'Anguish' at the border as immigrant children are separated from parents

McALLEN, Texas — Facing dozens of migrants shackled at their waist and ankles, public defender Miguel "Andy" Nogueras asked a question that he had rarely asked before last week: Have you been separated from your children?

Last Thursday, a Central American woman was among several in the McAllen, Texas courthouse who said yes.

Nogueras asked how old her child is so that he could refer her to one of his attorneys, and the answer haunted him through the rest of the day.

"Five years old," Nogueras told NBC News. "What kind of scars are we creating? The child has to be asking, where's my mom? And that kid has to be scared. I can't even fathom."

Earlier this month, Attorney General Jeff Sessions announced a goal to criminally prosecute 100 percent of people crossing the border illegally — including families with children. Those who are charged with improper entry — a misdemeanor on the first infraction — are jailed and separated from their children. Previously, most parents had been allowed to remain with their children in family shelters while awaiting asylum cases or deportation proceedings.

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Life along Mexico's border with the United States
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Life along Mexico's border with the United States
IMPERIAL SAND DUNES, CA - SEPTEMBER 28: A digger removes sand drifts from the Mexican side of the U.S.-Mexico border fence on September 28, 2016 in the Imperial Sand Dunes recreation center, California. Without daily removal of the sand, the dunes would cover the fence and undocumented immigrants and smugglers could simply walk over it. The border stretches almost 2,000 miles between Mexico and the United States. Border security and immigration issues have become major issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People meet loved ones through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: Haitian refugees look over donated items at an immigrant center on September 24, 2016 in Tijuana, Mexico. In recent months a surge of Haitian refugees has arrived to Tijuana, seeking asylum at the border crossing into the United States. The center, called the Desayunador Salesiano Padre Chava, serves breakfast to more than 1,000 immigrants daily, many of them deportees from the United States. (Photo by John Moore/Getty Images)
IMPERIAL SAND DUNES, CA - SEPTEMBER 28: A digger removes sand drifts along the U.S.-Mexico border fence on September 28, 2016 in the Imperial Sand Dunes recreation center, California. Without daily removal of the sand, the dunes would cover the fence and undocumented immigrants and smugglers could simply walk over it. The border stretches almost 2,000 miles between Mexico and the United States. Border security and immigration issues have become major issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People enjoy a late afternoon near the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: Immigrants, many of them deportees from the United States, eat breakfast at a soup kitchen on September 24, 2016 in Tijuana, Mexico. The center, called the Desayunador Salesiano Padre Chava, is run by a Catholic order of priests and feeds more than than 1,000 immigrants each morning. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: People stand in line to cross legally into the United States from Mexico on September 24, 2016 in Tijuana, Mexico. Securing the border and controlling illegal immigration have become key issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A couple holds hands while meeting loved ones through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People enjoy a late afternoon near the U.S.-Mexico border fence which ends in the Pacific Ocean on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Mexicans enjoy a late afternoon near the U.S.-Mexico border fence which ends in the Pacific Ocean on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A child plays in the Pacific surf near the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The nearby Friendship Park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Immigrant activists pray at the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Maria Rodriguez Torres, 70, embraces a grandchild after seeing her other grandchildren for the first time through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. She had traveled with family members from Mexico City to see her grandchildren through the fence at 'Friendship Park.' The U.S. Border Patrol opens the park on the American side on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, CA - SEPTEMBER 26: Residents line up to receive free food at mobile food pantry near the U.S.-Mexico border on September 26, 2016 in Jacamba Hot Springs, California. The Feeding America truck delivers to the border town's needy residents twice a month. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, CA - SEPTEMBER 26: A U.S. Border Patrol vehicle stands guard along the U.S.-Mexico border fence on September 26, 2016 in Jacamba Hot Springs, California. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, MEXICO - SEPTEMBER 26: A cardboard cutout of Democratic presidential candidate Hillary Clinton is on display at a debate-watching party for supporters of Hillary Clinton at the Yum Yum Chinese restaurant near the U.S.-Mexico border on September 26, 2016 in Calexico, California. People across the country tuned in as Republican Presidential candidate Donald Trump and Democratic candidate Hillary Clinton participated in their first debate. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: Mexican farm workers hoe a cabbage field on September 27, 2016 Holtville, California. Thousands of Mexican seasonal workers legally cross the border daily from Mexicali, Mexico to work the fields of Imperial Valley, California, some of the most productive farmland in the United States. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: A A Mexican farm worker plows a U.S. farm on September 27, 2016 in Holtville, California. Thousands of Mexican seasonal workers legally cross the border daily from Mexicali, Mexico to work the fields of Imperial Valley, California, some of the most productive farmland in the United States. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: A marker stands over an immigrant's grave on September 27, 2016 in Holtville, California. Hundreds of immigrants, many who died while crossing the desert from Mexico into the United States, are buried in a pauper's cemetery. Many of the grave markers simply read 'John Doe.' (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A man looks through the U.S.-Mexico border fence into the United States on September 25, 2016 in Tijuana, Mexico. Friendship Park on the border is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
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The Trump administration's willingness to take children from their parents has raised concerns about how far authorities should go to stem unauthorized border crossings and what human cost is acceptable in the name of border security and immigration control.

