Years after a Border Separation, a Family’s Reunion Was in a Judge’s Hands

By Kevin Sieff / The Washington Post

12:38 JST, July 22, 2023

NASHVILLE – She sat on the edge of a picnic table outside the Comfort Inn and waited for the hearing to begin.

“Hello?” Magdalena Hernández Pérez said into her phone. “Can you hear me?”

On the screen flashed the face of a judge in California, the man deciding whether she would see her daughter again, more than five years after they were separated by U.S. Border Patrol agents.

“Hello?” she tried again. She wore a blue work uniform and pink lipstick that she hoped would make her look more American.

There was no response. Her hand trembled, then the screen turned black.

The Biden administration had brought Magdalena from Guatemala to the United States to reunite with her daughter, a reversal of the Trump administration’s policy of family separation that had torn them apart.

But now a county judge’s question loomed over their future: Was Magdalena the right person to raise her own child?

In between shifts at the hotel’s laundry room, she had written a statement to read at the hearing. She held the paper in her right hand so it didn’t blow away in the wind.

“I promise I can take care of my daughter,” she wrote.

“I have permission to be in this country legally,” she wrote.

“I have permission to work here.”

But the call wasn’t connecting. Somewhere in California, Magdalena knew, strangers were discussing whether her child was better off with a foster family.

“In the matter of Mildred Analy Hernández Pérez,” the case file began.

“Fifty-fifty,” is how her social workers had described Magdalena’s chances at the hearing.

Outside the Comfort Inn, across the street from the Tennessee Titans’ massive football stadium near downtown Nashville, Magdalena shook her phone. The screen was still frozen.

U.S. Border Patrol agents had taken her 9-year-old daughter from her in December 2017 at an immigration detention facility in Arizona. They were among the first migrant families to be separated by the Trump administration – and now had endured one of the longest separations.

Between 2017 and 2018, the United States took about 5,000 migrant children from their parents. In most cases, the children were sent to live with relatives in the United States and the parents were deported.

But in cases such as Mildred’s, when no family members were available to host the children, they were sent to foster homes. Custody was transferred to state welfare agencies and private foster services. Some parents were warned by immigration officials that their children could be adopted by American families.

When President Biden in 2021 announced an effort to reunify separated families, Homeland Security officials knew it was the foster cases that would pose the greatest challenge. But even they were unprepared for how, in such cases, the jurisdiction of state and local courts would leave the federal government powerless to bring children and parents together again.

It’s unclear how many families have been ensnared by the complication, but cases continue to emerge. In Florida, a Guatemalan woman fought to get her preteen daughter from a state foster program in which the girl had been living for nearly five years. In North Carolina, a Honduran mother struggled to regain custody of her 14-year-old son.

“The separation these families experience is even further prolonged, the harm further perpetuated,” said Kelly Albinak Kribs, an attorney with the Young Center for Immigrant Children’s Rights.

Magdalena was deported without Mildred in January 2018. The Biden administration brought her back to the United States in July 2022 with a U.S. visa.

“AUTHORIZED FAMILY REUNIFICATION,” read the stamp in her passport.

On the flight from Guatemala City to Nashville, she flicked through the stream of photos her daughter had sent from California. Mildred, with big brown eyes and long brown hair, at church with her foster parents. Mildred at the beach. Mildred as she turned 10. 11. 12. 13. 14.

Mildred had been living with her foster family in Riverside County, Calif., for nearly five years. Magdalena assumed they would reunite in Nashville, where some of her relatives had settled. But back in California, there was a problem: The Riverside County probate judge, Kenneth J. Fernandez, wasn’t convinced that a reunion would be the best outcome for Mildred.

“I understand administrators of various government programs want to set arbitrary deadlines for things to happen, but I take my job pretty seriously for the protection of children,” Fernandez told lawyers and advocates in December.

The foster parents didn’t want to give Mildred up either.

