Former ICE lawyer switches sides: I want to protect immigrant children, not prosecute them I used to be an ICE lawyer but now I'm going to defend immigrant parents and children. I didn't become an attorney to prosecute and deport babies.

Laura Peña | Opinion contributor

Show Caption Hide Caption Dems, advocates demand ending family separation House Democrats were joined by advocates and immigrant children outside the US Capitol building on Wednesday to demand an end to a policy that's led to forced separation of more than 2,300 migrant children from their parents at the US border. (June 20)

My face turned beet red when the immigration judge demanded I explain why a six-month old baby was being called to appear separately from his mother in a removal hearing. Though the mother was physically in the courtroom cradling her child, the infant’s case had been “administratively separated” from the mother’s. The infant had a hearing date; the mother did not. The judge was furious that administrative separation could potentially put the infant at risk for deportation without the parent.

The judge was outraged then, five years ago, when the separation was a mistake. Millions of Americans were outraged this month when we discovered separating children from parents was the new standard. Shortly after the border surge in the summer of 2014, I and my colleagues at ICE kept furious track of files, annotating cases with red pens and rubber-banding together family unit files to ensure the cases were not separated. Now we know more than 2,300 children were physically and legally separated from their parents with no infrastructure in place to help reunite them.

I joined Immigration and Customs Enforcement as a trial attorney to experience the immigration system from the inside. Shortly after I started, the border surge caused courtrooms to swell with crying babies and their mothers. There was close, working-level coordination between the immigration courts and ICE.

Obama handled families differently

As children continued to travel north in mass numbers without their parents, the administration made the tough decision to create what former Homeland Security Secretary Jeh Johnson described as “crude” converted day care facilities intended for adults. The Obama administration distinguished between unaccompanied children and family units, supported asylum for victims of domestic violence, and worked within established case law. In stark contrast to putting families first, the Trump administration ignored decades of legal standards and made family separation the rule for all.

Now, “tender age” facilities are imprisoning infants and toddlers far away from their parents. Trump's executive order last week halted his family separation policy, but reiterated the commitment to criminally prosecute asylum seekers and failed to mandate that children and parents be reunited. The government recently said approximately 500 families had been reunited, but there remains no clear process in place for the rest — and existing laws for unaccompanied minors create onerous hurdles for parents if they are released and try to get their children back. Moreover, Trump has reiterated his desire to deport unlawful entrants without a court hearing or due process.

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In this climate, these children have limited options: remain in federal custody or go into foster care and eventually be adopted by American citizens. Many minors end up eligible for lawful permanent residency by applying for a Special Immigrant Juvenile classification — a legal status that requires the state court to declare the minor a dependent of the state and find the child cannot reunite with the parent due to abuse, abandonment, or neglect. There is no guarantee that the natural parents would win in a custody battle once a child holds this classification, or if the naturalization process is started by adoptive U.S. citizen parents.

For now, government policy states that minors must appear in immigration court for their scheduled removal hearings. If the asylum case is denied, the minor ends up back in immigration court for an asylum hearing before an immigration judge. However, Attorney General Jeff Sessions has stripped immigration judges of the authority to administratively close cases, and gutted well-established asylum case law. So that makes any hope for asylum relief for these children nearly impossible.

In the next few weeks, the government will present parents separated from their children with the ultimate Sophie's choice: be deported with their children to face the violence that they fled, or leave the children in the custody of the U.S. government.

I didn't become a lawyer to prosecute babies

I imagine a new attorney, as new as I was when that judge called me out over a six-month-old, sitting in a courtroom full of crying babies. Only this time, there are no mothers to cradle the children. There are HHS-appointed clinicians. There are foster parents navigating a byzantine, corrupt system known for falling to human traffickers. And because there is no legal right to a government-appointed attorney in deportation proceedings, there are tens of thousands of unaccompanied minors without representation.

I imagine a traumatized 3-year-old being questioned on the record about why she fled her home country, and responding with cries for her mother or father.

I imagine a plane full of children landing in the deportation facility in Guatemala City. These children are stranded, vulnerable and at grave risk for human trafficking.

I became a lawyer because I believe in the rule of law and fundamental fairness, not to prosecute babies and send them traveling in planes alone. As our government cracks down on asylum-seeking families, we are witnessing mass violations of constitutional and international laws that uphold the right to family unity, the protection of asylum seekers from criminal prosecution, and the rights of children to live free from harm.

As a former ICE attorney, I am laying down the prosecution sword and picking up the shield to defend those most vulnerable in our society. Our integrity as a democracy relies upon it.

Laura Peña is a former assistant chief counsel at ICE and served as a senior adviser in the State Department during the Obama administration. A Harlingen, Texas native, she starts next month as a visiting attorney with the Texas Civil Rights Project.