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Judge orders release of child separated from mother at US-Mexico border

Lidia Souza and her son, Diogo, were reunited in Chicago on Thursday.
Lidia Souza and her son, Diogo, were reunited in Chicago on Thursday.(Charles Rex Arbogast/Associated Press)

A federal judge in Chicago on Thursday ordered the immediate release of a 9-year-old boy who had been held alone in government custody for almost a month since he was taken from his mother at the US-Mexico border.

Judge Manish Shah wrote in his preliminary injunction that keeping Lidia Souza from her son as part of the Trump administration’s immigration policy “irreparably harms them both.”

Souza, 27, and her son came to the United States from Brazil and sought asylum, saying they feared for their lives in their home country. She has been staying with family in Hyannis since her release from detention at the border. Her son, Diogo, was being held at Heartland Alliance, a Chicago-area organization that operates shelters for unaccompanied minors who cross the border.

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On Monday night, after 26 days apart, Souza boarded a plane to Chicago, where she sued the federal government demanding the immediate release of her child. They were allowed a short visit Tuesday, but she was not allowed to take him home, her attorney, Jesse Bless, said.

Shah’s order changed that.

“I am so happy,” Souza said at a news conference in Chicago on Thursday afternoon after being reunited with her son. She described the ordeal as “terrible” and encouraged others in a similar situation to “be persistent and have faith.”

To the government, she said, “Don’t do this to children. They shouldn’t be involved in this.”

Diogo, who was by his mother’s side during the news conference, said he cried almost every day that he was separated from his mother.

“It was very sad,” he said.

Under the Trump administration’s “zero-tolerance” policy, more than 2,300 children have been separated from their parents. Though it has been reversed, the government has struggled to reunite families, forcing several parents, including a mother from Guatemala who is in Massachusetts awaiting an asylum hearing, to take legal action.

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On Tuesday, a federal judge in California issued a preliminary injunction calling for all children affected by the policy to be reunited with their parents within 30 days. About 500 children had been reunited when the judge ruled, according to the Department of Homeland Security.

But Shah determined a month was too long for Souza to wait to be reunited with her son.

“His continued placement within [the Office of Refugee Resettlement] and Heartland likely violates the law, and at a minimum likely interferes with familial integrity without sufficient procedural justification,” Shah wrote.

The government required everyone in the home where Souza is staying while awaiting her asylum hearing be fingerprinted, court documents said. It would take more than a month to process that information and return Diogo to his mother, which her lawyers argued was unacceptable and also unnecessary considering he was not an unaccompanied minor when he entered the country in late May.

Shah said this “post-deprivation process” — the additional fingerprints and background checks — “may ordinarily be a reasonable balance” of family and government interests. But, he continued, since Souza has been deemed fit and available to care for her son, “there is also a reasonable likelihood … that the additional process only serves to interfere in the family’s integrity with little to no benefit to the government’s interest.”

Bless and Britt Miller, an attorney in Chicago who also represented Souza, said in a statement, that they are “thrilled” Souza and Diogo were reunited, and optimistic that Shah’s order could bring relief to others.

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“We remain hopeful that this outcome will benefit other families facing similar circumstances,” they said.

Souza and her son fled Brazil on May 25, and court documents said she presented herself four days later to immigration authorities in Santa Teresa, a town on New Mexico-Texas border. Immigration authorities interviewed her and determined that she had a credible fear of persecution if she was returned to Brazil — the first step in the legal process to seek asylum.

But despite the interview finding, she was placed in handcuffs and separated from her son, her lawsuit says.

Court records show she was sent to federal court in New Mexico, where she pleaded guilty to illegal entry without inspection on June 6. She was sentenced to time served, released three days later, and given a defective phone number to locate her son plus a ride to the airport, from where she flew to Massachusetts, the lawsuit says.

Souza was ordered to check in with immigration officials on June 21, which she did, and was told to return in a year for her asylum case. Her son, however, remained in federal custody and turned 9 while apart from his mother.


Akilah Johnson can be reached at akilah.johnson@globe.com. Follow her on Twitter @akjohnson1922.