June 8 2018, 5:24 p.m.
The ACLU's suit against family separation in the cases of asylum seekers was filed in March, with affidavits putting the number of children separated from their parents between 400 and 500, Gelernt explained. In late April, the New York Times published a front-page story, based on data provided by the Office of Refugee Resettlement, a component of the Department of Health and Human Services, reporting that "more than 700 children have been taken from adults claiming to be their parents since October, including more than 100 children under the age of 4." In a May 4 hearing on the ACLU's suit, U.S. Attorney Sarah Fabian said she "wouldn't strongly dispute" that 700 was an approximate number, transcripts show.
Three days later, on May 7, Attorney General Jeff Sessions announced the Trump administration would be taking a "zero tolerance" approach to the border, aiming to prosecute 100 percent of those individuals caught crossing the border illegally and separating them from their children in the process. On May 23, Richard Hudson, Deputy Chief of the Operations Program for Customs and Border Protection, appeared before the Subcommittee on Border Security and Immigration, where he was asked about the number of children separated from their parents since Sessions' directive went into effect. Hudson testified that in the two weeks following Sessions' directive, "658 children with 638 adults" were placed "in the prosecution process." Building on the 700 cases previously reported by the New York Times, the revelation brought the total number of children known to have been impacted by the practice so far, as acknowledged by the U.S. government, to 1,358.
Hudson's testimony also revealed the number of children separated from their parents in the two weeks following Sessions' order rivaled the total from the preceding seven months combined. Hudson added that, in his agency's assessment, separations could continue at those mid-May levels into the future.
When asked if the Department of Health and Human Services disputed the figures, Victoria A. Palmer, a public affairs specialist sent The Intercept a description of her agency's legal mandate, but provided no answer. U.S. Customs and Border Protection did not respond to a request for clarification as to whether the 658 children described in Hudson's testimony have indeed been turned over to HHS.
Shadows of U.S. Border Patrol agents as they stand near captured undocumented immigrants on Feb. 22, 2018, near McAllen, Texas.
Top administration officials have argued that children are separated all the time in the criminal justice system and that it's no different if migrant parents convicted of breaking the law in coming to the U.S. have their kids taken from them. The officials have also said that if asylum-seekers present themselves at lawful ports of entry, they will not have their children taken from them. Gelernt said both arguments ring hollow. In the first instance, he said, it is evident in the ACLU's case that parents have passed through criminal proceedings, been moved into the immigration system, and still not had their children returned to them. That was what happened with one of the named plaintiffs' in the organization's suit, he said.
Gelernt explained that Ms. C, as she is identified in court documents, is a Brazilian mother who crossed the U.S. border between ports of entry with her 14-year-old son and flagged down a U.S. immigration agent in hopes of seeking asylum. While in the past, she would have likely been turned over to DHS and funneled into the immigration system to begin that process, Gelernt said, Ms. C. was arrested, charged, prosecuted, and sentenced to jail — a sentence that she served. Then, the ACLU lawyer said, she was moved to an Immigration and Customs Enforcement detention center, where she remained for six months until she passed her so-called credible fear screening. She was subsequently moved to a nonprofit shelter in Texas, and six more weeks passed. Throughout that entire period, she did not know when she would see her son again. It wasn't until this week that the two were reunited.
Top photo: A Honduran mother walks with her children next to the U.S.-Mexico border fence after they turned themselves in to Border Patrol agents on Feb. 22, 2018 near Penitas, Texas.