The U.S. government is still separating families at the Southwest border when children involved are U.S. citizens.
KPBS has obtained data from San Diego County showing that since July, at least 54 U.S.-citizen children have been transferred to Child Welfare Services by law enforcement agencies as "asylum referrals."
This applies mostly to boys and girls separated from asylum-seeking parents at the border, including at ports of entry, said county protective services manager Lilian Nguyen. One recent case involves a seven-year-old boy separated from his asylum-seeking mother at the San Ysidro Port of Entry.
President Trump said he was stopping the widely condemned family separation policy this June, but neither the language in his executive order nor the language in a San Diego federal judge's ruling against separations provide protection for unique instances when asylum-seekers enter with U.S.-citizen children. Both orders seek to maintain family unity when both the parents and the children are foreign nationals.
U.S. Customs and Border Protection provided this statement in response to a KPBS inquiry:
If an inadmissible foreign national arrives with a United States citizen minor, and the foreign national will be detained for an immigration violation, they may be separated as CBP and ICE are unable to detain United States citizens in these instances. CBP officials make every attempt to turn U.S. citizen minors over to the custody of a family member. At times, we use Child Welfare Services to assist with an appropriate placement.
The Department of Homeland Security said it still has a policy of separating "for the best interest of the child, for health or medical reasons, or for criminal background of the adult," according to spokeswoman Katie Waldman.
The legal services organization Al Otro Lado said it's not unusual for asylum-seeking adults to have U.S.-citizen children after having lived some time in the U.S. For every 20 asylum-seekers who present themselves at ports of entry, at least one has a U.S.-citizen child with them, said Al Otro Lado attorney Erika Pinheiro.
"U.S.-citizen children come with asylum-seeking parents every single day to the border," Pinheiro said.
She said family separations that involve U.S.-citizen children are "worse" than separations that involve only foreign nationals. Unlike foreign national minors who go into the custody of the Office of Refugee Resettlement, U.S.-citizen children go into foster care unless Child Welfare Services can find them relatives in the U.S. who can take them in. If the child is put up for adoption, a biological parent could permanently lose custody of the child.
One of the children separated recently is a seven-year-old boy who was taken from his Mexican mother at the San Ysidro Port of Entry after the two presented themselves legally and asked for asylum last Thursday.
KPBS is not releasing the family's names because they are escaping an extreme domestic violence situation in southern Mexico, according to Pinheiro, who is providing pro bono services to the family.
But the boy, a U.S. citizen, is with Child Welfare Services in San Diego County and a social worker is having trouble finding a home for him, Pinheiro said. The boy was born in the U.S. while his mother was living here for a few years.
Pinheiro said Customs and Border Protection should have released the mother on parole with a notice to appear in court in order to avoid separating the family. She said that is what usually happens when asylum-seekers enter with U.S.-citizen children, and added that Pinheiro had no prior removal orders or a criminal record.
"They've essentially stripped (this mother) of her parental rights without any due process even though she's followed all the rules," Pinheiro said. "She's sought asylum legally and she should be with her son right now."
Customs and Border Protection did not respond to repeated requests for comment as to why this particular family was separated.
On Wednesday, Pinheiro visited the San Ysidro Port of Entry to determine the status of her client and to request that her client be released on parole for the well-being of her son. Pinheiro was repeatedly denied information despite having filed the necessary paperwork, as witnessed by KPBS.
Customs and Border Protection would not confirm that the woman was in custody at the port of entry. But Immigration and Customs Enforcement told KPBS she was still with the latter agency, which usually transfers detainees to ICE after a few days.
In a memo on Wednesday, Al Otro Lado told the California Attorney General that the Department of Homeland Security is violating state child welfare laws and the Flores settlement by continuing to separate families at the border, and asked the Attorney General to "intervene to ensure that both parents’ and children’s rights are protected."
The state Attorney General's office declined to comment.
About a week after Trump revoked his family separation policy in June, several states including California filed a lawsuit against the Trump administration stating that separations were an "affront to States' sovereign interests." The lawsuit cited "fiscal impacts" experienced by child welfare services and other state programs.
A day later, a San Diego-based federal judge ordered a stop to family separations and the reunification of nearly 3,000 children separated from parents. Hundreds remain separated in the ongoing litigation. That lawsuit was filed by the American Civil Liberties Union. Judge Dana Sabraw's ruling applies to foreign national parents with foreign national children.
ACLU attorney Lee Gelernt said "the combination of the executive order and the judge's ruling should give the government pause about ever separating a parent and a child, particularly where that child is young and of a tender age."
He added, "If the parent is not a flight risk or a danger in any significant way, the government should be doing everything they can to parole these families so the child does not end up in a child protective services situation or with a foster family. They're doing too much damage to young children by separating families."
