Trump administration family separation policy
The Trump administration family separation policy is an aspect of U.S. President Donald Trump's immigration policy. The policy was presented to the public as a "zero tolerance" approach intended to deter illegal immigration and to encourage tougher legislation. It was adopted across the whole U.S.–Mexico border from April 2018 until June 2018, however later investigations found that the practice of family separations had begun a year previous to the public announcement. Under the policy, federal authorities separated children from parents or guardians with whom they had entered the US. The adults were prosecuted and held in federal jails, and the children placed under the supervision of the U.S. Department of Health and Human Services.
By early June 2018, it emerged that the policy did not include measures to reunite the families that it had separated. Following national and international criticism, on June 20, 2018, President Trump signed an executive order ending family separations at the border, although in March 2019, a government report showed that since that time 245 children had been removed from their families, in some cases without clear documentation undertaken to track them in order to reunite them with their parents.
On June 26, 2018, U.S. District Judge Dana Sabraw of the U.S. District Court for the Southern District of California issued a nationwide preliminary injunction against the family-separation policy and ordered that all children be reunited with their parents within 30 days. On July 26, the Trump administration said that 1,442 children had been reunited with their parents while 711 remained in government shelters.
In January 2019, the administration acknowledged that thousands more children may have been separated from their families than the figure of 2,737 they had previously reported, with officials uncertain of the exact number. Government officials said there are no plans to attempt to reunite these children because "it would destabilize the permanency of their existing home environment, and could be traumatic to the children.” In May 2019, the administration acknowledged that at least an additional 1,712 migrant children may have been separated from their parents.
- 1 History
- 1.1 Bush administration
- 1.2 Obama administration
- 1.3 Trump administration
- 2 Motivation
- 3 Process
- 4 Impact
- 5 Legal proceedings
- 6 Facilities involved
- 7 Reunification
- 8 Reactions
- 8.1 Opposition and condemnation
- 8.2 Support
- 8.3 Trump administration response
- 9 Executive Order to suspend new separations and detain families
- 10 2019 Congressional hearings
- 11 See also
- 12 References
President George W. Bush began the trend of a "zero tolerance" approach in 2005 with Operation Streamline, but during his administration, exceptions were generally made for adults traveling with minors.
U.S. President Barack Obama made changes to immigration policy, releasing parents and focusing on deportation of immigrants who committed crimes in the U.S. Attempting to cope with the 2014 American immigration crisis, a surge of unaccompanied children and women fleeing violence in Central America, while complying with the 1997 Flores v. Reno Settlement Agreement consent decree by keeping families together, under Obama the Department of Homeland Security built family detention centers in Pennsylvania, New Mexico, and Texas. Unaccompanied children were kept in holding cells, separated by age and gender while appropriate placements were found.
In 2015 Obama introduced the Family Case Management Program which, according to the fact sheet about the program, specifically prioritized "families with certain vulnerabilities, including pregnant or nursing family member; those with very young children; family members with medical/mental health concerns; families who speak only indigenous languages; and other special needs" to offer an alternative to being held in detention centers while awaiting the court to process their asylum claims, which often takes years.
In 2016, the Ninth Circuit Court of Appeals ruled in Flores v. Lynch that detained immigrant children should be released as quickly as possible, but that parents were not required to be freed. The Obama administration complied by releasing women and children after detaining them together for 21 days.
Presidential candidate Donald Trump said ending "catch and release" was the second of his two priorities for immigration reform, after walling off Mexico. When the administration began separating families, pro-Trump pundits argued that the administration was implementing the same policy as the Obama administration. According to PolitiFact, the assertion that Trump was implementing the same policy as Obama is "false", noting "Obama's immigration policy specifically sought to avoid breaking up families. While some children were separated from their parents under Obama, this was relatively rare and families were quickly reunited even if that meant the release of a parent from detention." The Obama Administration did consider separating families, but decided against it.
Refusal to accept asylum seekers at border crossings
In January 2017, the American Immigration Council and five other advocacy organizations filed a complaint with the Department of Homeland Security's Office for Civil Rights and Civil Liberties protesting the "systemic denial of entry to asylum seekers". It is not legal for the US to deny anyone the right to seek asylum. Nonetheless, according to advocacy lawyers, asylum seekers presenting at border crossings were denied for a variety of reasons, including "the daily quota has been reached," that they needed to present a visa, or that they needed to schedule an appointment through Mexican authorities, none of which are accurate. One nonprofit organization spokesperson commented, "We've basically arrived at a place where applying for asylum is not available to most people."
The Department of Homeland Security's Office of Inspector General concluded that this practice, which it calls "metering" legal entry "leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally."
The administration also cancelled the Central American Minors Program (CAM) which had given the hope to parents that they would be able to bring their child into the U.S. legally – ending the parole portion of the program in August 2017 and no longer accepting new applications for the refugee portion of the program as of November 9, 2017. The CAM program had allowed some parents to bring their children legally to the U.S. since 2015, with the children gaining the right to apply for citizenship if they were granted special refugee status. Due to the processing delays, the program had not offered relief for those who faced the threat of immediate danger, yet at the level of the individual families it had made it less attractive to bring children illegally, as there was the prospect of legal entry.
DHS "pilot program" in 2017
From July to October 2017, the Trump administration ran what the DHS called a "pilot program" for zero tolerance in El Paso. Families were separated, including families that were seeking asylum, and children were then reclassified as "unaccompanied" and sent into a network of shelters with no system created to reunite them with their parents. The existence of this early "pilot program" first became widely known in June 2018, with reporting by NBC News from information provided by DHS.
In May 2018, NPR spoke with a director at The Young Center for Immigrant Children's Rights, an agency that advocates for the children's best interests. Asked if staff had noticed an increase in children coming in with parents and then separated from them at the border, the director told NPR, "We noticed as early as late spring of 2017, and through the winter and now the spring of this year, we have seen a significant number of children referred to us for the appointment of a child advocate for kids taken from their parents at the border."
According to an April 2018 memo obtained by The Washington Post, the government viewed the El Paso experiment as successful in that it showed a 64% drop in apprehensions while apprehensions began to rise in October when it was paused. According to a Border Patrol report on the initiative, the El Paso sector processed approximately 1,800 individuals in families and 281 individuals in families were separated under this initiative. This "experiment" was eventually used by ICE, CBP, and CIS to launch the zero-tolerance program across the entire Southwest border in April.
Proposals of family separation as a means to deter immigration
Two weeks after President Trump was inaugurated on January 20, 2017, the administration reviewed the idea of separating immigrant children from their mothers as a way to deter asylum-seekers. In March 2017, it was first reported that the Department of Homeland Security (DHS) was considering a proposal to separate parents from their children if they were caught attempting to cross the border into the United States. John Kelly, then Secretary of Homeland Security, confirmed that the policy was under consideration, but later denied it. Speaking on Democracy Now! the director of the National Immigration Law Center said that the policy, if implemented, would amount "to state-sanctioned violence against children, against families that are coming to the United States to seek safety" and that the administration did not act with transparency in explaining what was being proposed.
The American Academy of Pediatrics issued a statement to address media reports of the plan, "... We urge policymakers to always be mindful that these are vulnerable, scared children," and they offered to assist Homeland Security in "crafting immigration procedures that protect children". In March, more than a month prior to the official "zero tolerance" decision, the ACLU filed a class-action lawsuit against the Trump administration charging that the administration was illegally separating hundreds of children from their parents while the parents awaited asylum proceedings.
On April 5, the DHS said they were no longer considering the policy partly due to the steep decline in mothers attempting to travel to the U.S. with their children, however, Attorney General Jeff Sessions then ordered an escalation of federal prosecutions. Parents were being charged with misdemeanors and jailed while their children were classed as unaccompanied and placed under DHS care. Within five months, hundreds of children were reported to have been separated from their parents. In late April 2018, the media reported that a review of government data found that about 700 migrant children, more than 100 of them under the age of 4, had been taken from their parents since October 2017. At that time Department of Homeland Security officials said they did not split families to deter immigration but rather to "protect the best interests of minor children crossing our borders". Saying it would save $12 million a year, in June the Trump administration ended the Family Case Management Program, which kept asylum-seeking mothers and their children out of detention.
By December, after a new surge in families crossing the southern border, the DHS was again considering the policy to separate children from parents. In January 2018, following testimony from Department of Homeland Security Secretary Kirstjen Nielsen in which she refused to rule out implementing the proposed policy of the separation of parents from their children, more than 200 child welfare organizations released a letter calling for the Trump Administration to abandon plans to forcibly separate children from their parents at the U.S. border. The letter said, in part: "We know that this policy would have significant and long-lasting consequences for the safety, health, development, and well-being of children. Children need to be cared for by their parents to be safe and healthy, to grow and develop. Forced separation disrupts the parent-child relationship and puts children at increased risk for both physical and mental illness. The Administration's plan would eviscerate the principle of family unity and put children in harm's way."
