Q&A on Family Separation and Surrounding Topics
Initial post: June 23, 2018
Listed below is a series of questions and answers on the recent occurrences of family separation at the U.S.-Mexico border, and other surrounding topics. Every effort was made to present well-rounded and well-sourced information, and to avoid editorializing that information. This information will be updated continually as situations and information change and/or become available, dates will be noted whenever updates occur. We welcome comments with requests of further questions to address here.
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What is the “zero-tolerance” policy?
The Trump administration, as announced by Attorney General Jeff Sessions in April of 2018, has chosen to refer all unauthorized immigrants who cross the U.S. border to federal prosecutors for criminal prosecution, rather than immediately placing apprehended immigrants into civil immigration proceedings. Historically, past administrations have chosen to simply deport most offenders from the United States rather than use the resources of the criminal justice system to prosecute them before deportation or asylum hearings. Criminal action has rarely been used in cases of families or parents and children coming across the border, and has primarily been used for those who are violent or have committed other crimes like drug trafficking.
[sources:
https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.factcheck.org/2018/06/qa-on-border-detention-of-children/]
Why does this policy result in children being separated from their parents?
When adults are detained and prosecuted in the criminal justice system for immigration offenses, their children cannot, by law, be housed with them in criminal jails, so the family unit is separated. The use of civil immigration detention and removal does not require this separation to occur. When criminal prosecution occurs, children are deemed unaccompanied minors and are placed with the Department of Health and Human Services in shelters until they can be released to a family member, guardian, or foster family in the United States.
Previous administrations used family detention facilities, allowing mothers and children to stay together while awaiting their deportation case in immigration court, or alternatives to detention, which required families to be tracked but released from custody to await their court date. Some children may have been separated from the adults they entered with, in cases where the family relationship could not be established, child trafficking was suspected. Both the Obama and Trump administrations have tried to establish more capacity to detain families and children, however, the zero-tolerance policy is the first time that a policy resulting in separation is being applied across the board. Reuters reports that “The official tally of separations is now nearly 4,000 children, not including March and the beginning of April 2018.”
[sources: https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.factcheck.org/2018/06/qa-on-border-detention-of-children/
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
https://www.washingtonpost.com/national/obama-like-trump-grappled-with-family-immigration/2018/06/21/7b193768-75b2-11e8-bda1-18e53a448a14_story.html?utm_term=.95f28ad0ac7d
https://ca.reuters.com/article/topNews/idCAKBN1JB2SF-OCATP]
Is this a change from not enforcing the law, to enforcing it?
No, there are a variety of ways to enforce the law, and the zero-tolerance policy shifts from enforcing the law with discretion to removing that discretion and charging all those crossing illegally with “the full prosecutorial powers of the Department of Justice”. The US Department of Justice Code of Criminal Prosecution 9–27.220 states that “the government should commence or recommend federal prosecution… [unless] there exists an adequate non-criminal alternative to prosecution.” Civil immigration proceedings like detention and deportation are non-criminal alternatives to prosecution, and have historically been used in its place. Asylum seekers have rarely been prosecuted due to international agreements surrounding special protection for them.
Prosecutorial discretion is a principle of the law of our country on which the Supreme Court has said, “In our criminal justice system, the government retains ‘broad discretion’ as to whom to prosecute.” To charge or not to charge someone “generally rests entirely” on the prosecutor, the court has said. This is designed to prevent uniform enforcement of the law from resulting in unjust outcomes, and allows prosecutors to make decisions on an individualized basis. As an example: One person is speeding to the hospital with a medical emergency, and another person is speeding to deliberately be reckless- both technically commit the crime of speeding, but if both speeding offenses were prosecuted identically, the results would be unjust.
White House Chief of Staff John Kelly has stated that enforcing the law in this way functions as a deterrent.
[sources:
https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry
https://supreme.justia.com/cases/federal/us/470/598/case.html
https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution
https://definitions.uslegal.com/p/prosecutorial-discretion/
http://www.unhcr.org/en-us/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html
https://www.usatoday.com/story/news/politics/2018/05/11/john-kelly-splitting-migrant-families-laws-trump/602982002/]
Why did the administration adopt this zero-tolerance policy?
In March 2017, then-DHS Secretary John Kelly cited the deterrent value of family separation as a rationale for the zero-tolerance policy. A spike in border apprehensions in March of 2018, after they had fallen significantly in 2017, appears to have prompted the implementation. DHS has also pointed to intelligence suggesting that unrelated children were smuggled with migrants to avoid detention, meaning the zero-tolerance policy prevents those offenders from abusing the system, although closer examination of those statistics put these numbers at less than 1% of family units.
[sources: http://www.businessinsider.com/kelly-proposed-family-separation-to-deter-illegal-immigration-in-2017-2018-6
https://www.cnn.com/2018/04/04/politics/border-crossings-spike-trump-effect/index.html
https://www.cnn.com/2018/04/04/politics/border-crossings-spike-trump-effect/index.html
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
https://www.nytimes.com/2018/06/18/us/politics/nielsen-family-separation-factcheck.html]
How is this enforcement policy related to human smuggling?
