I received an email from our pro bono department about a father who was in custody in New Jersey and had been separated at the Southern border from his adopted son because immigration officials were denying his parentage. The next morning, I was at the custody facility interviewing the dad who had not seen his not-quite 2-year-old son for more than three months. His son was in custody in New York (we were later told the child went to a detention facility during the day, and stayed with foster parents overnight and on the weekend), and the father was transferred to New Jersey, he was told, to be reunited with him. The dad had been told by other detainees that they had been able to reunite with their children, so he was hopeful. And then came the DNA test.
He told officials his DNA would not match his son’s because his son was adopted. All his papers were in order – he was listed as the father on his son’s birth certificate and national registry document, and a sworn, notarized letter from the child’s mother stated that he had permission to travel with the son. Despite that, immigration officials claimed he had denied he was the dad when they first interviewed him (which was not true), but said if I sorted out the parentage issue, they would reunite him with the child. So, I thought our role in the case was just to prove parentage. Boy did that turn out to be wrong.
The amazing team at Morgan Lewis put me in contact with one of our Washington, DC partners who did a lot of work in Latin America and had connections with a local law firm in Honduras. A partner at that local firm wrote an affidavit, attesting that the documents our client had were the end-all, be-all to proving parentage under Honduran law. We added this to a legal brief with published guidance from the US State Department’ on proving parentage in other countries, which we sent to Immigration and Customs Enforcement (ICE) and the Office of Refugee Resettlement (ORR), the agency holding the child.
It did no good. Although ORR conceded that the pair were father and son, ICE still denied they were family and wouldn’t even allow visitation or video contact between the two. We tried reaching out to the American Civil Liberties Union (ACLU), which at the time was fighting a class action lawsuit on behalf of the separated families. They put us in touch with the US Department of Justice (DOJ), whose officials agreed that they were family but, for the first time, argued that the dad still couldn’t see his child because he had an eight-year-old misdemeanor on his record as a result of having harsh words with a drug dealer that was selling drugs to his ex-wife. Although DOJ refused to move on that position, we also pushed them for more information as to why our client’s immigration case had completely stalled without even an opportunity for a hearing or “reasonable fear interview,” the first step in the process for our client to seek immigration protection. Shortly thereafter, our client was granted an interview, which he passed, meaning he could continue with his immigration case.
At that point, we teamed with the Center for Constitutional Rights in preparing a federal complaint and petition for habeas corpus seeking injunctive relief in the US District Court for Southern District of New York and ordering immediate reunification of father and son. Shortly after the case was filed, we appeared in immigration court. The immigration judge heard the details of our client’s case, and he was immediately released on a $2,500 bond (which Refugee and Immigrant Center for Education and Legal Services (RAICES) generously funded).
But his struggle didn’t end there. ORR refused to release the child to his dad without an extensive background check on the dad and his entire family in Texas where they planned to live. That would take weeks if not months with the extensive backlog of cases. There is a fundamental constitutional right to be with your child, regardless of whether you are a citizen or not, so we served additional papers in our federal suit, arguing there was no basis to keep father and son apart or to continue to detain the son. We were granted an immediate hearing and the judge agreed with us; the judge ordered the child to be released that day.
After several months of not seeing each other, there was a very real fear that the son wouldn’t recognize his dad. I was there for the emotional reunion, armed with a new Lego set and toy trains. Within 15 minutes, they were laughing and hugging each other with the child repeatedly saying, “Papa, papa.” The dad kept looking at me, in disbelief that his son—now five months older—could say so many new words. He wasn’t sad; he was so proud.
This is not like any legal battle I’ve ever fought. Here, there was literally someone’s life on the line. Each day we weren’t successful meant another day that a 2-year-old child spent in federal custody away from his dad. You bring everything you have to the case, in your legal capacity and beyond. My client used to call from jail in the middle of the night, and my husband would get up to translate for me. I didn’t sleep for weeks. I don’t know how to describe what I felt when I walked out of those court hearings; there aren’t words. To be able to end that completely needless separation was hugely satisfying both professionally and as a mom of small boys myself. After he was settled in Texas, the client called to say, “You looked out for me and took care of me like no one ever has, and I can never thank you enough for that.” That meant everything in the world to me.