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Toddlers and Young Immigrant Children Still Alienated From Their "Ineligible" Parents

By Lisa M. Schaffer, Esq. | Last updated on

In the all-too-familiar saga of immigrant children separated from their parents, a few toddlers are still getting left behind. Though President Trump did sign a bill authorizing the reunification of "tender age" children with their families months ago, there are a few that continue to be separated from their parents, over six months and counting. These parents have been deemed "ineligible" for reunification, based on past crimes. Though this makes sense for some crimes, such as child or sexual abuse, one three-year-old girl in particular is being separated from her father for misdemeanor crimes he committed over twelve years ago.

Alienation Over a DUI, a Violation of Due Process?

In the case of Jose Atilio Barrera Hernandez and his young daughter, Marta, they entered the United States on March 20, 2018 at the border in Calexico, California, looking for asylum. Barrera was sent to a local adult detention center, and Marta was sent to a youth center in Chicago. Though the separation was grueling, they looked forward to reunification on July 10th, the deadline set by Judge Dana M. Sabraw of the San Diego Circuit Court for reuniting over 100 children under the age of four.

Several hundred families have yet to be reunited, mostly because the parents had been deported. But for Marta and Barrera, and a few other families, the government has determined the parents are "ineligible" for reunification, without offering any individualized due process hearings. The ACLU is attempting to get each of these cases heard, but it could take time, the length of which has yet to be determined. The legal issue is whether the government has "a legitimate interest in continuing detention of individuals who posed a flight risk or danger to the community or others in a family detention facility because of that person's criminal history," versus the family's right not to be separated without due process, requiring individualized inquiries and cases.

What's Good for the Citizen Is Good for the Immigrant

In Barrera's case, he was convicted of a misdemeanor open container law in 2005, and a misdemeanor DUI in 2006. Both are alcohol related crimes, happening over 12 years ago. Child Protective Services would almost certainly not remove a child from a U.S. citizen parent for these offenses without due process and an opportunity to be heard. Is it legal to do so for immigrant families? Marta and Barrera are still separated from one another. Time will tell when they will be reunified, and what emotional costs the separation has had on young Marta.

If you or someone you love is separated from their families over immigration matters, contact a local immigration attorney. An attorney can review the facts of your case and offer sound legal advise to resolve your issues.

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