It didn’t matter that Magdalena had been vetted by social workers and passed three background checks. Or that the Department of Homeland Security had written a letter to Fernandez citing the “urgent humanitarian reason to provide parents and their children with an opportunity to reunite.”

The virtual court hearing was scheduled for mid-February, five months after Magdalena had arrived in the United States. It would be up to her to convince the judge, she thought. She had rehearsed a few lines.

“A mother and a daughter deserve to be together,” she would say. But when she practiced, she found it impossible not to cry before reaching the end of the sentence.

An hour had passed since the hearing was scheduled to begin. Behind Magdalena, in the parking lot of the Comfort Inn, guests were arriving at the hotel, carrying suitcases from their cars to the lobby.

The Zoom application on her phone was still frozen.

“Are they deciding this without me?” she wailed.

The phone rang. It was her lawyer. The judge had weighed in.

‘Do you want to travel to the United States?’

Magdalena left Guatemala in 2017 with her daughters, Wendy, 16, and Mildred. Before their departure, she knelt next to Mildred outside their bright teal cinder-block house in Cubulco, a town of 10,000 about 65 miles north of Guatemala City. How, she wondered, do you prepare a 9-year-old for a journey to the border?

“I asked her, ‘Do you want to travel to the United States?’ But she was just a little kid, excited about the adventure, so she shouted, ‘Yes!'”

Magdalena had grown up working in the wheat and corn fields of Cubulco. Staying there would have meant the same impoverished life for her daughters. Their father had left when Mildred was a baby. Wendy had already quit school to take a job making tortillas.

But there was a more immediate reason they needed to migrate. Magdalena had given testimony that helped convict a man of sexual assault. He was due to be released from prison and Magdalena was sure he would come after her. She borrowed around $10,000 to pay a smuggler to arrange the family’s trip to the United States.

Mildred wore a pink backpack and tennis shoes on the succession of buses, trailers and vans they rode through Guatemala and Mexico. In Mexico’s Sonora state, when they were a few miles from the U.S. border, the driver told them to get out of the van. From there, they walked. Wendy and Mildred held hands.

Magdalena believed her asylum case was strong. Entering Arizona, she followed the law: She found a group of Border Patrol agents and turned herself in. The small family was taken to a building with a single cell where dozens of migrants waited.

An agent called Magdalena’s name. He moved her against a cinder-block wall and put shackles on her hands and feet.

“He said, ‘I need you to say goodbye to your children.’ I told the officer, ‘Why are you taking my girls away from me?’ He told me, ‘They can’t go with you because you’re going to adult detention.'”

Magdalena asked if she would see the girls soon. She asked where they would be taken. Finally, she asked that her daughters be brought to say goodbye. But when she saw Mildred looking at her shackles, she collapsed into tears.

“She and Wendy became so sad. Mildred asked me, ‘Mom, why? What happened?'”

“But there was no time for more. They sent me to the bus.”

Mildred’s memory of the moment is hazy. She described it in a recent interview.

“I remember the officers telling me, ‘It’s okay. You’ll be with your mom soon.'”

The Trump administration had not yet publicized its family separation policy, but along part of the Arizona border, agents were given orders to take children from their parents. It was the beginning of one of the most extreme immigration deterrents in American history.

Agents took Magdalena to a detention center in Eloy, Ariz., 120 miles from the border. On her first night, she heard the shrieks of other separated mothers. Agents did not tell her where her children were going. Neither did the judge who ordered her deportation.

She didn’t hear from Mildred or Wendy for weeks.

The sisters, meanwhile, came up with a story to explain their mother’s absence. They told each other that she must have been taken to a church somewhere in the United States. She would wait for them there, they imagined.

By early 2018, Magdalena had been deported back to Guatemala. Her girls were in a foster home in Riverside County.

In their first video call, Mildred’s face was bright red. Tears streamed down her cheeks, framed close by the camera phone.

“My daughter, my daughter,” Magdalena said, before choking up.

