Number Unknown: The Egregious Family Separation Policy Had No Plan

Immigration
An Inspector General’s report found that the plan behind the family separation policy at the border was even worse than the policy itself.

The January report by the Office of Inspector General (OIG) within the Department of Health and Human Services (HHS) reveals a significant lack of oversight by government agencies charged with implementing the draconian plan to separate children to deter asylum-seeking children and families.

In April of 2018, the Department of Homeland Security (DHS) formally implemented a “zero-tolerance” policy that resulted in the traumatic separation of thousands of children from their parents and primary caregivers. A district court judge ordered the U.S. government to identify and reunite more than 2,700 children who were forcefully placed into the custody of HHS as of June 26, 2018.

Because of the impact of this policy on vulnerable children, OIG conducted a review to determine the total number and status of those children separated under this policy. The alarming key takeaway from the report was that the total number of children separated from a parent or guardian by immigration authorities is unknown. The review pointed out that in addition to the 2,700 children counted in the district court case, more children were still being identified as having been separated months after the court order. Additionally, thousands of children may have been separated during an influx that began in 2017, before the accounting required by the court.

Kristen Torres, policy director for child welfare and immigration for First Focus.

According to the report, the Office of Refugee Resettlement (ORR), which is charged with the care of unaccompanied children within the Administration for Children and Families (ACF), was unable to provide OIG with precise information regarding the placement of some separated children. The report cited operational challenges, including the lack of an integrated data system to track families across DHS and HHS. ORR was unable to provide details if the separated children had been released to sponsors who were relatives or non-relatives or if they had been released into a foster care setting.

Children who were separated at the border were classified as unaccompanied children and placed within the custody of ORR in a system that runs parallel to our domestic, state-run child welfare system. Once the child entered ORR custody, he/she was then placed in a group shelter, secure facility or a transitional foster care setting before being assessed for release to a relative or non-relative sponsor. Click here to see a flow chart of the process.

Additionally, there were instances where children who were separated from their parents at the border were actually U.S. citizens. In these cases, the child was referred to the state child welfare system. In November of last year, Vilma Carrillo received national attention as her daughter was taken into custody and placed into child welfare proceedings in Arizona.

In 2017, the Trump administration removed Obama-era guidance for Immigration and Customs Enforcement (ICE) that emphasized prosecutorial discretion for the detention and removal of parents and primary caregivers of minor children. Therefore, Carrillo faced the daunting prospect of having her parental rights terminated because she was held in detention under the “zero tolerance” policy. Recently, Carrillo and her daughter were reunited after being separated for 247 days.

Similarly, San Diego County reported 54 children who were referred to their child welfare system between July and September of 2018, stating family separations continue to happen at the border where the child is a U.S. citizen. As the OIG report stated, due to the lack of tracking and communication, it is unknown how many similar cases include separated children who were referred and placed into child welfare proceedings. Immigration enforcement and child welfare protocols alike must ensure protections to prevent the inappropriate termination of parental rights of detained parents of U.S. citizen children.

In response to the report, ACF agreed with OIG that there is a need to “improve communication, transparency and accountability for the identification, care and placement of separated children.” Unfortunately, ACF also stated, “The court has never instructed ORR to determine the number of separated children received and discharged before the June 26, 2018 court order.” This deflection of responsibility for children separated at the hands of the federal government represents a hypocritical approach by HHS to the care and custody of migrant children.

In a more recent court filing, the Trump administration stated that efforts to reunify the potentially thousands of additional children would be taxing on ORR personnel and agency resources. In addition, the administration now claims that reunifying children who were separated from their parents would be disruptive and harmful to the child’s newly established relationships.

In a blatantly hypocritical attempt to condone their choice to not reunite these families, the filing reads, “disrupting the family relationship is not a recommended child welfare practice.” The administration must not be allowed to ignore the well-being of children in one egregious decision and then claim child well-being as a reason for another equally appalling decision.

The efforts of both HHS and DHS to tear children from their parents and then choose not to reunite them are in direct contradiction to the child welfare practices referenced in the court filing. These actions also run counter to the landmark Family First Prevention Services Act that aims to keep families together and drastically reduce group home settings — an irony, as this legislation will be implemented by the same agency that allowed for more than 2,800 children to be housed simultaneously in an unlicensed shelter in Tornillo, Texas.

It is unreasonable to compare forced family separations due to migration policies to the separation of families within the child welfare system. But it is perfectly acceptable to demand that the federal government enforce the same best practice standards for all children within its care. At the very least, this includes ensuring the right to due process and mitigating additional trauma for vulnerable children.

This year, First Focus Campaign for Children released a Proactive Kids Agenda for the 116th Congress. In the agenda is the establishment of a “best interests of the child” standard for immigration enforcement policy decisions.

It is my hope that, within the context of an enforcement heavy approach to immigration policy, a focus on the best interests of the child would be a much-needed reform that would force the system to see the needs of the children involved.

Kristen Torres is the policy director for child welfare and immigration for First Focus.


WEBINAR ALERT!

Learn more about the federal rule change on funding legal representation for families in our exclusive webinarA New Era of Funding Family Justice, with Leslie Heimov and Vivek Sankaran on Feb. 21st. Hosted by John Kelly, Editor-in-Chief for The Chronicle of Social Change.

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