In recent days, we have been inundated with photos, images, interviews, Tweets, Instagram photos, Stories, Facebook posts, news videos and every other form of media illustrating the horrific situation unfolding on the southwestern border of the United States. Rightly so. We have been immersed in our country’s most explicitly devastating policy against human rights within its own borders in decades. Because this topic is so heavy, and so near-and-dear to humans everywhere, and because there is so much information that it’s difficult to filter, we felt it was important to break down this issue with an expert. So we called our neighbor, friend, fellow parent, and immigration lawyer, Adam Solow.
Adam is an attorney and principal at Solow, Isbell & Paladino, a firm that practices immigration and nationality law. He was happy to sit down with TME to give us the facts about what’s happening across the country in regards to the family separation crisis. Adam’s firm does represent the Mexican Consulate; however, most refugees seeking asylum on the southwestern border are not from Mexico, but from the Northern Triangle—El Salvador, Guatemala, and Honduras—of Central America. Although the Federal administration has issued an executive order to reverse family separation, it doesn’t do much to change the situation already underway.
As of Friday, there were at least 70 kids as far from the southwestern border as Pennsylvania and New York, and at least 100 in California. And let’s face it: if we recall the times in United States history when parents have been separated from their children, none of those situations were short-lived or turned out well—at all: Native American children were taken away from their parents and sent away to boarding schools in the name of ‘killing the Indian to save the child [man]‘; the enslavement of Africans and African-Americans (and Native Americans) separated children from their parents and sold them to different masters; and, less than a century ago, our government traumatized families of Japanese descent by interning them in camps seemingly not unlike what we’re seeing with the current ‘tent cities’.
So, here we are, with our friendly, neighborhood lawyer, trying to wrap our heads around this vile crisis—our hearts are already firmly entrenched.
The Decision-makers in Charge of Family Separation and Zero-tolerance
Who, ultimately, has made the decision for ‘zero-tolerance’ at the border?
The head of the Department of Homeland Security, Kirstjen Nielson, is carrying out the policy wishes of the administration. The person who influences Donald Trump on immigration is Stephen Miller, who was assistant to Jeff Sessions, when Jeff Sessions was a senator in Alabama. Nielson’s been in this position since the former Head of DHS, John Kelly, was promoted to Chief-of Staff. She was his chief of staff, and she took over the position.
Who enforces this policy?
The Department of Homeland Security is broken into other sub-departments, but the policy is being carried out by Customs and Border Patrol. And… to a lesser extent, Immigration and Customs Enforcement (ICE), which deals with more interior enforcement of immigration laws.
Who has the ability to change this is zero-tolerance policy?
The Administration. Well, Congress could get their stuff together and change the law, but barring that happening, it was a policy decision that was made by the Administration, and can be a policy decision that’s taken away. This was definitely created by a policy decision.
On a side note, these centers where the people are being kept are they federal facilities or are they privately run?
[They’re] Detention Camps. Some are federal facilities, others are privately run. So for example, the Elizabeth Detention Center next to Newark Airport—that is a privately-run prison run by Correction Corporation of America (CCA). Some of these other ones on the southwestern border are privately run or or run by the government. I can’t tell you which ones are which, but there’s a lot of money to be made in the housing of immigrant detainees…I just read something that said it costs $775 a day to house one of these children right now, in these new detention camps that just opened up—’tent city’. The other one, Casa Padre, I think it’s around $285 a day—that’s more of an established one down in Texas.
- Learn more about the cost of running detention centers: The Migrant Detention Business is More Profitable Than You Think from The Takeaway
The cost of running these is going to cost the government far more than it would if the families were housed together, correct?
The Facts About Asylum in the United States
What is asylum?
It’s governed by international treaty that the United States has signed, INH section 208, and what it says about applying for asylum is: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).”
What is the law regarding families entering the country together to seek asylum?
What the administration has been trying to tell people is ‘if you want to apply for asylum, as you have the right to do, you’re supposed to go to a Port of Entry. There are various Ports of Entry on the southwestern border.
