Analysis Family

Why Adoption Needs to Play a Bigger Role in the Reproductive Justice Conversation

Andrea Grimes

A recent proposal by a Texas state senator that would mandate pre-abortion adoption counseling has given reproductive justice advocates a unique opportunity to show what real, meaningful adoption industry reform could look like.

This summer, reproductive rights supporters in Texas descended upon their rose-hued state capitol, day after day, through two special legislative sessions, to rally against an omnibus anti-abortion bill that is expected to drastically reduce access to safe, legal abortion in the state.

Texas Democrats ultimately failed to block the bill, despite a historic fight that catapulted Sen. Wendy Davis into the national spotlight, as HB 2’s passage was all but guaranteed by the state’s right-wing legislative majority. But even some Democrats voted to pass the law, which could shutter all but the six abortion clinics in the state that are currently able to meet the standards of ambulatory surgical centers.

One of those Democrats, 30-year state senate veteran Eddie Lucio, added insult to injury when, as the second special session wound down, he filed a last-minute bill that would require Texans seeking abortions to take three hours of adoption counseling before their procedures, putting yet another obstacle between pregnant Texans and legal abortion. The state already requires such Texans to undergo forced ultrasounds and a 24-hour waiting period.

Lucio knew his bill wouldn’t go to a vote that session, but it wasn’t meant to. It was meant to be a prelude to the 2015 legislative session, when he plans to lobby hard for state-mandated, directive adoption counseling. (Lucio later filed a slightly different version of the bill, mandating “resource awareness” counseling that specifically highlights adoption.)

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“I’m hoping that we can save a few lives by having the woman think about the possibility of allowing her child to go through the birth process and giving it up if necessary so she can continue to go through her life as maybe she has planned,” Lucio told Texas Public Radio in early August.

While Lucio, who waxed theological on the issue of “personhood” and abortion for several minutes before ultimately voting to pass HB 2 this summer, may be coming from a well-meaning place, his bill shows a deep ignorance about the reality of adoption, and a fundamental misunderstanding of the reasons why it is not an alternative to abortion, but rather an alternative to parenting. Research shows that the vast majority of pregnant people who seriously consider adoption never considered abortion as a viable option in the first place, and Lucio’s bill would serve predominantly to detain, and perhaps shame, pregnant people who are already in a time crunch, and who are already facing logistical hurdles to obtaining legal abortions.

Lucio is not alone in his ignorance, and as an anti-choice senator, it’s hardly unusual that he would champion adoption despite the basic illogic of his own bill, as adoption has become almost exclusively the purview of the anti-choice community, while reproductive rights supporters are compelled to concentrate instead on fighting other, mostly abortion-related battles in state legislatures.

But reproductive justice advocates who Rewire spoke to say there is plenty of room for adoption in the larger conversation about reproductive rights, and in light of Lucio’s proposed bill and growing awareness about the coercive practices of a largely unregulated domestic and international adoption industry, it is not an issue they can afford to ignore.

“On the pro-choice side, they’ve kind of handed adoption over to those in the ‘pro-life’ arena,” said writer and social worker Amanda Woolston, an adoptee herself and author of The Declassified Adoptee. “We need to take it back and say that anybody who cares about women and children and families needs to have an opinion.”

Even though the question of being able to choose when and whether to parent, and whether resources exist to support those options, is central to any adoption decision, adoption tends to be overshadowed by abortion in the reproductive justice arena, for a variety of reasons: Abortion is more politically volatile, countering explicit legislative attacks on abortion access demands a great deal of time and resources, abortion is significantly more common than adoption, and adoption is an under-researched area, perhaps in part because it is by and large understood in our culture to be a social good that needs little oversight.

“I think [adoption] is a crucial part of the reproductive rights conversation,” said Kathryn Joyce, a journalist and author of The Child Catchers, an investigation into the international trafficking of adoptees by American evangelicals. “It’s part of the larger conversation about not just the right to choose when you parent, but to choose to be a parent. That’s a fundamental right that is absolutely, beyond question part of reproductive justice.”

According to critics of adoption as it is practiced today, even after the “Baby Scoop Era,” during which single women were shepherded away to maternity homes to deliver their children in secret, many of the common accusations leveled at the so-called abortion industry by anti-choice reproductive rights opponents—specifically, that coercive “abortionists” are solely interested in creating and maintaining demand for their services for the singular purpose of making money off hoodwinked and/or ignorant clientele—could be aptly applied to the largely unregulated domestic and international adoption industry.

