Two Boys Sue the U.S. Government for Separating Them From Their Fathers

It’s been nearly a month since the families were separated. Only one of the boys has been able to speak to his father.

Illustration: The Intercept

Inside the Heartland International Children’s Rescue Center in Chicago, Illinois, two young boys sit and wait. One is 15 years old. The other is 9. Their fathers are more than a thousand miles away, at two for-profit detention centers on the border. The two families came from Brazil, seeking asylum in the U.S. Instead, they were locked up. It’s been nearly a month since the four were separated. Only one of the boys has been able to speak to his father and even then, the conversation was brief.

On Wednesday, as President Donald Trump prepared to sign an executive order with potentially sweeping implications for immigrant detention, the boys became the latest plaintiffs to challenge the administration’s family separation practices. Their complaints, filed in Chicago, appeal to the same critical federal consent decree, known as the Flores settlement, that the president is now seeking to circumvent.

But unlike the order Trump ultimately signed, which was framed around a false premise that the Flores settlement requires families to be separated at the border, the boys’ complaint points to what the agreement actually says: that the U.S. government not engage in the prolonged and unnecessary detention of children.

The lawsuit, filed by the Aldea — People’s Justice Center and the Law Office of Amy Maldonado, reflects a narrative that has become common in recent weeks, as the implications of Trump’s “zero tolerance doctrine” evolved into a national scandal. The families came from a Latin American nation where the security situation is dire and sought refuge in the U.S., only to find themselves in a newly terrifying situation: separated by a government with no system in place to reunite the parents and kids that it is systematically tearing apart.

The boys, whose ordeal was first reported today by the Associated Press, are identified in their complaints by their initials. The 15-year-old is identified as W.S.R. and the 9-year-old is identified as C.D.A. According to their complaints, the boys, along with their fathers, came to the U.S. to seek asylum. Their individual experiences were distinct, though both families claim to have been targeted by organized crime. They crossed into the U.S. in late May, in New Mexico, more than a month after “zero tolerance” order went into effect.

In the case of 9-year-old C.D.A., the complaint claims that the father and the son attempted to enter the U.S. at a port of entry, as the administration has advised asylum-seekers to do, but were told it was “closed.” And so the pair crossed the border between ports. W.S.R. and his father did the same. They were promptly arrested by U.S. Border Patrol agents and, lawyers for the families say, expressed their desire to seek asylum.

It’s been nearly a month since the families were separated. Only one of the boys has been able to speak to his father.

It’s a pattern that Bridget Cambria, one of the attorneys for the two families, says is occurring with increasing regularity on the border. “Most of the people that we’ve heard from, they’ve all tried to present at a port of entry and they’re denied entry,” Cambria told The Intercept. “So that’s why they’re apprehended, primarily, because they’re seeking out a border officer to ask for protection.”

While the prevalence of that particular pattern could not be confirmed, The Intercept and several other news and legal advocacy organizations have documented numerous instances of border agents turning away asylum-seekers at ports of entry across the border, making it all but impossible for them to assert their right in the one manner deemed appropriate by the Trump administration.

The fathers were arrested, charged, and ultimately prosecuted for entering the country without inspection, a federal misdemeanor. The families spent two sleepless nights in a Border Patrol holding facility. One night, a U.S. official approached C.D.A., the 9-year-old, and his father. According to the boy’s complaint, the official told the father that the pair needed to be separated for a “process,” assuring him that it would only last three to five days, and then they would be reunited after. The reunification never happened. Karen Hoffmann, also an attorney working on the families’ case, says W.S.R. and his father were similarly separated. Hoffman said the boys were in tears and their fathers assured them, “I’ll see you soon. I promise I won’t let you be alone.”

“Basically, the U.S. government made liars out of them because it’s been almost a month,” Hoffmann told The Intercept. “They haven’t seen them. In one case, they still haven’t spoken.”

As sources working on family separation cases recently told The Intercept, and as U.S. officials confirmed Wednesday, the U.S. government has no dedicated system in place to reunite the thousands of families it has separated across the border. In both C.D.A.’s and W.S.R.’s cases, their complaints state that their fathers were given no information about their sons’ whereabouts following their separation. The boys were both shipped to Chicago, while the fathers entered U.S. Marshal custody. As of Wednesday’s filings, C.D.A.’s father still did not know the name of the facility where his elementary school-age son was being kept.

According to W.S.R.’s complaint, it took his father three weeks to obtain the hotline number the government is providing to parents whose children it has taken. In their one and only conversation since being separated, W.S.R.’s father expressed that his son is “extremely unhappy and upset and is desperate to be reunited with his father.”  According to C.D.A.’s complaint, his father obtained the government’s hotline number as well, which is managed by the Office of Refugee Resettlement, the Health and Human Services department responsible for the custody of minors in the immigration system.

The father tried calling the number “repeatedly,” the complaint states. “He says they took his information and told him they would call him back,” it goes on to say. “He has not managed to find out if he can receive calls at the detention center where he is.”

