The administration is considering the step, which has not been previously reported, as part of ongoing negotiations with the American Civil Liberties Union to settle a federal lawsuit over family separations.
“We are currently in the process of discussing a [way] to sort out which crimes were too minor to warrant the separation of children from their parents,” Lee Gelernt, the ACLU’s lead attorney in the lawsuit, told Newsweek.
The change would open the reunification process to parents who were separated from their children by the previous administration for misdemeanor offenses, such as nonviolent theft and illegal entry into the United States. Those parents are currently not included on a list of families the Biden administration is trying to reunify through its Family Reunification Task Force, though it’s possible some have reunited without the government’s knowledge, according to the ACLU.
It’s unclear how many additional families could become eligible if the change takes effect. But the fact that the government’s approach to the problem is still evolving more than one year later underscores the immense challenges that remain in addressing one of the most controversial chapters of the Trump years.
The task force, which was established by President Joe Biden shortly after he took office, still has no confirmed contact information for the families of 266 children who remain separated from their parents, according to its latest report.
Records for separated parents were frequently lost or mishandled by the Trump administration. But many separated parents who were deported back to their home countries are still mistrustful of the U.S. government, and wary of being contacted by organizations trying to connect them with the task force, numerous people involved in the effort said.
Some progress has been made. The task force has so far reunified nearly 200 children, a spokesperson for the Department of Homeland Security told Newsweek. The number is larger than has previously been reported, and is a sign the government is picking up the pace of family reunifications.
The administration is also in the process of reunifying nearly 400 additional children with their parents and expects to complete their reunifications in the coming months, the official said.
The Department of Homeland Security official declined to comment on the discussions to reunify some parents with criminal records. The official said the task force has contacted more than 500 separated families, and plans to make “contact with additional families in the coming months.”
“The Task Force meticulously reviewed, over the course of several months, thousands of records and corrected significant data issues in the existing files following the prior administration’s lack of record keeping,” the official added.
A Newsweek review of court records and government documents, as well as interviews with administration officials, organizations working with the task force, and others familiar with the matter laid bare the obstacles in the way of finding separated parents who have slipped through the cracks.
It’s not surprising the government’s grasp of the issue is still evolving now, nearly five years after the Trump administration started separating families, said Mariana Blanco, the assistant director of the Guatemalan-Maya Center, an immigrant rights group in Florida.
“I’m glad Biden initiated this and is trying to right this wrong. But there was so much damage that was done by the previous administration, by ICE and the agencies that supported the process, that it’s going to be very difficult to track down all the people who were affected,” Blanco said.
The Trump administration launched a pilot program to separate parents from their children in the El Paso border sector in Texas in July 2017. It started the zero-tolerance policy the following April. Under the policy, families that were apprehended crossing the U.S.-Mexico border illegally were separated, and the parents were placed in detention after being criminally prosecuted. Most were deported from the U.S. without their children. The children were held in federally run shelters, in some cases for more than a year, before being reunited with their parents, or released to other relatives, family friends or placed in foster care.
Trump formally ended the policy in June 2018, in response to outcry from critics and legal pressure from the ACLU lawsuit, Ms. L vs. ICE.
“We’re going to keep families together, but we still have to maintain toughness or our country will be overrun by people, by crime, by all of the things that we don’t stand for and that we don’t want,” Trump said at the time.
In its initial report last June, the task force identified 3,913 children as having been separated by the previous administration’s zero-tolerance policy or other initiatives. Of those, 1,786 were reunified through a court order while Trump was in office.
The Biden administration also said in its initial report that it was reviewing the cases of additional children who were taken from their parents under Trump, to see if they were separated by the zero-tolerance policy and therefore qualify for reunification by the task force. The parents with minor criminal histories may come from that group.
The latest progress report, which was posted to the task force website in late March, found that 1,228 children still remained separated from their parents. That figure is somewhat lower now, since it includes the families that a DHS spokesperson told Newsweek have been reunified in recent months.
‘No one knew the task force existed’
Officials from the nongovernmental organizations conducting the searches on behalf of the task force said several factors explain why so many families remain separated – and why some parents continue to be so hard to find.
Most of the work around family reunification has focused on finding parents who were deported to their home countries in Central America while their children were held in the U.S. According to data released by the task force, 94 percent of the families that were separated at the border by the zero-tolerance policy came from Guatemala, Honduras or El Salvador.
Some parents were contacted by groups working with the ACLU during the Trump administration after the lawsuit to end family separation was filed in 2018. The organization Kids in Need of Defense, or KIND, is leading the effort under Biden to reestablish contact with those parents.
But many moved or changed numbers in the intervening years and are proving very difficult to locate now, several people involved in the search process said.
“A phone number that was good for someone [years ago], there’s no guarantee that it’s still good in 2022,” said Laura Just, KIND’s international legal director. “A lot of time has passed. Circumstances have changed. People have not just remained static waiting for us to call.”
The parents for whom there is no contact information at all are even harder to find.
Rebeca Sanchez Ralda, an attorney in Guatemala who is conducting searches for Justice in Motion, an advocacy group working with the task force, said in a phone interview in Spanish from Guatemala City that she is often asked to find a parent on the official task force list using nothing but the person’s last name.
In those cases, Sanchez Ralda said she starts by searching a government database where citizens are required to register in order to get a national identification card. If the name pops up, she said she can view a copy of the person’s birth certificate, and from there start to narrow her search with phone calls to municipal and local leaders.