“Ironically, some of the same things that the anti-choice side will accuse abortion rights supporters of doing seem to be kind of actually happening in some adoption counseling scenarios,” said Joyce, who also wrote about “shotgun adoptions” for The Nation in 2009, detailing the lengths to which crisis pregnancy centers and some religious-affiliated adoption agencies go in order to convince women to relinquish children to what they’re often told are sure to be better homes than those they themselves could provide.

If reproductive justice is about freedom from coercion and the ability to make affirmative choices with appropriate and sufficient resources, the adoption industry deserves all the attention those in the movement can give it.

“Adoption, the issue, is just really under-talked about and really under-explored,” said Katie Klabusich, a writer and reproductive justice activist living in New York. An adult adoptee, she says “we need to do everything we can do to make sure [adoption] is an affirmative choice.”

That means, in some cases, going up against adoption agencies that have not only an ideological investment in increasing adoptions, but a financial one. In 2012, Midwest-based Bethany Christian Services took in $82 million from adoption fees, investments, contributions, and “reimbursement for children’s services,” while Texas’ Gladney Center for Adoption reported over $37 million in net assets for the same year.

These agencies do all they can to ensure that women who consider adoption follow through on their plans. Gladney offers a kind of all-expenses-paid new-wave maternity home for women considering adoption, while Bethany places pregnant women in private homes with families who encourage them not to change their minds. Critics say this separation from family and social networks engenders a sense of isolation and helplessness, prompting those facing unplanned pregnancies to feel reliant on adoption agencies and indebted to them for support. In return, they may feel obligated to relinquish their babies despite their misgivings.

Joyce says adoption counseling can be a “very socially engineered” conversation, with adoption “presented as, ‘This is the responsible way you can take responsibility for your bad decision of having premarital sex and getting pregnant.'”

At the Gladney website, pregnant women are told that while adoption may initially cause them “pain,” it will “someday [be] replaced by strength.” The page on Bethany’s website aimed at people considering abortion advises them that “taking the time to look at your other choices may prevent you from making a decision you will later find hard to live with,” implying that abortion is a guaranteed path to regret.

But research shows that adoption can indeed be an option that pregnant people later find hard to live with. According to the Center for American Progress, those who choose to relinquish children for adoption often experience grief and profound loss, along with relief. For many in the triad of adoptees, birth parents, and adoptive parents, adoption it is not unilaterally the joyful exploration of loving kindness presented by agencies and messaging campaigns like Gladney-affiliated Brave Love, which aims to communicate “the heroism and bravery” of adoption.

Woolston, the “Declassified Adoptee,” said adult adoptees live with frustration and guilt when they’re reminded that “what our lives could have been before adoption would have been so much more terrible, that once adoption comes into the picture, we have nothing to complain about.”

And Claudia Corrigan D’Arcy, an outspoken critic of the adoption industry who relinquished a child in 1987 when she was 19 years old, says birth mothers are often cast aside once they’ve relinquished their children, particularly when they have no legal means of holding adoptive parents accountable for open adoption agreements, or ensuring they get the post-adoption counseling so often promised by adoption agencies. “We’ll take away the baby,” muses D’Arcy, “but we’re going to leave you in the same crisis.”

As for birth fathers, Woolston said they’re treated as little more than a “roadblock” to adoption: “It’s another person with rights who we have to consider,” she said. “Fathers have largely been written out of policy for that reason.”

No credible research conducted by non-partisan, objective groups or experts has found that the adoption experience universally reflects the transformational journey of joy and selflessness put forth by many adoption agencies and crisis pregnancy centers. Instead, research suggests that adoption is as complicated and nuanced as the individuals involved, who experience a wide variety of emotions and outcomes.

Which is not to say that good cannot and does not come out of adoption—none of the adoption critics that Rewire spoke to oppose adoption as a concept—but the waters must be navigated carefully and ethically. A three-hour adoption counseling program that explicitly aims, as Sen. Lucio said his would, to encourage women to relinquish their children to adoptive families could not be anything other than, at best, deeply biased, or at worst, profoundly coercive.