Administration issues "zero-tolerance" policy
On April 6, 2018, Attorney General Jeff Sessions directed federal prosecutors "to adopt immediately a zero-tolerance policy for all offenses" related to the misdemeanor of improper entry into the United States, and that this "zero-tolerance policy shall supersede any existing policies". This would aim to criminally convict first-time offenders when historically they would face civil and administrative removal, while criminal convictions were usually reserved for those who committed the felony of illegal re-entry after removal. On May 7, 2018, Attorney General Jeff Sessions announced:
If you cross the border unlawfully ... then we will prosecute you. If you smuggle an illegal alien across the border, then we'll prosecute you. ... If you're smuggling a child, then we're going to prosecute you, and that child will be separated from you, probably, as required by law.
Multiple media accounts, as well as direct testimony from detained migrants to members of Congress, reported that immigrant families lawfully presenting themselves at ports of entry seeking asylum were also being separated. Speaking on Face the Nation on June 17, Senator Susan Collins said that the Secretary of Homeland Security Kirstjen Nielsen had testified before the Senate that asylum seekers with families would not be separated if they presented themselves at a legal port of entry, "Yet, there are numerous credible media accounts showing that exactly that is happening, and the administration needs to put an end to that right off." Later in the day Nielsen tweeted: "We do not have a policy of separating families at the border. Period."
The departments of Health and Human Services and Homeland Security did not take steps in advance of the April 2018 announcement to plan for family separations or a potential increase in the number of children who would be referred to Office of Refugee Resettlement because they did not have advance notice of the announcement, according to agency officials interviewed by the Government Accountability Office. Though they did not receive advance notice of the April 2018 announcement, Office of Refugee Resettlement officials said they were aware that increased separations of parents and children were occurring prior to the April announcement, saying the percentage of children referred to the agency who were known to have been separated from their parents rose by more than tenfold from November 2016 to August 2017.
The policy is notably unpopular, more so than any other major bill or executive action in recent memory. Poll aggregates show that approximately 25% of Americans supported the policy, although a majority of Republicans supported it. Following the May announcement, dozens of protest demonstrations were held, attracting thousands. In Washington, D.C., Democratic members of Congress marched in protest. The Office of the United Nations High Commissioner for Human Rights called for the Trump administration to "immediately halt" its policy of separating children from their parents, and human rights activists have criticized that the policy, insofar as it is also applied to asylum seekers, defies Article 31 of the Refugee Convention.
Zero-tolerance policy reversed
Despite previously asserting that "You can't [reverse the policy] through an executive order," on June 20, 2018, Trump bowed to intense political pressure and signed an executive order to reverse the policy while still maintaining "zero tolerance" border control by detaining entire families together. Asked by a reporter why he had taken so long to sign the order, Trump asserted, "It's been going on for 60 years. Sixty years. Nobody has taken care of it. Nobody has had the political courage to take care of it. But we're going to take care of it." The Trump administration said that they would use the governments "central database" to reconnect the thousands of families that had been separated. However, with the release of emails obtained by NBC News in 2019 it was discovered that there was no central database and the government only had enough information to reconnect 60 children with their parents.
When it became clear that "zero tolerance" could not be sustained while keeping families together within the scope of court rulings, Customs and Border Protection Commissioner Kevin McAlee announced on June 25 that the agency would cease referring every person caught crossing the border illegally for prosecution, effectively ending the "zero tolerance" policy. Implementing "zero tolerance" was a "huge challenge operationally for our agents", McAlee said: Border Patrol stations were being overwhelmed by the number of children being held in crowded conditions in holding cells while their parents were processed in court and held in immigration detention, and agents were spending more time processing detained immigrants than guarding the border.
On June 26, a Federal Court ordered the government to reunify separated families with minor children under 5 years of age within 14 days of the order, and families with minor children age 5 and over within 30 days of the order.  On September 20, 2018, the government reported to the court that it had reunified or otherwise released 2,167 of the 2,551 children over 5 years of age who were separated from a parent and deemed eligible for reunification by the Government. However, a report released in January 2019, revealed that while HHS had previously said that the total number of children separated from their parents was less than 3,000, a new investigation revealed that the actual number of separated children was several thousand higher, with the exact number unknown due to poor record keeping.
In March 2019, The Boston Globe reported that the Trump administration had continued the family separation policy even after a court had ordered an end to routine family separations in June 2018. A recent government report showed that 245 children were removed from their families, in some cases without clear documentation undertaken to track them in order to reunite them with their parents.
In April 2019, officials in the Trump administration alleged that since around the end of 2018, Trump had repeatedly attempted to convince Department of Homeland Security Secretary Kirstjen Nielsen to resume and extend family separations regardless of legality and despite public concerns. Nielsen announced that she was leaving her position as department head on April 7, 2019. Two days later, Trump denied reports he planned to renew and expand his family separation policy, asserting “President Obama had child separation. Take a look — the press knows it, you know it, we all know it. I’m the one that stopped it.” In contrast to the Trump systematic family separation policy to deter migrants from entering the US, the Obama separation policy was used only in instances when the child’s safety was in question or the adult had a prior criminal conviction.
In February 2017, Immigration and Customs Enforcement (ICE) asylum chief John Lafferty told DHS employees that the Trump administration was "in the process of reviewing" several policies aimed at lowering the number of asylum seekers to the United States, which included the idea of separating migrant mothers and children.
Speaking on NPR in May 2018, White House Chief of Staff John F. Kelly described the policy as "a tough deterrent [and] a much faster turnaround on asylum seekers". When questioned if it might be considered "cruel and heartless" to remove children from their mothers, Kelly replied, "I wouldn't put it quite that way. The children will be taken care of—put into foster care or whatever."
In June 2018, Attorney General Sessions said, "If people don't want to be separated from their children, they should not bring them with them. We've got to get this message out. You're not given immunity." White House senior policy adviser Stephen Miller said: "It was a simple decision by the administration to have a zero tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law."
The Washington Post quoted a White House official as saying that Trump's decision was intended to "force people to the table" to negotiate on laws in Congress. Meanwhile, Trump tweeted: "Any Immigration Bill MUST HAVE full funding for the Wall, end Catch & Release, Visa Lottery and Chain, and go to Merit Based Immigration." [sic]
The Department of Homeland Security (DHS) detains families suspected of illegally crossing the border. Prior to 2018, most suspected illegal border-crossers were dealt with through civil proceedings in immigration courts, where deportation proceedings and asylum hearings take place; most who were criminally prosecuted in federal court "either had been apprehended at least twice before, or had committed a serious crime". Under the Trump administration's "zero-tolerance" policy, the Department of Justice began to criminally prosecute all suspected illegal border-crossers for illegal entry, even those who crossed for the first time. Families undergo separations when parents or adult relatives were charged with unlawful entry.
Parents are held in Federal jails prior to trial. The government conducts expedited, mass trials of alleged border crossers under Operation Streamline. According to The New York Times, "Lawyers receive the roster of clients assigned to them on the morning of the hearing and meet with each one for about 20 minutes to explain the charges and the process in Spanish." People who plead guilty are typically sentenced to time served in jail, while repeat offenders may be sentenced to 30 to 75 days in jail. Once convicted, they are eligible for deportation. Due to the Trump executive order, DHS no longer prioritized deporting those convicted of more dangerous crimes. They are then transferred to Immigration and Customs Enforcement custody.
According to several defense lawyers working with the immigrants, in many cases the Border Patrol agents lie to the parents in order to get them to let go of their kids, telling them that the children are being taken for questioning or "to be given a bath". In other cases the children may be removed to another location while the parent is in jail being processed, which generally takes a few hours. Children are held temporarily by the DHS before being transferred to the Department of Health and Human Services' Office of Refugee Resettlement (ORR). ORR contracts the operation of around 100 facilities for child migrants to companies and nonprofit organizations. The Flores settlement requires that ORR hold children no longer than 20 days before releasing them.
Children are being transferred into foster care placements across the country. The fifty children placed in western Michigan include infants of 8 and 11 months, and have an average age of 8. Children are flown to Michigan during the overnight hours, and foster care officials report they have not been told where they are going. Officials also report that children have been waiting as long as 30 days to speak to their parents, due to difficulties locating them.
According to the legal support organization KIND, in at least six cases including that of a two-year-old girl, parents being deported have not been reunited with their children, who remain in the United States.
According to a June 2018 analysis by USA Today, in most cases migrants are bused from the immigration holding facility to federal court where they plead guilty to having entered the country illegally, a misdemeanor, and are sentenced to whatever time they have already spent in the government's custody and a $10 fine. They are then bused back to the holding facility to be processed for deportation. If they have children, upon their return they may find that their children are gone.
According to a report of June 27 by Texas Tribune, immigrant children as young as 3 years old have been ordered into court for their own deportation proceedings. Children in immigration court are not entitled to free, court-appointed attorneys to represent them. Instead, they are given a list of legal services organizations that might help them.
In the past, most migrants illegally crossing the border came almost entirely from Mexico; however, the current influx now includes greater numbers of women and children fleeing violence, gang recruitment, and sexual trafficking in the Northern Triangle of Central America countries of El Salvador, Guatemala, and Honduras. Rather than illegally crossing into the US, they are presenting themselves at the border hoping to claim asylum, which they are legally entitled to do.
