New figures: 1,134 families separated since end of "zero tolerance"
Watch "The Faces of Family Separation," a CBSN Original, on CBS, Saturday, December 28 at 10 p.m. ET.
Tampa, Florida — On Sundays, Estuardo tries to spend the entire day with his 5-year-old son, Ariel, who enjoys riding his blue push car outside their new home, located in a trailer park where dozens of other low-income immigrant families live.
In the weeks since they reunited, Ariel has become more attached to Estuardo, who said his son has changed since their forced separation.
"He asked me why I left him. He thought and felt — in his heart — that I had left him," he told CBS News in Spanish. "But I have explained why it happened."
Estuardo, 27, and his son were not separated in the spring of 2018 during the "zero tolerance" border crackdown that the Trump administration was forced to discontinue after a massive public outcry and a ruling by a federal judge that barred officials from separating families except in limited circumstances, including when parents present a danger to the child.
Instead, U.S. border officials separated the Guatemalan father from his child this spring in one of more than 1,100 separations since June 2018.
The separations that have taken place since last summer are another pressing concern for the ACLU.
"When we heard that there were these many separations — close to 1,100 — we assumed that they would be all for very serious offenses in which the parent presented an ongoing danger to their child," Gelernt said. "What we've learned is that so many of them were for minor crimes, even DUIs, disorderly conduct, theft from decades ago, non-violent thefts."
A CBP spokesperson said the agency is complying with Sawbraw's ruling and that separations only occur to "ensure the safety of the child." Separations are carried out, the spokesperson added, when the parent or legal guardian poses a danger to the child, has a "criminal history" or "outstanding criminal warrant," a communicable disease, makes a "fraudulent" parentage claim or engages in criminal activity, such as smuggling, related to their entry into the U.S.
The Trump administration has told the district court in San Diego that it won't separate families if the parent has a non-violent misdemeanor and that it will exercise discretion in other circumstances. But the ACLU believes the authority the government has to separate families is still overly broad and has asked the court to set up a more rigorous process to determine whether parents pose a danger to their child — something the administration has opposed.
In a recent filing, the administration said the ACLU's suggested process represented an "unworkable, individualized, messy approach," maintaining that immigration officers "often make determinations regarding a parent and child in a quick time frame, and often based on the limited information available to them at the time of encounter."
But the ACLU has argued that child welfare experts should be making decisions about family separations, not law enforcement officers like Border Patrol agents.
"If a parent is genuinely a danger to their child, we of course want the child separated," Gelernt said. "But what we're finding out is that the government has this approach of categorically separating based on even the most minor criminal offenses."
Some of the ongoing separations since last summer that the ACLU believes were unlawful don't involve parents with criminal records. Estuardo, the Guatemalan father, did not have a criminal record, according to an ICE document reviewed by CBS News. But he was still separated from his son.
"I started crying"
While in U.S. immigration custody, Estuardo spoke three times with Ariel over the phone. Each call, he said, contained both relief and pain.
A former coffee farmer who decided to journey north after being threatened by a gang he refused to join, Estuardo knew little about the U.S. detention system or how to get out of it. At one point while detained, he became convinced that he might not see his son again.
But as he spent numerous nights at a detention center in southern Arizona, a group of advocates and lawyers were busy trying to reunite him with his son. Advocates at the Young Center for Immigrant Children's Rights, a group that works with the government to look out for the safety and well-being of unaccompanied migrant children in U.S. custody, had been assigned to help Ariel while he was at the shelter in New York City.
After learning more about the circumstances of the family's separation, the advocates came to believe it had been unlawful. They notified both HHS, which had custody of Ariel at the time, and the ACLU.
In early September, ICE granted Estuardo parole, allowing him to continue his immigration proceedings outside of detention for at least one year. He was finally free, but still about 2,000 miles away from Ariel.
With the help of the groups Miles4Migrants and Immigrant Families Together, Estuardo flew to New York. Two days after his release, Courtney Sullivan, a volunteer at Immigrant Families Together, accompanied him to the shelter in Harlem and witnessed the reunification. "The poor dad just burst into tears the second the little boy was brought in," she said.
Estuardo also recalled being relieved. "When they gave him back to me, I started crying because they had separated me from him for four months and 15 days."
Ariel appeared somewhat confused during the reunification, Sullivan said. But by the time the three had lunch at a McDonald's in Queens, the young boy was embracing his father and playing with the toy that came with his Happy Meal.
Estuardo, 27, and Ariel, 5, have their first meal together in the U.S. since their four-month separation. Courtesy of Courtney Sullivan "It is absolutely still happening"
Gelernt, the ACLU attorney, said his group expects the administration to disclose even more separations in the coming months. Advocates at the Young Center for Immigrant Children's Rights have received about 200 referrals since last summer to help separated children.
"It is absolutely still happening," said Jennifer Nagda, the group's policy director. "In some of our offices, we have wait lists of kids who have been separated and who are waiting to get child advocates appointed to fight for them."
For Gelernt, the "zero tolerance" policy and subsequent family separations form "one of the most shameful periods in our immigration history — or maybe just generally, our history."
"I've been at the ACLU for more than 25 years, this is the worst practice that I have ever seen," Gelernt said. "I mean, we are talking about deliberately inflicting harm on little children, even babies. Using them as pawns in a larger political fight."
Ariel, 5, is set to start kindergarten later this year. Camilo Montoya-Galvez / CBS News
Although he's not well-versed in the political debate over immigration in his new home, Estuardo agreed. Separating families for no apparent reason, he said, is not fair.
"I don't want that to happen to other families, like it happened to me, because it is painful for the entire family," he said.
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