Indeed, private agencies like Gladney are already using slick marketing campaigns to do what Lucio hopes his adoption counseling mandate would do: increase the available supply of adoptable infants. According to the Gladney website, Brave Love’s goal is to “drastically increase adoption rates in the U.S.” But how? The Brave Love website contains no information about how parents can adopt existing foster children. Instead, it is aimed at pregnant women who, according to a promotional video, will be “heroes” if they relinquish their infants for adoption.

However, Brave Love’s founder, Ellen Porter, who herself adopted a child through Gladney, told Rewire that her organization believes “increased adoption education is necessary across the board, not just for abortion-minded women,” for whom “adoption should be presented as an option so that women can make a well-informed decision when faced with an unplanned pregnancy.”

For the State of Texas to engage in similar practices aimed at talking pregnant women into relinquishing infants, glossing over the nuances of adoption in order to present the choice in the best possible light, is to wade into ethically questionable waters, said Katie Klabusich. To be frank, she said, Lucio’s proposal “freaks [her] out,” not only because she is an adoptee who believes her birth mother never was able to consider abortion as an option, but because she herself has also chosen to end a pregnancy.

“I feel like it cheapens the effect that the unplanned pregnancy had on my life,” she said. “It judges the decision that I made, and it also cheapens the way that I came into the world.”

Birth mother Claudia Corrigan D’Arcy called Lucio’s bill “really frightening.”

“Three hours is not at all a decent length of time to get adequate information,” she said, adding that she’s “sure the information that would be given would not be true information.” Instead, she says most adoption legislation, when lawmakers make any attempt to address the issue at all, is intended to benefit adoptive parents and adoption agencies, the most privileged players in an adoption situation.

Adoptive parents, says D’Arcy, “are, in the end, the paying customer and the ones the agencies are going after.” According to a 2011 report from the U.S. Department of Health and Human Services, private adoptions can cost anywhere from $5,000 to over $40,000.

“They want the moms to make the product,” said D’Arcy. But today, very few pregnant Americans choose adoption in the first place, with an estimated 14,000 domestic adoptions taking place each year, compared to some 175,000 in the 1970s, according to the U.S. Department of Health and Human Services. Before 1973, nearly 19.3 percent of never-married white women and 1.5 percent of never-married Black women relinquished children for adoption, whereas today, fewer than 2 percent of white women, and “nearly 0 percent” of Black women choose adoption.

Woolston told Rewire that what legislation has been passed has largely centered on enabling and encouraging would-be adoptive parents. Legislators ask, says Woolston, “‘How can we convince people to adopt?’ ‘What can we do to encourage them to keep adopting?’ And then, ‘How can we convince pregnant women to choose adoption instead of abortion?’ And then at the bottom they say, ‘What can we do for adoptees that doesn’t interfere with our plans?'”

In the end, says Woolston, “none if it is empowering to any of us, even at the top. We all have roles that have meaning in society, and we’re expected to play within those roles and stay contained.”

What, then, can reproductive justice advocates do if they want to ally with those in the adoption triad in addressing some of the problems facing the adoption industry today, and challenge what appears to be the industry’s increasing reliance on obfuscation and coercion?

Woolston suggested advocates start by looking at privilege itself, a concept central to any reproductive justice conversation: “In adoption, children tend to go from poorer homes into wealthier homes, and that really reflects traditional hierarchies of privilege,” she said. “We must ask ourselves, what circumstances place mothers and families in a position where they have to choose abortion, or between adoption and parenting? What can we do to address their needs? And how can we go a step further into the institution, to help those who live it?”

That could mean a variety of practical actions: increasing, rather than decimating, funding to food stamps, increasing the availability of affordable health care, and ensuring low-income families have access to prenatal care. But it also requires a shift in cultural conversations about parenthood, to one that doesn’t privilege some parents as being more worthy, or capable, simply because of their class privilege.

Often, when women are poor, pregnant, and considering adoption, they are told by crisis pregnancy center counselors and adoption agencies that their own selfishness, their poverty, and their general unpreparedness for parenthood will prevent them from raising a healthy, happy child.

In fact, the right-wing lobbying group the Family Research Council released a paper in 2000 intended to help crisis pregnancy center counselors direct more women to choose adoption, advising them to “emphasize the difficulties of parenting” and to tell pregnant people that “unprepared mothers” will parent children who “may very well live lives of pain and suffering.” The report, astounding in its open disdain for women with unplanned pregnancies, highlights women’s “level of selfishness” when they resist the idea of adoption. It scoffs, “[B]onding with their children, and the desire to keep them, matters most.”

