Our client “Mr. U” fled his home country with his 13-year-old son, his adult stepson (whom he raised), and his stepson’s wife. They presented themselves together at the San Ysidro port of entry in October 2017 and asked for asylum. Their claims for asylum protection were intertwined. Little did they know that the government’s shameful family separation policy was already secretly underway, and they would get caught in the middle of it. Rather than provide a fair and comprehensive process to the whole family, within days, DHS had forcibly split them up, scattering the four of them into government custody in three different locations without informing any of them where the others were held. Mr. U’s 13-year-old son was ripped from his arms and shipped thousands of miles away, while Mr. U would be detained in the Otay Mesa Detention Center. DHS also separated Mr. U from his adult stepson and daughter-in-law, detaining them in the Adelanto ICE Processing Center, without ever telling Mr. U where they were being held, while he remained in custody for the next eight months.
Although Mr. U’s separation from his 13-year-old was part of the now infamous policy separating parents from their small children, the forced separation from his adult stepson was part of a less-reported but long-running practice of forcibly splitting and separately detaining adult family members. DHS victimizes countless families through this practice every year. Apart from the inhumane disregard for the sanctity of family bonds, these separations also create due process nightmares for impacted families, whose members may struggle to prove their cases without corroborating witnesses and with extremely limited access to counsel.
Mr. U’s case is but one example. During eight months of agonizing detention worrying about the well-being of his separated family members, he struggled to secure legal representation in his own asylum case. Finally, on the eve of his hearing, an attorney from Jewish Family Service of San Diego indicated he would represent Mr. U for free but had a conflicting hearing for another client on the scheduled hearing date. All that would be required was a brief continuance of the court date. But despite being aware of this development, the immigration judge refused to grant one, forcing Mr. U to represent himself.
During the hearing, through a telephonic foreign-language interpreter, the immigration judge questioned Mr. U’s credibility, but despite knowing that his stepson could corroborate his claims and that ICE had not told Mr. U where his stepson was, the judge made no effort to help Mr. U locate him or obtain his testimony. The immigration judge denied Mr. U’s claim. Meanwhile, a separate immigration judge heard testimony in his stepson’s case that corroborated Mr. U’s testimony, found the stepson credible, and granted him asylum. The conflicting rulings in the forcibly split cases meant Mr. U could face deportation and permanent separation from his children
Thankfully, Mr. U and his child were released and reunited based on the preliminary injunction in Ms. L v ICE, but he still faced the risk of removal. Together with Jewish Family Service, we appealed the immigration judge’s order the Board of Immigration Appeals. We argued that the immigration judge denied Mr. U his right to an attorney by denying the continuance and that the judge’s failure to assist Mr. U in locating and obtaining the testimony of his stepson violated Mr. U’s right to present evidence, attaching the stepson’s grant of asylum as proof that the failure led to inconsistent results in the two cases. The Board denied the appeal, and we filed a petition for review in the Ninth Circuit, relying on Ninth Circuit precedent protecting the right to counsel and placing a duty on immigration judges to develop a full record in removal cases. Amicus briefs were filed by the American Immigration Council and the Center for Gender and Refugee Studies, highlighting the scope of the government’s practice of forcibly splitting asylum-seeking families. The case was argued in March 2021. We are awaiting a decision.
Our immigration court system purports to rest on a foundation of fundamental fairness. However, in practice, fairness is often elusive, particularly for people subjected to immigration detention where they face near-insurmountable obstacles. Lack of access to counsel, difficulties in communication with the outside world, language barriers, and sudden and traumatic separation from family are but a few such obstacles faced by Mr. U and countless others. The system places the responsibility on immigration judges – employees of the U.S. Department of Justice who are meant to be neutral – to ensure that such fairness is achieved by providing people in detention with the tools and information to have a reasonable opportunity to overcome the obstacles DHS throws in their way. The immigration judge failed in that duty in this case, and as a consequence, Mr. U still faces the specter of separation from his family and return to a country he fled in fear.