"There is something terrible happening here that Americans would not support if they understood it," said F. Scott McCown, director of the Children's Rights Clinic at the University of Texas at Austin School of Law.

Between October 2017 and mid-April, before the new prosecution strategy officially went into effect, more than 700 children were reportedly separated from their parents at the border. The federal government has not released figures from May, but those who work on immigration cases have observed a large increase in the number of children affected. Nogueras said he previously saw only one or two such cases a week in the McAllen courtroom in the Southern District of Texas; last week, he saw about 33 cases.

Nogueras repeatedly used a single word when he described how those parents have responded: "anguish."

"Wouldn't you feel anguish if they took your kids? I'd be going crazy. It's inhumane," he said.

Other attorneys and advocates have reported similar torment among immigrant parents.

"One of my lawyers came back from meeting his new client at the jail — and this is a very experienced criminal defense lawyer — who was shaken by the experience of talking to a parent whose child was literally ripped from their arms," said Maureen Franco, a federal public defender for the Western District of Texas.

"The human cost of this will be great," Franco said.

What happens to the children?

When Border Patrol locked her up in a holding cell for five days, Karen Hernandez had one big fear.

"I was afraid they'd come and take my children. They had said the laws are going to change and they are going to separate the mothers from their children," said Hernandez, who crossed from Mexico into South Texas via a navigable section of the Rio Grande with her son, Jaero, 13, and daughter Susan, 8.

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President Donald Trump's border wall prototypes
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President Donald Trump's border wall prototypes
A border patrol officer stands next to some of U.S. President Donald Trump's eight border wall prototypes as they near completion along U.S.- Mexico border in San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
Federal agents patrol next to U.S. President Donald Trump's eight border wall prototypes as they near completion along U.S.- Mexico border in San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
One of U.S. President Donald Trump's eight border wall prototypes is pictured along U.S.- Mexico border near San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
Seven of U.S. President Donald Trump's eight border wall prototypes are shown near completion along U.S.- Mexico border near San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
One of U.S. President Donald Trump's eight border wall prototypes is pictured along U.S.- Mexico border near San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
Two of U.S. President Donald Trump's eight border wall prototypes are shown near completion along U.S.- Mexico border near San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
A prototype for U.S. President Donald Trump's border wall with Mexico is seen behind the current border fence in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes
A prototype for U.S. President Donald Trump's border wall with Mexico is seen in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes
Prototypes for U.S. President Donald Trump's border wall with Mexico are shown near completion behind the current border fence, in this picture taken from the Mexican side of the border, in Tijuana, Mexico, October 23, 2017. REUTERS/Jorge Duenes
Three of U.S. President Donald Trump's eight border wall prototypes are shown near completion along U.S.- Mexico border in San Diego, California, U.S., October 23, 2017. REUTERS/Mike Blake
A prototype for U.S. President Donald Trump's border wall with Mexico is shown in this picture taken from the Mexican side of the border, in Tijuana, Mexico, October 23, 2017. REUTERS/Jorge Duenes
Prototypes for U.S. President Donald Trump's border wall with Mexico are shown near completion in this picture taken from the Mexican side of the border, in Tijuana, Mexico, October 23, 2017. REUTERS/Jorge Duenes
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes TPX IMAGES OF THE DAY
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
People (R) work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
People work in San Diego, California, U.S., at the construction site of prototypes for U.S. President Donald Trump's border wall with Mexico, in this picture taken from the Mexican side of the border in Tijuana, Mexico October 3, 2017. REUTERS/Jorge Duenes
Prototypes for U.S. President Donald Trump's border wall with Mexico are seen behind the current border fence in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes TPX IMAGES OF THE DAY
Prototypes for U.S. President Donald Trump's border wall with Mexico are seen behind the current border fence in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes
A prototype for U.S. President Donald Trump's border wall with Mexico is seen in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes
A prototype for U.S. President Donald Trump's border wall with Mexico is seen in this picture taken from the Mexican side of the border in Tijuana, Mexico October 12, 2017. REUTERS/Jorge Duenes
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Hernandez, though, was lucky. She was caught before the new zero-tolerance policy fully went into effect, and so she was released May 10 with an electronic bracelet clamped to her ankle and her children at her side. Along with dozens of other migrants, she was taken to the Catholic Charities Rio Grande Valley Respite Center, where families can get a hot meal and clothing. Earlier this month, the center was filled with the noise of children who played together in a corner of the room with their parents nearby.

