NEW ORLEANS (CN) – Separating children from their parents at the border can easily be seen as a constitutional issue, a Fifth Circuit judge said Tuesday during a hearing about five children who were separated from their parents “indefinitely” after the parents were charged with misdemeanor offenses for crossing into the U.S. illegally.
“None of these five children are unaccounted for,” Mark Stelmach, a lawyer with the U.S. attorney’s office in Austin, told the panel of three-judge Fifth Circuit panel. “None of these children are lost.”
The parents and children are all citizens of El Salvador and Honduras and were traveling each in pairs of one parent with one child. The five children ranged in age from 7 to 16. They were each apprehended as they crossed into the United States in October 2017 in an area that was not designated as a port of entry. All of the plaintiffs were seeking asylum from violence and torture.
All but one parent, plaintiff Blanca Vazquez-Hernandez, has since been deported.
“Here, the separations occurred because of criminal charges so the children couldn’t go with them,” Stelmach clarified as to why the kids were separated from their parents right after crossing into El Paso, Texas.
The parents were never told where their children were taken and they never had a chance to speak with them, nor were they ever told if the children were okay, their federal public defender Sergio Garcia said during the hearing.
Garcia told the court that although it was not the government’s position the children were being separated from their parents indefinitely, to deport a parent without their child is to effectively separate them indefinitely.
U.S. Circuit Judge Stephen Higginson, an appointee of Barack Obama, at times appeared to sympathize with the parents’ claims they weren’t given a fair trial.
“I would think it’s tremendous pressure…if they’re holding your children somewhere where you don’t even know about,” Higginson said.
Higginson also wondered about the legality of separating children from their parents. At times Stelmach reminded the panel that these separations in particular happened before the Trump administration’s “zero tolerance” policy took effect in early 2018.
“I’m asking you, where in the record does it say that they can’t see their children?” Higginson pressed Stelmach.
“Nothing in the record suggests that they can’t see their children,” Higginson continued.
“One could easily see that this issue of separation could have constitutional implications,” the judge said later.
Garcia, the plaintiffs’ attorney, said the government claimed it was devastated not to be able to reunite children with their parents.
And yet, he said, “Unfortunately, the government took the position they were not obligated to give information. ‘Lamented’ – that’s the word they used, ‘lamented.’”
“I take the position that taking a child indefinitely is inhumane,” Garcia told the panel.
The parents appealed their cases after U.S. Magistrate Judge Miguel A. Torres rejected their claims that they did not receive a fair trial due because they only pleaded guilty in hopes of being reunited with their children and the government did not produce their children as key witnesses.
Plaintiffs also argue Eighth Amendment violations, claiming that being indefinitely separated from their children for the petty misdemeanor offense of crossing the border at the wrong place is cruel and unusual punishment.
They additionally accuse the government of violations under the “outrageous government conduct” doctrine for the way their cases were handled.
Court documents note that the magistrate judge observed during a hearing last March that there had been a spike in cases of children being separated from their parents at the border and processed as “unaccompanied minors” – as the five children in this case were – simply because the parents did not have paperwork that showed the children belonged to them.
Higginson was joined on the panel by U.S. Circuit Judges Carolyn Dineen King, an appointee of Jimmy Carter, and Gregg Costa, another Obama appointee.
The judges did not indicate how or when they will rule.