When talking about the thousands of immigrant children from Central and South America currently detained and separated from their parents by the U.S. government, I’ve heard many people say that this situation is no different from those in which an American parent goes to jail, thereby separating her from her children. However this analogy is flawed. Let me explain why.

 

Let’s take two cases and look at how they’re handled in the U.S. today.

In the first case, let’s say that an American woman is arrested for shoplifting. After her arrest, she may be jailed for several days or even a few weeks until she is able to make bail or post bond, at which time she’s released until her initial hearing (policies vary among jurisdictions as to how quickly a defendant can be bailed out or post bond). During the first few days or possibly weeks when she’s kept in jail, this mother is indeed physically separated from her child. However, barring circumstances where the arrested parent is being accused of neglect or abuse (which would be a situation where child protective services caseworkers would step in to ensure a safe placement for the incarcerated parent’s child) it remains the parents’ decision as to where her child will stay, and with whom until the mother is released.

During this brief initial incarceration, and again, barring alleged child abuse or neglect on the part of this shoplifting mother, this parent, even though she’s in jail, knows exactly where her child is, and with whom, and she’s allowed to have regular contact with her child through letters, phone calls, and depending on how long this initial stay in jail lasts, the mother and child will also enjoy visits with one another.

In other words, the parent accused of shoplifting is not automatically and immediately “punished” at the time of her arrest by having her child immediately taken from her and placed into government custody in an unknown location.

At the time of her initial hearing this woman has either already hired a private attorney or she fills out paperwork that will allow the court to appoint one for her. In either case, the woman will have an attorney who is responsible for representing this individual’s best interests and handling her defense on the shoplifting charge. In this instance, the woman’s attorney determines that she’s already been arrested three times for the same offense, so despite the lawyer’s best efforts on her behalf, when the shoplifter appears before a judge, something that’s supposed to happen with all due haste in our criminal justice system, this mother is sentenced to a year in jail.

At this point, the woman convicted on the shoplifting charge will indeed be physically separated from her child during the period of her incarceration.. But It’s only when a judge actually sentences this mother to jail, following a vigorous defense from her own attorney that this physical separation takes place. The way that this shoplifter’s case has been carefully ushered through our judicial system, with protections for her rights in place at every point is called due process, and it’s a central tenet, perhaps THE central tenet of our legal system.

Jailed mothers and fathers in the United States almost always get to decide or have a substantial say in where their child will stay until the parent is out of jail. Their children aren’t sent by the U.S. government to places unknown, and children aren’t deprived of all contact with their incarcerated parents. Even in cases where child welfare officials play a role in deciding where an incarcerated parent’s child is placed, the child can’t simply be hidden away from parents by the government, with no information about the child’s well being provided to parents. In most cases, the children of incarcerated parents are provided with plenty of contact while their parent is in jail in the way of letters, phone calls and prison visitation.

In addition to a parent having her very own attorney to represent her within the judicial system, judges often also require separate representation for the child who will now be separated from her parent for the term of that parent’s incarceration. This protection for a child’s rights and best interests usually comes via the appointment of a guardian ad litem, a Court Appointed Special Advocate (CASA) worker or a state’s child protective services caseworker. In other words, in the American system, we have taken pains to ensure that both parents and children have advocates for their best interests in place when a parent is arrested.

Once the parent is released from jail, unless there are specific allegations of parental abuse or neglect which require the involvement of the state’s department of children’s services, the child is immediately reunited with her previously jailed parent. There is no delay in this reunification. Even when there are concerns about a parent’s fitness, the goal of almost all social service cases involving children is to facilitate familial reunification as quickly and safely as possible.

Now let’s look at the case of a mother from Guatemala caught trying to illegally enter the United States, carrying her child on her back. Under Trump’s current  “Zero Tolerance” policy,  this woman would immediately be arrested and jailed, meaning that her child would be taken from her right there and then – at the time of her arrest. Until June 18th of this year, this act of separating immigrant parents from children at the time of the parent’s arrest was an actual policy articulated by the Trump administration as a way to deter other potential immigrants from Latin America from trying to enter the United States.

However, on June 19th of this year, President Trump signed an Executive Order ending automatic parental separation as a policy. However, even after this Executive Order, the reality is that under Trump’s continuing Zero Tolerance policy in which every single person caught trying to enter the U.S. illegally is immediately arrested and detained, our Guatemalan mother has her child literally removed from her arms by federal agents when she’s arrested. She’s taken to a federal detention facility and her young child is taken to another location. Because the woman speaks only an indigenous language and is illiterate, she is unable to understand the little information provided to her as to where her child has been taken or when she will be returned to her. and she has no idea what is happening to her as she continues to be detained until she’s brought into a deportation hearing where she doesn’t understand what’s happening and can’t effectively inquire as to where her child is or when/how she can get her back. This mother doesn’t even have a lawyer, as is the case with half of the defendants in all immigration court proceedings. A whopping 84% of immigrant defendants currently in detention have no legal counsel appointed to them.

