An Immigration Lawyer Explains What’s Really Happening with Family Separation

A conversation with Eve Stotland, director of legal services for The Door.

Sarah Jaffe

Hundreds of immigrant rights activists participate in a rally at the Federal Building in lower Manhattan on June 1, 2018 in protest of Trump's policy that is separating migrant families at the border. (Spencer Platt/Getty Images)

Wel­come to Inter­views for Resis­tance. We’re now into the sec­ond year of the Trump admin­is­tra­tion, and the last year has been filled with ups and downs, impor­tant vic­to­ries, suc­cess­ful hold­ing cam­paigns and painful defeats. We’ve learned a lot, but there is always more to learn, more to be done. In this now-week­ly series, we talk with orga­niz­ers, agi­ta­tors and edu­ca­tors, not only about how to resist, but how to build a bet­ter world.

At least 600 parents and children have been separated in recent months at the border.

Eve Stot­land: My name is Eve Stot­land. I am the direc­tor of legal ser­vices at The Door, A Cen­ter of Alter­na­tives in New York City.

Sarah Jaffe: We are talk­ing because there are a lot of emo­tions run­ning real­ly high, and there is a lot of con­fu­sion about what is actu­al­ly going on with the Trump administration’s new — and some not-so-new — immi­gra­tion poli­cies. Let’s start out real­ly basic and talk about what is going on that has peo­ple so angry.

Eve: There are a few things going on, and I think that some of them are get­ting con­flat­ed, so it is real­ly help­ful to pull them apart. One thing that is absolute­ly going on involves the U.S. gov­ern­ment, and very specif­i­cal­ly Cus­toms and Bor­der Pro­tec­tion and Immi­gra­tion and Cus­toms Enforce­ment — these are two agen­cies that are in charge of polic­ing our bor­ders and enforc­ing our immi­gra­tion laws. These agen­cies, when they detain fam­i­lies, when they are arrest­ing fam­i­lies at the bor­der for vio­lat­ing immi­gra­tion laws, they are sep­a­rat­ing par­ents and children.

Now, some of this is new and some of it is not new. It is a sur­prise to a lot of peo­ple that I talk to that the Unit­ed States has been putting fam­i­lies who vio­lat­ed immi­gra­tion law in prison. It is called immi­gra­tion deten­tion, but let’s remem­ber it is prison — for many years. So that is not new. Also, immi­gra­tion has been detain­ing chil­dren for many years. Also, Immi­gra­tion has just been jail­ing a lot of peo­ple. In fact, I think there is some­thing like 34,000 beds.

What is new here is that Immi­gra­tion did not have the same pol­i­cy at the bor­der of sep­a­rat­ing par­ents and chil­dren. That is some­thing that has devel­oped recent­ly. It is hard to track exact­ly when it start­ed because the fed­er­al gov­ern­ment is not being hon­est about it. One day they say there is no new pol­i­cy. The next day, they say there is a pol­i­cy. Then, Trump blames the Democ­rats for the policy.

The amount of inten­tion­al mis­in­for­ma­tion that is going out there is real­ly intense, but what we do know is because peo­ple at the bor­der, includ­ing the ACLU, have been track­ing this and have brought a law­suit about it. We know that at least 600 par­ents and chil­dren have been sep­a­rat­ed in recent months at the border.

Sarah: This sto­ry and the sto­ry of 1,500 young peo­ple who are not cur­rent­ly being tracked are get­ting con­flat­ed and a lot of peo­ple are jus­ti­fi­ably angry and upset. Can we go through that sto­ry, as well, and talk about the ques­tion of, Who are these chil­dren that are missing?”

Eve: The fed­er­al gov­ern­ment is doing so many ter­ri­ble things to immi­grants and specif­i­cal­ly to immi­grant chil­dren. Peo­ple should hold onto that anger. They are well-found­ed in that anger. If they are sus­pi­cious of how the fed­er­al gov­ern­ment is treat­ing immi­gra­tion chil­dren, they are right, because it is very bad.

How­ev­er, one thing that the gov­ern­ment is not doing is los­ing chil­dren. The gov­ern­ment has not lost immi­grant chil­dren. What hap­pens — and I real­ly am an expert in this who has been doing this work at The Door for many years, I have been doing this work over a course of 10 years — is that when chil­dren arrive at the bor­der unac­com­pa­nied, they are tak­en first by immi­gra­tion enforce­ment offi­cials, either Cus­toms and Bor­der Pro­tec­tion or Immi­gra­tion and Cus­toms Enforce­ment and they are detained in pret­ty bad con­di­tions, in what are called hiel­eras. The kids and the immi­grants call them hiel­eras. They are ice­box­es, very cold, and the ACLU just issued a report about the lev­el of abuse by Cus­toms and Bor­der Patrol and ICE of chil­dren in these hieleras.