In June 2018, U.S. Representative Pramila Jayapal spoke with recently arrived detainees at the Federal Detention Center, SeaTac facility located near Seattle. The facility housed 206 immigrants, 174 of them were women. Many of the women spoke of "fleeing threats of rape, gang violence and political persecution". She said more than half of the women were mothers who had forcibly been separated from their children, some as young as 12 months old, and said that many did not know where their children were being detained. Commenting on her visit of the facility, Jayapal called the women's stories "heartbreaking", saying, "I've been doing immigration-rights work for almost two decades. I am not new to these stories. I will tell you there was not a dry eye in the house. ... Some of them heard their children screaming for them in the next room. Not a single one of them had been allowed to say goodbye or explain to them what was happening."
Number of children
The Department of Homeland Security confirmed on June 15, 2018, that 1,995 immigrant children were separated from their parents (mostly due to not crossing at a legal port of entry) during the six weeks from April 19 and May 31. This figure did not include children of families that asked for asylum at an official border crossing and were then separated. Speaking on Face the Nation on June 17, Senator Susan Collins suggested that the number may well be higher.
Steven Wagner, the Acting Assistant Secretary for the Administration for Children and Families under HHS, was unable to say in June 2018 how many separated children had been placed with sponsors or reunited with their parents, but that the department is "under a legal obligation" to place children quickly with a sponsor, however, "we actually don't have a time limit in terms of days" that the children are allowed to stay in HHS care.
Zero tolerance and the separation of children was suspended for an indefinite period of time on June 20, 2018, through an executive order. On June 26, U.S. District Court Judge Dana Sabraw issued a nationwide preliminary injunction against the family-separation policy and required the government to reunite separated families within 30 days and to reunite children under five years of age with parents within 14 days. On that date DHS stated that 522 migrant children, all of them in the custody of Customs and Border Protection, had been reunited with their families. After a site visit to DHS facilities, Senator Elizabeth Warren reported that, "Mothers and children may be considered 'together' if they're held in the same gigantic facility, even if they're locked in separate cages with no access to one another." The Secretary of Health and Human Services Alex Azar testified that 2,047 children—out of a total of around 2,300 ever in HHS custody—continued to be held in HHS-contracted facilities.
On July 5, Azar declared that the total number of children that had been separated was under 3,000 and that, of these, the number of children under five years was fewer than 100. On July 6, government lawyers informed Judge Sabraw that HHS would be able to meet the deadline of July 19 for only about half of the concerned children. The government had connected 46 of the toddlers with parents still in custody. Concerning the other half, the lawyers stated that the parents of 19 of the children had been released and now had unknown whereabouts, and the parents of further 19 children had been deported. Two children had been connected to parents criminally ineligible to re-take custody of their children. Judge Sabraw said the time limit for reunifying the youngest children could be extended under the condition that the government would provide a master list of all children and the status of their parents. A list of 101 children was to be shared with the ACLU within the following day. A status conference was scheduled for the morning of July 9 concerning which cases would merit a delay. On July 6, a government lawyer provided the status of 102 children under 5 in custody to Federal Judge Dana Sabraw, and stated that numbers are approximate and "in flux".
In September 2018 it was reported that 12,800 children were being held in federal custody, and that federal shelters housing migrant children were filled to around 90% since May 2018.
A report by Amnesty International, published in 2018, found that the statistics on the separated children did not include children who had been separated from non-parental relationships, for example from grandparents, or those who were separated due to their documentation being insufficient. In January 2019, auditors from the Office of the Inspector General at the Department of Health and Human Services stated that the practice of separating migrant children from their families started earlier and involved thousands more children than previously known, and that in the summer of 2017 a "steep increase in the number of children who had been separated from a parent or guardian" occurred.
A followup government report released in January 2019, revealed that while HHS had previously said that the total number of children separated from their parents was 2,737, a new investigation revealed that the actual number of separated children was several thousand higher, with the exact number unknown due to poor record keeping. HHS is not able to identify or count children who were released from the government’s custody before officials started identifying separated families. Following a court ruling in 2019, government officials stated that identifying all children would require a joint effort of 12 to 24 months duration led by a team of officials representing HSS, ICE and CBP.
Fiscal costs and diversion of resources
The costs of separating migrant children from their parents and keeping them in "tent cities" are higher than keeping them with their parents in detention centers. It costs $775 per person per night to house the children when they are separated but $256 per person per night when they are held in permanent HHS facilities and $298 per person per night to keep the children with their parents in ICE detention centers.
To handle the large amount of immigration charges brought by the Trump administration, federal prosecutors had to divert resources from other crime cases. The head of the Justice Department's major crimes unit in San Diego diverted staff from drug smuggling cases. Drug smuggling cases were also increasingly pursued in state courts rather than federal courts, as federal prosecutor were increasingly preoccupied with pursuing charges against illegal border crossings. In October 2018, USA Today reported that federal drug-trafficking prosecutions on the Southern border plummeted, as prosecutorial resources were diverted to the family separation policy.
It was reported in June 2018, that the Trump administration plans to pay a Texas Non-Profit Southwest Key Programs Inc, more than $458 million in the fiscal year of 2018 to care for immigrant children detained crossing the US border illegally.
In July 2018, it was reported that HHS had diverted at least $40 million from its health programs to care for and reunify migrant children, and that the HHS was preparing to shift more than $200 million from other HHS accounts. In September 2018, it was reported that the Trump administration planned to shift more than $260 million from HHS programs, including those on cancer research and HIV/AIDS research, to cover the costs associated with detaining children and delaying releasing them to adults.
ProPublica audio tape
On June 18, 2018, as reporters waited for a briefing by the Secretary of the Department of Homeland Security Kirstjen Nielsen, ProPublica posted a recording of crying children begging for their parents just after being separated from them, which the reporters listened to as they waited for her to speak. Nielsen arrived and spoke, blaming Congress for the administration's policy of separating parents from their children and saying that there would be no change in policy until Congress rewrote the nation's immigration laws. At one point during the briefing, New York magazine reporter Olivia Nuzzi played the tape. Nielsen refused to answer any questions about the material in the tape, such as "How is this not child abuse?"
Most of the tape consists of children crying and wailing for their parents, but a six-year-old girl is heard to repeatedly beg that her aunt be called, who she is certain will come and pick her up. ProPublica was able to contact the aunt, however the aunt was unable to assist for fear that her own petition of asylum would be put in jeopardy due to the recent Trump Administration decision to discontinue asylum protections for victims of gang and domestic violence. The aunt said that she was able to keep in touch with her niece by phone and that she had talked to her sister; however, her sister had not yet been allowed to speak with her child. The aunt said that the authorities had told the child that her mother may be deported without her.
Commenting on President Trump's executive order and how it was related to the tape of the children crying, Republican commentator Leslie Sanchez commented on Face the Nation, "And a lot of Republicans I talked to, even bundlers, people that put big amounts of money together, said, when they heard the cries of the children, without visual, being separated, that was the moment where America knew this was too far. And that's when the president retreated."
Allegations of forced medication and mistreatment
There are concerns that the facilities that children were held in may have in the past been associated with the forcible drugging of children. The Texas Tribune reported that detained children who had previously been held at the Shiloh Treatment Center said they had been forcibly treated with antipsychotic drugs by the facility personnel, based on legal filings from a class action lawsuit. According to the filings, the drugs made the children listless, dizzy and incapacitated, and in some cases unable to walk. According to a mother, after receiving the drug, her child repeatedly fell, hitting her head and eventually ending up in a wheel chair. Another child stated that she tried to open a window, at which point one of the supervisors hurled her against a door, choked her until she fainted and had a doctor forcibly administer an injection while she was being held down by two guards. A forensic psychiatrist consulted by the Tribune compared the practice to what "the old Soviet Union used to do".
The treatment center is one of the companies that have been investigated on charges of mistreating children, although the federal government continues to employ the private agency which runs it as a federal contractor.
On July 30, 2018, a federal judge ruled that government officials have been in violation of state child welfare laws when giving psychotropic drugs to migrant children without first seeking the consent of their parents or guardians. According to the ruling given by Judge Dolly Gee, staff members have admitted to signing off on medications in lieu of a parent, relative, or guardian. The judge also ordered that the government must move all children from the facility except for those deemed by a licensed professional to pose a “risk of harm” to themselves or others.
From 2014 to 2018, the Office of Refugee Resettlement received 4,556 allegations of sexual abuse or sexual harassment of immigrant children, 1,303 of which were referred to US Justice Department.
Government data from 2018 suggests that the family separation policy did little to deter migrants from crossing the US border illegally.
ACLU challenge and nationwide injunction
In June 2018, the American Civil Liberties Union filed an class-action lawsuit against the federal government on behalf of two mothers (one from Brazil, one from Democratic Republic of the Congo) who had been separated from their children, seeking a halt to the policy. On June 25, the ACLU requested an injunction halting the policy. On June 26, U.S. District Judge Dana Sabraw of the U.S. District Court for the Southern District of California issued a nationwide preliminary injunction against the family-separation policy.
