Migrant Fathers Seek Damages From USA for Family Separations

The border wall separating Yuma and Mexico along the Imperial Sand Dunes.
The border wall separating Yuma and Mexico along the Imperial Sand Dunes. Hannah Critchfield

A little over a year ago, a father and son reached Lukeville, Arizona, in late May. The two were prepared to be met by Border Patrol, prepared to claim asylum. Surely, whatever life in America greeted them would be better than enduring one more death threat back in Guatemala. Here, he would keep his 11-year-old safe.

The same day, 128 miles away in San Luis, another father was arriving in Arizona with his 11-year-old daughter. His niece had been raped in their Guatemalan neighborhood, and now the alleged perpetrator was threatening to do the same to his child, telling her father she was “growing up.” They, too, planned to claim asylum together.

Neither family would get the chance.

It would be another two months before they saw their children again. They still aren’t sure what happened during that time — neither son or daughter is able to fully talk about it. But the difference between the children that were taken from them and the children that returned haunts both parents to this day.

The two fathers who were separated from their children by immigration officials upon arriving in Arizona are seeking damages from the federal government, according to administrative claims filed on their behalf by the Southern Poverty Law Center and a team of attorneys at Covington & Burling, a private law firm.

The two Guatemalan men, referred to in the filings under the pseudonyms E.S.M. and J.D.G., respectively, claim long-term physical and psychological damage on behalf of the thousands of other families who were separated upon arrival into the United States as a result of last year’s family separation policy. The complaints, filed on August 30, come as the Trump administration is moving to repeal the Flores Agreement, allowing immigration authorities to detain children – with or without their parents – indefinitely.

Asylum Interrupted

In April 2018, then-Attorney General Jeff Sessions announced that the Trump administration was adopting a “zero tolerance” approach to illegal immigration. Under the new policy, federal immigration authorities removed approximately 3,000 children from their parents or guardians upon arrival in the country. Parents were placed in jails and prosecuted, while children were placed under the care of the Department of Health and Human Services.

Picked up by Border Patrol, E.S.M., who's 32, and his son were taken to what migrants and immigration advocates call a hielera, a type of Customs and Border Protection facility known for its frigid temperatures, on March 19, 2018. They were placed in a concrete cell with other families, about 30 people total, according to the claims. They received an asylum interview, in which E.S.M. explained he had a brother expecting them in New York, where they were headed. But the next day, officials informed the families that the children would be going to a different location, where they would be housed with children only. Parents and children began to weep as they said goodbyes and gathered the children's belongings. They asked why the children had to be separated, but officials didn’t answer. E.S.M. watched his son board a bus with bars on the windows, without guarantee of where he was going or when he’d see him again.

Due to its wide unpopularity, the family separation policy only officially lasted until June 2018, when Trump signed an executive order reversing his original order. The official narrative was that the administration only targeted families who entered the country illegally, but multiple media accounts and congressional testimonies from migrants reported that families entering at legal ports of entry were also separated. Subsequent investigations would find that family separations had actually begun about a year prior to Sessions’ announcement, and continue along certain parts of the U.S.-Mexico border to this day.

J.D.G. said he watched babies be torn from the arms of their mothers for days inside the hielera where he and his daughter were initially held, according to the claim. When immigration authorities finally came to take her, he was relieved that she might be going somewhere with better care — the migrants had been fed only rehydrated noodles for their six days in detention — but was also terrified about losing her. Immigration authorities could not tell him anything about where she was being taken.

Despite original narratives, by June 2018 it emerged that the federal government did not have a way of tracking children who were separated from their parents. Without a plan for reunifying separated families, the administration had no readily available means of returning the thousands of children they’d displaced from parental custody, even after mandated to by court order. Families often were forced to rely on word of mouth for reunification — both fathers in the complaint first learned of the whereabouts of their children weeks later, and for E.S.M., only once he was finally able to call his wife in Guatemala, who had received calls from their son.

