How Families Separated At The Border Could Make The Government Pay [thenewyorker]

https://www.newyorker.com/news/news-desk/how-families-separated-at-the-border-could-make-the-government-pay

How Families Separated At The Border Could Make The Government Pay

Suny Rodríguez, an asylum seeker from Honduras, sued the government over abuses suffered in family detention, launching a new legal movement.

By Sarah Stillman

June 15, 2019

If you've ever borrowed a ruffled cocktail dress or a sequinned jumpsuit from the fashion startup Rent the Runway, Suny Rodríguez might have helped with your order. She works at the company's so-called Dream Fulfillment Center, a glorified warehouse in Secaucus, New Jersey, where she sorts clothing for distribution. But, beginning in 2016, she also had a less formal occupation, as the lead plaintiff in a federal lawsuit alleging that she endured "extreme and outrageous" harms at the hands of U.S. immigration agents, including attempts to take her young son from her. It was the first suit of its kind to seek monetary damages related to family detention and separation. The Trump Administration came to power shortly after she filed her case, and, since then, more than three thousand parents and children have gone through separations. Rodríguez knew that, if her case succeeded, it would provide a model for how these families could seek justice, potentially claiming hundreds of millions of dollars in legal damages. As public outrage about the family-separation crisis has grown, many people have wondered who, if anyone, would pay for the trauma inflicted. Rodríguez was the first to seek an answer.

Her crusade against government abuse began years before her lawsuit, when tragedy struck her family. In 1998, Rodríguez, then a twenty-two-year-old with a bob cut and bright eyes, came to the U.S., from Honduras, as an undocumented immigrant. After Hurricane Mitch devastated much of Central America, later that year, she received Temporary Protected Status, which allowed her to stay and work legally. During the next few years, she watched from afar as gangs gained power in her home country and police corruption grew. In 2003, she was working at a clothing shop in New Jersey, when she learned that her ex-partner, with whom she had two sons, had been murdered back in Honduras. Rodríguez's mother, Olimpia, an outspoken woman who ran a snack shop in their home town, Nacaome, was convinced that the police were responsible. She wrote a letter denouncing law enforcement and sent it to the host of a local radio station, who read it on the air. After that, police officers, who had a station next to her shop, began extorting and harassing her. "You shameless scoundrels!" Olimpia would shout at them. "You bastards!" A few months later, in October, 2004, Olimpia and her partner, Rodríguez's stepfather, were shot and killed in front of their home.

The police refused to investigate the killings, claiming that Olimpia's husband had shot her and then himself. This enraged Rodríguez, and, in 2006, she booked a flight home to launch her own investigation. In Nacaome, she convinced local authorities to exhume the bodies for autopsies, which, she told me, showed that they had been killed with different guns. "The police took me as a thorn in their side, so I kept at it," she said. Soon, she, too, faced threats. Officers demanded "protection money." Cars with tinted windows lurked outside her house. In September, 2014, she pleaded with an officer who was approaching her home, "Can you leave us in peace?" He struck her in the face, leaving bruises. She filed complaints with the police chief, the commissioner for human rights in Honduras, and Interpol, but none of them could offer protection.

Rodríguez had started dating a mechanic named Rafael, and they had a son, whom I'll call by his middle name, Daniel. In November, 2014, the couple decided that it was no longer safe to remain in Nacaome. One morning, Rodríguez dressed Daniel, who was seven at the time, in a comfy blue track suit and stuffed his baby blanket under his arm. She said goodbye to a favorite photograph of her mother, which showed her wearing bright-red lipstick and smiling fiercely. Then the family headed north, toward the U.S., to seek safe haven.

On January 16, 2015, they arrived in Rio Grande City, Texas, and got picked up by U.S. Customs and Border Protection. Rafael was separated from the family, without explanation, and taken to a facility in Pearsall, Texas. He didn't see his son for the next eight months. Rodríguez and Daniel were taken to a hielera, or "icebox"—a frigid holding cell—where they had to sleep on a wet, crowded floor. One agent, Rodríguez recalls, pressured her to sign paperwork consenting to her deportation. "It's pointless to seek asylum," he told her. The next day, they were shuffled to another holding facility, known as the perrera, or "dog pound," because it had chain-link fencing, like a kennel. Agents had seized Daniel's asthma medication, and he shivered and struggled to breathe. Every twenty minutes, agents pressured Rodríguez to consent to deportation, she said. (A spokesperson for C.B.P. declined to comment on Rodríguez's case.) After three days in the perrera, they were bused to a family-detention center in Dilley, Texas, called the South Texas Family Residential Center, where Daniel asked his mother, "Why can't you get me out of here?"