In his opinion, Sabraw wrote: "The facts set forth before the court portray reactive governance — responses to address a chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children." Judge Sabraw wrote that the federal government "readily keeps track of personal property of detainees in criminal and immigration proceedings", yet "has no system in place to keep track of, provide effective communication with, and promptly produce alien children". The injunction barred the U.S. government from separating parents and children at the border unless the adults presented a danger to children, and required the government to reunite separated families within 30 days, to reunite children under five years of age with parents within 14 days, and to permit all separated minors to speak with their parents within ten days.
In March 2019, Judge Sabraw issued a preliminary ruling which would potentially expand the number of migrants included in the American Civil Liberties lawsuit after newly released government documents identified thousands more families that had been separated as early as July 1, 2017. In his ruling Sabraw called the documents "undisputed" and commented, “The hallmark of a civilized society is measured by how it treats its people and those within its borders."
Judge Sabraw set a status hearing for July 6, 2018. On July 6, the Trump administration asked for more time to reunite migrant families separated, highlighting the challenge of confirming familial relationship between parents and children, with parents of 19 of 101 detained children under the age of 5 already deported according to a Department of Justice lawyer. The Judge set another deadline of Tuesday (July 10) for reunification, and gave the government until Saturday evening to create a list of all 101 youngest children along with an explanation of proposed difficulties. With the list the Judge believed that the two sides would be able to have "... an intelligent conversation Monday (July 9) morning about which child can be reunited July 10, which can not - and then the court can determine whether it makes sense to relax the deadline".
Second ACLU lawsuit
Charging the Trump Administration with initiating new government screening policies designed to bar immigrants from entering the country by preventing them from getting a fair hearing, on August 7, 2018, the ACLU filed a lawsuit which focuses on migrants who have been placed in fast-track deportation proceedings known as “expedited removal.” The lawsuit was filed on behalf of 12 migrants who failed their “credible fear” interviews, one of the first steps for asylum seekers in the fast-track removal process.
Challenge by 17 states
On June 26, 2018, a separate legal challenge to the family separation was brought by 17 states (California, Delaware, Iowa, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington) against the Trump administration. The suit was filed in the U.S. District Court in Seattle. The plaintiff states, all of whom have Democratic state attorneys general, challenge the forcible separation of families as a "cruel and unlawful" violation of the constitution's Due Process and Equal Protection Clause. Washington Attorney General Bob Ferguson is leading the suit. California Attorney General Xavier Becerra, who represents California, called Trump's executive order putting a halt to the policy as an "empty and meaningless order that claims to take back policies that he [Trump] put in place himself as a political stunt".
In a new motion filed on July 2, the group asked for immediate information and access to those that are being detained. The motion included more than 900 pages of declarations from family members as well as others that have been involved in the separation of the families. On July 5, PBS Newshour reported on 12 of the 99 declarations that they believe "offer a window into what's has been happening under the family separation policy". PBS included information from the declaration of one mother who wrote that her 1-year-old son was taken from her at a legal point of entry in November. She said that when they were reunited after three months he cried continually and when she removed his clothing she found him to be dirty and infected with lice. Others spoke of multiple detainees, including young children, held in very small rooms or cages, sometimes "freezing" cold, and without adequate bathroom facilities. Several others wrote of a lack of food, including food for children. One woman wrote that she was kept in a cell with nearly 50 other mothers and they were told "that they could not eat because they were asking about their children."
On June 21, 2018, the Department of Justice (DoJ) asked U.S. District Court Judge Dolly Gee to alter her 2015 ruling in Reno v. Flores on the conditions of family detention by the Department of Homeland Security. The government seeks to end a 20-day limit on family detention and to end the requirement that children be held in day care centers that are state-licensed. The DoJ filing claims that limits on detention must be ended due to "a destabilizing migratory crisis". Attorney Peter Schey, who represents the child plaintiffs in Flores, vowed to oppose the filing He filed an opposition on the grounds of there having been no significant change in circumstances warranting such a revision of the ruling. On June 29, the DoJ filed a statement that in future the Government will ″detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry″ in place of separating them.
On July 9, Judge Gee denied the government's request to hold families together indefinitely in ICE facilities, and its request to exempt detention facilities from state licensing requirements for that purpose. Gee wrote that, "Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion."
August DHS complaint
On August 23, 2018, the American Immigration Lawyers Association and the American Immigration Council filed a complaint with DHS alleging the “pervasive, and illegal, practice of coercing separated mothers and fathers into signing documents they may not have understood.” According to the complaint, “the trauma of separation and detention creates an environment that is by its very nature coercive and makes it extremely difficult for parents to participate in legal proceedings affecting their rights.” It also describes the use of "physical and verbal threats, the denial of food and water, the use of solitary confinement, the use of starvation, restrictions on feminine-hygiene products, and the use of pre-filled forms."
Other challenges on behalf of individuals
Separately, a Guatemalan woman filed a federal lawsuit in the U.S. District Court for the District of Columbia in Washington challenging the Trump administration's practice on June 19, before the Executive Order. It is one of a small number of similar court challenges, with demands such as the immediate release of the child, an order prohibiting US authorities from separating the family, and money for damages of pain and suffering.
Another lawsuit is that of a 9-year-old boy from Honduras who, according to the family, had fled with his father after his grandfather was murdered, was detained at the border and was separated from his father while sleeping. Another case is that of a 14-year-old girl who, so the lawsuit, had fled persecution in El Salvador and was lured away from her mother at a detention facility in Texas under the pretext of taking her to bathe. In both cases, the child was brought thousands of miles away.
Federal class action lawsuit
On September 5, 2018, a federal lawsuit was filed to seek monetary damages on the basis of the inflicted psychological harm and the creation of a fund to support the mental health treatment of the children.
- The Ursula detention facility, operated by Customs and Border Protection, in McAllen, Texas, in the Rio Grande Valley—On June 17, 2018, the facility housed 1,129 people, including 528 families and nearly 200 unaccompanied minor children. The facility has been called, "the dog kennel" because chain link fencing is being used to create areas for those waiting to be processed, including children who have been separated from their parents. The caged areas are bare without toys or books for the children. Oregon Senator Jeff Merkley toured the facility in June and said that the parents were being told that they would only be separated from their children for "just a very short period—they go to a judge and then they're reunified [but] the reality is it's very hard for the parents to know where their kids are and to be able to connect with them".
Detention of parents
- Port Isabel Detention Center, operated by Immigration and Customs Enforcement, in Los Fresnos, Texas—This facility is surrounded by swampland and houses detained parents. Several members of Congress toured the facility in June and met with 10 women who had been separated from their children. Some of them did not know where their children had been transferred to and none had been able to speak with a lawyer. One women said that she was told that her child would be put up for adoption. Rhode Island Representative David Cicilline said the women were uncontrollably sobbing.
- South Texas Detention Facility, operated by the GEO Group, in Pearsall, Texas
- Eloy Detention Center, owned and operated by CoreCivic, in Eloy, Arizona—This privately run immigration jail is ringed by barbed wire and an electrified fence. In late May, detained parents had counted at least 40 people who had been separated from their children among the 1,500 people detained in the facility; Immigration and Customs Enforcement did not release its own figures.
- Northwest Detention Center in Tacoma, Washington—Adults separated from their child relatives were transferred to this facility, which suffered a chicken pox outbreak in late June, preventing a visit by Congressman Derek Kilmer.
Detention of children
- Casa Padre, a private facility owned and operated by Southwest Key Programs, in Brownsville, Texas—A housing facility for children built in a former Walmart and operated under contract for the Department of Health and Human Services. On June 13, it housed 1,469 children, a plurality of whom arrived as unaccompanied minors crossing the border. Southwest Key estimated that 5% of children held there had been separated from their parents.
- Homestead Temporary Shelter for Unaccompanied Children in Homestead, Florida—A housing facility for around 1,100 children. Approximately 70 children separated from their families are housed at the facility. The facility had been opened and closed during the Obama administration and was recently reopened.
- Estrella del Norte, a private facility owned and operated by Southwest Key Programs, in Tucson, Arizona—A 300-bed housing facility for children, that housed 287 children in mid-June 2018. A former staff member described conditions in the facility as increasingly "prison-like", and recounts being told to forbid siblings without their parent from hugging one another.
- Tornillo tent city, operated by the Federal government in Tornillo, Texas—Erected in the desert at the Marcelino Serna Port of Entry in western Texas. The site was chosen for a tent camp slated to house thousands of migrant children, including both unaccompanied minors and children separated from their parents. Representative Beto O'Rourke, who led a protest on Father's Day, June 17, 2018, was told that 200 children were being detained in the camp, 20% of whom were separated from their parents.
