One hundred and twenty parents, some who have been separated for months, remain in immigrant detention because they signed a waiver giving up their rights to get their kids back. Many didn’t understand what they were signing.
Judge Dana Sabraw, the federal judge overseeing the reunification of immigrant families separated by the Trump administration under its “zero tolerance” immigration policy, will decide this week whether those waivers are valid or not. Immigration attorneys have argued that both the form itself, and the way the government made separated parents sign it, are problematic, and those parents should be able to consider their options again, this time with the help of a lawyer.
The American Civil Liberties Union, which brought the lawsuit that’s now forcing the government to reunify families, says the form should have been given to parents only after they were reunified with their kids so that families could decide together. Immigration officials have been asking parents to sign the form for more than a month.
“We never anticipated that the form would be given and forced on people to sign before reunification,” said Lee Gelernt, lead attorney with the ACLU said at Friday’s hearing. “I think we never anticipated that people could make the decision requested of them on the form without being with their child, because it is a family decision.”
Up until July 10, the form gave parents only two options:
I am requesting to reunite with my child(ren) for the purpose of repatriation to my country of citizenship.
I am affirmatively, knowingly and voluntarily requesting to return to my country of citizenship without my minor child(ren) who I understand will remain in the United States to pursue available claims of relief.
The form was meant only for parents who had been given final removal orders, but some parents interpreted it to mean that the only way to get their kids back was to agree to the first option, whether or not they had a removal order yet. In a series of affidavits submitted to the country last week, attorneys said not all parents who signed the form had removal orders. Several parents, some who are illiterate or who only speak indigenous languages, told attorneys they were given just minutes to decide whether to get their kids back and be deported together, or leave their kids in the U.S. and be deported alone.
Sabraw ordered the government to replace the old form with a new one on July 10, which included a third option for immigrant parents and new language:
If I lose my case and am going to be removed, I would like to take my child with me.
If I lose my case and am going to be removed, I do NOT want to take my child with me.
I do not have a lawyer, and I want to talk with a lawyer before deciding whether I want my child removed with me.
The form also says, “You DO NOT have to agree to removal from the United States in order to be reunified with your child. Even if you continue to fight your case, the government must still reunify you.”
Attorneys say that the second form, which the ACLU thought would only be presented to parents who had final removal orders after they were reunited with their kids, requires immigrant parents have a concrete understanding of the U.S. legal system that many are lacking.
Already, a group of parents say they were reunited with their children only to be separated again without the chance to consult with a lawyer.
Last week, several fathers say they were asked to sign the second form just hours after being reunited with their children, according to an affidavit submitted to the court Saturday by an attorney representing separated families in El Paso. On the forms the government officials gave them, four fathers said, the first option — to be deported with their children — was already checked. When they told officials that they prefered the second option — to be deported alone so that their children, all 16 and 17 years old, could pursue asylum in the U.S. — the immigration officials yelled at them. They were separated from their kids again and returned to immigration detention without being able to say goodbye.
“These are hypotheticals, conditional statements that take parsing through,” explained Kevin Curnin, director of the public service project at the New York law firm Stroock, Stroock and Lavan, which represents separated parents. “What does it mean to lose my case? Do I have a right to appeal? Are there other things I can do? How does my child get brought back to me?”
Irene Oria, an attorney at Stroock, interviewed several parents at the West Texas Detention Facility outside El Paso last week. One father she interviewed said he signed the first form about a month ago after the government separated him from his child, and said he checked both options because he didn’t understand what it was asking. Oria said he failed his credible fear interview, the first hurdle to getting asylum, but he wants to fight his case and he doesn’t yet have a final removal order. He hasn’t been reunited with his child, and last week was the first time he had spoken to a lawyer.
Sabraw said he will decide about how the government should proceed with parents who have signed the form this week.
Cover image: EL PASO, TX - JULY 25: A man, identified only as Juan, and his son, Manuel speak to each other about what they see out their window as they relax together in their room at an Annunciation House facility after they were reunited on July 25, 2018 in El Paso, Texas. Photo by Joe Raedle/Getty Images.