Obviously, this arrested Guatemalan woman is not being afforded even the basic aspects of due process, and as it turns out, her child’s rights and best interests also lack effective representation.

As it happens, this Guatemalan woman’s 5 year old daughter, the child taken from her as soon as she was arrested, has been sent to a detention center operated by Southwest Key, the Austin, Texas based “non profit” that was paid at least $458 million in 2018 alone to take in immigrant children separated from their families under Trump’s Zero Tolerance policy. According to a company statement, Southwest Key operates 26 shelters housing approximately 1,600 kids in Arizona, California and Texas. Critics and observers of Southwest Key’s practices say that the company’s facilities almost exclusively detain children separated from their Latin American parents who were arrested and had their children removed under Trump’s Zero Tolerance policy. However, the company would argue that the majority of the kids that they detain were actually “unaccompanied minors” at the time that they were apprehended by federal agents. Whatever the actual percentage of children currently detained in Southwest Key’s facilities who came there as the result of parental separation, it’s clear that the company’s business model is lucrative. In fact, the CEO of Southwest Key, Juan Sanchez has seen his salary nearly double since 2016. Today Sanchez makes a base pay of $889,360, with additional pay of $21,000 and $566,371 in retirement compensation. The total package comes to $1.47 million.

The company makes its money two ways: by taking in more children and holding each child for more days. According to a spokesperson for Southwest Key, the average length of stay for each child at its shelters has risen from 42 days to 52 days under Trump’s Zero Tolerance policy. The company is also rapidly expanding, adding new shelters in more locations.

But Southwest Key isn’t the only non-profit raking in the millions from housing immigrant children. There are multiple other companies all over the country receiving billions in federal grants from the U.S. government to house migrant children, including some as young as infants. And as with Southwest Key, the more children these companies house, and the longer they keep them, the more money the government funnels to them. Obviously, it is in the best interests of Southwest Key and the multiple other companies operating on the same business model to see more parental separations, not fewer, and for detained children held in their facilities to be kept away from their parents as long as possible. These companies’ bottom line depends on parental separations.

And here’s where we get back to our Guatemalan mother – the one who was arrested at the border and who had her 5 year old daughter taken from her. It’s obvious that without an attorney or even the ability to understand the legal proceedings in which she has been placed, she is not receiving the critical benefit of due process. And without the involvement of a guardian ad litem or other advocate appointed specifically to represent her daughter’s interests, this child is also being denied due process. Because this mother and child have been separated with no procedural connection in place to establish that that particular child belongs to that particular mother, this detained parent has absolutely no idea where her child is or what’s happening to her. While detained awaiting her deportation hearing, this mother certainly has no way to exchange phone calls or letters with her daughter, much less enjoy a visit with her child. When and if this mother is sentenced to deportation, and she desperately tries to find locate her daughter before she herself is sent out of the country, she is very likely to have significant difficulty in finding her child, much less reuniting with her. It turns out that even as the Trump administration continues to bring in hundreds of new immigrant children each month who have been separated from their parents at the time of arrest, the administration literally has no plan for how to keep track of which children belong to which parents.

So let’s recap:

  • The American mother arrested for shoplifting is not immediately separated from her child. Even when she’s behind bars, she’s always apprised of her child’s whereabouts and well-being, and she’s allowed to keep in regular contact with her child while incarcerated. Mother and child also enjoy regular visits together. When the mother is released, there are no barriers to reunification with her child. Both mother and child have received the required benefit of due process as they made their way through our judicial system.

 

  • The Guatemalan mother has her child literally taken out of her arms when she’s arrested at our southern border. She speaks an indigenous language and doesn’t understand where she or her child are being taken, or how she can be reunited with her child. The child is taken to a shelter in another state operated by a company making half a billion dollars a year by taking in immigrant children separated from their parents. The child, too doesn’t speak English, and she misses her mother terribly. She doesn’t understand what’s going on and she experiences huge trauma from this sudden parental separation. In the case of this mother and child, neither were afforded even the basics of due process, and now the mother literally cannot find her child that the government took from her at the time of her arrest.

Surely those who say that the situation with immigrant children being taken from their parents at the time of arrest is analogous to what happens when an American parent is arrested can now see the specific and incredibly meaningful ways that the two situations differ from one another.

What we are doing at the southern border is immoral, unconstitutional and unsustainable.We can’t just keep taking in hundreds or even thousands of children each month and keep them in conditions where they are effectively completely cut off from their parents. We cannot continue to create a national network of money-grubbing shelters for children we’ve illegally removed from their parents’ care. At some point, we’ll run out of money and space to continue Trump’s cruel and inefficient policy.

 

 

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