The implication here, of course, is that an adopted child with a middle- or upper-class upbringing and two heterosexual, married parents will definitely fare better than a child raised in a low-income or single parent household, or one in which parents are not married.

“Ideally, no one wants to separate a mother from her biological child,” said Ellen Porter at Brave Love. But the Family Research Council’s report certainly seems to indicate that some adoption agencies and crisis pregnancy centers desire to do just that, in part by using the kind of redemption narratives and heroine-worship language used on Brave Love’s website. From the report:

Choosing adoption is a way for many women to regain their identities as responsible, caring adults. This allows them to feel they are making up for their past failures by doing the best they can for their babies whom they feel are the innocent parties in the situation. By acting responsibly and giving their babies to loving families, these women are able to see themselves as responsible and unselfish. They feel good about themselves because they are able to see beyond their own desires and strong emotional urges to keep the children regardless of what is actually the best thing to do.

It is as if, says D’Arcy, adoptive parents of means “are never going to get sick, lose jobs, get divorced.” But, she says, “they are the same as anybody else and have the same risks. The child is not guaranteed to have a happily ever after just because they’re adopted by wealthy parents.”

The “conversation about who is a legitimate mother,” said Kathryn Joyce, “feeds into so many other things about race and class and the whole broad history of coercion and reproductive history.”

From a policy point of view, adoption reform activists hope to achieve a number of goals, including opening adoptees’ original birth records and giving birth parents more legal recourse when adoptive parents choose to renege on open adoption agreements, which in many states are not legally enforceable.

Both of these issues serve to maintain adoption’s long history of secrecy. The Gladney-founded adoption lobbying arm, the National Council for Adoption, has long, and successfully, opposed opening adoptees’ birth records, and birth parents continue to be forced to rely on the honesty of adoptive parents when they agree to open adoptions.

“Once we actually have state laws allowing adoptees to access their original birth certificates,” says Claudia Corrigan D’Arcy, “we’ll know what’s actually happening,” as opposed to hearing only the agency-promoted “mythology” of adoption, which she says is also used to mislead adoptive parents into thinking birth parents are making affirmative decisions.

“They all get sold a total bill of false goods,” said D’Arcy. “They get told what they want to hear, so [agencies] get their money. Once you’re $5,000 in the hole, indebted to the agency, and it’s probably your only chance that you’re ever going to have a kid, it’s just sad.”

Until adoptees have the ability to identify their birth parents, and birth parents are able to maintain mutually agreed-upon presences in their children’s lives, the reality of adoption will continue to be couched in secrecy. In the meantime, said Woolston, “It’s keeping adoptees from being able to get the same documentation from the government that everybody else can get.”

D’Arcy and Woolston both said that birth parents’ rights need specific protection from the government. D’Arcy would like to see “uniform state laws” that clarify and extend the time period in which women can consent to relinquishing their child, and in which she can choose to parent if she changes her mind. Too often, she says, women are compelled to sign consent agreements in hospital rooms, when they are still recovering from labor.

And while Ellen Porter at Brave Love said that “birth mothers can have a relationship with the family, if desired,” D’Arcy says many of these kinds of promises that are made to birth mothers, or first mothers as many prefer to be called, are never followed through with after the adoption takes place, especially when the law does not compel adoptive parents to adhere to open adoption agreements.

As for biological fathers, Woolston said they “have very little ground to stand on,” and “if we actually had laws that acknowledged a child’s right to be raised by their father or their mother,” the “heartwrenching” legal battles between adoptive parents and biological fathers could be shortened or eliminated.

It is crucial to remember that even critics of adoption are not wholly opposed to the practice; rather, they are concerned about how adoption is currently handled by its largest players, and the ignorance surrounding and motivating much U.S. adoption policy, which they say is heavily biased toward making adoption easier for adoptive parents, to the exclusion of the needs of birth parents and adoptees themselves.

Research suggests, and much anecdotal evidence shows, that adoptees have complicated and mixed emotions about their experiences—they are, after all, whole human beings and not, as they are so often told and imagined to be, perpetually thankful children who owe a debt of gratitude—to society, to their adoptive parents, to their birth parents, to God—for their very existence. Research also suggests that parents who relinquish children experience a variety of emotions and outcomes dependent on the circumstances of their adoption, again, because they are whole people and not a choir of saintly martyrs saved by the power of selflessness.

