CNN
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The Trump administration’s removal to Honduras last week of three children who are US citizens underscores how its push to carry out a historic deportation campaign can result in extraordinary circumstances and violations of internal policies and due process rights intended to avoid such situations, legal experts say.
The at-times slapdash approach has resulted in the government running up against the parental rights of some undocumented adults and the rights of their US citizen children, who enjoy all the same legal protections as other US citizens.
The three young children from two families were removed to Honduras with their mothers who were deported within hours or days of the women attending routine meetings with officials in Louisiana as part of the Intensive Supervision Appearance Program.
The Trump administration argues that US citizen children can always return to the US so their due process rights are different from those of noncitizens, and it has claimed that the mothers of the children recently deported wanted to keep their kids with them – something that has been disputed by the mothers.
The deportations, however, experts told CNN, also run afoul of an internal Immigration and Customs Enforcement policy that lays out procedures to ensure situations like these are handled in a much more methodical and protracted way.
“Right now, the emphasis is on numbers, numbers, numbers – deport as many people as possible. These are all mothers who had removal orders, so they’re easy to deport. You don’t have to go through a whole hearing process unless an immigration judge grants a petition to reopen the case. So the focus is on just getting them out the door,” said Stacy Brustin, an expert on immigration and family law who serves as the director of the Immigration Law & Policy Initiative at Catholic Law. “This rushed process, however, tramples on the due process rights of all involved and directly violates ICE’s own policy directive.”
“This directive makes clear that ICE must not rush deportation when the rights of parents and children are at stake, there has to be a considered process,” she added.
In one case, a mother was deported and took her 2-year-old child with her, while the other involves another mother deported and her 4- and 7-year-old children went with her. Attorneys for the women say they did not want the children to go with them, but US officials have said the opposite, further complicating the matter.
Lawyers for the 2-year-old – identified in court papers as V.M.L. – had sought emergency intervention from a federal judge, but her and her mother had already been removed to Honduras by the time the judge was able to fully assess the situation.
In a ruling last week, US District Judge Terry Doughty was careful to note the conflicting statements on V.M.L.’s mother’s wishes, writing that he doesn’t know whether she truly wanted her daughter to stay with her.
Doughty, an appointee of President Donald Trump, appeared troubled by the murky situation.
“Of course, ‘It is illegal and unconstitutional to deport, detain for deportation, or recommend deportation of a U.S. citizen,’” he wrote, citing writing from a 2012 case concerning a US citizen who was wrongly deported.
The judge has scheduled a hearing this month in “the interest of dispelling our strong suspicion that the Government just deported a U.S. citizen with no meaningful process.”
Various Trump administration officials have claimed that the mothers said they wanted their US citizen children to go with them, including Trump’s border czar Tom Homan, who said earlier this week that the mothers made a “parental decision” to leave the country with the minors.
Homan also said that that the administration would have faced criticism similar to the public outcry over the so-called zero tolerance policy from Trump’s first term that resulted in migrant families being separated while the government initiated criminal prosecutions of every adult who illegally crossed the border.
“If we didn’t do it the story today would be, ‘Trump administration separating families again,’” Homan said. “No, we’re keeping families together.”
In circumstances like V.M.L.’s, a parent usually has few choices at their disposal, experts told CNN.
They could keep their child with them so long as the other parent – if one is in the picture – consents to that plan. In that case, the child would still be able to obtain a passport through a US embassy or consulate and would have the right to enter and leave the US even if they aren’t consistently living in the country.
But the parent could also decide to leave the child with the other parent if they’re stateside or designate a third party – such as another family member or friend – as a caretaker who would keep the child and make decisions about the minor’s care.
Finally, if the parent doesn’t want to pursue the other options, they could decide to ask child protective services step in to find a relative or foster parent to care for the child.
All of these options are contemplated by the 2022 ICE policy, which ordinarily requires a process that could take days or weeks to unfold. But in the case of the two mothers, the deportations happened at breakneck speed, leaving little room for the parents to execute the plan of their choosing.
But quick deportations have been key to the administration’s strategy, with speed being the reason why Trump has invoked the Alien Enemies Act, a sweeping 18th century wartime authority to deport alleged members of a Venezuelan gang.
“What we’re seeing in this situation is an imperative to fill planes, essentially, and a rush to target anybody that they can target, so that they can have a talking point about how they’re deporting a lot of people,” said Sirine Shebaya of the National Immigration Project, which is representing the individual who filed the lawsuit on behalf of V.M.L.
“That’s not really treating people with dignity and respect,” she continued. “It’s not providing, you know, care that is due for children and minors, and it certainly is leading to a lot of violations, including of the rights of US citizen children.”
In V.M.L.’s case, the child’s father was able to briefly speak over the phone to his partner before her deportation, but the call was ended by an ICE officer before he could provide her with contact information for their attorneys, according to court documents.
Apart from the three choices available to undocumented parents of US citizen children, it’s also possible that, given sufficient time, the mothers could have pursued a special process in immigration law that would have allowed them to completely avoid removal so they wouldn’t burden their children.
Advocates leaned into that possibility with respect to the case of the mother of the 4-year-old, who was receiving cancer treatment in the US prior to their removal.
In certain narrow circumstances, individuals at risk of being removed can attempt to stave off their removal proceedings and receive legal status if they’ve been in the US for 10 years, are law-abiding and can show that their deportation would create an “exceptional and extremely unusual hardship” for a close relative who is a citizen or lawful permanent resident.
Such cancellations of removal are rare – they’re limited to 4,000 each year – and take time, said Andrew Schoenholtz, a professor at Georgetown Law and an expert on immigration law.
“But also, through that process, one would imagine there would be enough time (for parents) to make sure that what they really wanted for their US citizen children, whether it was to stay in the United States with a legal guardian, or to return to Honduras with them,” he said.
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