The ‘Permanently Orphaned’

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Written By Pinang Driod

On Friday, a federal judge in Southern California certified a settlement between the government and thousands of migrant children and parents who were rent from one another by the Trump administration as part of its immigration crackdown. Judge Dana Sabraw’s decision ended a years-long legal battle, ultimately giving the families almost everything they’d asked for: The settlement bars U.S. immigration authorities from taking children away from their parents under almost any circumstance for eight years and provides the families who were separated the right to return and seek asylum in the U.S., as well as government-funded legal representation, and temporary housing and health care. The ACLU, which litigated the case on behalf of separated families, called it the most important settlement in the organization’s 103-year history. But Sabraw underscored in his decision that family separations never should have happened, and that no number of resources can undo the harm they caused.

As with most of the hearings in the case over the past six years, the gathering on Friday began with an eerie counting of kids. The government explained that since its last “status update,” it had found or resolved the cases of four noncitizen children, bringing the number of those whose parents have been altogether lost by U.S. authorities down to 68. Urging the government to keep looking, Sabraw repeated a line he has said many times: “Every child who is not found is permanently orphaned.”

Judge Sabraw took the hearing as an opportunity to reflect on what he called “one of the most shameful chapters in the history of our country.” He recalled that when the case first landed in front of him in February 2018, he could hardly believe the ACLU’s allegations against the government, because they sounded “sensational.” The case was initially brought on behalf of a single mother known as Ms. L, and at the time, Trump administration officials were insisting that family separations were exceedingly rare. But two months later, I obtained an internal government document showing that, in fact, at least 700 separations had taken place by that point. I published an article revealing that bureaucrats within the Departments of Homeland Security and Health and Human Services had been working behind the scenes against the wishes of their superiors to try to reunite the families. (Their efforts were mostly in vain; recordkeeping was so poor that it was almost impossible to track down separated parents and children within the labyrinthine, multi-agency system of shelters and detention centers where they were being held.) After reading the article, Sabraw went into court and asked the government lawyers whether my reporting was accurate. They acknowledged, albeit circuitously, that it was.

While the case wound through the courts without garnering much public attention for several months, more and more families were being separated. Donald Trump was panicking about high numbers of border crossings, for which he was being lambasted on Fox News. He largely blamed Kirstjen Nielsen, his Homeland Security secretary, for failing to control the border. There was heavy pressure to expand the separation program, which began in El Paso, Texas, nationwide. When Nielsen agreed, and the national separation policy known as Zero Tolerance was announced, separations increased drastically as it went into effect across the entire southern border. Audio of sobbing separated children begging to be returned to their parents was leaked to ProPublica from a detention facility in Texas. It sparked a bipartisan backlash so strong that Trump ended the policy with an executive order in a matter of days.

The scope of the damage became clearer when Judge Sabraw determined that the separations had been unconstitutional and ordered the government to reunify all of the separated families—and the government could not. For most of the time that the separations were under way, no official effort was made to keep track of relatives, who were shipped to government facilities across the country or deported abroad. Immigration authorities deported more than 800 parents without their children—having promised some of them, falsely, that if they agreed to their own deportations, their children would be promptly returned. A congressional report found that at least 18 children under 2 were taken from their parents for periods ranging from 20 days to 6 months. One of the youngest was a four-month-old baby from Romania whose parents had brought him to the U.S. to seek asylum. By the time his parents, who were uneducated and deeply poor migrant laborers, got their child back he had spent the majority of his life in U.S. custody.

In a 2022 investigation for The Atlantic, I found that all of these problems and more had been foreseen, yet Trump’s top immigration-enforcement officials went ahead with family separations anyway. U.S. Marshals Service officials tried to warn Trump’s Justice Department in advance that courtrooms and detention centers would become critically overwhelmed. And documents obtained in a multiyear lawsuit under the Freedom of Information Act show that the DHS Office for Civil Rights and Civil Liberties had anticipated “permanent family separation” and “new populations of U.S. orphans” months before family separations were expanded.

Another major impediment to reunifications was that the policy’s strongest proponents, including Matt Albence, a top official at Immigration and Customs Enforcement, actively worked to prevent them from happening. “We can’t have this,” Albence wrote to his colleagues after learning that some reunifications had occurred. (Last year, Albence was offered a new job in federal immigration detention, as an executive at a private prison company that contracts with his former employer.) Others who pushed for family separations under Trump continue to enjoy successful careers in and adjacent to federal immigration enforcement. None have had to testify in the many ongoing court cases of families seeking damages for their separation, and the depositions that have taken place in those cases are sealed.

Recently, I spoke with a DHS official who had worked with colleagues to try to block family separations from happening, and when those efforts failed, to reunite the families as quickly as possible. (She asked for anonymity because she did not have permission to speak to the press.) “It took forever” to reach this point, she said. “I guess I was expecting to feel more joy about it, and instead I felt more frustration … There’s still so many families with unresolved issues. It didn’t bring the closure I thought it would.”

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