A mother and daughter reunited after their separation in late May. AP Photo/Eric Gay

Families at the border are reunited briefly, if at all

Marcia Zug, University of South Carolina

Some, but not all, immigrant families have been reunited after a court gave the U.S. government a deadline to reverse its separation of children from adults at the U.S.-Mexico border.

Those separations happened between May and June. President Donald Trump signed an executive order on June 20 to end immigrant family separations. Now, the government has failed to meet the court’s July 26 deadline for reunification of all eligible families.

I’ve been writing about the impact of the U.S. government’s immigration policies on undocumented families for years, and I believe that for the families that remain separated, the likelihood of reunification may grow remote.

The numbers

The exact numbers of children who are still separated from their families are difficult to nail down. On July 23, a government representative reported that 1,012 parents had been reunited with their children out of approximately 1,637 who were deemed eligible.

The government has deemed some parents ineligible for reunification because they are currently in criminal custody, have criminal records or suffer from communicable diseases. Others cannot be located.

However, the ACLU reported on July 23 that at least 917 parents remained separated from their children. More than half of these parents, 463, have already been deported.

Even for those who have been reunited, the relief has been brief. Many parents still face deportation orders and must make the decision of whether to be deported with or without their children.

Challenges to reunification

When immigrant children are separated from their parents or guardians, the two enter very different legal tracks. In most cases, the parents will remain in detention centers until their cases are heard by immigration judges, at which point they will face immediate deportation.

Under President Trump’s family separation policy, hundreds of immigrant children were placed in state foster care facilities across the country. In these cases, state family law often takes a harsh view of illegal entry. As a result, many undocumented parents will have a difficult time proving their right to reunification. In June, former ICE Director John Sandweg predicted this outcome when he said expected hundreds of cases “where children are permanently separated from their parents, becoming wards of the United States.

Many of the facilities receiving these children, such as Cayuga Centers in New York, had already been caring for immigrant children for years. In 2014, the government awarded Cayuga Centers US$92.5 million to fund shelter services for unaccompanied minor children. As a result, the organization was equipped to provide long-term care for hundreds of recently separated immigrant children.

Once in foster care, these children become wards of the state. This means they will have their care and custody decisions handled by state welfare agencies and then by a state court. During these proceedings the children’s parents will have the opportunity to demonstrate their eligibility for reunification but sadly, undocumented parents have often fared badly in such proceedings and this is especially true as the length of separation increases.

Role of state family law

Immigrant parents have the same legal right to the care and custody of their children as American citizens. Immigrant parents should be granted reunification with their children as long as they are deemed fit. However, history shows courts frequently use a parent’s immigration status as a proxy for fitness. State court decisions are also highly influenced by the parents’ residency in a country with high rates of violence and the child’s opportunity for adoption in the United States.

State courts and welfare agencies have frequently considered a parent’s undocumented status and their willingness to cross the border illegally as proof of parental unfitness sufficient to terminate parental rights.

For example, in In re Angelica L., a case from 2009, a Nebraska juvenile court determined an undocumented mother was unfit based on the fact that she "either A) embarked on an unauthorized trip to the United States with a newborn premature infant or B) gave birth to a premature infant in the United States” after entering the country illegally. Without deciding between the two, the court held that either scenario demonstrated “that [the mother] did not provide the basic level of prenatal and postnatal care.”

In addition, courts have often demonstrated little sympathy for the fact that detention and deportation can make a parent’s efforts to reunite with their children extremely difficult. For example, in Perez-Velasquez v. Culpeper County Department of Social Services, another case from 2009, the trial court declared the undocumented father unfit because he had, “without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the [children] for a period of six months after the child’s placement in foster care.”

The father challenged this decision. He argued his failure to maintain contact with his children was due to his incarceration and deportation, and was therefore not willful. However, the court found this explanation irrelevant.

For deported parents seeking reunification with their children, the prohibition on re-entry can be a major hurdle. It means parents cannot enter the U.S. to contest the termination of their parental rights. If parents do attempt re-entry after deportation they risk arrest, which further hampers their efforts to be reunited with their kids. Courts have repeatedly confirmed that an undocumented immigrant’s motivations for illegal reentry are irrelevant, and thus treat deportation as abandonment.

A final issue is the efforts of third parties to gain custody of the removed children. The longer the children remain in foster care, the more likely it is that attachments will grow. Many of these foster families will seek to adopt these children.

In the past, courts, faced with the prospect of returning children to foreign countries versus allowing them to stay in America with an adoptive family, have often chosen the latter. They decide that to go home under such conditions is not in the children’s best interest. This, in the eyes of the court, justifies terminating their biological parents parental rights.

I believe it’s likely today’s separated families will have the same difficulties regaining custody. The policies the Trump administration is enforcing are for the most part similar to those first enacted under President Barack Obama. In 2014, during a surge in illegal border crossings, the Obama administration attempted to detain hundreds of families indefinitely.

Even before the 2014 surge, the Obama administration increased efforts to detain and deport undocumented immigrants within the U.S., resulting in numerous family separations. It is reasonable to expect that the eventual outcomes of today’s separations will mirror these earlier ones.

This is an updated version of an article originally published on June 25.

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Marcia Zug does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

University of South Carolina provides funding as a member of The Conversation US.