What she didn’t know was that the girls were now in the custody of Crittenton Services for Children and Families – a foster care agency. It’s a transfer that typically is ordered in cases of extreme child abuse or neglect, when the government intervenes to protect a child from a parent.

By the end of 2018, separated children had been dispatched to foster homes in 15 states. But the Trump administration did not keep records of where individual children were sent, or how many separated children were assigned to foster programs. There was no plan to return custody to their biological parents.

Mildred was now, in the government’s parlance, an “unaccompanied alien child.”

– – –

The two-story beige house sits behind a row of palm trees on a neat yard in a quiet subdivision in Southern California. It’s where, for years, Moisés and Maria Pia have accepted children sent to them by Crittenton.

The U.S. Office of Refugee Resettlement works through the nonprofit to place immigrant children in foster care. Crittenton received contracts ranging from $1.8 million to $3.2 million per year between 2018 and 2023, according to government data.

Mildred was the youngest child in the Pias’ foster home. She was short for her age, and skinny. She clung to her older sister. In the months after the separation, Wendy said, Mildred barely ate anything.

“When I got there, I didn’t trust them,” Mildred said. “They were strangers to me.”

But over the first few months, Maria and Mildred grew close. Maria asked all the foster kids to call her “Mom,” and while some of the teenagers resisted, Mildred started using the word.

“They began to feel like my family,” Mildred explained.

Maria filmed Mildred and the other foster children singing songs in Spanish in the family’s minivan. She took them to amusement parks and Halloween parties and church. She helped Mildred make a hat for a school project. When it won an award, Maria posted on Facebook.

“My little girl Mildred won first place,” she boasted.

For career day, when Mildred was in fifth grade, she dressed up as a nurse in a long white dress.

“She looked beautiful,” Maria wrote.

Wendy aged out of foster care in 2019 and moved to Tennessee to be closer to relatives. In her absence, Mildred leaned harder on Maria. In time, she also more fully embraced life in California. She tried sushi. She danced to Bad Bunny at a wedding. She started middle school at River Heights Intermediate. She slid down a waterslide in the Pias’ backyard while Maria filmed, as usual.

“Go for it, Mildred!” Maria cheered in Spanish. “Go for it.”

In the photos and videos, Mildred is almost always smiling.

“It was a really fun place to live. They treated us like their real children,” she said. “I started to believe that I would be there forever.”

Maria and Moisés Pia didn’t respond to requests for comment. Kendra Tankersley-Davis, the vice president of Crittenton, said the organization doesn’t comment on individual cases.

Mildred and Magdalena were limited to two 20-minute video calls per week. Magdalena doesn’t know whether the limit was imposed by Maria or Crittenton. California law doesn’t set such limits.

Maria was on all of those calls, Magdalena said. She told Magdalena she was obligated to monitor them.

Magdalena received the calls back in Cubulco. She was living alone in the house she had shared with her daughters. As time went by, she felt Mildred growing more distant. She pleaded with her not to be angry.

“They took you from my side,” Magdalena told her child. “It’s not that I left you.”

She could feel herself growing unmoored. She woke up from dreams in which she was combing Mildred’s hair. She planted two papaya trees next to her home and, as they grew, she talked to them as if they were Mildred and Wendy.

“How are your grades?” she asked the plants. “Are you behaving?”

Sometimes, the calls from Mildred didn’t come. Maria would tell Magdalena that her daughter was busy, or didn’t feel like talking, Magdalena said. She was never sure whether to believe her.

“It started to feel like this woman wanted to keep my daughter from me,” she said.

– – –

In May of last year – out of the blue, it seemed to Magdalena – she got a call from a lawyer from a nonprofit in California working with the government. Biden had promised during his campaign to reunite families separated by his predecessor. The administration was issuing Magdalena a humanitarian visa, the lawyer told her, and would fly her back to the United States.

From there, things moved quickly: She took a bus to Guatemala City. She got a passport. She stood in line at the U.S. Embassy. A young diplomat pasted a visa on one of the pages.

