For immigration lawyers, legal and emotional tests in navigating changed system
By Henry Gass
Delays in reunifying separated families underscore the chaos in the immigration system and the hardened stance that migrant advocates now face. Immigration courts are becoming more adversarial as a result.
After months of separating migrant families at the southern border, the Trump administration was under a federal court order to undo the damage by today.
But for Elizabeth Caballero, a lawyer in San Antonio, Thursday’s deadline came too late. Her client, a Honduran father separated at the border from his five-year-old daughter, has already been deported without her being alerted, she found out last week. That was a shock to her, a first for her immigration practice, and another sign of just how much the ground for immigration rights has shifted under the Trump administration.
Rafael, whose name has been changed to protect his privacy, is one of 463 parents who have been deported from the US without their children. When Ms. Caballero first met him early last month, he said his priority was reuniting with his daughter, even if that meant being sent home.
At their third meeting early this month Rafael told Caballero his daughter had been released to his sister. Over the next few weeks she would call the detention center where he was being held, but he never called back. Then he was gone – sent back to Honduras.
“To hear nothing from this father who wanted to be with his little girl…and then he’s gone, is just – it’s odd,” she says. “It’s just out of the norm for us, and I’ve been doing this for more than 10 years now.”
“I think we’ve stepped into a new era and I can’t get used to it.”
While hundreds of families have been reunited this week, many more are still waiting. The administration has said it needs more time to comply with US District Judge Dana Sabraw’s order to release 2,551 migrant children ages 5 and up to their parents or other guardians. So far, more than 1,000 families have been reunited.
The administration has said that 130 parents had waived their right to reunification; the American Civil Liberties Union argues some didn’t understand what they agreed to. In other cases, officials said they either couldn’t track down parents or had judged it wasn’t safe for the child to be returned to their custody.
Judge Sabraw said the government should be commended for its efforts to reunite families, but added that greater transparency was needed to complete the process, CNN reported.
“It’s the reality of the case, it’s the reality of a policy that was in place that resulted in large numbers of families being separated without forethought as to reunification and keeping track of people. And that’s the fallout we’re seeing. There may be 463, there may be more, it’s not certain, but it appears there’s a large number of parents who are unaccounted for or who may have been removed without their child,” Sabraw said on Tuesday.
Indeed, the chaos and confusion of the past two months over family separations have only accentuated what immigration attorneys say has been a general increase in hostility from the government in immigration matters. Whether it’s opposing routine court motions, demanding higher bond payments, not complying with court orders, or just a general rudeness in court, there has been a dramatic shift in how immigration cases are being litigated, lawyers say.
“They’re just opposing [more], and there’s not a legal reason, it’s just political,” says Eduardo Flores, another immigration attorney in San Antonio.
Side-room negotiations and agreements with Obama-era federal agencies had been helpful in making a notoriously backlogged immigration court system run a little more smoothly. To free up more court time, participants agreed not to litigate minor issues, such as co-signing a plaintiff’s application for a green card while their removal proceeding was under way.
Since the Trump administration came in, those kinds of negotiations and agreements have been replaced by stone walls; plaintiffs are spending longer in detention as arguments wait for a judge to hold hearings.
“These are people, they’re not inanimate objects,” Mr. Flores says. “They want to go to school, they want to work, support their families.”
‘Like we were criminals’
For some families, Thursday’s deadline did bring relief.
A second-floor conference room at the Catholic Charities of San Antonio’s office serves as an intake room for reunited migrants. Case workers flip through papers behind rows of chairs and racks of donated clothes; the movie “Trolls” plays silently, with Spanish subtitles, on a screen at the back.
In two chairs near the back, Sandra Elizabeth Sanchez leans close to Christhel, her 15-year-old daughter. They had been arrested after crossing the Rio Grande and separated on June 18, three days after Christhel’s birthday. It had been her quinceañera, and her mother bought a cake to celebrate.
Reunited last night, this morning they were both wiping tears from their eyes and recalling their month apart.
“They handcuffed us in chains, like we were criminals,” says Sandra, who wears an ankle monitor. “It was freezing” in one of the several facilities she was detained in, and “they left the lights on, so we didn’t know when it was day or when it was night.”
She says they now plan to travel to Washington state where she has another daughter and three grandchildren.
How things got done before
Caballero remembers when the process was less adversarial, how easy it was to be friends with opposing attorneys, to be on first-name terms with judges, who knew all about her three children. It was how things got done, she thought, not by fighting every point so that judges and federal officials dig in their heels.
“Now it’s not that,” she says. “I’m way more aggressive than ever before, because that’s the only way I think that my client is going to be protected.”
Could she have done more to protect Rafael? Should she had pushed harder to advance his asylum claim? The thought nags at her. “I just feel like maybe we didn’t do enough,” she says.
For now she’s still hoping he calls.
While the latest reunification deadline was today, the issue of the 463 parents deported without their children is almost certain to be litigated further, says Mark Greenberg, a senior fellow at the Migration Policy Institute in Washington.
“There’s still going to be a set of questions as to where the government goes next after these reunifications,” he says. This could include litigation on behalf of deported parents like Rafael so that they are afforded the same rights to be with their children
For Caballero, a silver lining is that Rafael’s daughter has been released and can now pursue her own asylum claim.
“She’s not with him, but she’s not detained, so that’s – I’m OK with that,” she says. “I’m glad that she’s out. That’s what he wanted.”