Parents who’ve been separated from their children are being offered a jarring choice by the Trump administration, according to an NBC News report Tuesday: Leave the United States with them, or leave without them.
NBC News published a copy of the form it reported Immigration and Customs Enforcement officers are presenting parents separated from their children as a result of the Trump administration’s family separation policy.
The form contains two options: “I am requesting to reunite with my child(ren) for the purpose of repatriation to my country of citizenship,” or “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 says it should be presented to parents “with administratively final orders of removal” who are covered by the ACLU’s lawsuit against ICE over the family separation policy, but, ACLU attorney Lee Gelernt told NBC News, “We are seeing cases where people who have passed credible fear interviews and have pending asylum claims are being given this form.”
CNN’s Nick Valencia similarly reported Monday, citing an attorney from the Southern Poverty Law Center, that “many are being pressured to sign this before they’ve even seen a judge, and despite not having a final order of removal.”
If that is in fact the case — if individuals with asylum claims are being presented with the “choice” of leaving the country with or without their children — it is “not only contrary to asylum law, but also to our international obligations,” immigration attorney Jeremy McKinney told TPM over the phone Tuesday.
“It’s not appropriate at all” if asylum-seekers are given this form, McKinney added. “It’s incredibly misleading, and again, it moves that narrative forward that this agency is not allowing asylum-seekers to have their day in court.”
In a statement to TPM, ICE spokesperson Jennifer D. Elzea said that “An individual who has received a final order of removal has already been given the opportunity to make a claim of fear about returning to his or her country of citizenship.” She said the form was consistent with the agency’s detained parents directive.
“[T]his form only applies to parents with a final order and who are part of a specific class action suit,” she added, referring to the ACLU’s lawsuit over family separation. “This form has absolutely nothing to do with those who have pending asylum claims.”
Pressed specifically about Gelernt’s claim that people with pending asylum claims were being presented with the form, an ICE official told TPM: “We have heard about such claims; however, to date no one has been able to provide us the specific case info for any of these alleged incidents so that we may look into it and determine if anything was done out of order.”
“Immigration cases are complicated and there can be many things pending at once, so we’d really need to look into the cases specifically to determine what happened,” the ICE official told TPM.
Immigration attorneys often keep such details private to protect clients from retaliation. The Texas Tribune reported last month on an unnamed Honduran man who, “desperate” to see his six-year-old daughter from whom he’d been separated, agreed to abandon an asylum claim and sign a deportation order after immigration agents suggested he’d be able to see his daughter if he did so. He’s since tried to revoke that paperwork, according to the report.
The preliminary injunction U.S. District Judge Dana Sabraw issued in the ACLU suit last week, in addition to ordering the Trump administration to end the family separation policy, specifically stated that separated parents could not be deported without their child unless the parent “affirmatively, knowingly, and voluntarily declines to be reunited with the child” prior to deportation.
Advocates take issue with ICE’s assertion that parents are even able to voluntarily sign the form when reunification with their children hangs in the balance.
“When they add the conditional part of it — that is, ‘If you sign this form then you will get your child back’ — we question the legality of that, because then at that point, it’s not voluntary if it’s conditional,” Zenén Jaimes Pérez, communications director for the Texas Civil Rights Project, told TPM in a phone call Tuesday.
Pérez said he would call it a “lie” that ICE has any real process for reuniting parents with their children before the parents are deported.
“If they do have a process, it would be great to hear from them what that looks like,” he said. “And that’s a question for the federal government, because we definitely have already had five clients who’ve been deported without their children, and the process for getting them back is still very much unclear.”
TPM asked ICE about reports that parents who’d asked to be reunited with their children before being deported were instead being deported without them.
“I’ve not heard of any such instances until you’ve raised it now,” the ICE official said. “I would ask for case info so that we can look into it and confirm what took place in that specific alleged incident.”
On the question of whether individuals with asylum claims are being presented with the deportation form, Pérez told TPM, noting that he wanted to protect attorney-client privilege, “Many of those who were deported could have had a really good chance or opportunity to pass a credible fear interview, and start taking asylum.”
But they hadn’t even had the interview yet? TPM asked. “Right,” Pérez said.
“It’s pretty chilling,” he said later. “The voluntary departure form should just be that: Stay, or be removed voluntarily. When you add conditions, especially conditions that are as huge as whether I’m going to see my child or not, that automatically, for us, makes it invalid.”
He added: “We hope the administration will not pursue basically holding kids ransom.”
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