Family Separation and Asylum Turnaways
El Paso and the border: laboratories of injustice or landscapes of hope?
Hope Border Institute joins demands throughout the country to immediately end the Trump administration's policy of family separation.
As we documented in our Sealing the Border report in January 2018, the administration's current family separation policy was tested in the El Paso sector between July and November 2017. As the Washington Post reports (April 26, 2018) (1), a memorandum sent to DHS Secretary Nielsen acknowledges that the “zero tolerance” policy which promotes family separation was in fact first implemented in the El Paso sector on a pilot basis.
1.Constitutional challenge to family separation policy
Meanwhile the U.S. District Court for the Southern District of California has determined1 that the ACLU’s constitutional challenge of the administration’s family separation policy should proceed, by denying the government’s motion to dismiss the case. Judge Dana M. Sabraw based her decision on legal precedents which ground the right to family integrity or familial association to the liberty interests protected by the Fifth Amendment through its recognition of “substantive” due process rights, and notes that “[t]he liberty interest at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by” the U.S Supreme Court (id., at 14).
Judge Sabraw emphasized that the allegations made in the case “describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of of power without any reasonable justification in the service of an otherwise legitimate governmental objective”. She concluded that
“[s]uch conduct, if true...is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue ‘shocks the conscience’ and violates Plaintiffs’ constitutional right to family integrity” (id., at 23) (emphasis added).
2. Implications of most recent CBP enforcement data: sharp increases of apprehensions of unaccompanied minors and family units in El Paso sector
The Trump administration continues meanwhile to manipulate enforcement data by claiming on the one hand that more drastic measures such as “zero tolerance” need to be intensified because of increased flows of family units and unaccompanied minors2, even though the most recent fiscal year data it has released (June 6) indicates: 1) that the number of family units apprehended has diminished by 3% between FY 2017 and FY2018, and 2) that there has been a only a small 4% increase in the number of unaccompanied minors. The largest increased flow in the CBP’s overall data is that of Guatemalan family units (an approximately 9% increase) (id.).
CBP data as to the El Paso sector however indicates an unusual and disturbing increase in apprehensions here of both unaccompanied minors and family units. This includes a sharp increase of over 70% in apprehensions of Unaccompanied and Separated Children (UASC) in the El Paso sector, greater than any other sector, between January and April 2018, as well as a 52% increase in apprehensions of family units in this sector between FY 2015 and FY 2017. It is also notable that apprehensions of unaccompanied minors have increased significantly between January and April 2018 in the El Paso and Yuma sectors, at the same time that apprehensions of family units have diminished. This suggests that more children are recently being reclassified as “unaccompanied” due to an increased number of forced separations of family units resulting from the ramping up of “zero tolerance”.
Overall this data also highlights the extent to which the current intensification of immigration enforcement has failed to deter overall flows, and the continuing failure of U.S policy to address their causes, rooted in structural injustices in which the U.S is deeply complicit.
3. Deterrence of asylum seekers at ports of entry
More recently (Texas Monthly, June 2) (2) local independent observers and advocates such as staff from Annunciation House have documented how CBP officers are once again using El Paso as a testing ground to deter asylum seekers, by creating a filter intended to intimidate them and to compel them to turn back at the El Paso del Norte bridge. This filter serves to discourage asylum seekers from exercising their right to seek protection from potentially deadly persecution in their countries of origin, in violation of both U.S and international law. Increasing reports of equivalent or related practices at San Isidro, Nogales, and McAllen points of entry are taking even more concrete form here as a result.
At the same time migrant rights monitors in Nogales report that increased recent flows of asylum seekers (particularly Guatemalans) are being turned away from processing and referred to local shelters to await their turn, at the request of Mexican immigration officials, in collaboration with U.S authorities. This reflects the kind of de facto and sometimes more formal delegation of the handling of asylum flows between the U.S and Mexico which is deeply troubling to human rights defenders on both sides of the border, given the overall erosion of asylum and human rights in both countries that this further nourishes.
Hope Border Institute will continue to monitor and document abuses of this kind and to stand in solidarity with their victims throughout the U.S-Mexico border region, and on both sides of the border, and to promote policy alternatives that position our region as a landscape of hope, instead of a laboratory for injustice.
(1) "The memo said the Trump administration tried this approach in the Border Patrol’s El Paso sector, which covers West Texas and New Mexico, between July 2017 and November 2017. Afterward, the number of families trying to cross illegally plunged by 64 percent, the memo said. “This decrease was attributed to the prosecution of adults . . . for illegal entry,” the memo said. “ Of note, the numbers began rising again after the initiative was paused.”
 https://www.cbp.gov/newsroom/stats/usbp-sw-border-apprehensions; https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Southwest%20Border%20Family%20Units%20and%20UAC%20Apps%20-%20FY17.pdf
Family Separation Fact Sheet
(as of June 6, 2018)
1) Migrant children in custody (no differentiation made here between those who arrived w/family members and those who were unaccompanied).
- 10,773 (May 28, 2018)
- 8,886 (Apr. 29, 2018)
- 21% increase within the last month.
- 40,000 (approx.) held last year (2017); 93% released to adult sponsors (50% to parents, 40% to close relatives).
2) Average time spent in shelters has increased from 51 to 56 days.
3) Shelters (approx. 100 located in 14 states) are currently at 95% capacity.
- 1,300 beds still available, including several hundred in Homestead, Fla. adjacent to Air Force base there.
4) 638 adults referred for prosecution between May 6 and May 19, who brought 658 children with them.
5) 700 children separated from their families since October 2017, with at least 100 under age 4; approximately 1,000 children separated from their families within the last 5 weeks due to increased prosecutions.
6) Military facilities being assessed for possible use as detention sites for children, including bases in El Paso, Abilene, and Angelo.
Sources: 1) to 4) Washington Post, May 29, NY Times June 6; 5) NY Times, Apr. 20 and NY Times, June 6 (source cited is ACLU); 6) Wash. Post, May 15 and El Paso Times, May 16