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The Pandemic-Era Rebrand of Family Separation

Mothers in immigrant detention said they were asked to separate from their children. ICE claimed it was an “option.”

Spencer Platt/Getty Images

After a Minneapolis police officer killed George Floyd, the city’s police department first released a statement to the press attributing his death to an act of nature: “Man dies after medical incident during police interaction.” The statement made no mention of the officer who knelt on Floyd’s neck, cutting off the flow of oxygen to his brain. Instead, as is often the case with instances of police violence, it took cell phone footage captured by a bystander to reveal the true version of events behind Floyd’s death.

The existence of such documentation has proved inadequate to the task of holding police accountable for excessive force and lethal violence, though it still serves an evidentiary function. But there are places cameras often can’t reach: prisons, jails, immigrant detention centers. In its own battles against oversight and transparency, Immigration and Customs Enforcement has taken advantage of these dark spaces. Last month, immigration attorneys said ICE attempted to usher in a new era of family separation in its three secretive “family residential centers.” Even after detained immigrant parents shared their experiences of being coerced to separate from their children, ICE released a bevy of public denials, directly contradicting their claims. Without footage or clean paper trails—another means of skirting accountability—the burden of proving their own experience fell on parents still stuck in detention, and the incident passed with little public attention.

Maritza, a Salvadoran asylum-seeker who told us she’s been detained at the South Texas Family Residential Center in Dilley for nine months, was one of those parents. According to Maritza, routines in the detention center had remained largely the same since the Covid-19 pandemic began, until something unusual happened on the morning of May 13: One by one, mothers in the facility were told they’d be meeting with ICE agents. “They told us they wanted to ask us questions,” Maritza, who asked that we not use her real name because of her ongoing asylum case, told The New Republic.

When Maritza’s turn came, she said guards ushered her into a room where ICE agents presented her with a document and told her to sign. Like many of the other parents detained in Dilley, Maritza couldn’t read the form—it was in English. But she recalls ICE said the form offered her a choice: If she wanted her child released, she could sign and agree to be separated from him. Her son would be sent to live with a sponsor as she remained in detention.

Attorneys who represent families held at three ICE detention centers across the country say their clients were all asked to make the same impossible choice on May 13. In the middle of a pandemic, they said, ICE was asking detained immigrants to choose between family separation and indefinite incarceration. ICE aggressively denied that allegation, claiming it was letting detained immigrant parents exercise their “court-ordered option” to release their children to a sponsor. (In a statement to The New Republic, an ICE spokesperson said the agency “has not implemented what has been referred to as ‘binary choice’ at this time.”) What followed was a protracted “he said, she said” battle, with the immigrants and their lawyers on one side and ICE on the other.

As the agency went on the press offensive, the calls from attorneys and organizations like Amnesty International immediately collapsed into the maelstrom of uncertainty and epistemic chaos that has defined the Trump era. Even as a growing number of parents reported they’d been coerced to separate from their children, ICE maintains it was simply letting parents choose whether they wanted to send their children to live with sponsors while their cases continued. Attorneys told us that the fog of confusion and anxiety reminded them of the first family separation crisis in the spring and summer of 2018, as the Trump administration denied having a family separation policy, even as attorneys received calls from desperate parents who had been torn away from their children.

As is inevitable when law enforcement agencies spread uncertainty, whether in the aftermath of police violence or ICE enforcement actions, the people hit the hardest are the most vulnerable. Reached by phone two days after her meeting with ICE agents, Maritza said she could still hear sobs across the detention center. “Children are still crying,” she said in Spanish. “I hear it everywhere. They’re terrified. They’re terrified to be separated from their mothers.”

What happened on May 13 remains contested: That day and the next, pro-bono attorneys who represent immigrants held in ICE’s three family detention centers say they received a flood of calls from distraught clients. The lawyers alerted reporters, who in turn reached out to ICE for its version of events. In a press release intended to address alleged faults in “recent media coverage,” ICE claimed it wasn’t attempting to separate families but was instead letting them exercise their “court-ordered option” to release their children to a sponsor. The form Maritza and the other detained parents were asked to sign, ICE said in the same statement, “is nothing more than an internal worksheet used to document answers to questions regarding parole.… It is not a legally binding document and does not convey any legal implications on the family unit.”

Maritza said that’s not what she was told. Before showing her the form, she said, ICE agents asked her for the name and address of a relative in the U.S. who could act as a sponsor. (Attorneys said most people in the Dilley detention center already have some relatives in the States.) Maritza answered the questions, assuming that both she and her son might go stay with the people she named. Then, she said, the ICE agents put the document in front of her. Now that the sponsor’s identity had been established, did she agree to send her son to stay with them? Maritza began to panic. She asked for a Spanish version of the form but told us the agents said that wouldn’t be necessary, as they had adequately interpreted it for her.