The fathers of the two boys are currently being held in detention centers in New Mexico and Texas, where they are awaiting interviews with asylum officers to make their claims.

Lawyers for the families argue that the ongoing detention of the two boys is a clear-cut violation of the Flores settlement, a 1997 federal consent decree that limits the amount of time the government can keep a child in detention and stipulates a series of protections for kids in U.S. custody.

In 2014, the Obama administration responded to an increase in Central American women and children showing up to the border by dramatically expanding the use of family detention. The courts ultimately intervened, ruling that the government, in general, could not hold unaccompanied children or children apprehended with a family member in detention for more than 20 days. Instead, families were to be released on parole as their immigration cases proceeded through the courts.

Far right, anti-immigrant hawks in and around the Trump administration, such as Attorney General Jeff Sessions and White House adviser Steven Miller, have long hated the settlement, casting it as a “loophole” routinely exploited by women and kids. The administration has insisted that the only way forward is through detention, arguing that if families are released into the community, they will simply disappear.

The Flores settlement requires that children not be held for more than 20 days. It also requires “contact with family members who were arrested with the minor.”

It’s a false dilemma. As the Women’s Refugee Commission, which routinely deals with families in the immigration system, recently noted, “the government can also place families into alternative to detention (ATD) programs. Unfortunately, the government eliminated one of its most promising and cost-effective ATD programs – the Family Case Management Program (FCMP) – last year, despite the fact that it is far more appropriate for families seeking asylum than either detention or separation.”

Under Flores, the attorneys say, both of the Brazilian boys have the right to challenge the government’s decision to place them with ORR. In both cases, the complaints contend, the boys were separated “without any consideration given to the irreparable psychological and physical damage that separation causes to children and without reason. There were, at no time, any assertions of abuse, neglect, or parental unfitness, nor were any hearings or process conducted of any kind by the government prior to the decision to separate.”

In addition to allegedly trespassing against the Fifth Amendment, “which does not and cannot permit the United States government to forcibly separate an asylum-seeking family, a father from a son, without justification or hearing,” the complaints cite several alleged violations the Flores settlement. Under Flores, the complaints note, government agencies involved in the detention of children are “to treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” This includes placing children “in the least restrictive setting appropriate to the minor’s age and special needs.” The complaint argues that “a separated child is not placed in the least restrictive setting appropriate when the child is apprehended with their parent.”

The Flores settlement provides several protections for children in detention. In addition to requiring that children not be held for more than 20 days, the settlement requires that children be provided clean drinking water, food, and medical care. It also requires “contact with family members who were arrested with the minor.” In the case of the boys from Brazil, their attorneys argue that the government has failed to meet this requirement. The complaints go on to note that, under Flores, the government’s first preference should always be to reunite a child with their parent whenever possible. Rather than abiding by the Flores settlement and seeking the least restrictive solution to the presence of these two asylum-seeking families in the U.S., the complaints argue that the government has embraced the most punishing course of action possible.

In his executive order Wednesday, Trump called on Sessions to file a request with U.S. District Court for the Central District of California to modify Flores “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” On Thursday, the motion was filed. The move is a clear attempt on the part of the administration to do away with the Flores agreement, thus allowing the government to detain immigrant families as long as it needs to adjudicate their immigration cases. With the immigration court backlog being what it is, that could mean that asylum-seekers with viable cases could spend months or years behind bars.

Though it ostensibly called for an end to family separations as they have played out in recent weeks, there were mixed reports describing the current status of the administration’s “zero tolerance” campaign in the wake of Trump’s executive order Thursday. But with thousands of families already separated, and children scattered across the country, the question of how reunification will proceed remains urgent. The American Civil Liberties Union has filed a class-action lawsuit calling on the government to reunite parents held in immigration detention with their children.

In a phone call with reporters on Thursday, Lee Gelernt, the veteran attorney leading the ACLU’s suit, said his organization doubts that Flores can be overturned by Congress or the courts. “The reason is because it’s based on the Constitution,” Gelernt said. “The due process clause of the Constitution required this settlement.” The ACLU is currently seeking a nationwide preliminary injunction to immediately reunify the children who have been separated from their parents. The story of the second plaintiff in the ACLU’s suit, also a Brazilian, is remarkably similar to the experiences of C.D.A., W.S.R., and their fathers. The only difference, Cambria, the attorney, said, is that after the ACLU sued, the families were reunited.

The Trump administration has repeatedly insisted that the Flores settlement requires the separation of children from their parents, and that it needs to be torn up so that the government does not have to separate families. The settlement requires no such thing. “We’re going to have an interesting talk when we go to court about who Flores actually protects, which is the child and their interests,” Cambria said. “They don’t want to overturn Flores because they care about keeping children with their parents. They want to overturn Flores because then it will contribute to a mass increase in incarceration of families and children, and they will profit off of them.”

“The point of this is not to bring families together,” she added. “The point of it is to eliminate the protections and the rights that children have in detention. And it’s disgusting.”

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