And they’ve stated that anybody who enters the United States, tries to enter the United States outside these Ports of Entry, is going to be arrested and prosecuted. The problem with that is that there are extremely long lines to get into these Ports of Entry, and people are being misled and told things like that you ‘can’t apply for asylum here…. you’re just going to be detained and arrested’….When you are forcing people to try to go around those Ports of Entry and apply….We’re hearing reports of people just crossing the Rio Grande looking for (and this is what was happening before) you would look for a Customs and Border Patrol officer and ask for asylum right there—that was the generally accepted practice. Now people are doing that, going around these Ports of Entry and asking for asylum are getting arrested and prosecuted…and they’re not having their asylum claims heard.
Based on what you just said, is it illegal to apply for asylum?
It’s not. It’s not illegal to apply for asylum. If you have a well-founded fear of returning to your country because of your race, religion, political beliefs, ethnicity or social group, you have the right to apply for asylum…and have your case heard.”
- Listen to The Political Price of Betting on Immigration from The Takeaway to hear more about what has changed to trigger the crisis on the border.
How long generally, historically, we’ll say before April, would it take to get your case heard for asylum?
It depends where you enter the United States, but if we’re talking about the southwestern border, prior to the Trump Administration, what would happen is you would be screened at the border to see whether or not you have a credible fear of returning to your country. If you are found to have a credible fear, you would most likely be released and told to come back to an immigration court hearing. Depending on what part of the country you move to, it would be anywhere from a year to, in some cases, four or five years until you get your next hearing. That was under the old Administration. Under this new Administration, what we are seeing is that at the border, the credible fear determinations are getting a lot harder….the administration has tried to tighten the rules on ‘credible-fear’ findings: so you show up at the border, you come from El Salvador, you’re a victim of gang violence or domestic violence, and you explain your story to an asylum officer who’s the front line officer to determine whether you have a credible fear….They’ve been told to be a lot tougher on those credible fears.
Then, if you do pass credible fear, you get released. What we’re finding is you have to report to Immigration in wherever your destination is—so if you have family in Pennsylvania or New Jersey or wherever, you have to report into ICE, check-in with them, and make sure that you did show up. And again, if you can pass a credible-fear screening, you’re probably going to be here for a couple years while your case is being heard.
Other than arriving at a Port of Entry or finding an ICE officer, are there any other ways of applying for asylum?
Sure. If you enter the United States with a Visa, you’re inspected and admitted. You’re supposed to apply for asylum within the first year that you enter the United States. You apply directly with the Asylum Office. And in Philadelphia, jurisdiction of the Asylum Office is in Lyndhurst, New Jersey.
But these people are trying to flee pretty violent situations of domestic and gang violence, so…?
The ones on the Southwestern border, yes. And the vast majority of people are from the Northern Triangle— Honduras, El Salvador, and Guatemala, but we have clients from West Africa, Venezuela, Colombia…people who tend to travel to United States on visas. They file with the Asylum Office directly, and they have a first interview in Lyndhurst. The people on the southwest border, again from Northern Triangle….for the most part do not have access that system because they are entering illegally and applying after being either arrested or detained by Customs and Border Patrol—so they’re in a different part of the system.
Is the southwestern border the only place where people are coming and applying for asylum on the spot, right now?
Yes, for the vast majority. You can apply for asylum in an airport, so sometimes we see that, but very rarely.
Sometimes you see people coming in and asking for asylum on the Canadian border, most often near Buffalo, and then at the airport. If somebody’s stopped at the airport by CBP, and it’s thought that they’re trying to enter the country illegally or with a fake visa, very rarely, but you do see this, they’ll ask for asylum. And those individuals, for the most part, will be detained while their case is pending—the ones that are taken at the airport.
We had a Syrian young man who was actually sent back from England to the United States, and detained at Newark International Airport, and he had his asylum case at Elizabeth Detention Center, and he ultimately won his asylum case, but those are much rarer.
This is a sad situation—what’s going on on the border—but the Administration is doing this to American kids every single day with their enforcement policies.”
What’s Happening with the Zero-tolerance Policy?
Yesterday, someone on the news stated that “it’s easier to separate families than it is to reunite them.” Can you speak to that?
I definitely think that’s true. I don’t even know if the Administration has a mechanism for, or even cares about, putting these families back together, assuming that the parent is being deported back to their country of origin, and the child is either being processed later and being deported back to their country or staying in the United States. I don’t think there’s a very easy mechanism for getting the family reunited because once a parent is deported back to Guatemala, Honduras, or El Salvador, I don’t think those home countries have a mechanism to reunite the parents with the children.
