“Where Is My Child?”

“Where is my child?” That’s the question an unnamed Central American woman asked her attorney, Erik Hanshew. The woman, who crossed the border seeking asylum, continued to barrage Hanshew with questions. “Why did this happen? Who took him? When will they tell me anything?” Writing in The Washington Post, Hanshew recounted his response: “To all of her questions, I had to answer: I don’t know.”

Earlier that day, the president signed an executive order that theoretically ended the policy of separating families at the United States-Mexico border. However, as Hanshew wrote, “that changes nothing for my clients or the thousands of other parents who have already lost their kids at the border. The government does not yet appear to have a plan for reuniting families it has separated.”

What is asylum?

According to the American Immigration Council (AIC), asylum is “a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a ‘refugee.’ ” The international laws to which the AIC refers are found in two treaties, the United Nations’ Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967). These treaties define a refugee as “a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future ‘on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” As a result, the AIC says the United States has “legal obligations to provide protection to those who qualify as refugees.” This protection is granted both to foreign nationals already in the United States as well as to those at the border who meet the legal definition.

Current laws and practices

In early April, Attorney General Jeff Sessions announced a new “zero-tolerance policy” for immigrants crossing the border illegally. This meant that anyone crossing the border outside of an official port of entry would be criminally prosecuted for the misdemeanor offense of illegal entry, even if they were seeking asylum. As part of this zero-tolerance policy, families arriving with children were separated during the prosecution process. Advocacy groups criticized the change in policy as inhumane, especially if the crossing involved families seeking asylum.

Previously, many of the families caught crossing the border illegally, especially those seeking asylum, were released until their civil immigration cases could be adjudicated. A complicating factor throughout this controversy has been a 1997 consent decree entered into by the United States government known as the Flores settlement. According to the nonpartisan group Human Rights First, the settlement states that “the government is required to release [unaccompanied] children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.” If suitable placement isn’t immediately available, then “the government is obligated to place children in the ‘least restrictive’ setting appropriate to their age and any special need.” In 2015, a federal judge expanded the Flores settlement to include both accompanied and unaccompanied minors and ruled that holding children for up to 20 days “may fall within the parameters” of the Flores agreement, which had previously been broadly interpreted as five days, according to an August 2015 New York Times article.

In late May, the Trump administration added to the controversy by making it more difficult for new arrivals to make asylum claims. On June 11, Sessions announced that in most cases, immigration judges cannot consider gang and domestic violence as grounds for asylum. In this ruling, Sessions invalidated one of five qualifying categories for asylum — persecution for membership in a social group — describing it as “inherently ambiguous.” In response, 15 former immigration judges and the Board of Immigration Appeals called Sessions’ decision “an affront to the rule of law.”

Furthermore, the zero-tolerance policy complicated the cases of asylum seekers who had crossed the border illegally. Previously, an asylum case was adjudicated first before taking into account the criminal charge for crossing the border. Legally, asylum seekers are required to present themselves at a port of entry rather than crossing between checkpoints. However, on June 13, The Washington Post reported that US Customs and Border Protection (CBP) officers were turning away asylum seekers at these entry points, telling them they couldn’t apply at that time because the ports of entry were “at capacity.”

By mid-June, the zero-tolerance policy and the subsequent separation of migrant children from their families had created a firestorm of criticism. As a result, on June 20, President Trump issued an executive order ending the separation of children from their families. However, a June 24 Washington Post article reported that over 2,000 children, some of them toddlers and infants, were still being held in detention throughout the country, and frantic parents had no way of discovering their whereabouts or being reunited with them. According to a June 25 New York Times article, border officials temporarily suspended the practice of handing over migrant families for prosecution, which appeared to undercut the zero-tolerance policy. White House press secretary Sarah Huckabee Sanders stated that while there’s been no official change to the policy, “we’re simply out of resources.”

United Methodist stance

In a statement on June 20, the Reverend Dr. Susan Henry-Crowe, general secretary of the General Board of Church and Society of The United Methodist Church, said, “While [Trump’s] executive order ends the practice of family separation, it continues what the administration calls a ‘zero tolerance’ policy. This now means that families seeking refuge in the United States can be held together, in detention, indefinitely.”

Henry-Crowe pointed out that both the United Methodist Social Principles and Resolution 3281 clearly support policies of compassion and respect for immigrants. She stated, “Policies that jail families — whether separately or together — fail to reflect our shared values of compassion, dignity, justice and love. Our options are not limited to jailing families together or jailing parents and children separately.”

Henry-Crowe added that we must continue to work for a world in which detained children receive compassionate care, separated families are united, detained families are not held indefinitely, asylum protections are provided for survivors of domestic abuse and gang violence, and DACA (Deferred Action for Childhood Arrivals) recipients have a pathway to citizenship.

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