Magdalena and her daughters would be among the first few hundred families reunified under Biden.

“To undo the moral and national shame of the previous administration,” the president had explained when he created a family reunification task force his first year in office.

Lawyers and volunteers booked Magdalena a flight to Nashville. By then, Wendy was 21 and had moved into an East Nashville house with two cousins.

Magdalena assumed Mildred would be in Tennessee, too. She had heard stories on Guatemalan radio about reunified families who embraced outside airport baggage claim areas. When she landed in Nashville, she saw Wendy and her cousins.

“I kept looking around,” Magdalena said.

But Mildred wasn’t there.

Magdalena asked her lawyer where Mildred was.

“There is a process,” the lawyer explained.

The process was that Fernandez, the judge, needed to sign off before custody of Mildred could be returned to Magdalena – and he hadn’t. In 2018, after she was deported, Magdalena signed paperwork authorizing Crittenton to care for her daughters.

“I did not know that signing those papers would create a guardianship that would be difficult to terminate,” she explained in a deposition. “I signed those papers because I could hear the desperation in my daughters’ voices when I spoke to them, and because I wanted my daughters to be with a family until they could be returned to me.”

She also didn’t know that California has some of the most restrictive child protection laws in the country – meant to safeguard minors from abusive or negligent parents. Now those laws, which require that any decision on custody be in the “best interest of the child,” were being used against Magdalena.

Fernandez and Maria suggested in court hearings and depositions that in Mildred’s case, that might mean not reunifying the child with her biological mother.

“We’re going to need information from the mother to explain to the court why it is in the best interest of her child to terminate the California guardianship,” Fernandez said, according to court transcripts.

Maria raised questions about Magdalena’s living situation.

She told a social worker that Magdalena “would not give any information regarding her whereabouts and who she is living with,” according to court filings. She “speculated that this was probably because those individuals are undocumented.”

“Mrs. Pia reported that she would like the department to investigate the mother further,” the social worker wrote in her report.

– – –

Being Mildred’s biological mother, it turned out, wasn’t enough to sway the foster agency or the judge.

Magdalena was still scrambling to make her life in Tennessee. Under “humanitarian parole,” the status given to more than 500 parents who have been reunified with their children under Biden, her visa was limited to three years.

She knew a judge could use that temporary status against her. Would the state consider her living conditions to be in the “best interest of the child?”

The answer wasn’t obvious to Mildred, either.

“The truth is that I really didn’t want to leave California,” Mildred said. “I felt comfortable there.”

When a social worker asked Mildred if she wanted to move in with Magdalena, she demurred.

“At first she was scared to go to Tennessee, as her foster home is the only home she’s known for the past five years,” the social worker wrote in a deposition.

Some of the children who were torn from their families at the border have come to blame the separation and subsequent trauma on their parents. After initially joyful reunions, those relationships, in many cases, have proved difficult to rebuild.

“The children don’t know who to trust,” one clinician told researchers in 2019 as part of a study on separated children sent to foster care.

But Magdalena was sure she could repair any damage. She decided there was only one thing to do. In November, she flew to California.

“To show everyone that we should be together,” she said.

When Mildred saw her mother for the first time in California, she was 13. She retreated into her foster mother’s arms.

“That’s your mom,” Maria encouraged her.

Eventually, Mildred inched toward Magdalena. They hugged and cried.

During the week-long visit, they danced together in the kitchen of Magdalena’s Airbnb. Magdalena let Mildred show her around a shopping mall, and marveled when she spoke to the salesmen in English. Mildred searched “Tennessee” on the internet and decided it was at least as pretty as California.

By the end of their week together, Mildred told her social worker and her foster parents that she wanted to live with Magdalena.

“I would be happier living with my mom in Tennessee than with my foster family,” she wrote in a statement to the court.

But they still needed Fernandez to sign off on the change of custody. In the December hearing, he warned that if lawyers or the foster care agency tried to reunite Magdalena and Mildred without his approval, they would be breaking the law.

