Attorneys help families seek justice for border separation
When Ms. L and her seven-year-old daughter arrived in San Diego after escaping the Democratic Republic of the Congo in November 2017, they had no idea what would happen. They hoped it would result in their being able to obtain refugee status by seeking asylum in the United States.
What resulted was Ms. L being held in a detention facility in San Diego while her daughter, S.S., was forcibly taken to an Office of Refugee Resettlement facility more than a thousand miles away in Chicago. Ms. L had not been accused of being abusive or an unfit parent, but later documents showed that officers averred that she might not have been S.S.’s true parent. They were separate because of a zero-tolerance policy for detaining children in adult facilities implemented by President Donald Trump’s administration as a means to deter immigration.
Ms. L and her daughter would not be reunited for another five months.
The story of Ms. L, who brought a lawsuit against the U.S. government with the help of the American Civil Liberties Union, is only one of more than 2,800 similar stories of family separation at the border. Each story comes with anxiety, fear and heartbreak, with some families still waiting for children to be returned to their arms. Immigration attorneys are still pressuring the government to come forward with the exact number of children taken from their parents, and across the country, they are helping victims bring lawsuits against the government.
Ms. L’s case is far from the only lawsuit over family separation around the country. Each case is a little different, but many share the same grievances.
In the case of Ms. L, the ACLU identified four counts: violation of due process, violation of the asylum statute and two violations of the administrative procedures act. Every person on U.S. soil has a right to due process, which applies to Ms. L, according to the lawsuit — her daughter’s removal had “no legitimate purpose.”
In S.S.’s case, the circumstances of her detention might also violate the precedent set by Flores v. Reno, a 1997 Supreme Court ruling that set minimum standards for detaining minors and a policy favoring release. A ruling made on July 30, 2018 by judge Dolly Gee of the Central District of California ordered the U.S. Department of Justice to follow the Flores agreement, saying that the government violated it by holding youth in residential treatment centers, administering psychotropic drugs without court order or consent, and unnecessarily delaying release.
The violation of due process is the most plain of the complaints in many of the lawsuits — the others are more technical and may not be familiar to the average citizen of the U.S., let alone the average citizen of another country. An attorney who specializes in immigration could help you identify which counts might apply to your case specifically.
Among the remedies being sought are injunctions to stop separating a parent from a child, to return the families together, to release the immigrants from criminal detention and possible monetary compensation for emotional distress. In the case of Beata Mariana de Jesus Meija-Meija, a Guatemalan immigrant separated from her 7-year-old son at the Arizona border, attorneys from the ACLU requested that she be reunited from her son, not be deported, and to award monetary relief and issue punitive damages against the U.S. government. The complaint, filed on June 19, 2018 details 10 counts against the government, including violation of due process.
Not a green light
Successfully leveraging a lawsuit over family separation will not get you free passage into the U.S. You’ll still have to go through immigration proceedings, and if seeking asylum, you’ll have to prove credible fear in your country of origin.
However, there are levels of relief the government can provide should the lawsuits prove successful. In the case of a class action suit brought against the government in 2018, more than 1,000 plaintiffs entered a process of interviews that would give them another chance to seek asylum in the U.S. after approaching the border and being deported again under the Trump administration’s zero-tolerance policy. Legal advocacy group Muslim Advocates, one of the groups involved in the litigation, said the action is not a guaranteed entry for plaintiffs but that it is a step in the right direction, according to the Washington Post.
Though Ms. L was reunited with her daughter, her case may not lead to residency in the U.S. either. Though a district court granted a preliminary injunction against the government in her case on June 26, 2018, it was only to reunite parents and children and did not make any further assertions on the legality of their immigration status. The Senate and Congress are debating several acts on the subject, falling into two general categories — keep families together without detaining them, or to keep them together while in detention, according to the Congressional Research Service.