An Immigration Lawyer Explains How Family Reunification Works

Just before the deadline passed, at 6 p.m. last Thursday, I talked to Weibel about how the legal process of family reunification works and the treacherous road ahead for families who have already been reunited. (Twenty minutes after six that night, the Associated Press reported that more than 1,800 children had been reunited with their parents or sponsors, but that some 700 were still separated.) The conversation that follows has been edited for clarity and length.

Ashley Fetters: When you went to the border, what was your role in the family reunification effort?

Morgan Weibel: My goal was to connect with local organizations that have been on the ground for a long time doing detention work, to see how best we could fit in and support them. What I ended up doing was working with [detained immigrants] who were facing different forms of gender-based violence, and working with them to prepare them for either credible fear or reasonable fear interviews, or re-interviews—taking a look at the documentation they had, helping to explain to them what this meant, what their rights were. Typically, if someone is detained upon entry, if they express a fear of return, they’re given a credible fear interview [to determine whether they are truly at risk of being threatened or harmed on the basis of their race, ethnicity, religion, nationality, political beliefs, or association with a specific social group in their country of origin, and thus determine whether they qualify for asylum in the United States].

Or if they have some sort of immigration past or a background that prevents them from being given a credible fear interview, they are given what we call a reasonable fear interview. If you get a negative review of your credible fear, you get a negative decision from the asylum officer, and that means that you haven't met that threshold burden to be passed through to the immigration judge, where you can then fight out your claim.

That was our goal when we went down. Quickly, things pivoted. What we started to learn was that folks were being released under what is called orders of release on recognizance, or on supervision. Those orders typically have a whole series of rules that someone has to follow and comply with. The end result if you fail to comply with those rules is they have the ability to re-detain you, or take you back into custody. So the concern we had was that people were so quickly being reunited and moving out of the detention setting with these orders that are written entirely in English. Everyone I met with at Port Isabel spoke Spanish only, or spoke Spanish and another indigenous language. None of them could read these orders, and none of them have any clue what they mean, but all of them could result in them being taken right back into custody if they fail to comply.

It quickly became our mission and our goal to make sure that we set up some system of referrals and information, so that not only could they be informed of what [those orders] meant now for them, but all of these folks are leaving and going on to destination places where they have family or friends. We wanted to make sure that those folks were going to have some sort of representation or access to lawyers in that end location as well.

Fetters: What else stood out to you, seeing all this firsthand?

Weibel: Port Isabel is one of the four centers that the government has designated as the locations to reunite families. So, we were seeing folks who had done, sadly enough, tours of immigration detention centers across the country and were being brought into Port Isabel to then be reunited with their children right before they were released. Each time [they move centers] they have to figure it out: “Okay. There's a new system for when I need medical relief, or when I want to try to request to call my children.” There's different hours that centers run for when they can access the phones, or when they eat their meals. So you are re-adjusting constantly to all of these new environments. And then at the same time, your child is maybe moving as well. You’re trying to connect with your child, to speak with them.

People are being moved and released, and families are being reunited, which is wonderful and happy. One of the brightest moments in the days that I was down there was watching as a white van pulled up to the detention center and we saw little kids unload with their suitcases and head into the detention center, which we knew then they would be reunited with the folks that we had seen inside the detention center that were waiting there desperately for their children.

But then also there were folks in really agonizing scenarios. They had been changed into their plain clothes with the expectation that they would be reunited with a child, for example; some of those folks that we saw on Thursday of last week, that had happened as early as Monday or Tuesday and their kids still weren't there. Parents are there with the expectation that they’ll be released to their children, and they're now kind of stuck in this black hole of sorts with no way out.

Fetters: What does the legal process of reuniting kids with their parents look like? Take me through it step by step.

Weibel: So, here is what I understand to be the legal process as an immigration lawyer that's practiced in this field for years, and then I'll tell you what we were also seeing on the ground. And I don't mean to suggest that it's not legal—it's just that it's a different process than I've seen. I suspect it had everything to do with the court order and trying to meet that.

Before the zero-tolerance policy, we would have seen people who had gotten a positive result of their credible fear interview released to then come back to immigration court and present their case before a judge. Under zero-tolerance, though, my understanding is that the government’s intention is to keep the parents and their children detained until there's a final decision in their case. So what the government was doing was just trying to pull parents and kids together from what was sometimes all over the country—a child might be in New York, a parent might be in southern Texas. It takes a lot of logistics to pull them together. But that's what they were doing, and releasing them.

Fetters: What happens from there?

Weibel: We're not quite sure. All the people we were seeing were also getting notices to appear in immigration court and they were also getting these check-ins that they're required to go and see a removal officer and show and establish that they're still here, that they haven't absconded. And most of those were all set for Harlingen [a city near Los Fresnos, Texas], even though we knew that these people we were meeting with had no intention to remain in that area. Once you are released from detention, you move onward to where you have friends or family members or where you initially intended to settle.

So our concern, pretty quickly and early on, was that these folks were going to get in-absentia orders of removal because they weren't going to be in Harlingen, Texas, when that hearing was coming up. In the cases of those that were flying to New York, or somewhere else far off in the country, they couldn't possibly make it back in time for a hearing the following week, or the week after.

The other piece of that was, they've got these conditions that they're released under. Some of them had conditions that specifically stated you need to get prior approval of your removal officer before you are able to change your address, or move your residence. Those folks risk being re-detained in the eventual place that they land or reside as they go in to check in. Even if they're going to try and comply and show themselves to the government, they technically have not complied with that order because they don't have any clue what it said or what it meant and are moving about in rapid fire.