So even if the policy were reversed, say tomorrow [Wednesday], the crisis is still going to continue for these children?
Yes. I think so. Months…years…I mean I’m not a psychologist, but I lost my kid for 2 minutes in Reading Terminal Market, and I think my son is never going to let me forget that incident. What’s happening is going to affect these kids for years. But again, you know, the Administration probably says ‘well, they’re not American kids so I don’t care.’
This is a sad situation—what’s going on on the border—but the Administration is doing this to American kids every single day with their enforcement policies. I have somebody in here every single day, a child or a mother with her child who’s had their dad ripped from them—and these are U.S. citizen kids, who were born here, grew up here—five-, six-, seven-, eight-, nine-, ten-year-old kids who saw ICE take away their dad. Oftentimes, their dad hasn’t done anything except maybe a traffic violation or something very, very minor and these kids are going to grow up here as U.S. citizens, and I can already tell they’re going to grow up hating this country because they’re going to grow up as orphans, and and we see this every single day. And this is been going on for two years.
How are nonprofits—those that seem to be tangled up in the detainment of children—involved right now?
When a child is is taken by Customs and Border Patrol, they need to be processed and sent to the Department of Health and Human Services (HHS). Some of those HHS and Office of Refugee Resettlement services are contracted out to other organizations, and the children are sent to those organizations.
And then what’s supposed to happen is within a ‘reasonable amount of time’, they’re supposed to be allowed to be released to a family member or somebody else who is willing to take responsibility for them. But the problem with that, is that again, in years past, they’re released to an uncle or somebody living in United States, but oftentimes the uncle or another family member was undocumented. Now the administration has said that ‘we’ll release the child, but we’re going to take the parents or the uncle and we’re going to charge them as it as an alien smuggler, and put them in removal proceedings. So a lot of the the uncles and the people who are willing to step up and take these kids in, are afraid to come out of the shadows because they’re worried that they’re going to be picked up by ICE too…that they’re [the Administration]is going to use these children as a tool to get to the parents or the other family members. It’s pretty dark right now.
Are there any laws regarding how children are detained or housed in this country?
So there was a civil action lawsuit called the Flores Settlement, and that governs how children who are detained and put into immigration removal proceedings need to be treated. That’s one of the reasons that they’re given to HHS, the Office of Refugee Resettlement, with the idea that they will not be in prolonged detention, and that they will be hopefully released to a family member to go through their removal proceedings or asylum proceedings.
So, the Flores Settlement….I can’t get into the minutae, but I know that when they show up here at my door there’s things that we can do to help them, oftentimes, legally.
- Learn more about how the Department of Justice is filing to alter the Flores agreement in order to detain children indefinitely, a move made on Thursday after ‘ending’ family separation.
There’s also something called ‘special immigrant juvenile status’ for children who’ve been abandoned or neglected or abused in their home country. There’s a process that they can go through where basically the State makes them a dependent, and finds that it’s in their best interest to stay in the United States and not be sent back their home country because they were abandoned, abused or neglected in their country, and we can use that to help them stay in the United States.
In terms of these families, who can help them right now?
There are some great immigration attorneys and other good people of good faith down on the southwestern border who are fighting this, but I think the numbers—the numbers of detained kids and this new policy—has really shocked the system. But there are some great people down there who are helping, and I’ve been heartened in the last couple weeks from other people who want to help out, asking what they can do, donating to these organizations, offering free psychological services, or other attorneys who are willing to help out pro bono. It’s been pretty awesome to see people rallying around this.
Are you familiar with the UN Convention on the Rights of the Child? Do you think if that had been ratified, it wasn’t passed by the U.S., even though it was ratified by 194 other countries*, do you think if that had been in place, we would have more protection and maybe this wouldn’t happening now?
Yeah, probably. For sure.
*The United States is the only United Nations member state that has not ratified the UN Convention on the Rights of the Child. Somalia and South Sudan are the only two other countries who have not agreed as well.
