’s struggle to comply with the court order in San Diego to reunite children under the age of five with their families. Federal officials that they had reunited four families so far, with an additional 34 reunions scheduled by the day’s end.
Additionally, officials said gave no indication of whether they would meet a July 26 deadline to reunite all remaining migrant children who had been separated from their parents.
“These are firm deadlines. They’re not aspirational goals,” said Judge Dana Sabraw of U.S. District Court in San Diego, admonishing the government.
Chris Meekins, a senior official in the Department of Health and Human Services, pointed to safety concerns to explain the delay and insisted that the reunifications could not be rushed.
“Our process may not be as quick as some might like, but there is no question that it is protecting children,” Meekins, chief of staff of the Office of the Assistant Secretary for Preparedness and Response, said in a conference call with reporters.
In some cases, he said, “If we had just reunited kids with the adults, we would be putting them in the care of a rapist, a kidnapper, a child abuser, and someone who was charged with murder in their home nation.”
One of the biggest operators of migrant-youth shelters in the United States, Southwest Key Programs, said its staff had dispatched several children from its shelters to return to their parents on Tuesday.
“Our staff came in early, made sure every backpack was full and every child got a hug and a goodbye,” Juan Sánchez, the nonprofit group’s president and chief executive, said in a statement. “And the kids hugged us back. They were excited to be on their way to be with their families. And we were thrilled for them.”
The nonprofit declined to discuss how many children under 5 were released.
The reunification process has highlighted how traumatic the Trump administration’s decision to separate children has been.
One Honduran father had been warned by border agents that his child would be taken away, and had been given an opportunity to explain to his son what would happen. He beamed while his son asked questions and played with toys when they were reunited at a federal immigration office in Michigan on Tuesday.
A second father was not given a chance to tell his 3-year-old son they would be separated, according to Abril Valdes, a lawyer for both men. His child had stopped talking soon after being taken into government custody. The father and son cried throughout the reunification meeting as he pet his son’s hair. The boy said little and refused to take any toys or leave his father’s arms.
“I feel like he’s still in shell shock,” said Valdes, their lawyer.
This article originally appeared in The New York Times.
Katie Benner, Ron Nixon, Caitlin Dickerson and Miriam Jordan © 2018 The New York Times