This post has been updated with new information from the plaintiffs’ attorney.
A Central American asylum seeker whose three children were forcibly taken from her in mid-May said this week that she suspects the Trump administration retaliated against her for traveling to the U.S. with the “caravan” of migrants that was the center of a political firestorm earlier this year.
The woman, identified in court documents by her initials M.G.U. to protect her identity, is part of a group of three Central American asylum-seekers held in ICE detention in Texas who are suing for the return of their children. M.G.U.’s attorney Peter McGraw told TPM following the initial publication of this report that she was reunited with her three sons, ages 2, 6, and 13, in New York on July 11. He has not yet been informed if the family will be released or detained together.
The other two plaintiffs in the case, who crossed the border with their children and were prosecuted under the Trump administration’s “zero tolerance” policy, have yet to be reunited.
The Trump administration has said repeatedly that families can avoid separation by requesting asylum at ports of entry on the U.S.-Mexico border.
“DHS is not referring for prosecutions families or individuals arriving at ports of entry or attempting to enter the country through legal means,” a recent Homeland Security press release on the family separations stated. “These families and individuals have not broken the law.”
But M.G.U., who legally presented herself at a port of entry to seek asylum in early May, suspects she was separated from her children in retaliation for traveling to the U.S. with a “caravan” of migrants that was the center of a political firestorm earlier this year.
In a new filing in a pending federal court case in the District of Columbia, M.G.U. said the administration cited a two-decade-old “petty offense” on her record as the reason for separating her for more than a month from her children.
But she and advocates working on her case believe the true reason for the separation — which stretched past a federal court deadline to reunite all children under 5 years old by July 10 — was her participation in the caravan of asylum-seekers that drew President Trump’s wrath in the spring of 2018.
The Justice Department told U.S. District Judge Paul Friedman that M.G.U.’s children were taken from her and flown to a shelter in New York while she remained locked up in Texas because “detention at an ICE family residential center was no longer appropriate in light of M.G.U.’s past criminal actions.”
Those “past criminal actions” consist of one count of making “False and Misleading Representations” to law enforcement 19 years ago, when M.G.U. first attempted to enter the United States, long before the birth of her children. This one “petty offense” is her only criminal history.
In an emergency motion for discovery, Texas Rio Grande Legal Aid is demanding access to records that answer, among other questions: “What criminal histories has ICE tolerated among mothers who are detained … without separating them from their children? What do emails among ICE agents say about how the decision to separate M.G.U. from her children was made?”
Thousands of miles away, in a federal courtroom in San Diego, the Trump administration told Judge Dana Sabraw that it had identified eight parents with children younger than 5 whose “serious criminal histories” barred them from being reunited, and cited “child cruelty and narcotics, human smuggling, a warrant for murder, and robbery” as the type of crimes in question.
M.G.U. said the minor count on her record should not put her in the same category as those parents, especially because the Trump administration has not laid out their criteria.
“It is not clear what criminal history, other than that involving abuse, the Government would consider to be incompatible with reunification,” the filing said, adding that “the Government detained M.G.U. together with her three children for two weeks prior to citing the conviction as its reason for separation” — from May 4 to May 17.
“It cuts against the idea she was some kind of risk to her children,” McGraw told TPM. “The facts here show this was just a pretext.”
Attorney Shalyn Fluharty with the Dilley Pro Bono Project, who has been assisting M.G.U. with her case, submitted a declaration to the court that M.G.U. was asked during her initial asylum interview if she was a member of the “refugee caravan.” M.G.U.’s children were taken from her the very day she passed that interview and was determined to have a “credible fear” of returning to her home country — the first step in seeking asylum.
“All of these facts point to arbitrary retaliation and an intent to dissuade M.G.U. from pursuing her and her children’s asylum claims, rather than concern for child safety,” the court filing said.
Fluharty’s supplemental declaration says that in three years working in Texas immigration detention centers, she has never seen a family separated over a misdemeanor or non-violent offense. She added:
Judge Friedman has not yet ruled to force the government to reunite the other parents in the case with their children, though he indicated in a hearing in late June that he may do so if the Trump administration does not show a good faith effort and meaningful progress toward complying with Judge Sabraw’s ruling to reunite all families within the next few weeks.
Texas Rio Grande Legal Aid, who is representing M.G.U. and the other parents in the case, said in a filing this week that the government has not made such an effort and should be subject to a preliminary injunction.
“The Government has failed to provide Plaintiffs with any information about plans to reunify them with their children, failed to provide them with adequate means to communicate with their children, and failed to even provide Plaintiff E.F. with the address where her son, B.Y.A.F., is being detained,” the reply brief states. “Plaintiffs’ separation from their children—which now spans over a month, with no certain end in sight—is torturous and Plaintiffs are desperate for it to end.”