The scene was a stark contrast to what most families will face under the new criminal enforcement policy.

When parents are held for prosecution, their children are turned over to the Office of Refugee Resettlement, part of the Department of Health and Human Services. The children are then designated as "unaccompanied minors," and the government tries to connect them to family members who are already in the U.S. Until then, children wait in shelters or are sent to federally contracted foster homes, often without parents being told exactly where they are, immigration advocates said.

It may soon become even more difficult to place children with relatives. The Department of Homeland Security is proposing immigration checks be done on all people in a household who may take in these "unaccompanied" children, which means relatives who are undocumented may be less likely to come forward.

In the meantime, space in shelters and foster homes is limited; the Washington Post reported the administration plans to open facilities at military bases to house some of the separated children.

DHS defends the prosecutions that split families

DHS tested its new policy for 26 days last October by prosecuting all adults who crossed into the U.S. illegally in the El Paso sector of the border.

There was a brief drop in the number of arrests of people crossing the border in that area during and immediately after the test, but numbers began rising again in February.

Trump administration officials have said the purpose of the new zero-tolerance policy is not explicitly to dissuade families with children from crossing into the U.S. illegally, but rather to protect children from kidnapping and smuggling and to more strictly enforce existing laws.

"We don't want to separate families, but we don't want families to come to the border illegally and attempt to enter into this country improperly," Sessions said earlier this month in announcing the policy.

"I want to be clear," added Thomas Homan, deputy director of Immigration and Customs Enforcement, at the same announcement event. "DHS does not have a blanket policy on separating families as a deterrent."

The new policy is a marked departure from the way parents and children were treated previously. In 2014, the Obama administration saw a surge of families and unaccompanied minors at the border and generally kept children with at least one parent at emergency shelters and family facilities. The Obama administration also initiated a program designed to allow families more freedom while awaiting deportation hearings. The Trump administration ended the program last summer.

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Touching scenes from the US-Mexico border
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Touching scenes from the US-Mexico border

Martha Morales and Juan Manuel Gonzalez Camacho hug their grandaughter Aileen Gonalez and son Adrian Gonalez Morales as they are allowed to meet after a door is opened along the United States-Mexico Border wall during Opening the Door Of Hope/Abriendo La Puerta De La Esparana at Friendship Park in San Ysidro, California on Saturday, November 19, 2016.

(SANDY HUFFAKER/AFP/Getty Images)

U.S. Border patrol agents stand at an open gate on the fence along the Mexico border to allow Adrian Gonzalez-Morales and his daughter Aileen hug his parents Juan and Martha, as part of Universal Children's Day at the Border Field State Park, California, U.S., November 19, 2016.

(REUTERS/Mike Blake)

U.S. Border patrol agents stand at an open gate on the fence along the Mexico border to allow Luis Eduardo Hernandez-Bautista hug Ty'Jahnae Williams and his father Eduardo Hernandez (not in view), as part of Universal Children's Day at the Border Field State Park, California, U.S., November 19, 2016.

(REUTERS/Mike Blake)

Family members hug during a U.S. Border Patrol sponsored visit at the U.S.-Mexico border fence in Tijuana, Mexico, on Saturday, Nov. 19, 2016. The U.S. Border Patrol, in coordination with immigrant rights groups, opened the metal gate so that previously selected families could visit for several minutes.

(Photographer: David Maung/Bloomberg via Getty Images)

A woman in Friendship Park in San Diego, California, U.S. speaks with children across a fence separating Mexico and the United States, November 12, 2016. Picture taken from Tijuana, Mexico.

(REUTERS/Jorge Duenes)

U.S. Border patrol agents stand at an open gate on the fence along the Mexico border to allow Edith Hernandez and her daughter Yvette hug Maria Plata-Colin, as part of Universal Children's Day at Border Field State Park, California, U.S., November 19, 2016.

(REUTERS/Mike Blake)

People in Friendship Park in San Diego, California, U.S. are seen behind a fence separating Mexico and the United States, November 12, 2016. Picture taken from Tijuana, Mexico.

(REUTERS/Jorge Duenes)

Relatives separated by immigration hug at an open gate on the fence along the Mexico and U.S border on Universal Children's Day in Tijuana, Mexico November 19, 2016.