Sanchez Ralda recalled a recent trip she made with colleagues to a small community in western Guatemala in search of a separated father with no phone number and a common last name that she said was “equivalent to Smith or Johnson in the U.S.”
“We walked around and we couldn’t find him,” she said. “So we found an evangelical church, and waited for the service to end. Then we started asking if anyone knew the man we were looking for. It turns out there were three people with that same name in the town.”
The search was fruitless. When she does find separated parents, Sanchez Ralda said they’re often living in poor, rural areas with no internet and aren’t aware of the Biden administration’s effort to reunite them with their children in America.
“Not one person we found knew the task force existed. Not one,” she said.
Many separated parents remain deeply scarred by the experience and need to be convinced, once they’re found, that the government is trying to help, said Cathleen Caron, the executive director of Justice in Motion.
“There’s no trust in the U.S. government,” Caron said.
The Trump administration’s disorganized record-keeping was well-documented at the height of the family separation crisis. But the problem had long-lasting effects that still present challenges in finding parents and children today.
The case of one mother from El Salvador highlights the issue. The woman, whose name is being withheld to protect her identity, was arrested by a U.S. Customs and Border Protection agent in September 2017, after crossing the U.S.-Mexico border illegally in El Paso with her teenage daughter and five other people.
But the criminal complaint filed against the woman in federal court in Texas made no mention of the fact that she was with her daughter at the time of her arrest or that they had been separated afterwards, according to a copy of the complaint that was reviewed by Newsweek. It stated only that the defendant was part of a group of “seven individuals” arrested entering the U.S. illegally.
The information also wasn’t included in subsequent U.S. Immigration and Customs Enforcement documents, reviewed by Newsweek, that related to her detention. It took four years to untangle the confusion and clear the way for the mother and daughter to be reunified, their attorney said in an interview.
In another instance, officials at an immigrant rights group sent numerous emails to ICE inquiring about information for a young boy who was separated from his father at the southern border in 2018. An official shared the emails with Newsweek, but asked that the name of the child not be disclosed.
In one email, the group wrote requesting alternative dates of birth the child may have given his arresting border agent, as well as “any other identifying documents that ICE may have for the participant. Minor reports traveling with his birth certificate, and ID.”
The terse response from an ICE official was typical, according to the person who was assigned to reunify the child, and who asked to remain anonymous to discuss details of the case.
“I have no alternative [dates of birth] for the subject,” the ICE official wrote back, adding that the immigration office in the city where the boy was being held in custody still hadn’t received his file. “When it arrives, I’ll see if there are any identity documents inside.”
Those two cases were hardly unique. In interviews, several attorneys spoke of handling similar cases, and said years later they were still grappling with the Trump administration’s chaotic approach to separating families.
“The Trump administration did not anticipate the need for ever reunifying” separated families, said Linda Corchado, an immigration attorney who has worked on reunification cases. “So of course there’s going to be a crisis of information.”
Falling through the cracks
Adding to their present-day challenges, attorneys and others said the task force still has limited information on not only parents but also many separated children who were held in the U.S.
The Trump administration held separated children in shelters across the country run by the Office of Refugee Resettlement, an agency that is part of the Department of Health and Human Services. A majority of the children who were released from custody under Trump were handed over to their parents.
But the Biden task force found the previous administration also released 918 children to family members who were not the child’s parents. An additional 451 children were released to people whose relationship with the child was “unknown,” the task force said in its first report.
Often, children were released “to someone they knew once, or their families know. Very likely they lived with them for a short period of time,” said Blanco, who spent two years as a case worker at an ORR shelter for separated children in the Midwest. It’s unclear what happened to them since, she said. “Now they’re just living in the shadows.”
No system was put in place under Trump to track the whereabouts of any of these children once they left federal custody – and no formal tracking system has been created since Biden became president.
As a result, hundreds of children remain unaccounted for, though the task force has said it’s possible some have reunited with their parents and the government is unaware of the reunifications.
“We saw so many of our cases fall through the cracks,” Blanco said. “Those kids are never going to be the same again. We really messed a lot of those children up by separating them.”
Apart from the reunification process itself, the ACLU and other groups have continued to push the administration and Congress to come up with a long-term solution allowing families to stay in the U.S. after they reunify, and increase funding to cover housing and other services.
Under the current system, the task force grants reunited families a three-year parole. After that time is up, parents and children must leave the country unless they are otherwise legally permitted to stay longer. The administration has said a long-term solution requires a legislative fix by Congress.
“Three years, that’s a start,” said Caron. “But Biden cannot give them permanent legal status. That’s on Congress to do.”
The administration is also under pressure to return to the negotiating table to reach a settlement agreement with families who were separated. The Department of Justice suspended the negotiations last year, several weeks after it was publicly reported that the government was considering offering payouts of several hundred thousand dollars to each separated family that joined the ACLU’s class action lawsuit.
The Department of Justice declined to speak on the record about the negotiations. Advocates who believe the Biden administration has an obligation to compensate victims of the policy have argued that the administration bowed to political pressure from Republican critics who opposed the payouts.
“A lot of these parents had a plan” to improve their family’s economic future by coming to the U.S., Corchado said, “and instead they had to see their kids live in poverty from afar, and really struggle. Money means something here.”
“That’s what I think about for the parents who still live in that black hole” of being separated from their children, she added. “Part of their dignity was stripped away by the government. It’s not just the reunification, it’s the acknowledgement of their dignity. Will they ever get it?”