What no research suggests, and what no adoptive parent, adoptee, or birth parent that Rewire has spoken to believes, is that three hours of government-mandated counseling is needed to convince or compel more pregnant people to relinquish their infants for adoption.

But if reproductive justice activists don’t educate themselves and each other about adoption’s role in their movement, proposed legislation like Sen. Lucio’s could become a reality in lieu of very real, very needed adoption industry reform. In a way, Lucio has done these activists a favor by showing his hand; he has given them a reason to incorporate more, and more serious, talk about adoption into the larger conversation around reproductive rights, and an opportunity to show lawmakers and the public what meaningful, lasting changes toward a more ethical adoption framework might look like instead.

Correction: A version of this article incorrectly noted that Texas law requires people seeking abortions “to undergo forced transvaginal ultrasounds and a 24-hour waiting period.” In fact, state law does not specify that the ultrasounds must be transvaginal, though in practice, many of the forced ultrasounds are likely to be transvaginal, as is routine practice for people in the early stages of pregnancy.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

Analysis Human Rights

From Protected Class to High-Priority Target: How the ‘System Is Rigged’ Against Unaccompanied Migrant Children

Tina Vasquez

Vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation.

This is the first article in Rewire’s two-part series about the U.S. immigration system’s effects on unaccompanied children.

Earlier this month, three North Carolina high school students were released from a Lumpkin, Georgia, detention center after spending more than six months awaiting what seemed like their inevitable fate: deportation back to conditions in Central America that threatened their lives.

Wildin David Guillen Acosta, Josue Alexander Soriano Cortez, and Yefri Sorto-Hernandez were released on bail in the span of one week, thanks to an overwhelming community effort involving pro bono attorneys and bond money. However, not everyone targeted under the same government operation has been reprieved. For example, by the time reports emerged that Immigration and Customs Enforcement (ICE) had detained Acosta on his way to school in Durham, North Carolina, the government agency had already quietly deported four other young people from the state, including a teenage girl from Guatemala who attended the same school.

Activated in January, that program—Operation Border Guardian—continues to affect the lives of hundreds of Central American migrants over the age of 18 who came to the United States as unaccompanied children after January 2014. Advocates believe many of those arrested under the operation are still in ICE custody.

Department of Homeland Security (DHS) Secretary Jeh Johnson has said that the goal of Operation Border Guardian is to send a message to those in Central America considering seeking asylum in the United States. But it’s not working, as Border Patrol statistics have shown. Furthermore, vulnerable, undocumented youth who pose no real threat are being stripped of their right to an education and instead sit in detention awaiting deportation. These youth arrived at the border in hopes of qualifying for asylum, but were unable to succeed in an immigration system that seems rigged against them.

“The laws are really complicated and [young people] don’t have the community support to navigate this really hostile, complex system. That infrastructure isn’t there and unless we support asylum seekers and other immigrants in this part of the country, we’ll continue to see asylum seekers and former unaccompanied minors receive their deportation orders,” said Julie Mao, the enforcement fellow at the National Immigration Project of the National Lawyers Guild.

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“A Grossly Misnamed” Operation

In January, ICE conducted a series of raids that spanned three southern states—Georgia, North Carolina, and Texas—targeting Central American asylum seekers. The raids occurred under the orders of Johnson, who has taken a hardline stance against the more than 100,000 families who have sought asylum in the United States. These families fled deadly gang violence in El Salvador, Honduras, and Guatemala in recent years. In El Salvador, in particular, over 400 children were murdered by gang members and police officers during the first three months of 2016, doubling the country’s homicide rate, which was already among the highest in the world.

ICE picked up some 121 people in the early January raids, primarily women and their young children. Advocates argue many of those arrested were detained unlawfully, because as people who experienced severe trauma and exhibited symptoms of post-traumatic stress disorder, generalized anxiety, and depression, they were disabled as defined under the Rehabilitation Act of 1973, and ICE did not provide reasonable accommodations to ensure disabled people were not denied meaningful access to benefits or services.

Just a few weeks later, on January 23, ICE expanded the raids’ focus to include teenagers under Operation Border Guardian, which advocates said represented a “new low.”

