Trump administration family separation policy
The United States family separation policy under the Trump administration was presented to the public as a "zero tolerance" approach intended to deter illegal immigration and to encourage tougher legislation.[1] In some cases, families following the legal procedure to apply for asylum at official border crossings were also separated. It was officially adopted across the entire US–Mexico border from April 2018 until June 2018.[2] Under the policy, federal authorities separated children and infants from parents or guardians with whom they had entered the US.[3][4][5] The adults were prosecuted and held in federal jails or deported, and the children were placed under the supervision of the US Department of Health and Human Services.[3] More than 5,500 children, including infants, were removed and up to 2,000 still have not been reunited as of March 2024.[6][7][8][9][10]
By early June 2018, it emerged that the policy did not include measures to reunite the families that it had separated.[11][12] Following national and international criticism,[13] on June 20, 2018, Trump signed an executive order ending family separations at the border.[14] On June 26, 2018, US District Judge Dana Sabraw issued a nationwide preliminary injunction against the family separation policy and ordered that all children be reunited with their parents within thirty days.[15][16] In 2019, a release of emails obtained by NBC News revealed that although the administration had said that they would use the government's "central database" to reconnect the thousands of families that had been separated, the government had only enough information to reconnect sixty children with their parents.[17] By November 2020, the parents of 666 children still had not been found.[18] The administration refused to provide funds to cover the expenses of reuniting families, and volunteer organizations provided both volunteers and funding.[19][20][21]
The House Committee on Oversight and Reform reported in July 2019 that over 700 children had been separated from their parents after the policy's official end.[22] In July, it was reported that as many as five children per day were being separated,[23] and by the end of the year, the total had reached over 1,100.[10]
In January 2019, an investigation showed that the child separation policy had actually begun in the summer of 2017, prior to the zero tolerance policy announced in April 2018.[24] Federal officials said there were 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."[25][26][27]
In June 2019, a group of attorneys with the Flores settlement visited a Border Patrol center in Clint, Texas. The children told the lawyers that meals consisted of instant oatmeal, a cookie and sweetened drink for breakfast, instant noodles for lunch, and a heated frozen burrito and a cookie for dinner. They said they had not had a clean change of clothing or a bath for weeks. There were no adult caretakers; girls as young as ten were taking care of the younger ones.[28][29][30]
History[edit]
Previous U.S. policy[edit]
Prior to the Trump administration, the United States did not routinely separate migrant parents from their children. Rather, previous administrations used either family detention facilities (allowing families to remain intact pending deportation hearings in civil immigration court) or alternatives to detention (e.g., release pending further hearings).[31][32] Prior to the Trump administration, families traveling together were generally only separated under narrow circumstances, such as suspicion of human trafficking, an outstanding warrant, or fraud.[31][33]
For decades, the government did not pursue criminal charges cases for illegal entry, a misdemeanor offense.[32] But, in 2005, President George W. Bush launched Operation Streamline, a program targeting a stretch of the U.S.–Mexico border that referred unlawful entrants for criminal prosecution and expedited their deportation.[34][35][32] But parents traveling with minor children were typically exempt from the policy.[35][34] In 2006, Congress designated a single facility—the T. Don Hutto Residential Center—to house families together, and that facility opened in 2006.[36]
The Obama administration initially rejected family detention and shuttered the Hutto Center.[36] But, after the 2014 American immigration crisis, Obama assembled a multiagency team tasked with crafting new immigration policies.[34] This occasioned the first discussion of a family-separation policy, which was proposed by ICE official Thomas Homan,[35] though the proposal was quickly rejected.[34] Instead, the administration opted to expand the detention policy and built new family-detention facilities, meant to hold families indefinitely pending deportation.[34][35]
In 2016, the Ninth Circuit Court of Appeals ruled in Flores v. Lynch that, pursuant to a 1997 consent decree, both unaccompanied and accompanied minors could only be held in detention for a short time[37]—roughly, 20 days.[34] The Obama administration complied with the order, and, facing intense criticism, it also reversed course on family detention, adopting new rules that took into account the interests of parents and re-focusing the detention policy on immigrants who had previously committed crimes in the United States.[38] Few families were ever separated under the Obama administration, and such families were generally quickly reunited once identified.[39] Unaccompanied children were kept in holding cells, separated by age and gender, while appropriate placements were found.[40][41]
Motivation[edit]
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.[64]
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."[140]
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."[141] 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."[34]
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.[142] 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][143]
Process[edit]
The Department of Homeland Security (DHS) detains families suspected of illegally crossing the border.[144] 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".[145] 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.[146][145] Families undergo separations when parents or adult relatives were charged with unlawful entry.[3]
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 twenty minutes to explain the charges and the process in Spanish."[145] People who plead guilty are typically sentenced to time served in jail, while repeat offenders may be sentenced to 30–75 days in jail.[145] 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.[144]
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.[147]
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 twenty 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 thirty days to speak to their parents, due to difficulties locating them.[148]
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.[149]
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 (~$12.00 in 2023) 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.[150][151]
According to a report of June 27 by Texas Tribune, immigrant children as young as three 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.[152][153]
Legal proceedings[edit]
ACLU challenge and nationwide injunction[edit]
In June 2018, the American Civil Liberties Union filed a 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.[196][197] On June 26, US District Judge Dana Sabraw of the US District Court for the Southern District of California issued a nationwide preliminary injunction against the family-separation policy.[15][16]
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."[15][16] 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".[198] The injunction barred the US 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 thirty days, to reunite children under five with their parents within 14 days, and to permit all separated minors to speak with their parents within ten days.[15][16]
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."[199]
Judge Sabraw set a status hearing for July 6, 2018.[200] 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 five already deported according to a Department of Justice lawyer.[201] 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".[201]
Protests: