A man who fled Guatemala under threat of gang violence along with his wife and three daughters, only to be separated at the border and deported, may finally be reunited with his family in the United States following a September 4 order by the US District Court for the Southern District of California. The man, known as Fernando, is represented by a Milbank pro bono team led by senior consulting partner Linda Dakin-Grimm.
Fernando’s 17-year-old son was shot to death outside his home by two men who the family believes attacked him in retribution for participating in a neighborhood watch group. Following the murder, the family continued to be stalked and harassed, and were unable to obtain any help or protection from Guatemalan police. They were forced to flee, spending two months traveling through Mexico in an effort to make it to the US border.
While on their journey through Mexico, Fernando and his daughter were removed from a bus by police and separated from the other family members, who continued to travel north. When they reached Texas, Fernando’s wife and other two daughters made a claim for asylum and were released into the US. When Fernando and his other daughter, age 12, made it to the border soon after that, they were physically separated by Customs and Border Patrol officials. She was sent to a center for unaccompanied minors, while Fernando was sent to other detention centers in Texas and Georgia for nearly four months.
While in detention, Fernando became very ill. He was not given an opportunity to explain the basis for his asylum claim. He was deported back to Guatemala in August 2018, after the San Diego federal court had enjoined such deportations of separated parents.
The previous month, Judge Dana Sabraw of the Southern District of California delivered a ruling in a case brought by the American Civil Liberties Union known as Ms. L that halted the Trump administration’s practice of separating immigrant families at the border. As part of that ruling, the court had ordered the government to identify and reunite separated children and their parents. Instead, the government deported Fernando.
In seeking redress for Fernando, Milbank learned that the government was contending that Fernando did not qualify for relief as a separated parent because of the timing of his detention and deportation. The Milbank team worked with Paul, Weiss and the ACLU, who ultimately determined that there existed many more deported parents, who numbered in the hundreds, who were not being counted by the government. In February, the ACLU argued for their inclusion before Judge Sabraw. In March, the judge ruled that the government had arbitrarily omitted these parents, and enlarged the class to include them. However, immigration authorities continued to push back against Fernando and other deported immigrants, rejecting their requests to be reconsidered for humanitarian parole and other bids for asylum.
Earlier this summer, the ACLU filed a motion in support of a small group of parents, including Fernando, who had been separated from their children and deported “without receiving a meaningful opportunity to seek asylum.” The plaintiffs simply sought a pathway to enter the US, in order to have a chance to be reunited with their children to seek asylum. Ruling on this motion on September 4, Judge Sabraw reviewed the circumstances of 18 affected parents. In the case of Fernando, who was deported in August 2018, and two other parents, the Court ruled that they were removed after the July 2018 decision that halted family separation, an action in clear violation of the stay order against the government’s separation practices.
The new order, which authorizes Fernando to re-enter the US and pursue his asylum bid, “makes me happier than any decision in a long time,” Ms. Dakin-Grimm comments. “This story illustrates this administration’s arbitrary approach to immigration policy,” she adds. Though Fernando and his wife both provided the same set of facts when requesting asylum at the border, she was allowed to pursue a claim, while he was detained for months and deported. And though he was painfully separated from his daughter at the US border, it took Milbank’s dedicated advocacy to have him, and parents in similar circumstances, considered as part of the class of parents eligible for remediation.
The Milbank team also included partner Tim Wendling and associates Julia Wu and Albert Ji.