The media, too, has also criticized DHS for its seemingly senseless targeting of a population that normally would be considered refugees. The New York Times called Operation Border Guardian “a grossly misnamed immigration-enforcement surge that went after people this country did not need to guard against.”

In response to questions about its prioritization of former unaccompanied minors, an ICE spokesperson told Rewire in an emailed statement: “As the secretary has stated repeatedly, our borders are not open to illegal migration. If someone was apprehended at the border, has been ordered removed by an immigration court, has no pending appeal, and does not qualify for asylum or other relief from removal under our laws, he or she must be sent home. We must and we will enforce the law in accordance with our enforcement priorities.”

DHS reports that 336 undocumented Central American youth have been detained in the operation. It’s not clear how many of these youth have already been deported or remain in ICE custody, as the spokesperson did not respond to that question by press time.

Acosta, Cortez, Sorto-Hernandez, and three other North Carolina teenagersSantos Geovany Padilla-Guzman, Bilmer Araeli Pujoy Juarez, Pedro Arturo Salmeron—have become known as the NC6 and the face of Operation Border Guardian, a designation they likely would have not signed up for.

Advocates estimate that thousands of deportations of low-priority migrants—those without a criminal history—occur each week. What newly arrived Central American asylum seekers like Acosta could not have known was that the federal government had been laying the groundwork for their deportations for years.

Asylum Seekers Become “High-Priority Cases”

In August 2011, the Obama administration announced it would begin reviewing immigration cases individually, allowing ICE to focus its resources on “high-priority cases.” The assumption was that those who pose a threat to public safety, for example, would constitute the administration’s highest priority, not asylum-seeking high school students.

But there was an indication from DHS that asylum-seeking students would eventually be targeted and considered high-priority. After Obama’s announcement, ICE released a statement outlining who would constitute its “highest priorities,” saying, “Specifically individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as repeat immigration law violators and recent border entrants.”

In the years since, President Obama has repeatedly said “recent border crossers” are among the nation’s “highest priorities” for removal—on par with national security threats. Those targeted would be migrants with final orders of removal who, according to the administration, had received their day in court and had no more legal avenues left to seek protection. But, as the American Civil Liberties Union (ACLU) reported, “recent border entrant” is a murky topic, and it doesn’t appear as if all cases are being reviewed individually as President Obama said they would.

“Recent border entrant” can apply to someone who has been living in the United States for three years, and a border removal applies “whenever ICE deports an individual within three years of entry—regardless of whether the initial entry was authorized—or whenever an individual is apprehended by Customs and Border Protection (CBP),” explained Thomas Homan, the head of ICE’s removal operations in a 2013 hearing with Congress, the ACLU reported.

Chris Rickerd, policy counsel at the American Civil Liberties Union’s Washington Legislative Office, added that “[b]ecause CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many ‘border removals’ are never fully assessed to determine whether they have a legal right to stay.”

Over the years, DHS has only ramped up the department’s efforts to deport newly arrived immigrants, mostly from Central America. As the Los Angeles Times reported, these deportations are “an attempt by U.S. immigration officials to send a message of deterrence to Central America and avoid a repeat of the 2014 crisis when tens of thousands of children from Honduras, El Salvador and Guatemala arrived at the U.S. border.”

This is something Mao takes great issue with.

“These raids that we keep seeing are being done in order to deter another wave of children from seeking asylum—and that is not a permissible reason,” Mao said. “You deport people based on legality, not as a way of scaring others. Our country, in this political moment, is terrorizing young asylum seekers as a way of deterring others from presenting themselves at the border, and it’s pretty egregious.”

There is a direct correlation between surges of violence in the Northern Triangle—El Salvador, Guatemala, and Honduras—and an uptick in the number of asylum seekers arriving in the United States. El Salvador, known as the murder capital of the word, recently saw an explosion of gang violence. Combine that with the possible re-emergence of so-called death squads and it’s clear why the number of Salvadoran family units apprehended on the southern border increased by 96 percent from 2015 to 2016, as Fusion reported.

Much like Mao, Elisa Benitez, co-founder of the immigrants rights’ organization Alerta Migratoria NC, believes undocumented youth are being targeted needlessly.

“They should be [considered] low-priority just because they’re kids, but immigration is classifying them at a very high level, meaning ICE is operating like this is a population that needs to be arrested ASAP,” Benitez said.