“You have no authorization to relocate the child’s residence out of state without further order of the court,” he said, according to the transcript.

He set another hearing for February. By then, the Biden administration had learned about the case.

“This was always our nightmare scenario,” said an official at the Department of Homeland Security, who spoke on the condition of anonymity because they weren’t authorized to discuss individual cases. “There is a limit to what we can do. It’s not in the federal government’s hands.”

– – –

After the glow of her time with Mildred in California, Magdalena grew optimistic. Back in Nashville, she bought a teddy bear and plastic roses for Mildred, assuming she would arrive soon. She kept a ride to the airport on standby. Next to her bed, she taped a note from Mildred on the wall.

“In spite of the difficulties we’ve had together,” the child wrote, “I know that the two of us appreciate each other.”

Magdalena started writing the statement she would submit to the court.

“While we were detained together, I did my best to protect my daughters,” she wrote. “For example, while we were held in a frigid holding area, I gathered bits of aluminum in an effort to keep Mildred warm.”

“I was then separated from them and placed in shackles with no explanation provided to me or my young daughters. I vividly remember my daughters crying and asking to remain with me.”

Ahead of the February hearing, her social workers held a conference call to consider their next steps.

One social worker said Mildred should pack her bags for Nashville, just in case.

“We should start looking into flights,” the social worker said.

“We can send extra boxes by UPS.”

Another social worker interrupted.

“I don’t want to say it’s 100 percent,” she said. “We don’t know if we’re going to get a yes or a no.”

When Magdalena hung up the phone, she put her head in her hands. She was sitting on her bed, across from the teddy bear that had been waiting for Mildred.

“They shouldn’t be thinking about whether I can raise my children or not,” she said.

She had spent the previous few weeks thinking about how she would help Mildred settle into life in Nashville. Wendy had done the same for Magdalena when she arrived; both found the logistics of navigating the city easier to talk about than their years apart, which they hardly ever broached.

Now, Magdalena found the school bus stop where she would walk Mildred each morning. She found the restaurants that served Mildred’s favorite food.

She bought a large bed, so they could share it. She stood up and looked at the mattress, trying to imagine the two of them lying on it.

“Mother and daughter,” she said.

– – –

Sitting at the picnic table outside the Comfort Inn, she listened to her lawyer’s voice on the phone.

The Zoom hearing was over. She had missed it.

“The case has been delayed until May,” Magdalena’s lawyer told her.

“How is that possible?” Magdalena gasped, her eyes widening in shock, then narrowing in anger.

The lawyer explained that authorities hadn’t finished a criminal-background check into Magdalena.

“I’ve been here for only five months and all I do is work and wait for my daughter,” she shouted. “How could I be a criminal?”

Magdalena’s lawyers had pleaded with Fernandez to expedite the investigation and the next hearing.

“Your Honor,” she tried, according to court transcripts, “would it be possible to get a sooner date for the -“

The judge cut her off.

“No. No. Thank you,” he said.

But Magdalena hadn’t been on the phone to hear that exchange. What she knew was that her lawyers, too, had failed to reunite her with Mildred.

“I feel sick,” she told them over the phone. “I can’t do this. I need to go.”

And she hung up the phone.

– – –

Over the next few weeks, Magdalena tried not to think about her daughter so much. But the reminders jumped out at her.

Once a month, she took a bus to El Quetzal, a Guatemalan convenience store in East Nashville, to send cash to the man who loaned her money to pay the coyote in 2017. Six years after their journey, she still owed several thousand dollars.

Above the cashier, the sign in Spanish said, “ATTENTION PARENTS: Please watch your children.”

One Friday, she visited her niece, Emiliana, at her apartment nearby. Emiliana’s daughter Estefani, 14, was home from school. Estefani and Mildred had been close friends in Guatemala.

Emiliana pulled up a chair. Like everyone else, she had unsolicited advice for Magdalena.