In modern immigration enforcement, abuse is not an accident; it's an integral part of the system's operation. In April, after President Trump called for sending more U.S. troops to the southern border, he lamented that they couldn't "get a little rough" with migrants, because "everybody would go crazy." He has sought to use harsh treatment—including family separations—to convince migrants to stay home. But the strategy long predates his Presidency. In "The Land of Open Graves," the anthropologist Jason de León describes how, in the nineteen-nineties, the government adopted "prevention through deterrence" as official policy and began pushing migrants out of high-traffic urban crossing areas and into remote, hostile terrain, where death tolls soared. President George W. Bush created the country's first large-scale detention facility where asylum-seeking parents and their children could be held long-term. (Before that, most of these families were released after apprehension and given notice to appear in court.) After President Obama came to power, the facility stopped detaining families. However, in 2014, as the number of asylum seekers climbed, his Administration opened a new series of family-detention camps, which were run by private-prison corporations. The South Texas Family Residential Center is one of these facilities. After it opened, Jeh Johnson, who was then the Secretary of Homeland Security, said that he believed the center to be "an effective deterrent."

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When Rodríguez and Daniel arrived in Dilley, they found a facility that offered Zumba classes and had a hair salon (where detainees worked for a dollar a day), all within the confines of a barbed-wire fence. Immigration and Customs Enforcement agents subjected Rodríguez to what she describes as "humiliation, threats, and intimidation," urging her to give up her asylum claim. Guards frequently woke Rodríguez up in the middle of the night, demanding her signature on deportation forms. The stress gave her panic attacks. Daniel's asthma remained untreated, and he was rapidly losing weight.

Rodríguez, channelling her mother, organized meetings on a small patio outside her sleeping quarters, for women to share their grievances. Together, they compiled a list of demands. They wanted tampons and shampoo, the right to sleep in the dark (the guards kept the lights on at all hours, giving the rooms a Guantánamo glow), and better legal resources. "A big issue was our limited access to lawyers," Rodríguez said. "If you'd ask to see your attorney or to visit the legal room, the officers would make excuses for why you couldn't do it." Worse, she said, agents would threaten women who protested, telling them, "You'll hurt your case with this and be deported." (An ICE official declined to comment on Rodríguez's case but told me that family detention is "effective and humane" and that detainees are given "medical care, mental health care, play rooms, social workers, educational services, and access to legal counsel.")

By mid-February, Rodríguez had successfully passed an interview with an asylum officer to demonstrate that she had strong reason to fear persecution back home. It emboldened her to press for her son's release. According to a legal settlement known as the Flores agreement, the government is not allowed to hold children in detention for more than twenty days. Daniel had been held for more than a month, although he had an aunt in New Jersey who had offered to care for him. ICE was fighting his release. Eventually, on March 12, 2015, a judge ordered that Daniel be released to his aunt. Still, ICE didn't let him go.

One morning in April, around 9 A.M., officers roused Rodríguez from bed. "You've got a doctor's appointment," one told her. Three agents escorted her and Daniel outside, to a parking lot, where an agent stood filming on a cell phone. They walked the pair to the back of a bus that had its rear door open. "Put your kid up there," one agent said, pointing to the bus. They planned to take him to a shelter for unaccompanied minors. "He'll be adopted," an agent said. "Another family will get him." (The ICE official declined to comment on Rodríguez's account of the attempted separation but noted that custody determinations, such as Daniel's, are made on a "case-by-case basis.")

Daniel screamed and sobbed. "No, Mama, no!" he cried. "Don't leave me!"

"You have five minutes to say goodbye," the agent said, according to Rodríguez. Then the agent insisted, "Put him up there."

Daniel refused to let go of his mother, and the agents eventually gave up and brought them back inside. But after that Rodríguez stopped her organizing efforts, fearing repercussions. She and Daniel took their meals alone. Daniel was not allowed to speak to his father, but he penned him a letter. "I miss you," he wrote, beside a drawing of a heart with eyes, crying two large tears. He decorated the note with a stamp from the facility, which printed the incongruous word "FANTASTIC."

In January, 2015, when Rodríguez and her family were journeying north, a professor at Columbia Law School named Elora Mukherjee flew south to bring legal aid to Dilley. She began recruiting law students to join her in Texas; some students called the trips "spring break in baby jail." That May, Conchita Cruz, a student at Yale Law School, was assigned to work on Rodríguez's case. Cruz had just four days in Dilley to prepare for Rodríguez's hearing, in which a judge, seated more than a thousand miles away, in Miami, would listen to her case by video conference and decide her fate.