The Plight of Unaccompanied Children

Each member of the NC6 arrived in the United States as an unaccompanied child fleeing violence in their countries of origin. Acosta, for example, was threatened by gangs in his native Honduras and feared for his life. These young people should qualify as refugees based on those circumstances under international law. In the United States, after they present themselves at the border, they have to prove to an immigration judge they have a valid asylum claim—something advocates say is nearly impossible for a child to do with no understanding of the immigration system and, often, with no access to legal counsel—or they face deportation.

Unaccompanied children, if not immediately deported, have certain protections once in the United States. For example, they cannot be placed into expedited removal proceedings. According to the American Immigration Council, “they are placed into standard removal proceedings in immigration court. CBP must transfer custody of these children to Health and Human Services (HHS), Office of Refugee Resettlement (ORR), within 72 hours.”

While their court proceedings move forward, HHS’s Office of Refugee Resettlement manages the care of the children until they can ideally be released to their parents already based in the country. Sometimes, however, they are placed with distant relatives or U.S. sponsors. Because HHS has lowered its safety standards regarding placement, children have been subjected to sexual abuse, labor trafficking, and severe physical abuse and neglect, ThinkProgress has reported.

If while in the care of their family or a sponsor they miss a court date, detainment or deportation can be triggered once they turn 18 and no longer qualify for protections afforded to unaccompanied children. 

This is what happened to Acosta, who was placed with his mother in Durham when he arrived in the United States. ICE contends that Acosta was not targeted unfairly; rather, his missed court appearance triggered his order for removal.

Acosta’s mother told local media that after attending his first court date, Acosta “skipped subsequent ones on the advice of an attorney who told him he didn’t stand a chance.”

“That’s not true, but it’s what they were told,” Benitez said. “So, this idea that all of these kids were given their day in court is false. One kid [we work with] was even told not to sign up for school because ‘there was no point,’ it would just get him deported.”

Benitez told Rewire the reasons why these young people are being targeted and given their final orders of removal need to be re-examined.

Sixty percent of youth from Central America do not ever have access to legal representation throughout the course of their case—from the time they arrive in the United States and are designated as unaccompanied children to the time they turn 18 and are classified as asylum seekers. According to the ACLU, 44 percent of the 23,000 unaccompanied children who were required to attend immigration court this year had no lawyer, and 86 percent of those children were deported.

Immigration attorneys and advocates say that having a lawyer is absolutely necessary if a migrant is to have any chance of winning an asylum claim.

Mao told Rewire that in the Southeast where Acosta and the other members of the NC6 are from, there is a pipeline of youth who arrived in the United States as unaccompanied children who are simply “giving up” on their valid asylum claims because navigating the immigration system is simply too hard.

“They feel the system is rigged, and it is rigged,” Mao said.

Mao has been providing “technical assistance” for Acosta and other members of the NC6. Her organization doesn’t represent individuals in court, she said, but the services it provides are necessary because immigration is such a unique area of law and there are very few attorneys who know how to represent individuals who are detained and who have been designated unaccompanied minors. Those services include providing support, referrals, and technical assistance to advocates, community organizations, and families on deportation defense and custody issues.

Fighting for Asylum From Detention

Once arrested by ICE, there is no telling if someone will linger in detention for months or swiftly be deported. What is known is that if a migrant is taken by ICE in North Carolina, somewhere along the way, they will be transferred to Lumpkin, Georgia’s Stewart Detention Center. As a local paper reported, Stewart is “the last stop before they send you back to whatever country you came from.”

Stewart is the largest detention center in the country, capable of holding 2,000 migrants at any time—it’s also been the subject of numerous investigations because of reports of abuse and inadequate medical care. The detention center is run by Corrections Corporation of America, the country’s largest private prison provider and one that has become synonymous with maintaining inhumane conditions inside of its detention centers. According to a report from the National Immigrant Justice Center, Stewart’s remote location—over two hours away from Atlanta—hinders the facility from attracting and retaining adequate medical staff, while also creating barriers to visitation from attorneys and family members.

There’s also the matter of Georgia being notoriously tough on asylum seekers, even being called the “worst” place to be an undocumented immigrant. The Huffington Post reported that “Atlanta immigration judges have been accused of bullying children, badgering domestic violence victims and setting standards for relief and asylum that lawyers say are next to impossible to meet.” Even more disconcerting, according to a project by Migrahack, which pairs immigration reporters and hackers together, having an attorney in Georgia had almost no effect on whether or not a person won their asylum case, with state courts denying up to 98 percent of asylum requests. 

