In the coming days, Claudia could face an impossible choice: allow her 8-year-old son to be released without her from a Texas detention facility, or remain together in U.S. government custody indefinitely during a global pandemic.
Claudia, who asked that her name be changed, is not alone. Hundreds of parents and children in U.S. Immigration and Customs Enforcement (ICE) custody are expected to face this kind of "binary choice" soon.
Late last month, citing growing coronavirus cases at the family detention facilities overseen by ICE, a federal judge in California ordered the release of all children who have been held with their parents for more than 20 days. U.S. Judge Dolly Gee ordered the release of minors because of the protections afforded to them under a 1997 consent decree known as the Flores Settlement Agreement. But these protections do not extend to their adult parents.
Gee gave ICE the option of releasing parents and children together — an authority the agency has — but the Trump administration has stated it does not intend to do so. Instead, the government has been working with lawyers representing migrant minors in the Flores case to create a process by which parents can either waive their children's right to be released or allow them to be released alone to sponsors, like family members in the U.S. It is a collaboration that has splintered immigrant advocates.
ICE now has until Monday to comply with Gee's order, and is expected to do so by establishing what Justice Department lawyers labeled "a family separation process" this week. Under such a scheme, parents like Claudia would face what a federal judge in Washington, D.C., who ruled against their release called "a heart-rending choice."
CBS News interviewed Claudia, who fled El Salvador and is currently seeking asylum with the help of the non-profit Proyecto Dilley, on Wednesday over two 10-minute phone calls from inside the ICE family detention facility in Dilley, Texas, where she has been held with her son for nearly 11 months. In her own words, she explains below how she's approaching her current predicament.
This interview was translated from Spanish, and lightly edited for length and clarity.
CBS News: How are you feeling right now?
Claudia: Well, sad because of the situation that we are going through. My son does not want to eat. One of these days he was sick, vomiting and nauseous. I took him to the infirmary. They told me he did not have anything [wrong with him] because he has gained three pounds in the past three months.
[ICE] last week started calling our family members asking them if they were still going to be responsible for my son and me and that they should be on the lookout for another call. They haven't called back. The boy found out about that, that they called his dad, which would be the place where we would go, and he was very happy. But it did not happen. They keep extending the dates, and they're not letting us out. He has grown very unwell, he is always crying, saying he does not want to be here. He asks why they have us locked up if he has done nothing wrong.
Your son asks you why you're detained?
Yes, he asks me why we are imprisoned if we haven't done anything wrong.
How do you respond?
I tell him that we can't do much about it. It is a process that we have to go through. But God willing, one day we will be able to leave. I can't tell him that we are going to be released or give him a date because they have been giving us dates for our release for a long time, and it never happens. We can't lie to them and tell them that they will let us out on this day, if it does not happen. At night, he cries, has nightmares about being separated from me. I feel he is becoming traumatized because of that fear he has that they could separate us.
Do you think that these 11 months in which you have been detained with your son have been detrimental to your son's development and emotional well-being?
For his emotional well-being, yes. He can't even talk on the phone with his dad or his family because, upon hearing them, he cries. He tells me he feels sad because he does not have any friends here and that he misses his friends who already left. He does not want to be here any longer. When someone speaks to him now, he just stands idle. He no longer answers like before, when he would talk to anyone when asked something. Now, he doesn't. He just stays quiet and puts his head down.
As you know, right now we are in the middle of a pandemic. I imagine you have been made aware of some of what is going on with the number of cases, the infections and unfortunately, the deaths. Is that something you also worry about, the coronavirus cases at the detention facility and on the outside?
Yes, it is really concerning because here, many of the employees are being infected with that virus. And now, one mom in the detention center, a new arrival, has been infected as well. There are not sufficient measures here so they can easily prevent that.
Right now, there is an ongoing case in a federal court about migrant families, like you and your son, who are detained. And it is looking like the government and immigration officials will give you and other parents two options. One of them would be staying in detention with your children, meaning staying with your son in detention until your case is done. The other option is to let your son leave, so another family member can receive him. But you would continue to be in detention and they could deport you. Do you think you could make a decision based on these options?
The truth is, no, because they also have the option of letting us leave with our children. It's something they are not considering. And nothing assures me that I would be able to see my son again and if he will be safe where they would place him.
They are not giving us the information that they should be giving us because it is a decision that we have the right of being well informed of. It is our children who we would be sending to sponsors. And we don't have information, because they don't even call us to explain how the process would work. They don't give us information about anything.
Do you think it is fair for you all to only have these two options?
I think that it is not, that it is not fair to be wanting to separate our children from us. When we all decided to leave our homes with our children, it was because we did not want to leave them, we did not want to be separated from them. It is not a decision that we can take because they are children, they are little, they can't fend for themselves. Here, we have to constantly tell them, 'son, put your mask on. Wash your hands. Don't touch that.' Nobody assures us that they're going to be safe out there without us, that someone else is going to take care of them better than we do. So, it is not fair for them to give us only those two options, since they can let us leave with our children.
Judge orders ICE to release migrant children
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Did you ever imagine when you were leaving El Salvador, that you would be detained in the U.S. for this time?
No, I never imagined that we would spend so much time here, with my boy. I never imagined that the laws here would make it so difficult to seek asylum or that we would be locked up for such a long time without any possibility of being released.
For you, what would it mean to be deported to El Salvador?
I came fleeing with my son out of fear that we could be harmed, both him and I. That's why I took the decision to come. I think that going back there is not safe, since the person that was following us could take reprisals against use for leaving the country and not doing what he demanded. It is not safe and that's why we have endured so much time here, because the most important thing for me is the safety of my child.
If you could send a message to the U.S. government, what would it be?
To understand the situation we are going through, that we are also human beings and run a risk from being imprisoned here for so long. I know we have a right to food and clothes here, but it is not the same as having liberty. I know it is not that easy outside, but if we were to get sick, our families would be able to take care of us, to help us. Here, nobody can. We have to fend for ourselves.
If I were to get sick, who would take care of my son? Nobody. I feel like they should understand that it is a long time, that children don't deserve to be going through this. They don't deserve to be suffering and to be thinking that they could be separated from their mothers. They are used to being with us. It's not fair for them to continue playing with their feelings or ours. It is time for them to let us leave, because we did not come to hurt anyone, but rather to fight and push forward for our children.
The U.S. government says that releasing all families would essentially be saying that it's OK to cross the border without documents and that if they let the families out, they might not show up to court hearings. What's your response?
I think that's a bit illogical. We've been detained here for so long. In my case, I would not run the risk of not attending my court hearings, knowing that there's a possibility I can give my son a better legal status, to be able to stay here legally. I would not lose that opportunity, I would not flee or hide. That would not be logical. If we have endured so much time here, it is because we want to do things legally, it is because we want to leave with the government's authorization. We don't want to be running from immigration officials here. If I leave here, I will be responsible for attending the court dates they give me.
Finally, the possibility of being separated from your son is something real for you, from what you told me. It's something that you think about and that your son has mentioned. Why do you think that could happen?
Because it is one of the options the government has. One judge says the parents can't be released. But there is also another judge who authorized the release of the children and said the children don't have to be detained. They can require that we be separated from our children. It is a constant fear for us.
In my case, I would have to have all the information. It's not something I think about, to be separated from my son, but I would like to have all the information and to be able to consult with a lawyer about what to do. It's something that terrifies me a lot. And even if I had the information, I think it is a decision that I would not take. But I also don't want my kid to remain here locked up running the risk of being infected by the virus.