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New ICE form to separated parents: Choose deportation with or without kids

Photo illustration: Yahoo News; photo: Patrick Semansky/AP

The American Civil Liberties Union on Tuesday asked the government to stop providing detained parents with a new form that offers the choice to either be deported to their home country with or without their children after the families were separated at the border.

“We have asked the government to refrain from using it because it misleadingly suggests parents must waive their right to contest removal if they want to get their child back,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project said in a statement to Yahoo News.

Gelernt is one of the lead attorneys behind a national class-action lawsuit filed by the ACLU on behalf of asylum-seeking parents and young children who’d been forcibly separated under the Trump administration’s “zero tolerance” policy at the border. Last week, in response to the lawsuit, a federal judge in San Diego issued an injunction against the Trump administration to stop all future family separations at the border, along with an order requiring federal authorities to reunite immigrant families separated under the previous practice within 30 days. Children under the age of 5 must be reunited with their parents within 14 days, U.S. District Judge Dana Sabraw declared in the order.

The new form, obtained by Yahoo News, seems to offer a glimpse at one of the tactics the U.S. Immigration and Customs Enforcement, or ICE, agency is using to facilitate speedy reunifications in compliance with the judge’s order.

Titled “Separated Parent’s Removal Form,” the single-page document states clearly at the top that “this form is for detained alien parents with administratively final orders of removal who are class members in the Ms. L. v. I.C.E. lawsuit.” It goes on to explain that “Class members are entitled to be reunited with their child(ren) and may choose for their child(ren) to accompany them on their removal or may choose to be removed without their child(ren). Any such decision must be made affirmatively, knowingly, and voluntarily.”

Like Gelernt, other lawyers and advocates for detained immigrants have expressed concern that the form may be used coercively, implying to parents that the only way they can be reunited with their child is through deportation.

“This form is just sort of a manifestation of the complete disregard that ICE has for anyone’s ability to make a claim for protection, and not least children’s ability to do that,” said Diane Eikenberry, associate director of policy with the National Immigrant Justice Center. The center’s Immigrant Children’s Protection Project provides pro bono legal services to unaccompanied children housed in Chicago-area facilities. Eikenberry argued that, on its face, the form seems like little more than a “way for ICE to throw up paper shield to say, ‘Look, we’re complying with the court order.’”

The order issued by Judge Sabraw last week imposed deadlines on what was already shaping up to be a chaotic effort to reunite the 2,000-plus parents and children who’d been separated and taken into the custody of different federal agencies, in many cases on opposite sides of the country, as a result of the Trump administration’s zero tolerance policy. Last month, in response to widespread public backlash over family separation, President Trump signed an executive order that seemingly sought to replace the practice with family detention, but offered no real plan to reunite the thousands of families that had already been torn apart.

Under the previous practice of family separation, minors processed with their parents by federal agents at the border were placed in the custody of the Office of Refugee Resettlement (ORR), a division of the U.S. Department of Health and Human Services, and reclassified as “unaccompanied.” A spokesperson from HHS’s Administration for Children and Families didn’t to respond to a request for comment ahead of publishing on whether ICE has been working to ensure that parents are able to communicate with their children before being asked to sign the new form.

But based on the apparent lack of coordination between the two agencies thus far, Eikenberry said she thinks this is “very unlikely.”

“I have no information that would suggest ORR and ICE are coordinating to such a degree that they would actually ensure and facilitate [communication] between a parent and child before an ICE officer presents the parent with this form,” she said.

Jennifer Elzea, an ICE spokesperson, dismissed concerns about the new removal form, telling Yahoo News that it has long been ICE’s policy to offer detained parents, when they are subject to final removal orders, the option of being deported with or without their children.

“Alien parents who are ordered removed can elect to be removed with or without their children,” Elzea said in a statement. “Neither choice has any bearing on the alien’s eligibility to apply for protections available to them under the law.”

Because the children who’ve been separated from their parents under this particular policy are in the custody of ORR, Elzea said, “a parent who chooses not to return with the child, may opt to have ORR pursue release of the child to another parent, guardian, or sponsor who has been approved by ORR.”

“ICE does not interfere in the parent’s decision to allow the child to remain in the U.S. to pursue his or her own legal claim,” she said.

In response to a question of whether this form is being given to separated parents who are currently seeking asylum, Elzea stated that “this form only applies to parents with a final order and who are part of a specific class-action suit. This form has absolutely nothing to do with those who have pending asylum claims.”

However, the class outlined by the lawsuit clearly includes asylum-seeking parents. “We represent four asylum seekers who were given this form,” a Southern Poverty Law Center spokesperson told Yahoo News on Tuesday.

The ACLU’s Gelernt also told NBC News that, contrary to Elzea’s statement, “We are seeing cases where people who have passed credible fear interviews and have pending asylum claims are being given this form.”

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