Cruz worked on little sleep, digging up evidence to support Rodríguez's account, including Olimpia's death certificate. She and her fellow-students helped Rodríguez draft a declaration explaining why her persecution was political. "I am now considered a snitch by the police," the declaration read. "As I know from my mother's murder, the police retaliate against outspoken critics of police corruption by killing us." At the hearing, on May 14th, Rodríguez got good news: the judge was granting her relief from deportation. She and Daniel could leave detention that day. (Rafael also won relief, and Daniel later received asylum.)

That afternoon, as the law students celebrated and prepared to fly home, Rodríguez asked them a favor: Could they represent a Honduran woman she had befriended in detention? Cruz explained that New Haven was too far from Dilley for them to be of much use. But Rodríguez pressed, noting that local lawyers were hard to come by. "Can't you do it over the phone?" she asked. Cruz eventually agreed, and, that June, she and three other law students at Yale—Swapna Reddy, Dorothy Tegeler, and Liz Willis—began working remotely on the cases of several women in Dilley, with Mukherjee's supervision. Cruz helped the clients write their legal declarations. Reddy organized student volunteers. Willis and Tegeler gathered evidence from the women's home countries: police reports, death certificates, photographic evidence of violence. "Suny was right," Cruz said. "We could do a lot of the prep work from elsewhere."

At the time, less than two per cent of Central American and Mexican mothers who lacked lawyers won their asylum cases in immigration court. By the fall of 2015, the students had taken on ten cases and had won all of them. After their graduation, they launched their rapid-response group as a formal nonprofit; they called it the Asylum Seeker Advocacy Project, or ASAP. Rodríguez became an informal adviser for the organization. She told them about the patio discussions she had organized, and the team collaborated with another nonprofit to run a digital equivalent: a secret online forum where formerly detained mothers in asylum proceedings could exchange advice. As Reddy told me, "The women can commiserate and understand each other's questions on a level we can't. What if your ankle monitor has become really painful? What if you can't find work as a result of it?"

Most asylum seekers don't want to think about their time in detention after they leave, but Rodríguez couldn't help it. She asked the ASAP team if she could take the government to court, to hold it accountable for what she and her son had experienced. ASAP worked closely with co-counsels from Yale, Columbia, and a firm called Gibbons P.C., and, in August of 2016, the group filed Rodríguez and Daniel's lawsuit, Suny Rodríguez Alvarado and A.S.R., a minor, v. the United States of America. The complaint was banal and revelatory at once, enumerating a litany of alleged abuses that were both illegal and ubiquitous at the border. The pair were held in cold, crowded cells, in substandard conditions, for three days—an apparent violation of C.B.P. policy, which, at the time, specified that migrants should be held in "safe, secure, and clean" rooms, for no longer than twelve hours. Agents constantly tried to coerce Rodríguez into agreeing to her own deportation—a violation of non-refoulement laws, which prohibit returning asylum seekers to countries where they are likely to face persecution. Daniel's medication was confiscated, and he was detained for longer than allowed, even after a judge ordered his release. ICE's attempt to separate him from his mother, the suit alleged, caused them both "extreme distress"; they feared that they would "lose contact with each other, as they had with" Rafael.

The case was rare, in part, for its legal strategy. The federal government typically enjoys sovereign immunity from private lawsuits, which has made it hard for asylum-seeking families to sue. Big civil-rights groups tend to focus on class-action cases to combat constitutional violations, but these suits rarely deliver financial reparations to individual asylum seekers. The ASAP team relied, instead, on the Federal Tort Claims Act (F.T.C.A.), which lets people seek redress when a federal employee, acting within his or her official duties, causes certain egregious injuries. If they could prove that government officials acted in an "outrageous" manner that caused intentional and severe emotional distress or physical harm, they could win damages. Rodríguez was an early test case to emerge from family detention, but the ASAP lawyers hoped that she would clear a path for suits from other people who had suffered similar abuses. They also saw the case as a way to fight the normalization of detainee abuse. "Just because something is becoming common doesn't mean it's not illegal," Reddy said.

When Rodríguez was released from custody, she moved to West New York, New Jersey, with Daniel and Rafael and eventually started working at Rent the Runway. She faced online attacks from right-wing groups that had read about her lawsuit: one headline, on TeaParty.org, urged, "SEND HER BACK"; another read, "Illegal Honduran Woman Gets Free Everything Then Sues for Mistreatment." Three months later, Donald Trump won the Presidency, and in May, 2018, she began hearing stories about parents being separated from their children at the border. The news brought her back to the day that ICE agents tried to take her son away, and she thought of Daniel's long separation from Rafael. Daniel fixated on the headlines. "Why were you going to give me away?" he asked her. "Why would you let them adopt me?" Rodríguez's relationship with Rafael also suffered, and, this winter, the couple separated.