“You need to go to California,” she said. “You need to fight for your daughter.”

Magdalena nodded. She had imagined showing up at the judge’s chambers and screaming at him: “What if I took your child from you?” But that seemed unlikely to help.

The conversation turned to the initial separation. Emiliana had crossed the border around the same time as Magdalena, but she hadn’t been separated from her daughter.

It was something Magdalena had never been able to understand. Why had one family been separated but not the other?

“I wouldn’t let them take her,” Emiliana said. “I told them, ‘I’m not going anywhere without my daughter.'”

Magdalena said nothing. It seemed ridiculous to think she could have done more to avoid the separation. She remembered the weight of the handcuffs around her wrists. But maybe Emiliana was right, she thought. Maybe she could have fought harder.

The next hearing was scheduled for the morning of May 11. This time, Magdalena took the call in front of the Clarion Hotel in downtown Nashville, where Wendy was working.

She heard the judge’s voice in English.

“Do we have on the line the mother, Ms. Magdalena Hernández Pérez?”

“I’m here,” Magdalena responded in Spanish.

She held the phone close to her ear, trying to understand the rapid back-and-forth between the judge and the lawyers. Then Fernandez directed a question at her daughter.

“Mildred, are you asking the court to terminate the guardianship placed over you?”

It was a question Magdalena thought she knew the answer to, but hearing it come from the judge’s mouth made her shiver. She knew the process was wearing on Mildred, who was now less than a month away from graduating from eighth grade. Magdalena had been in Tennessee for a year without her daughter.

She knew Mildred’s decision could be colored by the foster family; by the desires of a teenager sad to leave her friends in California; by what social workers working with the family called “an immense amount of trauma” from their separation.

There was a long pause. Five seconds. Ten seconds. And then there was Mildred’s voice coming out of her tinny phone speaker.

“School is almost over, and I was wondering if I could wait,” the girl said.

Magdalena’s heart sank. She wondered if it was enough doubt to deter the judge.

After another pause, Fernandez said he would allow Mildred to graduate in California. She could move to Tennessee in early June.

“The court hereby orders that the guardianship over Mildred Hernández Pérez is terminated effective June 9 of this year,” Fernandez said.

And then the hearing was over. The call ended. Magdalena stood up in front of the Clarion hotel and sobbed into Wendy’s shoulder.

– – –

Magdalena wore a red dress to the airport. She held a sign in English: “Welcome my girl. We love you,” and two balloons that said, ‘Welcome back.'”

Mildred was wearing jeans and new Nike basketball shoes. She hugged Magdalena outside the baggage claim. It was, for a moment, exactly the scene Magdalena had imagined.

“Total happiness,” she explained.

But Mildred was distant. She stared out the window of the car on the way to the apartment. Not long after they arrived, she was typing on her phone.

“I can’t tell what’s wrong with her,” Magdalena said to Wendy.

“She won’t tell me anything.”

Mildred missed her foster family. She spent her days in Magdalena’s apartment alone while her mother worked at the hotel. She tried not to be angry, but sometimes she couldn’t help it.

“There are moments when I think, ‘Why did God give me this mother?'” she said. “But those moments pass.”

She logged on to Facebook. On Father’s Day, Moisés Pia recorded a message for her.

“Mildred, I know that you miss me. I know that you remember your father.”

“I miss you guys a lot,” Mildred responded. Her profile photo was an image of her and Maria hugging at the middle school graduation.

Mildred created an Instagram account and posted a slide show of the foster family.

“We are family,” she wrote.

When Mildred tried to explain why she was sad in Tennessee, she spoke about the palm trees in Southern California and the nearby beaches. Nashville, by comparison, was boring.

But there was another thing that was hard to say out loud to Magdalena. She knew her mother had fought relentlessly for them to live together. But being with her after so long – even hugging her at the airport – wasn’t as easy as Mildred had hoped.

“It felt strange,” Mildred said. “I hadn’t seen her for a long time. I wasn’t used to her.”