TENDER AGE

Immigrant Girl in Viral Photo Was Reunited With Her Mom

Had she been 5, she would have been decreed no longer of a tender age. And even her ‘tender age’ wouldn’t keep her with her mother if there was ‘insufficient detention space.’

John Moore/Getty

With the instantly iconic photo of a 2-year-old Honduran girl in a pink shirt crying as her mother was searched at the Mexican border came the question of what happened after the two were loaded into a van and driven off to a processing center.

“The mother and daughter were not separated,” a spokesman for U.S. Customs and Border Protection told The Daily Beast.

The spokesman further reported that the child was expected to remain with the mother at a detention center and on through a final disposition in federal court.  The spokesman added that same could generally be said of all youngsters “of a tender age,” meaning those “4 years and below.”

“I would tell you that being a child under the age of 5, children will not be separated unless…” the spokesman said, proceeding to list four reasons a tender-aged detainee might not be exempt.

Youngsters under 5 can still be separated if the parent has a criminal record or history of illegal immigration. Or if there is some question as to whether the familial relationship is “questionable.” Or when there is “insufficient detention space to accommodate a family unit where both parents are present.” Or if there if there is “evidence of abuse that would indicate that the child’s safety is at risk.”

The last exception is not without irony, for a host of experts have charged that forcibly separating a kid from a parent after a harrowing journey is in itself child abuse.

And there are apparently enough exemptions to cause several facilities to be called “tender-age shelters.” The Trump folks decline to give exact numbers.

If the spokesperson is correct about the little girl in the pink shirt, none of the exemptions applied to her situation. Her age seems to have saved her from suffering the added trauma that thousands of other children have suffered.

Had the girl been 5 when she crossed the border into Trump’s America , she would have been decreed no longer of a tender age. The mother would have been sent directly to federal court and placed in the custody of the U.S. Marshals. The girl would have been placed in the custody of Health and Human Services’ Office of Refugee Resettlement.

The Trump administration argues that it is only acting as it is compelled to do, that it is simply following the dictates of the law.

But if it can decline to apply the law to kids below a certain age, why can’t it exempt kids in general?

Why not at least exempt 6-year-olds like the ones whose cries can be heard on that recording made in a shelter?

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And then there’s a girl who was 6 when she arrived with her mother at the southern border back in November, after an impossibly long journey from the Republic of Congo. The mother presented herself and her daughter to the Border Patrol. Her native language is Lingala, but she managed to communicate in the little Spanish she had learned that they were seeking asylum from religious persecution. The Border Patrol found her convincing enough after an initial interview to allow her to make a formal application for amnesty. She and her daughter were lodged in a motel-like facility.

After four days, the mother and daughter were brought to an immigration office. The girl was about to find out what can happen to an immigrant kid who at 6 is not considered to be of tender age in Trump’s America.

Mother and daughter were placed in separate rooms. The mother would describe what happened next in a sworn deposition that was part of a lawsuit later filed with the assistance of the ACLU. The suit identifies her only as Ms. L and the daughter only as S.S.

“I do not know why we were separated,” the mother testified. “S.S. was taken into another room and then I heard her screaming, ‘Don’t take me away from my mommy!’”

The mother only later would learn that her daughter was dragged away and transported more than 1,000 miles to the Heartland shelter in Chicago. The mother was placed in an adult facility pending court proceedings.

“I worry about S.S. constantly and don’t know when I will see her,” the mother said in the deposition. “We have talked on the phone a few times since she was taken away from me. When we talk, she is crying and very scared.”

The complaint notes, “In December, S.S. turned 7 and spent her birthday in the Chicago facility, without her mother. Every day that S.S. is separated from her mother causes her great emotional and physiological harm and could potentially lead to permanent emotional trauma.”

The lawsuit was followed by a motion for a preliminary injunction. The government decided to release the mother three days later, on March 6.

“Defendants informed her that she would be released mere hours in advance, with no arrangement for where she would stay,” court papers note. “They have not united her with her daughter, who remains detained…halfway across the country.”

The government filed papers saying it was seeking to “expeditiously resolve current doubts as to whether Ms. L is the mother of S.S.” The government finally got around to taking a DNA swab from S.S. on March 7. Federal Judge Dana Sabraw stepped in the next day and ordered the government to also get a swab from the mother and finish the testing by March 14.

“The testing was completed on March 12, 20018 and established maternity,” the judge observed in court papers. “Four days later, or more than four months after they were separated, S.S. was released to her mother.”

The judge noted that the government had failed “to explain why DNA testing of Ms. L. and S.S. was not completed during the four months that Ms. L. and S.S. were detained and during which time Ms. L. consistently maintained parentage, but occurred only after the Court ordered it.”

In the meantime, Ms. L and the ACLU filed an amended complaint, making it a class action suit and seeking to stop other children from suffering the same treatment.

“Without any assertions of abuse, neglect, or parental unfitness, and with no hearings of any kind, the government is detaining these young children, alone and frightened, in facilities often thousands of miles from their parents," the amended suit charges. “Forced separation from parents causes severe trauma to young children, especially those who are already traumatized and are fleeing persecution in their home countries. The resulting cognitive and emotional damage can be permanent.”

The amended suit notes, “Prior Administrations detained migrant families, but did not have a practice of forcibly separating fit parents from their young children.”

The suit goes on to suggest the present administration may “soon adopt a formal national policy of separating migrant families, and placing the children in government facilities for unaccompanied minors.”

Where the administration would argue that it is only living up to an obligation to enforce the law, the suit contends that separating kids from parents in such circumstances actually violates one of the law’s essential tenets as put forth by the Constitution.

“The Due Process Clause of the Fifth Amendment does not permit the government to forcibly take young children from their parents, without justification or even a hearing.”

The suit concludes, “If, however, the government feels compelled to continue detaining these parents and young children, it must at a minimum detain them together.”

The government moved to have the complaint dismissed and the judge agreed regarding some lesser aspects of the law. But the most important arguments stood.

“The Court…denies Defendant’s motion to dismiss Plaintiff’s due process claim,” Sabraw rule.

The judge offered Ms. L and the ACLU the opportunity to strengthen their arguments further with a second amended complaint due by July 3. That is one day before the birthday of the nation whose history now includes the photo of the little girl in pink crying at our southern border.

With the question of what happened next to her and her mother also comes the question of what is happening to thousands of border kids who are over four and therefore not considered tender age in Trump’s America.

If they’re old enough to be in kindergarten, they’re old enough to be torn from their parents and locked in a cage while we wonder what is happening to our country.