Report: Border Patrol Is Abusing a Legal Loophole to Continue Separating Immigrant Families

Illustration for article titled Report: Border Patrol Is Abusing a Legal Loophole to Continue Separating Immigrant Families
Photo: Charles Reed (U.S. Immigration and Customs Enforcement via AP, File)

In June, the Trump administration claimed that it was stepping back from its previous “zero-tolerance” policy on illegal immigration, which automatically separated any migrants caught crossing the border outside of a designated point of entry from their children. But according to a new report by ProPublica, migrant families are still being torn apart, as border officials continue to use separation as a deterrent policy by exploiting a loophole in a later legal decision.


How they’re doing it is subtle. On June 20, Dana Sabraw, a U.S. District Court Judge based in San Diego, issued a preliminary injunction that required the administration to reunite all separated children with their parents. Sabraw did make an exception in her injunction, however, for cases in which the child’s safety could be at risk if they were reunited with their parents. In other words, she gave the DHS and inch, and they took a mile.


Per ProPublica, emphasis mine:

Sabraw, however, exempted cases in which the safety of the child was at risk, and crucially, imposed no standards or oversight over those decisions. As a result, attorneys say, immigration officials — taking their cues from an administration that has made it clear it still believes family separations are an effective deterrent — are using whatever justification they can find, with or without substantiation, to deem immigrant parents unfit or unsafe.

“If the authorities have even the most specious evidence that a parent was a gang member, or had some kind of blemish on their record,” said Neha Desai, a senior attorney at the National Center for Youth Law, “anything they can come up with to say that the separation is for the health and welfare of the child, then they’ll separate them.”


Susan Watson, a civil rights and family lawyer, said this kind of action could not be done without a judge’s review in custody cases that do not involve immigration issues. “Constitutionally, before a parent is separated from a child, you are entitled to due process,” she said. “Some decision in a dark corner by the Border Patrol doesn’t meet that standard.”

The administration has repeatedly lied about its implementation and the effects of the family separation policy, but it’s still shocking to see ProPublica’s evidence that officials are pretty much going out on a limb to abuse the only exception to Sabraw’s injunction they can find.

The central case in ProPublica’s story is also devastating. The publication got a lead on the story after getting a tearful call from a father, Julio, who had been separated from his four-year-old child, Brayan, at the border in Texas. ProPublica reporters found the boy in a foster care home in New York, setting up this horrible revelation (emphasis mine).

ProPublica tracked down Brayan, who has reddish-blond hair and an endearing lisp, at a temporary foster care agency in New York City, and reached out to the lawyer who represents him. Until that phone call, the lawyer, Jodi Ziesemer, a supervising attorney at Catholic Charities, had no idea that Brayan had been separated from his father. The chaos, she said, felt disturbingly like zero tolerance all over again.

“It’s so disheartening,” Ziesemer said “This was supposed to be a policy that ended.”


CBP officials claimed Brayan’s father was affiliated with MS-13, but refused to present any evidence of that to reporters or lawyers, or share why they thought he’d be a danger to his child. Julio arrived at the border with a letter from a lawyer attesting that he had been attacked and persecuted by gangs for years, and later received a character reference from his former employer.

A Customs and Border Patrol official refused to tell ProPublica how many children had been separated through this process, but lawyers from Catholic Charities (a New York legal services and advocacy group) say they’ve discovered at least 16 new cases.


There are most likely cases under this policy where Sabraw’s exception is justified—parents who are dangers to their children do exist. But it seems all too easy to strip people who are often fleeing direct gang violence from their children by citing “gang affiliation,” undoubtedly deterring dozens of human beings with very real claims to political asylum from finding the freedom and safety they deserve.

Contributing Writer, Splinter

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