As the lawsuit moved through the court system, Rodríguez grew more confident. The government tried to get the case dismissed, arguing that it should have been filed in Texas (where courts are more conservative), rather than in New Jersey, but the request was denied. During discovery, ASAP's lawyers obtained tens of thousands of pages of government documents, including e-mails showing that top officials had approved Daniel's placement in an unaccompanied-migrant shelter, even though he could have been released to his aunt. The lawyers were planning inspections of the facilities where Rodríguez had been held, and they fought to take depositions from high-ranking officials, including the former director of ICE. Meanwhile, family separation was becoming a subject of widespread outcry.

One day last summer, Rodríguez sat at her desk, in Rent the Runway's warehouse, surrounded by designer gowns. She had just started her morning routine—shaking dresses to see if a rogue stiletto or tube of lipstick tumbled out, and bravely sniffing the garments to test for freshness—when she got a text from Tegeler, at ASAP, who asked, "Can you talk?" Rodríguez had become close to the lawyers and detected excitement in Tegeler's greeting right away. "It's good news, Suny," Tegeler said. "We reached a settlement." The government had agreed to pay a hundred and twenty-five thousand dollars to Rodríguez and Daniel. (An ICE official told me, "As a matter of policy, ICE cannot comment on the specifics of the settlement agreement. However, lack of comment should not be construed as agreement with or stipulation to any of the allegations.") As clothes whirled by on mechanized racks, Rodríguez allowed herself, finally, to feel a sense of relief.

On a windy afternoon in February, I travelled to New Jersey with Cruz to visit Rodríguez at her home. When we arrived, she flung open the door, wearing ballet flats and a blouse with a pussycat bow, and hugged Cruz. Daniel, now twelve, greeted us in orange flip-flops. I had recently read the transcript of a conversation he had with an asylum officer, in which he discussed his favorite activities, and I asked him about them. Did he still like soccer? "No," he replied. Nintendo? "No." He smiled shyly, then sneaked away to the bedroom. "He seems really nervous," Cruz said.

Rodríguez agreed. She told us that, ever since their experience in detention, he has been afraid to be alone. He wakes up at five-thirty in the morning and follows her around as she makes breakfast—peanut-butter toast or tortillas with cheese—and gets ready for work. "He's twelve. He should want to go to school on his own," she said. "But, every time I'm going to work or leaving the house, he'll ask, 'Mom, are you coming back? What time? Where are you going? You're sure you're coming back?'  " Recently, she recalled, she stepped out of the house to go to the pharmacy and forgot to tell him. When she returned, "I found him sitting on the couch, crying," she said. "The TV wasn't even on. He was just staring into space." She said that she had been trying to use her legal victory to instill a sense of pride in him. "I brought to light what was happening in the detention centers," she said. "And now the other moms can feel that their voices might be heard."

"Suny's case set a really powerful precedent," Reddy told me. It revealed that the government could, and would, settle cases for damages in the context of family detention and separation. Many more claims could follow, creating financial consequences for abuses. "The settlement will hopefully inspire other asylum seekers to hold the government accountable," Michelle Mendez, an attorney at CLINIC, an organization that advocates for immigrants' rights, told me. "The amount of money that Suny received from the government says a lot: they essentially admitted that what they did was unconscionable, and that they are going to pay damages for it. Suny wasn't ultimately separated from her child, but we know that thousands of parents were separated, and they haven't received a dime, and they should receive a lot more."

ASAP recently announced a partnership with the International Refugee Assistance Project, to help asylum seekers sue ICE and C.B.P. for abuses in detention. Rodríguez has offered to consult with these families, to help them understand the process. So far, ASAP has filed three more F.T.C.A. claims on behalf of families separated at the border. Earlier this year, the American Immigration Council and a large group of legal partners also filed claims with the federal government on behalf of six families who had experienced separations. Like ASAP, the A.I.C. tried to document the "intentional infliction of emotional distress"—a legal standard that seems tailor-made for such cases. "The most senior members of the U.S. Government intentionally chose to cause parents and small children extraordinary pain and suffering in order to accomplish their policy objectives," one filing reads. Among the A.I.C.'s clients is a mother who reported that her child was taken in May, 2017, after an immigration agent "mockingly" wished her "Happy Mother's Day."

A month after I visited Rodríguez, a courier arrived at her door and handed her an envelope. She happened to be on the phone with Tegeler and kept her on the line while she opened it. A check from the United States government was inside. Most of the settlement money will go directly into an education fund for Daniel. "I tell him, 'Son, you can do anything you want to do,' " she said, adding that she tells him, "I just want you to be useful." Mainly, she hopes that the news of her victory will reach asylum seekers who have faced abuses in detention, and that it will inspire them to speak out about what they've been through. "Don't give up," she wants to tell them. "The only people who really know what is going on in the detention centers are the ones who are living it."

Sarah Stillman is a staff writer at The New Yorker.Read more »