- Three facilities in Combes, Raymondville and Brownsville (Casa El President, operated by Southwest Key), in southern Texas, have been set up to hold children under five and have been referred to as "tender age shelters". Medical professionals and lawyers who visited the facilities described "play rooms" filled with preschool children crying and in crisis. Colleen Kraft, the president of American Academy of Pediatrics, visited the Coombs facility and said she was "shaken" by what she saw, calling it "a heartbreaking scene" and unlike anything she'd seen in her decades as a pediatrician. She termed the practice of removing the children from their parents "government-sanctioned child abuse".
- Upbring New Hope Children’s Shelter in McAllen, Texas. As of June 21, about 60 children were housed in this facility, including six who had been separated from their parents while the remaining children had arrived alone. According to American Academy of Pediatrics President Colleen Draft, this center, like other centers, confiscates any possessions the child may arrive with and care givers are not allowed to comfort or touch the children. Following President Trump's June 20 executive order to stop separating undocumented immigrant parents and their children, on June 21 First Lady Melania Trump visited this facility saying, "I'm here to learn about your facility, in which I know you house children on a long-term basis and I'd also like to ask you how I can help these children to reunite with their families as quickly as possible." Critics have argued that this visit did not give the First Lady an accurate look at what many have called an unfolding crisis. She was also widely criticized for wearing a jacket that on the back stated "I Really Don't Care, Do U" when she boarded the plane for her trip to the facility.
- An East Harlem, New York shelter run by Cayuga Centers, Children's Village in Dobbs Ferry, New York, and additional shelters in Long Island, in Westchester and the Bronx are among nine facilities in New York state housing separated children. In a June 22 interview New York Governor Andrew Cuomo said that he believes that HHS sent about 700 children to his state but he is not certain because HHS has refused to release any information about the children. The Governor said that he also contacted the foster care agencies in his state in an attempt to assess the number of children and to make sure that their needs were being met, but HHS had put a gag order on the agencies and they were not able to disclose any information either. He was allowed to visit one facility and the staff there told him that the children in their care "have a high level of psychological trauma [and] anxiety disorders".
- Houston facility for young children, pregnant girls, and teenage mothers—Southwest Key has leased a 53,600-square-foot building—419 Emancipation Avenue—formerly occupied by the non-profit Star of Hope in Houston, Texas, and applied to use it as a detention center for up to 200 migrant youth "from age 0 to 17". Advocates report that the facility would house "children younger than 12 as well as pregnant and nursing teenagers"; the Department of Health and Human Services refers to this younger age group as "tender-age children" Houston Mayor Sylvester Turner opposes the facility and has urged the Texas state government not to license it. At a press conference, Turner said, "I do not want to be an enabler in this process. I do not want the city to participate in this process. The health department has yet to provide a food permit or shelter permit.... If we don't speak, if we don't say no, then these types of policies will continue."
- Military detention camp for migrant families at Fort Bliss
- Military detention camp for migrant children on Goodfellow Air Force Base
Following the suspension of the policy in June 2018, Secretary of Health and Human Services Alex Azar testified that the Department would only reunite children with their detained parents if Congress passed legislation lifting the 20-day limit on family detention required under the Flores settlement.
On July 9, the government stated that the number of parents deported alone and the number of parents released to the United States alone were each nine, rather than 19. As of that date, two parents of children younger than five had been reunited. The government said that more than fifty parents would be reunited with their small children on July 10, and that they would be released from ICE custody into the United States after being reunited. DoJ lawyer Sarah Fabian stated that of the 102 children, 75 were eligible for release and 27 could not be immediately be reunited for various reasons.
An HHS official reported that of the 102 children, 38 had been returned to their families by Tuesday evening, and that more reunions were to continue "throughout the night". The administration gave reasons why the remaining 64 children were not united by the deadline. According to the administration, in one case, parent and child may both be U.S. citizens.
On July 23, the administration stated that 879 parents had been reunited with their children, another 538 have been cleared for reunification, further 463 parents had cases that were still under review, and further 454 were either considered not eligible or were not yet known to be eligible for reunification with their children. More than 450 parents may have already been deported without their children. On July 26, 1,637 children were deemed eligible for reunification and 711 were deemed not eligible. So far, 1,442 had been reunited. Those deemed not eligible included 431 whose parents may have been deported and 120 with parents who waived reunification.
Procedures to reunite families
Authorities made the decision to take children from their parents without a plan to reunite families, resulting in numerous cases of parents and children having no contact since being forcefully separated. One investigation reported that "The policy is being applied in such an opaque and ad hoc manner that government case workers, public defenders, federal prosecutors, judges, and the Border Patrol do not have clear answers about if, when, or where children will be reunited with their parents, or even whether separated parents are able to communicate with their kids by phone." When asked if separated parents will "just fall into a black hole" and be unable to reunite with their children unless they hire a lawyer, a Justice Department official replied that once the parent is in ICE custody, the child is taken into the Health and Human Services system, and the government does not try to reunite them.
It was reported that if or when an attempt was made to reconnect children to their parents it would be difficult because children and parents entered two separate systems: parents entered the US Department of Homeland Security to face criminal prosecution while children were classified as an "unaccompanied alien child" and transferred to the US Department of Health and Human Services. At that point the government no longer tracked them as a family unit and there was no system in place to reunite families. In May, parents in the McAllen facility were given a number to call to locate their children, but it was the wrong number, and no phones were available for their use. A federal public defender working at the facility spoke to a judge asking that the families be reunited saying, "This is a tragedy that's happening right before this court. There's a very real possibility the parent will be deported without their children". John Sandweg, the former head of ICE, agreed saying, "You could easily end up in a situation where the gap between a parent's deportation and a child's deportation is years," and that many children might never see their parents again.
Representative Pramila Jayapal met with dozens of mothers whose children had been taken from them, and reported that in some cases, Border Patrol agents told the mothers that "their families don't exist anymore." The Boston Globe interviewed foster parents in Michigan who were caring for four children that had been taken from their parents; a six-year-old boy, two eight-year-old girls, and a nine-year-old boy. Only one of the children, the six-year-old, knew where his parent was. The boy and his father, from Honduras, had crossed the border six months previously in an attempt to claim asylum, and he had not seen him since he had been led away in handcuffs. In May 2018, another Honduran man, Marco Antonio Muñoz, 39, committed suicide after his 3-year-old son was forcibly taken and separated from him by Border Patrol Agents. The man had crossed the Rio Grande with his son and his wife and turned himself and his family in to authorities to ask for asylum.
A journalist working for The New Yorker spoke with several women incarcerated at the Otero County Prison, a privately run facility in New Mexico, and an attorney who is representing them. One mother tearfully said that she had no idea where her child might be and was concerned that his medical conditions were not being attended to. Another mother said that of the fifty mothers in her wing at Otero few knew where their children were. The public defender representing these mothers said, "The family-separation policy is changing the lawyer-client relationship. My clients don't even care about beating the charge they're facing. It makes it harder to represent them, because all they want is to be with their children. There can't really be due process for a parent in a situation like this."
Despite numerous reports of separations in which parents were not given information about their children, Senator James Lankford, speaking on Meet the Press blamed "media that's not been responsible with this" for reports of difficulties locating parents or children. Calling the government personnel working for the various agencies that have been handling the separations "professionals", he stated, "They know where every child is to be able to connect them to their parent or their relative that came."
Following a court order by District Judge Dana Sabraw to reunite all parents with their children by July 26, it was revealed that about 500 children's parents had already been deported. Judge Sabraw commented, "What was lost in the process was the family. The parents didn’t know where the children were, and the children didn’t know where the parents were. And the government didn’t know either.” On August 2, the Justice Department filed in court that the American Civil Liberties Union (ACLU) should take responsibility for reuniting families, rather than the federal government. The ACLU responded by stating that while they are ready to help, the burden of responsibility for finding parents of minors separated at the border was the government's responsibility.
In February 2019, Trump officials said that removing children from “sponsor” homes to rejoin their parents “would present grave child welfare concerns”, and they would not focus any efforts on reuniting parents with children who had already been sent to foster homes.
Opposition and condemnation
The policy attracted significant condemnation from a wide array of sources including medical, scientific, religious and human rights groups. It is extremely unpopular with the public, with approximately 25% of Americans supporting the policy, less than any recent major piece of legislation. The detainment of children by the U.S. government has been compared to the Nazi concentration camps by some observers and politicians.
Medical and scientific community
The policy has been condemned by the American Academy of Pediatrics, the American College of Physicians and the American Psychiatric Association, with the American Academy of Pediatrics saying that the policy has caused "irreparable harm" to the children. Together, they represent more than 250,000 doctors in the United States. Pediatrician Nadine Burke Harris described the family separation policy as "a recipe for toxic stress". Dr. Irwin Redlener, who co-founded Children's Health Fund, called the policy "dehumanizing" and described it as a form of child abuse. A number of concerned researchers and clinicians signed an open letter to Homeland Security Secretary Nielsen calling on her to end the migrant child separations, writing, "Decades of psychological and brain research have demonstrated that forced parental separation and placement in incarceration-like facilities can have profound immediate, long-term, and irreparable harm on infant and child development."