The complaint alleges that this was willful – that the federal government purposefully inflicted trauma on the families to instill fear in others as a tactic to quell migration into the United States. As early as 2016, a DHS committee on family shelters concluded that “the separation of families for purposes of immigration enforcement or management, or detention is never in the best interest of children.” But another DHS internal memo from December 2017 confirms that the separation of family units — as well as the publicity this action would bring — was viewed by the administration as a means of deterring future migration.

"If people don't want to be separated from their children, they should not bring them with them,” Sessions said in June 2018. "We've got to get this message out. You're not given immunity.”

The two fathers spent their days waiting, moving from a series of detention centers all across the country —  from Florence Detention Center in Eloy to Stewart Detention Center in Lumpkin, Georgia, to Port Isabel Detention Center in Los Fresnos, Texas. J.D.G. decided not to proceed with his asylum claim, stating that the uncertainty of what was happening to his daughter was too much — he begged repeatedly to be deported, believing it was the only way he’d be reunited with her.

He wasn’t the only one. A Department of Homeland Security directive issued on June 23, 2018, suggested that once families were separated, only parents who were “subject to removal” would be reunited with their children. The claim states that this created a situation in which parents were forced to make an impossible choice between the hope of seeing their children again or continuing to seek asylum in the United States. It's still not clear how many families chose to return to the countries they’d just fled.

After two months of misinformation, both E.S.M. and J.D.G. were reunited with their children. E.S.M.'s son had been at the Southwest Key Las Palmas facility, a private contractor for the Office of Refugee Resettlement in Mesa, and J.D.G.'s daughter at Southwest Key Nueva Esperanza, another contracted facility in Brownsville, Texas. Upon return to their parents, neither child seemed the same.


Now back in Guatemala, J.D.G.'s daughter struggles with eating, expressing a lack of appetite, and insists on being with her father at all times — from trips to the store to simple movement to another room of their home. His formerly boisterous child often seems withdrawn and sad, and avoids interactions with other children.

In New York, E.S.M.'s son still can't talk about his time at Las Palmas without bursting into tears, his complaint said. While he used to talk eagerly about soccer or his time at school, he now says little, and becomes incredibly anxious whenever E.S.M. leaves their apartment. E.S.M. still isn't sure what happened during his time at the facility.

Family separation led to a rapid influx of children in ORR shelters, which were often unprepared to care for the sudden arrival of so many people. In several documented cases, the complaints note, the shelters' ability to care for children fell short. One facility hired over 1,000 staff members without conducting FBI background fingerprint checks; at another, a staff member was drunk while caring for separated children. The Justice Department has received reports from this time of unwanted sexual touching, employees showing children pornographic videos, and staff members having sexual relationships with child detainees. Lawyers representing the two families allege that even without these shortcomings, the sheer act of separation harms children.

"Our understanding, from expert studies, is that this, to a child, feels like being kidnapped. They're being taken away from their parents, and they can't do anything about it. There are real consequences to child development and familial attachment," said Ligia Markman, an attorney at Covington & Burling. "Our goal is to show that, if it comes to it, in a court of law, and to prove that what the government has done to these people is not temporary. This is a long-lasting horror. It's unconscionable."

The complaint states that the government deliberately violated the four individuals’ constitutional rights, and failed in its duty not to harm people in its custody. It asks that the federal government pay $3 million to each, or $12 million total, as reparations for their suffering.

"The technical remedy is money — our clients have been traumatized, and they will probably have health consequences for the rest of their lives," Markman said. "But we also want recognition that this family separation policy is cruel and unconstitutional, and for the government to have a real pocketbook incentive to stop doing it."

The law firm, along with the SPLC, has filed a total of seven claims on behalf of separated family units — four of them for families that crossed into Arizona.

The federal government has six months to respond to the complaints. If they fail to respond or deny the claims, the two fathers can seek damages by filing lawsuits in federal court.
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Hannah Critchfield was an editorial fellow for Phoenix New Times starting in 2019.