Acosta, Cortez, and Sorto-Hernandez spent over six months in Stewart Detention Center before they were released on baila “miracle” according to some accounts, given the fact that only about 5 percent of those detained in Stewart are released on bond.

In the weeks after ICE transferred Acosta to Stewart, there were multiple times Acosta was on the verge of deportation. ICE repeatedly denied Acosta was in danger, but advocates say they had little reason to believe the agency. Previous cases have made them wary of such claims.

Advocates believe that three of the North Carolina teens who were deported earlier this year before Acosta’s case made headlines were kept in detention for months with the goal of wearing them down so that they would sign their own deportation orders despite having valid asylum claims.

“They were tired. They couldn’t handle being in detention. They broke down and as much as they feared being returned to their home countries, they just couldn’t handle being there [in detention] anymore. They’d already been there for weeks,” Benitez said.

While ICE claims the average stay of a migrant in Stewart Detention Center is 30 days, the detention center is notorious for excessively long detainments. Acosta’s own bunkmate had been there over a year, according to Indy Week reporter David Hudnall.

As Hudnall reported, there is a massive backlog of immigration cases in the system—474,000 nationally and over 5,000 in North Carolina.

Mao told Rewire that the amount of time the remaining members of the NC6 will spend in detention varies because of different legal processes, but that it’s not unusual for young people with very strong asylum cases to sign their rights away because they can’t sustain the conditions inside detention.

Pedro Arturo Salmeron, another NC6 member, is still in detention. He was almost deported, but Mao told Rewire her organization was able to support a pro bono attorney in appealing to the Board of Immigration Appeals (BIA) to stop proceedings.

Japeth Matemu, an immigration attorney, recently told Indy Week’s David Hudnall that “the BIA will tell you that it can’t modify the immigration judge’s ruling unless it’s an egregious or obvious miscarriage of justice. You basically have to prove the judge is off his rocker.”

It could take another four months in detention to appeal Salmeron’s case because ICE continues to refuse to release him, according to the legal fellow.

“That’s a low estimate. It could be another year in detention before there is any movement in his case. We as an organization feel that is egregious to detain someone while their case is pending,” Mao said. “We have to keep in mind that these are kids, and some of these kids can’t survive the conditions of adult prison.”

Detention centers operate as prisons do, with those detained being placed in handcuffs and shackles, being stripped of their personal belongings, with no ability to move around freely. One of Acosta’s teachers told Rewire he wasn’t even able to receive his homework in detention.

Many of those in detention centers have experienced trauma. Multiple studies confirm that “detention has a profoundly negative impact on young people’s mental and physical well-being” and in the particular case of asylum seekers, detention may exacerbate their trauma and symptoms of post-traumatic stress disorder. 

“People are so traumatized by the raids, and then you add detention on top of that. Some of these kids cannot psychologically and physically deal with the conditions in detention, so they waive their rights,” Mao said.

In March, Salmeron and fellow NC6 member Yefri Sorto-Hernandez received stays of deportation, meaning they would not face immediate deportation. ICE says a stay is like a “legal pause.” During the pause, immigration officials decide if evidence in the case will be reconsidered for asylum. Sorto-Hernandez was released five months later.

Benitez said that previously when she organized around detention, a stay of deportation meant the person would get released from detention, but ICE’s decision to detain some of the NC6 indefinitely until their cases are heard illustrates how “weirdly severe” the agency is being toward this particular population. Mao fears this is a tactic being used by ICE to break down young people in detention.

“ICE knows it will take months, and frankly up to a year, for some of these motions to go through the court system, but the agency is still refusing to release individuals. I can’t help but think it’s with the intention that these kids will give up their claims while suffering in detention,” Mao said.

“I think we really have to question that, why keep these young people locked up when they can be with their communities, with their families, going to school? ICE can release these kids now, but for showmanship, ICE is refusing to let them go. Is this who we want to be, is this the message we want to send the world?” she asked.

In the seven months since the announcement of Operation Border Guardian, DHS has remained quiet about whether or not there will be more raids on young Central American asylum seekers. As a new school year approaches, advocates fear that even more students will be receiving their orders for removal, and unlike the NC6, they may not have a community to rally around them, putting them at risk of quietly being deported and not heard from again.

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