Maritza wasn’t the only one who said she faced pressure: Andrea Meza, the director of family detention services at RAICES, a Texas-based immigrant legal aid organization, said ICE told several families at Karnes that they would run into “problems” if they didn’t sign the form. One mother told her lawyers that an agent called her “stupid” for refusing to sign.

Still, every single parent asked to sign the form refused. “I told them that I didn’t want to separate from my son, that it would be bad,” Maritza said. The Trump administration’s family separation policy made headlines internationally, including in El Salvador, where Martiza is from. Though the policy was no longer in place, migrants like Maritza had heard about it. “So I didn’t sign anything, because in reality, I didn’t know what was in the document because it was in English. I didn’t know if it meant giving up my son.”

As panicked immigrant families’ stories clash with ICE’s repeated denials about its actions, some attorneys said they have felt an uncomfortable déjà vu to the first half of 2018, when Trump administration officials denied the government had a family separation policy, even as border officers separated hundreds of families. Public outrage and legal challenges ultimately forced Trump to end the family separation policy via executive order. (“So we’re going to have strong—very strong borders, but we’re going to keep the families together,” Trump said at the time. “I didn’t like the sight or the feeling of families being separated.”)

What happened next in 2018 is key to understanding what Maritza said happened to her earlier this month: Later that year, in the wake of the family separation crisis, the Trump administration began quietly floating a replacement to its notorious zero-tolerance policy. Instead of physically forcing families apart, the government would offer migrant parents a decision: keep their children in detention with them for months, or even years, or agree to separate and allow their children to go to a sponsor or a government shelter. Some attorneys called it a “binary choice.”

For the administration, binary choice could be a less chaotic alternative to the spectacle of family separation at the border. Perhaps most importantly, it would let the government separate families while claiming it was adhering to the Flores settlement agreement, a 1997 consent decree that lays out guidelines for the treatment of migrant children in federal custody and forbids the government from keeping children in detention for more than 20 days. (Even so, families are often kept in custody well beyond the limit laid out by Flores.)

Binary choice could solve two problems: Family separation would be the parents’ choice, not something forced on them by the government. And if families chose not to have their children taken from them, the government would have legal cover for detaining children indefinitely. Those are the options attorneys say ICE gave detained families on May 13, just days before filing deadlines for a coronavirus-related lawsuit and for the ongoing Flores settlement agreement. The timing didn’t seem like a coincidence—if ICE could claim the parents consented to detention, it could argue that it wasn’t breaking the 20-day limit. It could also claim that parents were choosing to keep their kids detained, despite their fears over the coronavirus.

Even before the pandemic, immigration officials have been known to lie to the public. Acting Homeland Security Secretary Chad Wolf’s precursor, Kevin McAleenan, was also known for making misleading—or, in some cases, flat-out wrong—statements about migrant families. In several instances during the summer of 2019, McAleenan claimed detention was necessary because the overwhelming majority of migrant families filed fake asylum claims to get into the U.S., only to skip out on their court hearings. (According to federal immigration court data analyzed by the American Immigration Council, however, 86 percent of migrant families showed up to court between 2001 and 2016.) 

As was the case with McAleenan’s claim that most asylum-seekers don’t show up to their hearings, the government’s own records suggest ICE didn’t tell reporters the whole truth about the forms issued to parents held in its family detention centers. The filing ICE eventually submitted as part of the lawsuit last week included a document that Bridget Cambria, an attorney at Aldea, a nonprofit that represents families in the Berks County Residential Center, has alleged is a smoking gun—proof that the agency actually asked parents to choose between separation and detention. In its filing, first reported by CBS News, the agency included a spreadsheet that explained its justification for denying parole to the families detained at Karnes, Dilley, and Berks. One stated reason was “Parent Does Not Wish to Separate.” The only other stated justification was “Flight Risk.”

On phone calls with attorneys, families tried to raise the alarm, but gaining public attention while locked in a detention center proved difficult. Still detained in Dilley, Maritza said she worries about the damage already done to her son. While there haven’t been any confirmed Covid-19 cases in Dilley yet, there are at least 42 cases in other Texas detention centers, according to ICE data. Maritza, her son, and dozens of other families are trapped inside Dilley, but the facility’s staff come and go every day, potentially bringing the virus in with them. “To tell you the truth, I have fear,” Maritza said when asked about the virus. She feels not enough precautions have been taken to keep the families safe from infection.

But she sees detention itself as a danger, too, especially after the threat of separation.  “We’ve already seen so much psychological harm done to our children from just being in detention; from what they’ve had to see,” Maritza said. “The children don’t understand why we’re here, why we can’t be with our families.”