Many religious groups also oppose the policy including many Christian organizations such as:
- The United States Conference of Catholic Bishops
- The National Association of Evangelicals
- The Greek Orthodox Archdiocese of America
- Episcopal Church
- United Methodist Church
- African Methodist Episcopal Church
- Presbyterian Church
- Evangelical Lutheran Church
- United Church of Christ
- The Church of Jesus Christ of Latter-day Saints
On June 18, a group of more than 600 United Methodist Church clergy and laity announced that they were bringing church law charges against Attorney General Jeff Sessions. The members of the group accused Sessions of "child abuse, immorality, racial discrimination and dissemination of doctrines contrary to the standards of the doctrine of the United Methodist Church". The last charge refers to Sessions' "misuse" of Romans 13, which he quoted to argue that secular law must always be obeyed.
All four major denominations of American Judaism oppose the policy:
Islamic organizations also oppose the policy.
Evangelist Franklin Graham, son of evangelist Billy Graham, called the practice "disgraceful" and said that "it's terrible to see families ripped apart and I don't support that one bit." Graham did not, however, attach blame to President Trump or his administration, but rather blamed "... the politicians for the last 20, 30 years that have allowed this to escalate to where it is today".
Many professors and administrators in colleges and universities have likened the policy to the internment of Japanese Americans during World War II. Open letters signed by various scholars denounced the policy and called for its halt.
Civil rights and humanitarian groups
A large number of civil rights groups, humanitarian organizations, and other groups condemned the family separation policy, including the Anti-Defamation League, the Lawyers' Committee for Civil Rights Under Law, the League of Women Voters of the United States, the International Rescue Committee, the NAACP, and the National Immigration Law Center.
The Tahirih Justice Center has criticized that the policy of charging asylum seekers with a criminal offense, and subsequent separation of families, is contrary to Article 31 of the Refugee Convention. This Article prohibits any party to the Convention from imposing penalties on asylum seekers on account of their illegal entry or presence, provided the asylum seekers present themselves without delay to the authorities and show good cause for their illegal entry or presence. Thus according to international law, such asylum seekers are not liable to criminal prosecution for illegal entry. The United States ratified the 1967 Protocol of the Refugee Convention in 1968, and thereby obliged itself to adhere to Articles 2 through 34 of the Convention.
The director for the Americas at the International Secretariat of Amnesty International, Erika Guevara Rosas, has stated that the "severe mental suffering that officials have intentionally inflicted on these families for coercive purposes, means that these acts meet the definitions of torture under both US and international law".
Forty Democratic United States Senators sent a letter to President Trump urging him to "rescind this unethical, ineffective, and inhumane policy and instead prioritize approaches that align with our humanitarian and American values". In response to the policy, Senator Dianne Feinstein introduced a bill, Keep Families Together Act (S. 3036), under which the separation of a child from its parents would only be allowed under very specific conditions. By June 18, the entire Democratic caucus of 49 senators (including the two independents who caucus with the Democrats) had signed on as cosponsors.
Republicans in Congress fell into four groups on the child-separation policy:
- The vast majority of Republicans in Congress kept silent on the policy, seeking to avoid a confrontation with Trump.
- Other congressional Republicans, such as Representative Steve King of Iowa, supported separating families.
- Some congressional Republicans, such as Senator Dean Heller of Nevada and Representative Kevin Cramer of North Dakota, expressed disagreement with the policy but avoid strongly criticizing Trump.
- Another group of congressional Republicans were strongly critical of the policy, including members who are frequent Trump critics (for example, Senators Jeff Flake, John McCain, Ben Sasse, and Susan Collins), but also some who are usually aligned with Trump (for example, Senator Orrin Hatch).
Republican Senator Ted Cruz initially defended the policy in an June 11 interview. On June 18, despite his previous support of the policy, Cruz announced that he would introduce his own legislation, criticizing the Democrats' bill as "returning to the failed policy of 'catch and release'". Cruz stated that his bill would end the separation policy by authorizing the construction of shelters to house families, expedite asylum cases, and increase the number of federal immigration judges. Senate Minority Leader Chuck Schumer criticized Cruz's proposal, arguing that the Republicans would include "unacceptable additions" and instead urged Trump to end the policy using an executive order.
In early 2018, Trump requested that state governors send National Guard troops to the U.S.-Mexico border. In response to the family-separation policy, at least eight governors either recalled National Guard troops from the U.S.-Mexico border or declined to send them to the border. States that withdrew troops, reversed plans to send troops, or declined to send troops were New York, North Carolina, Virginia, Colorado, Delaware, and Rhode Island (which have Democratic governors) and Maryland and Massachusetts (which have Republican governors). Democratic Governor John Carney of Delaware, for example, said "Under normal circumstances, we wouldn't hesitate to answer the call. But given what we know about the policies currently in effect at the border, I can't in good conscience send Delawareans to help with that mission." (Some additional states—Vermont and Oregon—had declined Trump's request before the family-separation policy had been implemented.)
Among Republican governors, some supported Trump's policy of separating families (Phil Bryant of Mississippi, Henry McMaster of South Carolina), while others opposed the policy (Pete Ricketts of Nebraska, Bruce Rauner of Illinois, John Kasich of Ohio).
UN and international bodies
The policy has also been condemned by the Office of the United Nations High Commissioner for Human Rights. High Commissioner Zeid Ra'ad Al Hussein called it an "unconscionable" effort by a state to deter parents by abusing children.
United Nations special rapporteurs from the Human Rights Council have also condemned the policy, and have stated that detention of children "is punitive, severely hampers their development, and in some cases may amount to torture". The rapporteurs have called its rescission insufficient.
All four living former First Ladies of the United States—Rosalynn Carter, Hillary Clinton, Laura Bush, and Michelle Obama—condemned the policy of separating children from their parents. First Lady Melania Trump's office issued a statement saying, "[Mrs. Trump] believes we need to be a country that follows all laws, but also a country that governs with heart." Laura Bush wrote an op-ed in The Boston Globe condemning the use of practices "reminiscent of the internment camps for U.S. citizens and noncitizens of Japanese descent during World War II, now considered to have been one of the most shameful episodes in U.S. history.
A bipartisan group of 75 former U.S. attorneys published an open letter to Attorney General Jeff Sessions, calling for an end to the policy, writing that the policy inflicts "unnecessary trauma and suffering of innocent children" and "is a radical departure from previous Justice Department policy" that "is dangerous, expensive, and inconsistent with the values of the institution in which we served". The former U.S. attorneys also pointed out that the policy is not required by law. An employment law firm offered free legal advice to federal and state workers who refused to enforce the policy.
Fox News commentator Andrew Napolitano has criticised the policy, stating that he believes that "it is child abuse to separate children from their parents unless it's necessary to save a human life ... there's a federal statute that says you can't separate them more than 72 hours." News anchor Jorge Ramos declared that the policy violated both Article 1 of the United Nations Convention against Torture (UNCAT) that forbids torture, and Article 9 of the Convention on the Rights of the Child (CRC) that states that a child shall not be separated from his or her parents against their will. The US has signed and ratified the UNCAT, and signed but not yet ratified the CRC.
On June 20, 2018, three airlines – American Airlines, United Airlines and Frontier Airlines – each issued a statement requesting the federal government not to use their planes to transport migrant children who were taken from their parents. The previous day, a veteran flight attendant for a major airline recounted an episode in which an ICE agent initially told another flight attendant that the migrant children on their flight were members of a soccer team, but "when pressed, the agent finally admitted that they were, indeed children who were being relocated to assigned camps".
In February 2019, Commander Jonathan White of the Department of Health and Human Services testified that neither he nor his long-term colleagues in within the Office of Refugee Resettlement would have supported a policy that would result in the separation of children and parents. He also testified that when, in February 2017, before the implementation of the policy, he had raised concerns about the prospect of family separations, he was consistently told that no such policy was pending.
Beginning in June 2018, protests were held in numerous cities across the nation as plans for a larger nation-wide protests were being formulated. On June 30, a national protest organized by the newly-formed group "Keep Families Together" was held which drew hundreds of thousands of protesters from all 50 states to demonstrate in more than 600 towns and cities. Approximately 30,000 marchers crossing the Brooklyn Bridge in New York City, chanted, "Immigrants built this bridge." Some demonstration speakers stressed the urgent need for political activism. In Atlanta Representative John Lewis spoke saying, "We've got to get out and vote like we never voted before." Lin-Manuel Miranda performed for the protesters, singing a song from his musical Hamilton, and commented, "We will not stand for a country separating children from their families, and if you are silent on that issue, or you are somehow for that issue you're not getting re-elected."
Inspired by the viral photo of a crying two-year-old girl looking up at her mother, on June 16, 2018, a California couple started a fund-raising campaign on Facebook named "Reunite an immigrant parent with their child" with a goal of raising $1,500. Within the first few days the campaign was raising over $4,000 a minute and in a little over a week's time it had raised over $20 million, breaking a Facebook record for donations. The money will go to the Refugee and Immigrant Center for Education and Legal Services, or RAICES, and provide legal aid for immigrant parents who have been arrested at the border.