Then, the chil­dren go to anoth­er kind of deten­tion cen­ter, which is more like fos­ter care. It is more humane, but don’t for­get, they are not free to leave. And when you are not free to leave, that is called deten­tion. If they have a par­ent, that par­ent is not free to pick them up at that point. So, that is still detention.

And then, won­der­ful­ly, they are released to the com­mu­ni­ty. I say won­der­ful­ly” because I have a 10-year-old daugh­ter and I believe that she is safest with me. We pre­sume in this coun­try both in a per­son­al capac­i­ty and our laws and poli­cies is that the best place for chil­dren is with their par­ents or broad­er fam­i­lies. That chil­dren do not belong in insti­tu­tions. They cer­tain­ly don’t belong in deten­tion. But, that they real­ly belong in fam­i­ly settings.

So, the fed­er­al gov­ern­ment has his­tor­i­cal­ly acknowl­edged that and once the fed­er­al gov­ern­ment could find an appro­pri­ate fam­i­ly, usu­al­ly a rel­a­tive, some­times a friend of the fam­i­ly, a fam­i­ly friend, to place the chil­dren with, they do this. This per­son is called a spon­sor. So, once the child is placed with the spon­sor, the gov­ern­ment is still try­ing to deport that child and the child will have to go to immi­gra­tion court. But that child is no longer the respon­si­bil­i­ty of the fed­er­al gov­ern­ment and that is good, because who do we want respon­si­ble for our chil­dren? We want fam­i­ly mem­bers respon­si­ble for chil­dren, not the fed­er­al gov­ern­ment. Espe­cial­ly, not the enforce­ment branch of a fed­er­al gov­ern­ment agency. Right?

So, our chil­dren are much safer in their com­mu­ni­ties and in their fam­i­lies than they are with the fed­er­al gov­ern­ment. They are much health­i­er with their fam­i­lies and com­mu­ni­ties than they are in deten­tion cen­ters. But, some­thing that hap­pens when you give chil­dren back to their fam­i­lies, when you unite them with their fam­i­lies, is that they go from one rel­a­tive to anoth­er, or the rel­a­tive moves and doesn’t leave a for­ward­ing addres,s or if the par­ent or rel­a­tive is undoc­u­ment­ed, when the author­i­ties call up try­ing to find out what hap­pened to this child, they don’t call back. It’s because they are very afraid of the fed­er­al authorities.

Sarah: The fed­er­al author­i­ties are doing all they can to encour­age that fear.

Eve: That is right. Peo­ple like the Attor­ney Gen­er­al, Jeff Ses­sions, Pres­i­dent Trump, Kel­ly. We hear them all say­ing, You should be scared.” So, guess what? Peo­ple are scared. They don’t want to be found. But, it does not mean that they have lost their children.

Sarah: Now that we have dis­en­tan­gled some of this a lit­tle bit, can you talk a lit­tle bit about the way that pol­i­cy has shift­ed? It is obvi­ous­ly get­ting worse and tend­ing more towards crim­i­nal­iza­tion under Trump, but this is a ten­den­cy that goes back a cou­ple of decades now.

Eve: Yes. The gov­ern­ment has had the right to charge peo­ple who enter with­out per­mis­sion, who enter the Unit­ed States, cross the bor­der or come through a port of entry with­out prop­er per­mis­sion with a crime for many years. It was a pow­er that the gov­ern­ment used quite spar­ing­ly. Most­ly, it is more effi­cient and faster just to deport peo­ple, espe­cial­ly if we don’t want to pay for their deten­tion, which costs tax­pay­ers mon­ey. And espe­cial­ly if the government’s goal is to get peo­ple out of the Unit­ed States and back home.

There are already some due process rights and some bureau­cra­cy that goes along with deport­ing peo­ple and a lot of expense that goes along with deport­ing them. If you are going to do a crim­i­nal pros­e­cu­tion, it just adds to it. So, the gov­ern­ment is going to be detain­ing peo­ple for longer peri­ods of time, pay­ing for that for longer peri­ods of time. Now, you are not just doing an Immi­gra­tion pros­e­cu­tion, you are doing a fed­er­al crim­i­nal pros­e­cu­tion. You have an attor­ney on that, you have a judge. It requires a lot of resources, so the gov­ern­ment used to only use it when they had some­thing some­what extra­or­di­nary happening.

