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6-Year-Old Migrant Will Remain Separated From Her Adopted Mother

Asylum-seekers waiting to present at the port of entry in Nogales, Mexico.EXPAND
Asylum-seekers waiting to present at the port of entry in Nogales, Mexico.
Henry Sullivan via Kino Border Initiative

It’s hard to learn to read as an adult, particularly while consumed with thoughts of when you’ll see your child again. But Maria is trying. She’s waiting in Eloy Detention Center in Arizona, as she has been since the federal government separated her from her adopted daughter nine months ago.

The Guatemalan pair last saw each other when they lawfully claimed asylum at a port of entry at the border in Lukeville, Arizona. Until their asylum case concludes, Maria remains locked up in a facility outside Phoenix.

Meanwhile, over 2,000 miles away in a shelter in New York, her 6-year-old adopted daughter is growing up fast.

In summer 2018, amid outcry over the government's child-separation policy, a federal judge ordered the Trump administration to stop removing children from their parents' care. But that order didn’t apply to non-parent family members who often step in as guardians, including grandparents, older siblings, or people like Maria, who is biologically Flor’s aunt.

The Guardian first published Flor and Maria’s story in October of this year. Their case gained national attention and garnered public outcry, serving as an example of a family who claimed asylum lawfully and presented strong evidence of persecution in their home country, but were separated on a technicality.

Bur since then, Maria’s requests to be united with her daughter through release on parole continue to be denied with little explanation – most recently, earlier this month.

While she appeals her asylum denial, knowing she and her adopted daughter cannot return to the gangs that await them in Guatemala, she waits. She picks up her legal documents, written in English and Spanish, and tries, again, to read.

Murders Led to Adoption

As a teenager, Maria watched as gangs beat her mother to death in rural Guatemala over a deep-seated land dispute. Two years later, in 2013, they returned to her home, killing her father and sister, and leaving her sister’s 8-month-old baby near death, choking in a pool of blood.

At 17, Maria, who had managed to escape, returned to the scene with police and found herself the sole caregiver of the child.

Her niece, who Phoenix New Times is referring to only under the pseudonym “Flor” on request of Maria’s attorney, grew, and Maria raised her as her own.

But the horrors continued. In 2018, the gang that killed her family shot her partner in front of their home, and attempted to shoot Maria as well. Maria fled with the girl, who was then 5, to the United States.

They arrived at the U.S.-Mexico border in early 2019. But when they claimed asylum at Lukeville, Maria was told they’d be separated – the 23-year-old would go to ICE detention in Arizona, and Flor would be taken to New York, a state she’d later learn was on the opposite side of the country.

Children who arrive at the border without a legal guardian are considered “unaccompanied” – even if they arrive with a non-parent relative like Maria – and taken to shelters across the United States run by the Office of Refugee Resettlement. Flor was transported to a shelter in New York, when she remains to this day. She and Maria talk in the 15-minute phone calls Maria is allowed once a week, according to her lawyer.

Parole Denied

An immigration judge found Maria’s case credible and acknowledged that the pair had suffered harm, but denied her claim met the criteria of asylum. Suzannah Maclay, one of her lawyers, has appealed the decision, initiating a complex review process that could take years due to immigration court backlogs.

Parole would have reunited the family in the meantime by freeing Maria from detention and allowing her and her niece to live together with a sponsor the family secured in New York. Parole, in immigration agency parlance,  is a special form of release reserved for asylum-seekers who request refuge at a lawful port of entry. These parole requests are determined by ICE, which acts as both judge and jailer in the process.

If granted, parole allows asylum-seekers to live and work in the country while their claims are considered. The sponsor, who offered to take the family early on in Maria’s case, lives near public transit that would have granted Maria easy access to attend her court hearings.

But the federal government has denied her request for parole three times, with little explanation why. New Times reviewed the brief rejection letters, dating back to May of this year.

On December 9, the most recent denial decision letter simply checks a box that reads, “You have not established to ICE’s satisfaction that you are not a flight risk.”