The photograph was taken by professional photographer, John Moore, just after the mother was asked to set her child down to be body-searched before boarding the Border Patrol van and the little girl began to cry. The mother is from Honduras and had been traveling for a month. The photo raised controversy after the father of the child said in an interview that the mother and daughter were now being detained together in McAllen, Texas. This has caused many in Trump's administration to rally against "fake news" with White House Spokeswoman Sarah Sanders tweeting that the Democrats and media "exploited this photo of a little girl to push their own agenda".
The family-separation policy is unpopular among Americans, as shown by four polls; on average, two-thirds of Americans oppose the policy. There is a strong partisan divide; the average of polls showed that Democrats are overwhelmingly opposed to the policy (8% support, 87% oppose, 5% other) while a plurality of Republicans favor it (49% support, 35% oppose, 16% other). Trump's approval rating fell to 41 percent, with a 55 percent disapproval rating according to a Gallup poll following increased public awareness of the policy.
According to a report by Gabriel Sherman, the policy caused "chaos" and infighting among the White House staff and advisers. Sarah Huckabee Sanders was "frustrated" according to one of her friends. On the other hand, according to one White House adviser, Stephen Miller "actually enjoys seeing those pictures at the border", referring to the photographs of children separated from their parents.
White House Press Secretary Sarah Huckabee Sanders, Senator Chuck Grassley and House Speaker Paul Ryan have asserted that the Trump administration are required to separate migrant families due to the 1997 Flores settlement, which requires that unaccompanied minors be released to their parents or relatives, and if a relative cannot be found then a government agency can appoint an appropriate guardian for the child. Trump administration officials also cited the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), a 2008 anti-human trafficking statute, as a justification for the policy. Neither the Flores settlement nor the TVPRA, however, require or recommend family separations.
Following President Trump's executive order ending family separation David French criticized the Democrat's position saying, "those of us with a trace of historical memory know that the Trump administration is merely asking the courts and Congress to adopt the Obama administration’s legal position.[...]But despite this victory, Democrats are still furious. It’s not enough to stop child separation. Now, they want to prevent family detention entirely."Conservative commentator Ann Coulter on June 17 dismissed immigrant children as "child actors weeping and crying" and urged Trump not to "fall for it". Fox News television host Laura Ingraham on June 18 described the facilities where migrant children were housed as "essentially summer camps". She described criticism of the immigration policies as "faux liberal outrage". Also on June 18, conservative commentator and author Ben Shapiro pointed to the 2016 Ninth Circuit Court of Appeals ruling in Flores v. Lynch, which he said "meant that the government either had to release whole families, or that the government had to separate parents from children".
Fox & Friends co-host Brian Kilmeade defended Trump's family separation policy, arguing that migrant children are being treated as though they are more important than "people in our country who pay taxes and have needs as well." He states, "Like it or not, these aren't our kids. Show them compassion, but it's not like [Trump is] doing this to the people of Idaho or Texas. These are people from another country."
Trump administration response
On June 19, 2018, a fact checker for The Washington Post critiqued a number of statements by Trump and members of his administration, characterizing them as "Orwellian stuff" and designating them as Four Pinocchios — the Post's highest rating of falsehood. The Trump administration had offered at least 14 contradictory statements about its policy, including contradictions about whether it was a Justice Department policy, whether separations are a deterrent, whether there was a prepared process to separate families, and whether separations are required by law. Trump has also said that he could not reverse his administration's policy via executive order, while later writing an executive order to reverse the policy.
President Trump said in response to the situation: "I hate to see separation of parents and children ... I hate the children being taken away." Trump has blamed the Democrats for "that law" (also calling it "their law" and "the horrible law") on a number of occasions despite there being no law to mandate the separation of migrant parents and children. The Trump administration's own "zero tolerance" policy announced on April 6, 2018, is responsible for spurring the separations. Trump also said he "certainly wouldn't sign the more moderate" immigration bill proposed by leaders of the House of Representatives with input from moderate Republicans and the White House.
On June 20, 2018, Trump announced that he would sign an executive order to end family separations, saying "We're going to keep families together but we still have to maintain toughness or our country will be overrun by people, by crime." He did so later the same day.
On June 22, 2018, the President sent a tweet recommending Republicans to wait until after the November midterm elections to pass immigration legislation. Trump continued to attempt to rally support, by hosting "Angel Families" at the White House on June 23; families whose loved ones had been killed by illegal immigrants. At the rally he pointed out that these families were "American citizens permanently separated from their loved ones". A fact check of Trump's statement noted that illegal immigrants are 25% less likely than native-born Americans, to commit homicide, and are 11.5% less likely to commit sexual assault than native-born Americans. The fact check also reported on a study which found that when more illegal immigrants move into a neighborhood, violent crime goes down.
Homeland Security Secretary Kirstjen Nielsen
During a June 18, 2018, White House press conference, Homeland Security Secretary Kirstjen Nielsen stated that during the first five months of fiscal 2018, there was a "314% increase in adults showing up with kids [posing as] a family unit. Those are traffickers, those are smugglers, that is MS-13, those are criminals, those are abusers." Using DHS data, analysis by The Washington Post found that such groups constituted 0.61% of "family units" apprehended at the border during that period.
In the same press conference she stated "We now care for them.... We have high standards. We give them meals. We give them education. We give them medical care. There's videos, there's TVs ..." and stated when asked about family separation that a "vast majority" of children held are unaccompanied minors. On June 19, 2018, Nielsen was heckled by protesters shouting "Shame! Shame! ... If kids don't eat in peace, you don't eat in peace," as she ate in a Mexican restaurant.
Attorney General Jeff Sessions
Following Christian opposition to the policy, Sessions controversially defended it by citing the thirteenth chapter of the Epistle to the Romans in the New Testament, saying "I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order." Several commentators have noted that before the Civil War, Romans 13 was traditionally used by advocates of slavery to justify it, and to attack abolitionists.
On June 19, Sessions disputed claims by former CIA Director Michael Hayden that the separation of the immigrant families at the border was similar to what happened at the Auschwitz concentration camp. During the interview he said that the comparisons were inaccurate as the Nazis "were keeping the Jews from leaving the country". In the same interview, he stated that if the parents are deported the children return with them, but if the parents claim asylum and stay the children are put into the custody of Department of Health and Human Services.
Executive Order to suspend new separations and detain families
On June 20, 2018, President Trump signed Executive Order 13841, titled "Affording Congress an Opportunity to Address Family Separation", that restricts family separation but maintains many of the key components of the Administration's immigration policy. The Order instructs the Department of Homeland Security to maintain custody of parents and children jointly, "to the extent permitted by law and subject to the availability of appropriations". It also instructs the Justice Department to attempt to overturn the Flores Agreement, which limited the time for holding children and families with children to 20 days, allowing children to be detained indefinitely. The order directs other agencies, including the Pentagon to create or procure spaces to house the family units, however the family unit will not be maintained if there is fear for the child's welfare.
At the signing ceremony, Trump said, "We're going to have strong, very strong borders but we are going to keep the families together. I didn't like the sight or the feeling of families being separated." Trump emphasised that families would be kept together, yet zero tolerance would continue.
At least two senior aides said that Republican Party leadership had no formal notice from the White House that there was planned executive action. The Chief Federal Public Defender in Southern Texas, Marjorie Meyers said that her official initially received no information about how the order would play out.
Continued detention of separated children
Following the issue of the Executive Order, the Department of Health and Human Services stated that the status of children already detained would not be affected by the Executive Order, and that they would not be immediately reunited with their families. However, it was later reported that the statement by Kenneth Wolfe, a spokesman for the Administration for Children and Families, that "there will be no grandfathering of existing cases" was based on incorrect information and no decision had been made.
A fact sheet on "Zero-Tolerance Prosecution and Family Reunification" that was released by the Department of Health and Human Services, stated that a parent may request that their child be deported with them. However, the agency said that in the past many parents had elected to be deported without their children.
On June 26, Secretary of Health and Human Services Alex Azar testified that 2,047 children continued to be held in HHS-contracted facilities. He said that only parents who are deported or who are granted entry to the United States could be reunited with their children. He further testified that the Department would only reunite children with their detained parents if Congress passed legislation lifting the 20-day limit on family detention required under the Flores settlement. Azar also implied that around 250 children formerly in HHS custody had been reunited with family members in the United States, rather with those they had accompanied across the border.
On June 28, a bill was passed at the initiative of Senator Tom Udall that requires HHS to make information about migrant children in its care publicly available. This obligation includes weekly public updates on its website of the number of children who have been reunited with separated family members, as well as monthly publication of the information on migrant children that the HHS makes available to the United States Senate Committee on Appropriations under the Labor, Health and Human Services, and Education (Labor-HHS) Appropriations Bill.
Transition and continued separation
On June 22, 2018, the office of U.S. Attorney John Bash stated that the zero tolerance policy was still in effect. He spoke of "a necessary transition" during which those who were charged would no longer be transferred to the custody of US Marshals but would stay in the custody of the DHS together with their children. The office confirmed that several cases that had been pending when the executive order had been issued were dismissed as part of that transition.