This is a sad situation—what’s going on on the border—but the Administration is doing this to American kids every single day with their enforcement policies. I have somebody in here every single day, a child or a mother with her child who’s had their dad ripped from them—and these are U.S. citizen kids, who were born here, grew up here—five-, six-, seven-, eight-, nine-, ten-year-old kids who saw ICE take away their dad. Oftentimes, their dad hasn’t done anything except maybe a traffic violation or something very, very minor and these kids are going to grow up here as U.S. citizens, and I can already tell they’re going to grow up hating this country because they’re going to grow up as orphans, and and we see this every single day. And this is been going on for two years.”
What would you say would be the most effective ways that like “regular people” can help right now?
Vote. Elections matter. In 2016, Philadelphia hosted the Democratic National Convention, and I remember walking home from it, and having a conversation with some woman from Rittenhouse Square saying ‘I’m not going to vote for Clinton, because I was a Bernie supporter, and I’d rather have Trump, because I want the whole thing to burn down’….Well, now you’re getting everything burned down so….Elections matter.
I would say if you want to help, donate to these organizations….Vote.
On a side note, does protesting or writing to these private detention centers…is that going to do anything? Do they care what people who think?
Yes, I think protesting is wonderful. I think that the more light that shines on what is going on—in the media and everyday people seeing what’s going on, it is really does affect—on the ground level, what ICE and what DHS is doing. Look I’m not here to villainize anybody who works for ICE or CBP or DHS because I think that the vast majority of the people who work for ICE or for DHS—I’ve been working with them for 12 years…I think they get up every morning, and they think—part of them at least—thinks that they’re helping the United States…that they’re serving our country, and they’re doing the right thing. And I think, I know, a lot of them think these policies are wrong. I think putting a spotlight on what’s going on, what they’re doing—going over to 8th and Market everyday and protesting ICE’s policies…on the ground-level, I think that might change things a little bit, I do. The Philadelphia Inquirer articles about ICE detaining non-criminals—since those articles came out, I’ve seen a lot less non-criminal aliens getting arrested and detained in the Philadelphia area. That does make a difference.
But there are some great people down there who are helping, and I’ve been heartened in the last couple weeks from other people who want to help out, asking what they can do, donating to these organizations, offering free psychological services, or other attorneys who are willing to help out pro bono. It’s been pretty awesome to see people rallying around this.”
How does what’s happening you know on the border, with the zero-tolerance policy, affect you day-to-day now?
I haven’t seen the results of it. What we would normally see is that when these children are released, they would come to a relative in Pennsylvania, and we would you be able to help them. I don’t know if that zero-tolerance policy on the border is going to affect my day-to-day life or our practice too much, but what is going to affect our day-to-day, is in addition to that zero tolerance policy, the Attorney General also backed-up by saying that all these people from the Northern Triangle….he’s changed the law regarding domestic violence and gang violence claims. In addition to the zero-tolerance policy, he’s basically invalidated, or is trying to legally invalidate, all these people’s asylum claims. So in my day-to-day, that decision is going to have a lot bigger effect on what we’re doing. And that is going to affect what we do; that is affecting what we do.
That’s 20 years of case law, by well-meaning jurists who carefully balanced out this decision regarding victims of domestic violence overturned with the stroke of a pen by Jefferson Beauregard Sessions III. (The Matter of A-B-— a case involving a victim of severe domestic violence from one of the countries where a woman in an abusive relationship cannot leave the relationship (thus would be fleeing said country in search of asylum)). Until a couple weeks ago this was very solid case law. Now this decision has put that into flux.
Now the administration has said that ‘we’ll release the child, but we’re going to take the parents or the uncle and we’re going to charge them as it as an alien smuggler, and put them in removal proceedings. So a lot of the the uncles and the people who are willing to step up and take these kids in, are afraid to come out of the shadows because they’re worried that they’re going to be picked up by ICE too…that they’re [the Administration]is going to use these children as a tool to get to the parents or the other family members. It’s pretty dark right now.”
Updates from Friday, after the Reversal of the Executive Order
How will the executive order change the detention situation for families already separated (especially those whose children are already as far as Pennsylvania or New York)?
From what we understand, as of this moment, it won’t change anything for the families who have already been separated.
What will change for families arriving at the southwestern border from now forward?
They’ll be caged together.
To what extent will the Justice Department’s reversal on asylum for domestic violence and gang violence (continue to) impact the crisis on the southwestern border?