“The default assumption is that they are a flight risk,” Maclay said. “It’s on me to prove, to whatever standard or satisfaction they decide, otherwise.”

Her most recent request included a letter sent by 23 members of the Arizona House of Representatives to Immigration and Customs Enforcement, as well as a letter signed by over 200 faith leaders from around the country, asking for her release.

“Evidently that, along with the other supporting evidence I provided, is not enough,” Maclay said. “But they didn’t send a written explanation why.”

Before the Trump administration, 90 percent of people who applied for asylum at ports of entry were granted parole, permitting them to live inside the United States while their claims were considered. But immigration lawyers say the federal immigration agency is granting parole less and less often.

In a pending lawsuit known as Damus v. Neilsen, a judge found that in five ICE jurisdictions, parole grant rates had dropped to nearly zero since President Trump took office, in violation of Department of Homeland Security policy. The judge has since ordered ICE to provide written explanations of every parole denial in these jurisdictions.

But Arizona, where Maria’s requests continue to be denied, is not included in this area.

Maclay, her Arizona attorney, has been an immigration lawyer in the state for 20 years. She estimates Arizona is experiencing similar rates of denial, and believes Maria’s parole would have been granted a decade ago.

“I’m pretty sure we would have gotten parole back then, and now, I’m reluctant even to try,” Maclay said. “Which is a terrible thing to say, but statistically speaking, I’m probably correct. But you know, you have to keep pushing – if you’re the 1 percent that gets granted, it’s a 100 percent for you.”

An additional box checked reads that Maria failed to demonstrate that she was “an alien whose continued detention is not in the public interest.”

Public Interest

On Thursday, Democrats from the Arizona House of Representatives held a press conference outside the State Capitol opposing the government’s continued separation of the family.

“We’re here today to talk about a young woman and an even younger child, whose lives and circumstances are as horrific and tragic as any of us could ever imagine,” said Representative Kelli Butler, who organized the event. “When Maria fled, she didn't have proper adoption papers or a court order from Guatemala. Instead, she had birth certificates, and a stack of her family's death certificates. Flor doesn’t understand what’s happened, or why she can’t be with the only family she’s ever known.”

The conference included members of the faith community who’d signed the 200-person letter advocating on her behalf in her most recent parole request, like Arizona Jews for Justice and First Church UCC Phoenix.

James Pennington, lead pastor of First Church UCC Phoenix, compared their journey to the Biblical story of Mary and Joseph, who fled as refugees to Egypt after the birth of Jesus.

“According to international law, and I quote, ‘Refugees have the right to be protected by the country in which they seek asylum,’” said Pennington. “Why is our current administration breaking international law? Are they protecting Maria and her niece? They’re causing further pain, trauma, and mental health issues that will extend far beyond just this moment in time.”

They joined in calling for Maria’s release and the family’s reunification.

“This is really a story about networks and communities,” Maclay said. “It’s so interesting in that regard, particularly because ICE is saying it’s not in the public’s interest to release her, but there’s so many members of the public who are involved in this.”

Conclusion

If Maria is deported, there’s no guarantee when she’ll see Flor again.

“DHS has refused to even acknowledge that an important relationship exists between Maria and Flor,” Maclay said. “So, absent a change of heart, it could be inconsistent with their position to go out of their way to coordinate simultaneous removals or even communication in this situation.”

In other words, Flor could be returned days, weeks, or months after Maria – it’s just unknown.

In the meantime, the pair wait – either for asylum or deportation – apart. Maclay said she isn’t sure their legal team will request parole again.

She said for Maria, some days in detention are good, and some days are bad – she’s depressed often, but she’s trying to stay afloat.

“There isn’t a lot to do in detention, but she’s trying to learn to read and write, to keep busy,” Maclay said.

There have been more than 5,460 cases of family separation by the federal government, according to data obtained through litigation by the American Civil Liberties Union in October. These figures do not include families like Maria and Flor – suggesting the number may be much higher.

ICE has not yet responded to requests for comment.

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