The separation of families and the government “losing track” of immigrant children are two separate issues but part of the same problem: our broken immigration system.
Recently, two concerning stories about immigrants have been getting attention: one, that the federal government has lost track of almost 1,500 immigrant children; and, two, that the Trump administration is separating children from their parents at the border.
These are two different issues and must not be conflated.### **First, is it accurate to say that 1,500 immigrant children are missing? Not exactly.**
The Homeland Security Act of 2002 provided the Office of Refugee Resettlement (ORR) in the Department of Health & Human Services with responsibility for the custody of unaccompanied immigrant children (children arriving at a border or port of entry without a parent or guardian). Often these children actually do have parents or family to care for them in the United States, but because they themselves are undocumented, they face barriers to claiming their children from government custody. There are justified fears that they themselves might get detained, deported — or even charged with smuggling their own children.
Children transferred into ORR custody are held in both shelters and facilities. For example, Carolina, a 16-year-old girl who was held in an ORR facility, wrote about how she was treated like a dog and wished there had been cameras to document her abuse at the hands of U.S. government officials.
ORR is tasked with finding homes for unaccompanied children and releasing them to adult sponsors that fit into one of these three categories: immediate family, extended family, or other people with whom the child has a pre-existing relationship. Sometimes these children are released to family members who are undocumented. Once the children are released, they are no longer in the custody of ORR. ORR is not tasked with doing home visits to the sponsor.
The New York Times reported in April 2018 that “federal agencies lost track of nearly 1,500 migrant children placed with sponsors.” This headline is misleading. The article reported that ORR officials “were unable to determine with certainty the whereabouts of 1,475 children.” ORR had simply made phone calls to the sponsors to check on the status of the children, and were unable to determine with certainty the whereabouts of 1,475 children. However, this does not mean that the children are missing from their families.
It is likely that the vast majority of the 1,475 migrant children that ORR was unable to track with one-off phone calls are alive and well, living with their parents or guardians who are understandably afraid of or uninterested in further contact with a government agency that previously jailed their children. As Josie Duffy Rice, an attorney, pointed out in a string of tweets that went viral over the weekend:Several media outlets have written about a case a few years ago, brought to light by a Republican senator from Ohio, in which [immigrant children being trafficked](http://www.latimes.com/nation/la-na-ohio-immigrant-sponsor-20151115-story.html) from Guatemala were forced to work on an egg farm. These children were released into the custody of their traffickers by ORR.
This is no doubt horrifying, but also a single incident amid countless joyous reunions between families and their children.
Now, the government has created stricter requirements for releasing unaccompanied children to sponsors that are allegedly intended to safeguard against human trafficking. As of May 13, 2018, ORR is now officially working with U.S. Immigration & Customs Enforcement (ICE)to permit ICE to conduct background checks on the sponsors. Having ICE conduct these background checks is cruel and unnecessary because 1) it primarily functions to prevent undocumented family members from reuniting with their children and loved ones, and 2) evidence of widespread trafficking of unaccompanied minors has not been shared with the public.
Moving on to the second issue. Is the Trump administration separating children from their parents at the border? Yes, and this was happening under the Obama administration, too.
If parents or guardians migrate with their children and claim asylum at a port of entry, it is mandatory under laws passed by the Clinton administration that they be immediately detained. The Obama administration subsequently increased the use of family immigration detention facilities. In rural Texas and Pennsylvania, mothers and fathers are held in publicly- and privately-run jails and prisons with their babies, toddlers, and children. These detention facilities look and feel like prison because they are run by the same private prison companies that run state and federal prisons or the same sheriffs that run county jails. There is documented, widespread abuse in family detention facilities. In fact, government data Freedom for Immigrants obtained from a FOIA showed that a young girl under 18 had been sexually assaulted in one of these facilities; a medical examination showed vaginal scarring and an STD. These facilities are no place for any human being, especially children.
Under the Obama administration, fathers would be separated from their wives and children and they would be sent to separate detention facilities. If a father migrated alone with his child, the child was sometimes taken from him, put into ORR custody even though the child was not unaccompanied, while the father was held in an adult immigration detention facility. Under the Obama administration, the separation of immigrant families at borders and ports of entry was not widely reported on, but it happened.
Today, under the Trump administration, families are still being separated as they were under President Obama, but now this is being done as an explicit deterrent and punitive measure — and no family seeking asylum seems to be safe.
In addition to civil immigration detention, people entering the country can also be prosecuted criminally for entry and re-entry under 8 US 1325 and 8 US 1326. This month, Attorney General Jeff Sessions announced a new “zero tolerance” policy and he explained that he was going to increase prosecutions for entry and re-entry under these federal statutes.
For years, the government has been prosecuting people for entering or reentering the country without authorization under 8 US 1325 and 8 US 1326. “Illegal entry” and “re-entry” is already one of the most prosecuted crimes in the United States. According to a report by Grassroots Leadership, prosecutions of “illegal entry” and “re-entry” into the country already makes up 49 percent of the federal caseload every year.
If a mother or father is with a child when apprehended for the crime of illegal entry or re-entry, and they are then convicted in “kangaroo courts” or “assembly lines” as under Operation Streamline in Arizona and Texas, they will be sentenced to federal prison and the child will be taken away from them.
However, the government does not have to prosecute people for entry or re-entry. The government can choose to exercise prosecutorial discretion and release people.
What is the solution to these problems?
There is a different and humane way to welcome these families instead of separating and caging them. The government could choose to release families through a community-based alternative accompaniment program so that they can remain united and fight for their legal right to remain in the United States from outside of a jail cell.
Sadly, the White House seems to think that more detention space is needed and that families should be locked up for longer.
**This is the wrong response. **We don’t need our massive immigration detention system to continue expanding. We need to begin decreasing the use of confinement with the goal of ending it altogether.
That’s why we helped draft the Detention Oversight Not Expansion (DONE) Act, a bicameral bill introduced by Sen. Kamala Harris of California and Rep. Pramila Jayapal of Washington.
The proposed legislation would prohibit the expansion of immigration detention and improve oversight, which is practically non-existent.
The bottom line is: we need to stop tearing families apart and locking them up and we need to end policies that use incarceration as a solution to migration.
Join activists for a National Day of Action for Childrenon Friday, June 1st to make your voice heard on this critical issue.