This decision is designed to speed up deportations at the border by precluding asylum claims for individuals fleeing domestic violence and gang violence from countries in the Northern Triangle (Guatemala, El Salvador and Honduras).
What might we see happen to the people trying to flee Central America, but also trying to avoid the arriving at southwestern border?
It is hard for people fleeing Central America to arrive anywhere else but the southwestern border.
Other than families no longer being separated, will we see any other improvements or rays of hope regarding the detainment of Central American refugees (at least until there’s an immigration bill passed?)
I highly doubt that any bill will be passed anytime soon that resolves this. Families won’t be separated, but they will be jailed together.
Video by Conor Hader
The Latest News on the Family Separation Crisis
The cries of children pierce our hearts. Scientists say they’re meant to. They move us to love and protect children. This response is healthy; it’s human; and it keeps humanity going….
…The executive order signed by the president to end family separation apparently does nothing to reunite the 2,300 children who have already been torn from their parents. Reports place some of those children hundreds, even thousands, of miles away in detention centers that have not been opened to the press and public officials, save for a carefully approved visit of the kind Melania Trump made on Thursday.
But we know — and must find a way to report — about the children and families who are still locked up and being kept apart. There are still cries to be heard.”
by Scott Simon on Weekend Edition Saturday
If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.”
By Melissa Jeltsen on The Huffington Post
So we are, in short, going to ask the court to order prompt reunification of the 2,000 plus kids who have already been separated,” said the ACLU’s Immigrant Rights Project Deputy Director Lee Gelernt. “And to issue an injunction laying down standards when the government can separate in the future.”
By Richard Gonzales on NPR
Judge Torteya then told the government’s attorney that he found it “mind boggling” that the government, a bureaucracy that normally takes a long time to get things done, would have shipped this child 1,500 miles away from his detained father less than 24-hours after they were detained.”
The trauma that has been inflicted on these families is irreparable, and it is going to be a logistical nightmare to undo it. And the saddest part is that it didn’t need to happen.”
By Lorella Praeli on the ACLU blog
That still leaves dozens of children in Pennsylvania living away from their parents. And administration officials confirmed that Wednesday’s policy change does not change the situation for children already apart from their parents.
As far as I can tell there’s not a workable coordinated system or practice in place at all, for making sure those children and parents are having regular contact and communication,” said Yaeger.”
By Laura Benshoff on WHYY
It’s actually not breaking the law if you are seeking asylum. Title 8 U.S. Code Section 1158 gives people the right to seek asylum, whether it’s at a designated port of entry or not. I believe that these prosecutions of asylum-seekers are illegal. They certainly violate international law, and, I would argue, federal law as well.
The problem is that these parents are not going to fight against these prosecutions because they’ve been separated from their children. So we’re not really giving people the chance to even fight against what I would argue is an illegal practice – the prosecution of asylum-seekers.” immigration lawyer Erika Pinheiro
Scott Simon on Weekend Edition Saturday
She considered her options. But, for her, Judy, she says there wasn’t really an option. And this is something we have heard for people who advocate for the vast majority of people fleeing violence in their home countries, where, by the way, the forces that are compelling them to flee have not changed.
And that consideration is this. When your home — as written in the poem by Warsan Shire, she says, I want to go home, but home is the mouth of a shark. Home is the barrel of a gun.
When your home holds for you what seems to be certain death, and the only option you have is then facing uncertainty and potentially crossing into a foreign land to see what happens, for the possibility of saving your life or your family’s life, people we have talked to say, that’s not really a choice at all.”
PBS Newshour, in a cross-border report from Juarez and El Paso, Amna Nawaz follows a grandmother and granddaughter who are fleeing cartel violence.
My great-grandfather was actually an unaccompanied minor when he fled Jerusalem back when it was owned by the Ottoman Empire and eventually made his way to New York. He came through Ellis Island, he’s on the wall there, actually made his way through the Depression making shoes for the Rockettes. And you really don’t get much more American that that.” Dave Wilner
With Michel Martin on All Things Considered
If you have to make a fine distinction between what you’re doing to children and what the Nazis did, you’ve already lost the argument.”
And if a side of cynicism and wit is the only way you can deal with the horrors of the day, try Samantha Bee.