(REUTERS/Jorge Duenes)

Relatives separated by immigration hug at an open gate on the fence along the Mexico and U.S border on Universal Children's Day in Tijuana, Mexico November 19, 2016.

(REUTERS/Jorge Duenes)

Luis Hernandez hugs his Father Eduardo as they are allowed to meet after a door is opened along the United States - Mexico Border wall during Opening the Door Of Hope / Abriendo La Puerta De La Esparana at Friendship Park in San Ysidro, California on Saturday, November 19, 2016.

(SANDY HUFFAKER/AFP/Getty Images)

Members of the Gonzalez family hug each other and react as they encounter at the gate of the U.S.- Mexico border fence opened for a few minutes on November 19, 2016 in Playas de Tijuana, Mexico. The door opening was organized by pro-migrants NGOs and local authorities in coordination with the United States Border Patrol.

(GUILLERMO ARIAS/AFP/Getty Images)

Relatives separated by immigration hug at an open gate on the fence along the Mexico and U.S border on Universal Children's Day in Tijuana, Mexico November 19, 2016.

(REUTERS/Jorge Duenes)

A U.S. Border patrol agent stands at an open gate on the fence along the Mexico border to allow Laura Avila and her daughter Laura Vera Martinez hug Maria Socorro Martinez Lopez, as part of Universal Children's Day at the Border Field State Park, California, U.S., November 19, 2016.

(REUTERS/Mike Blake)

A young boy joins his family members as they hug during a U.S. Border Patrol sponsored visit at the U.S.-Mexico border fence in Tijuana, Mexico, on Saturday, Nov. 19, 2016. The U.S. Border Patrol, in coordination with immigrant rights groups, opened the metal gate so that previously selected families could visit for several minutes.

(Photographer: David Maung/Bloomberg via Getty Images)

Relatives separated by immigration hug at an open gate on the fence along the Mexico and U.S border on Universal Children's Day in Tijuana, Mexico November 19, 2016.

(REUTERS/Jorge Duenes)

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Advocates and attorneys said the administration is forcing migrants fleeing perilous situations into a "Sophie's choice" over what's best for their children.

"They are saying either you take your kid back and live in danger and don't try to save your kid's life by claiming your right to asylum, or insist on applying for asylum where we are going to separate you from your child and endanger your child," said Michelle Brané, director of immigration policy at the Women's Refugee Commission.

Franco, the public defender in west Texas, said the policy could encourage parents to plead guilty to improper entry just to get their children back.

"This has some constitutional ramifications. How voluntary could a plea be if someone feels they have to plead guilty to be reunited with their children?" Franco asked.

'It has such a cruel feel to it'

The American Civil Liberties Union has sued over the family separations and sought an injunction to stop them and is awaiting a ruling. The lawsuit doesn't challenge the prosecution of the parents, just the family separations.

"This is as bad a practice as I've seen in my career," said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, who has worked for the ACLU for more than 25 years. "It has such a cruel feel to it."

In affidavits filed with the lawsuit, parents tell of months-long separations without knowing where their kids are or how they're faring.

A woman identified as Ms. G said in an April 23 affidavit that she was separated from her blind 6-year-old daughter and 4-year-old son after crossing at Nogales, Arizona, where the family requested asylum. Her children are living in a shelter more than an hour away from where she's being held.

"I worry about them constantly and I don't know when I'll see them," she said.

Gelernt has seen cases in which parents are separated from their children even if they cross into the U.S. through an official port of entry, which authorities have said should protect families from being split up.

A man identified as Mr. U from Kyrgyzstan said in an affidavit he and his 13-year old son were separated when they sought asylum at the San Ysidro Port of entry. Mr. U was held in California; his son was sent to Chicago.

"All I can remember is how much my son and I were both crying when they took him away," Mr. U said.

Several immigrant rights groups and asylum seekers sued DHS and Customs and Border Protection for turning away asylum seekers at ports of entry last year. The suit is pending.

Few migrants who were at the Catholic Charities Rio Grande Valley Respite Center earlier this month knew about the family separations. But when told about them, several parents said they wouldn't take the risk of losing their children.

Hernandez, the mother of two, said that back in Honduras, she and her husband had it all — a home, a business and family. But after her husband refused to help drug traffickers, they were threatened and an employee of their car wash business was killed, she said. They tried moving and starting another business but were tracked down. They pulled the children out of school and came to the U.S.

Still, she doesn't think she would have crossed into the U.S. if she'd known about the new zero-tolerance policy.

"If that was the law, I wouldn't come," she said. "I wouldn't want to be separated from my children because that's why we come."

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