Parents and children crossing the border illegally were intended to have the same A-file number given to them by immigration officials. Family reunification was complicated by the fact that in many cases families were separated before an A-file number was given, resulting in parents and children receiving different numbers which makes it more difficult to reunite them afterwards. Days after the formal end of the policy, authorities still were not able to tell the separated children how their parents were doing, or where their parents were.
DHS and HHS stated that they "have a process established to ensure that family members know the location of their children and have regular communication after separation to ensure that those adults who are subject to removal are reunited with their children for the purposes of removal", and that ICE had "implemented an identification mechanism to ensure on-going tracking of linked family members throughout the detention and removal process". The Port Isabel Service Processing Center was intended to become the primary family reunification and removal center for adults who were in the custody of the ICE. The document did not set out any timeline for reuniting the remaining children that had been separated from their families due to the policy.
The DHS and HHS documents stated that adults who had been processed for removal would have the choice of whether or not their child would accompany them. CNN reported that adult detainees were being offered the opportunity to see their children if they agreed to sign voluntary departure orders, waiving their right to go before a judge. Immigration advocates criticized the policy; Attorney Efrén Olivares of the Texas Civil Rights Project said, "We have no reason to believe that (voluntary deportation) is the fastest way for parents to be reunited with their children. Putting them in that position is not a voluntary (deportation); it's being obtained under duress."
HHS also stated that ICE officials had posted notices in all of its facilities advising detained parents who were trying to find or communicate with their children to call a hotline, staffed from 8 AM to 8 PM, Monday through Friday. Further according to ICE, the parents can also contact the Office of Refugee Resettlement (ORR) National Call Center, to determine if the child is in custody of HHS. ORR is able to locate every child within seconds, but has limited access to information about whether a child arrived at the border with an adult.
Preparations for new detention facilities
The June 20 Executive Order instructs that, "The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law." On June 21, the Department of Health and Human Services requested facilities to house migrant children. Pentagon spokesmen and a memorandum sent to Congress confirmed that the Department of Defense was preparing facilities at four military bases in Texas and Arkansas—Fort Bliss, Dyess Air Force Base, Goodfellow Air Force Base, and Little Rock Air Force Base—to house 20,000 "unaccompanied alien children". On June 25, the Associated Press reported that Fort Bliss and Goodfellow Air Force Base had been chosen, and that one will house unaccompanied migrant children, while the other will house migrant families.
On June 22, 2018, Time Magazine reported the contents of an internal Navy planning memorandum that proposed constructing "tent cities" to house migrants in "temporary and austere" facilities at Navy Outlying Field Wolf in Orange Beach, Alabama, Navy Outlying Field Silverhill, and two abandoned airfields near Mobile, Alabama. The memorandum also proposes that up to 47,000 people could be house at both the former Concord Naval Weapons Station in northern California and Camp Pendleton in southern California. These would be built by the Navy and operated by the Department of Health and Human Services.
Suspension of detentions for new cases
On June 21, 2018, The Washington Post reported that Customs and Border Protection had suspended criminal referrals for parents arriving across the border with their children. At the time, Justice Department officials said the zero tolerance policy remained in force and they would continue to process all adults for illegal entry.
On June 25, U.S. Customs and Border Protection Commissioner Kevin McAleenan announced a temporary suspension of detaining migrant adults who traveled with children. In this context, White House press secretary Sarah Sanders explained that the government was "out of resources" and could not hold all the undocumented families coming across the US-Mexico border.
Difficulties of the reunification process
Three agencies were involved in processing immigrant families: Customs and Border Patrol, Immigration and Customs Enforcement, and the Department of Health and Human Services' Office of Refugee Resettlement. These agencies did not have a shared database for tracking migrant families, complied inaccurate summary data on the separation program, failed to consistently connect family members with their detained loved ones, and provided inaccurate information to family members, according to the DHS Inspector General's report. On June 23, DHS falsely claimed it and HHS had a "central database" for tracking migrants; the Department's Inspector General "found no evidence that such a database exists."
In early July, ORR staff were still missing instructions on how to proceed in order to reunite the separated children with their parents. The deadline for reuniting children under five years of age with their parents was July 10, for all others it was July 26. After the court order, the HHS manually reviewed all case files of the approximately 11,800 children in their custody to determine whether HHS missed any who had been separated from adults at the border. Matters were further complicated by the fact that parents may have been in different situations: released, still detained, or deported.
The usual procedure for the release of a child to a sponsor involves a background check. Sponsors must submit documentation proof that they are legitimate relatives and financially capable. They also have to pay for travel costs, in some cases thousands of US dollars for air fares. Since June 2018, the procedure also involves the fingerprinting of every adult in a potential sponsor's household. The procedure is said to be intended to avoid the risk of releasing children to unauthorized persons or child traffickers. Representatives of plaintiffs argue that the usual procedure is too slow for the release of a child to their parent.
CNN reported that DNA testing was performed to expedite parental verification and ensure reunification with verified parents, without details being reported as to whether consent has been asked. Human rights advocates have criticized that migrant children, some as young as two months old, cannot give their consent to DNA testing. Medical experts have recommended to use DNA testing only as a last resort. Thomas H. Murray, president emeritus of The Hastings Center, emphasizes the danger to social ties in the family given that "the risk misattributed fatherhood, and even motherhood, is more common than most people realize".
Azar declared on July 5 that the government would meet the July 10 deadline for uniting children under five years of age with their parents, and confirmed that DNA testing was being used to speed up matching parents and children. He also stated that the Department of Homeland Security was relocating parents of children under 5 years old to detention facilities close to their children. In advance of the deadline of July 26 that had been set for reunification of minors of five years of age or older, the administration stated on July 16 that it had completed reunifying "all eligible children under five", and that families with older children were being reunited on a rolling basis. On July 25, ACLU filed a submission setting out that some of the parents had been misled to relinquish their right to reunite with their children.
On July 26, the Trump administration said that 1,442 children had been reunited with their parents while 711 remained in government shelters because their cases are still under review, their parents have criminal records, or their parents are no longer in the United States. Officials stated that 431 parents of those children had already been deported without their children. Officials said they will work with the court to return the remaining children, including the children whose parents have been deported. As of August 20, 2018, 528 of the children — about a fifth — reportedly still had not been reunited with their parents.
In September 2018, the Department of Justice changed their handling of asylum claims of asylum seekers who had undergone family separation. The change, which was said to give about 1,000 persons a second chance to claim asylum, was the result of a negotiation covering three lawsuits that had been filed against the government over the family-separation policy.
On November 30, 2018, CNN reported that 140 children who had been separated from their parents still remained in custody. Of these, eight were in the pipeline for reunification in the US or abroad, whereas 132 would not be reunified with their parents, either because the parents had declined reunification or officials had deemed the no reunification could take place because the parents were unfit or posed a danger.
2019 Followup report
A followup government report released in January 2019, revealed that while HHS had previously said that the total number of children separated from their parents was 2,737, a new investigation suggested the true number of children to be thousands more, with the exact number unknown. In February, the Trump administration responded to requests made by the ACLU that the thousands of children that were revealed in the January report be reunited with their parents as well. HHS responded to the requests saying it would be extremely difficult to locate the children and even if it were possible they planned to continue to focus only the children currently in custody, claiming that removing children from "sponsor" homes “would present grave child welfare concerns.” The leading ACLU attorney responded saying “The Trump administration’s response is a shocking concession that it can’t easily find thousands of children it ripped from parents, and doesn’t even think it’s worth the time to locate each of them."
2019 Congressional hearings
In January 2019, the congressional Oversight and Investigations Subcommittee announced that they will hold hearings "to assess the Department of Health and Human Services’ (HHS) preparation and response to the Family Separation Policy, its chaotic efforts to reunify children with their families, and the long-term effects of separation on the health and wellbeing of these children.”
In February 2019, the House held the first of three planned hearings to bring renewed scrutiny to the events and effects surrounding the Trump zero tolerance policy. Secretary Alex Azar refused a request to testify and Secretary Kirstjen Nielsen said she would appear at the second hearing in March. Jonathan White, who oversaw the care of minors for HHS, testified that neither he nor any other career person in the department's Office of Refugee Resettlement (ORR) had been informed of the new Trump policy and if they had they would not have supported it. He warned that "Separating children from their parents poses significant risks of traumatic psychological injury to the child. The consequences of separation for many children will be lifelong."
The second meeting was held on March 6. The committee questioned Kirsten Nielsen about the treatment of migrants along the border and her claims that the Trump administration never had a family separation policy. Nielsen denied that the administration intended to separate families but was merely enforcing U.S. law: "The point of it was to increase prosecutions for those breaking the law." When questioned about the "cages," as they have been called, used as enclosures at a Border Control facility, Nielsen replied, “Sir, they’re not cages."
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Even given the increased number of alleged smugglers this fiscal year and the decreased number of family units, those smugglers, those traffickers, those MS-13 members make up only 0.61 percent of the total number of family units
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