Now, the gov­ern­ment has decid­ed to use it to ter­ror­ize fam­i­lies and as a way to force sep­a­ra­tion of fam­i­lies. So, there is no fed­er­al fam­i­ly crim­i­nal deten­tion. There are no such beds. I am not advo­cat­ing for such beds, but there are no such beds. So, if any per­son — immi­grant or non-immi­grant — is charged with a fed­er­al crime and is going to be sent to a fed­er­al deten­tion cen­ter for alleged crim­i­nals, they will not be able to take their chil­dren. So, by charg­ing peo­ple whose crime is that they entered the coun­try ille­gal­ly by charg­ing them not just with ille­gal entry, but a crim­i­nal act, the immi­gra­tion offi­cials and the fed­er­al gov­ern­ment suc­ceed in chang­ing the type of deten­tion and ensur­ing that they are able to split up par­ents and children.

Sarah: We are, right­ly, in the mid­dle of a firestorm of anger about all of these things. Peo­ple are plan­ning march­es and ral­lies and things. So, now that we have sort of pulled some of this apart, what can peo­ple do and what are the things that they should be think­ing about as demands in this moment? What kind of things can be done and what are the kinds of things that would actu­al­ly be ben­e­fi­cial for peo­ple to direct their anger towards?

Eve: I will absolute­ly sug­gest some con­crete steps, but I want to start by say­ing that Pres­i­dent Trump cre­at­ed this prob­lem. This prob­lem could be resolved by him at any point. There is no law, no statute, no case law that requires the gov­ern­ment to charge fam­i­lies who enter with­out prop­er per­mis­sion with a crime. For years, most fam­i­lies were not so charged, so this could end this moment if this pres­i­dent and his cab­i­net decid­ed that it could end this moment. It is real­ly impor­tant for peo­ple to know that because there is so much misinformation.

I am an attor­ney and I do believe in the rule of law. Some­times when we advo­cate for more humane poli­cies, or humane poli­cies, we have to get the law changed. Here, we don’t. The law is just fine. We are advo­cat­ing that peo­ple stop doing some­thing that they absolute­ly can stop doing with­out any pas­sage of legislation.

About the sep­a­ra­tion of par­ents and chil­dren, I think it is so impor­tant that peo­ple edu­cate them­selves, because these issues are com­pli­cat­ed and because there is a lot of mis­in­for­ma­tion going around; some of it because the issues are con­fus­ing and some of it inten­tion­al. That is, Pres­i­dent Trump is lying about what is hap­pen­ing. So, edu­cat­ing your­self and edu­cat­ing your friends is real­ly impor­tant, because we do have to know what the prob­lem is before we can ask peo­ple to resolve it.

I think that under­stand­ing the impor­tance of get­ting lawyers for chil­dren and fam­i­lies who are affect­ed is very impor­tant, sup­port­ing agen­cies that either pro­vide legal rep­re­sen­ta­tion to chil­dren and fam­i­lies who are impact­ed by these poli­cies or pro­vide social ser­vices. Every­thing from coun­selling to med­ical care to emer­gency shel­ter for fam­i­lies. Because, once they are released – if they are released – they are usu­al­ly des­ti­tute. They absolute­ly need com­mu­ni­ties’ help. They will also spread out, when they are released, across the country.

So, many of the fam­i­lies who are sep­a­rat­ed are Cen­tral Amer­i­can and they are going to go to places where there are the strongest most vibrant Cen­tral Amer­i­can immi­grant com­mu­ni­ties, which include New York, Texas and Cal­i­for­nia. So, if you live in one of those states, almost for cer­tain, there is a lot that you can do to serve this com­mu­ni­ty and help this com­mu­ni­ty right in your city or town.

When peo­ple are detained, it is very hard to help them. That is some­thing that is inten­tion­al. When peo­ple are detained, they are being pun­ished. When they are detained and pulled away from their chil­dren, they are being tor­tured. But, a whole oth­er thing hap­pens when peo­ple are detained, they are being tak­en away from peo­ple who could sup­port or advo­cate for them. They are being iso­lat­ed. So, there are a few places that do won­der­ful deten­tion based work. That is very important.

Inter­views for Resis­tance is a project of Sarah Jaffe, with assis­tance from Lau­ra Feuille­bois and sup­port from the Nation Insti­tute. It is also avail­able as a pod­cast on iTunes. Not to be reprint­ed with­out permission. 

Sarah Jaffe is a for­mer staff writer at In These Times and author of Nec­es­sary Trou­ble: Amer­i­cans in Revolt , which Robin D.G. Kel­ley called The most com­pelling social and polit­i­cal por­trait of our age.” You can fol­low her on Twit­ter @sarahljaffe.
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