Immigrant Parents Face a Dilemma: Will Making an Asylum Claim Make it Harder to Reunite with Their Kids?

By Jonathan Blitzer

A few days ago, I received a phone call from Linda Corchado, an immigration attorney in El Paso, Texas. One of her clients, a Honduran asylum seeker in the custody of Immigration and Customs Enforcement, who had been separated from her two children for more than a month, was being moved to a new detention facility. Abrupt transfers sometimes signal the start of the deportation process. But ICE hadn't said anything to Corchado ahead of the move. She spent the weekend calling and e-mailing ICE officials, as well as staff at the Honduran consulate, to try to get more information. "I thought my client was supposed to be covered by a judge's order," she told me, in reference to an injunction, issued late last month, by Dana Sabraw, a federal judge in San Diego, which ordered the Trump Administration to reunite more than twenty-five hundred children who had been forcibly separated from their parents at the border.

The government had already missed one of the judge's deadlines, set for last week, to reunite parents with children under the age of five. Corchado's client was proof of this: she crossed the border with two daughters, a sixteen-year-old and a two-year-old. Fearing that her client might be deported before being reunited with them, Corchado got in touch with the American Civil Liberties Union, which has led the litigation against the Trump Administration's family-separation policy. Corchado wasn't the only lawyer to contact the A.C.L.U. with such a story. On Monday morning, the A.C.L.U. filed an emergency motion, and in response Sabraw issued a stay, blocking, for one week, the deportation of adults who were supposed to be reunited with their children.

The judge's additional intervention was an acknowledgement that simply telling the government to reunite families wasn't enough to make it actually happen. Since last summer, when the family-separation policy went into effect, activists and lawyers had worried about parents who were agreeing to voluntary departure—essentially, deportation—either because they were distraught after being separated from their kids, confused, or misled to believe that they would see their children sooner if they agreed to sign whatever forms the government put in front of them. For parents who were seeking asylum due to threats of violence or harm back home, agreeing to voluntary departure effectively ended their asylum claim. "People were told, ‘You don't have the option to seek asylum and be reunited with your children,’ " Gracie Willis, an attorney with the Southern Poverty Law Center, told HuffPost earlier this month. Some parents have already been deported without their kids, and many more could follow. "The government plan is to deport parents who have final orders of removal and then the parents will decide whether to leave their children behind," Lee Gelernt, of the A.C.L.U., told me.

On Thursday morning, I spoke by phone with Corchado's client, Wendy Santos. She had just been released, and reunited with her daughters. Their sense of relief hadn't fully set in. We spoke about the pressure she’d been under to abandon her asylum claim. She hadn't succumbed, but other women she met hadn't been as fortunate, she told me. "So many mothers were deceived," she said. "A lot of women I met signed papers for their own deportations because they thought they could see their kids. There was one woman, from Guatemala, who couldn't read or write. She signed the forms because they told her it would help."

Santos had been a poll worker for an opposition party in a small town in the northern part of Honduras, and she had identified a case of voter fraud. Hitmen associated with the country's dominant political party chased her out of town, then followed her to the city of San Pedro Sula, where she had gone to try to escape them. Eventually, she and her two daughters fled again, and they arrived at the U.S. border on June 1st, when they were apprehended just outside of El Paso.

"From my very first day in detention, agents said, in front of my daughters, that I was a criminal," she told me. "They said I was going to jail, that they were going to deport me. I said to one of them, ‘If you promise me that I won't be separated from my children, I’ll sign whatever you want.’ But he said to me, ‘No, you’re a criminal. You’re going to jail first.’ " A few days later, from a federal prison in New Mexico, Santos managed to call her longtime boyfriend, Miguel Calix. Calix is the father of Santos's younger daughter, and he lives just outside of Washington, D.C. He is also a U.S. citizen. "The government had taken the kids, and she didn't know where they were," he told me. Calix had to put money on Wendy's phone card so they could talk long enough to make a plan for the girls, who were being held in a shelter in Arizona. Together, they agreed that Santos should pursue her asylum claim while Calix tried to get the girls out of government custody. When he called a caseworker at the shelter, however, she told him that immigration authorities wouldn't allow it. "I am a U.S. citizen with no criminal record," Calix told me. "And yet I couldn't reclaim my own daughter from the government."

Santos, meanwhile, was losing hope. "I could have endured this if it were just me, but my daughters were still being held," she said. "When I finally talked to them on the phone, they told me that before they arrived at the shelter they’d spent five days at a Border Patrol station. They couldn't shower. The food was terrible. My little one got sick. I was tempted to agree to be deported just to try to end all this."

Despite having spent weeks in detention, Santos was never given a so-called credible-fear interview, which the government is supposed to administer as a first step in the asylum process. She was in a bind. She was reluctant to push for the interview because she didn't want to remain separated from her children while the asylum process played out. At the same time, there was a chance she’d be quickly deported unless she claimed asylum. Ultimately, she took Corchado's advice and opted to pursue asylum. Calix, she told me, "gave me the strength to take the chance."

In the days after Sabraw's order for the government to reunite the separated families, ICE distributed a form to parents in detention. Those covered by the judge's order, it read, "are entitled to be reunited with their child(ren) and may choose for their child(ren) to accompany them on their removal or may choose to be removed without their child(ren)." ICE has maintained that the form only applied to migrants with final orders of removal, and not to those who had pending asylum claims. But, in the detention facilities, the lines around asylum—who could claim it, and when—had already blurred. Efrén Olivares, a lawyer with the Texas Civil Rights Project, which has been representing separated families in South Texas, told me, "The problem has been happening even before detention. Our clients have told us that Border Patrol agents are saying there's no more asylum in the U.S." He continued, "In detention, separated parents are being presented with this tempting option: if you waive your asylum claim, you’ll get to see your kids right away. But they’re also being told, ‘You’d better sign here or you’ll never get your kids back.’ "

Corchado was elated by the outcome in Santos's case, but it was just one of several that she had taken on pro bono. She had another client, Guillermina Concepción, a mother of three from El Salvador, who had been separated from her children while seeking asylum in El Paso, on June 8th. (I met Concepción in a New Mexico prison, last month.) Concepción's husband was a policeman in El Salvador, and had received death threats from a group of gangsters with ties to local officials. He sought asylum in the U.S. earlier this year, with plans for his wife and children to follow him. But the gangsters began menacing Concepción and her children soon after her husband left, and they were forced to flee. Like Santos, Concepción had a strong asylum claim. Yet she was still in detention. "These two clients of mine have the same procedural history, and one is now out and the other isn't," Corchado said.

Concepción is being held at an ICE detention center in El Paso. "I know the responsibility is on me," she said. "Sometimes I think my only role anymore is to bring my children here, to have them reunite with their father. And they can do whatever they want with me here. This government will send me to my death in El Salvador, but at least my children will survive." She went on, "Sometimes, I think if they’ll just keep me detained here long enough before I get deported, maybe someone will kill the men that are after me. Maybe they’ll take pity on me. Maybe they’ll forget. Maybe, if it's long enough, this detention will save my life."