On June 18, 2018, Kirstjen Nielsen of the Department of Homeland Security issued a statement at the White House on the policy of family separation and stated that there had been a 315% increase in human smuggling cases at the US-Mexico border.
“Katie Waldman, a spokeswoman for the Department of Homeland Security, told The New York Times that there were 46 cases of fraudulent family claims in the 2017 fiscal year, which began in October 2016 and ended in September 2017. In just the first five months of the 2018 fiscal year, there were 191 cases — a 315 percent increase.
‘But those instances of family fraud are a tiny fraction of the total number of families apprehended at the southwestern border: 0.06 percent of nearly 76,000 families in the 2017 fiscal year and 0.6 percent of 31,000 families apprehended in the first five months of the 2018 fiscal year.”
Also important to note is that the legal definition of smuggling is to transport someone or something in an illegal way, so every parent who crosses the border outside of a port of entry with their child can be charged with the crime of smuggling.
[source:
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
https://www.nytimes.com/2018/06/18/us/politics/nielsen-family-separation-factcheck.html, https://www.law.cornell.edu/uscode/text/8/1324]
What happens to the parents who are charged?
Border Patrol agents arrest the parents, who are to be charged by the U.S. Attorney’s Office and tried and sentenced before a Magistrate Judge. They carry out their sentence in the federal prison system under the control of the U.S. Marshals Service before being transferred back to U.S. Immigration and Customs Enforcement (ICE) for detention and eventual removal or the processing of an asylum claim.
[sources:
https://www.theguardian.com/us-news/2018/may/07/us-border-rules-prosecutions-parents-families
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.reuters.com/article/us-usa-immigration-children/u-s-cements-plans-to-separate-families-crossing-border-illegally-idUSKBN1I82AB]
What happens to children after they are separated?
Children separated from their families, or who arrive at the border unaccompanied, are all classified as unaccompanied minors and put into the care of the Office of Refugee Resettlement (ORR), which operates under HHS. The Office can place children in care facilities, such as shelters, or foster homes, or release them to other relatives or U.S. sponsors. The influx in the number of minors requiring care has necessitated that children be held in facilities such as a converted Walmart or in air-conditioned tents in Texas. Their immigration cases are then processed separately from the parent’s case.
[sources: https://www.nytimes.com/2018/06/14/us/family-separation-migrant-children-detention.html
https://www.reuters.com/article/us-usa-immigration-tornillo/tent-city-for-migrant-children-puts-texas-border-town-in-limelight-idUSKBN1JG32L
https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy]
Will the parents and children be reunited?
Parents cannot be reunited with their children while they remain in federal prison, serving any sentence under the criminal laws. At the conclusion of their federal sentence, authorities refer parents back to ICE custody, however, the children remain in the custody of ORR, or may have been released to a guardian in the United States or placed in foster care.
John Sandweg, who was acting director of ICE during the Obama administration, describes another issue with reunification efforts. “Once the parent and child are apart, they are on separate legal tracks. In federal court, parents typically plead guilty to the misdemeanour offence of illegal entry. Many are then likely to accept ‘expedited removal’ from the country, in the hope of being reunited quickly with their children. But children cannot be subject to expedited removal; they are automatically entitled to a full hearing before an immigration judge, and their cases take longer to resolve.”
The immigration cases of the adults and the children are handled separately in immigration court, and it can be hard for the parents and children to be reunited during this process. Finally, information sharing issues between DHS and ORR that make tracing children difficult means that it could take months before parents and children are reunited in the United States or in their home countries. Some reports are that parents have been deported without reuniting with their children.
On Friday June, 22, HHS announced that it would be creating a task force to work on the task of reunifying families.
[sources:
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html
https://apnews.com/8c3d79185d904b2abcc6f3debb9eb870/No-clear-plan-yet-on-how-to-reunite-parents-with-children
https://www.reuters.com/article/us-usa-immigration-reunification-explain/hurdles-facing-parents-and-children-separated-at-us-border-idUSKBN1JF39I
https://www.politico.com/story/2018/06/22/separated-families-migrants-reunite-667172]
Is this a new immigration enforcement policy?
“Not completely,” As BiPartisan Policy Center reports, “The George W. Bush administration implemented Operation Streamline in 2005, which also referred many people who violated these provisions for prosecution in federal courts, although the majority of prosecutions were for the felony charge of illegal re-entry and not for first-time offenders. The Obama administration continued and expanded the policy through 2014, but later shifted its enforcement priorities towards targeting specific criminal populations.”
McClatchyDC reports that “No numbers on children separated from their parents under Obama is available because the Obama administration didn’t keep them, according to Trump DHS officials.” They point out that “Leon Fresco, a deputy assistant attorney general under Obama, who defended that administration’s use of family detention in court, acknowledged that some fathers were separated from children.”
Neither administration implemented a zero-tolerance prosecution policy as was announced by Jeff Sessions in April. That policy of across the board prosecution has prompted a sharp increase in the number of children separated from families, from roughly 700 in a six month period, to almost 2000 in a six week period following the policy change.
[sources:
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
http://www.mcclatchydc.com/news/politics-government/white-house/article213525764.html
https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html
http://fortune.com/2018/06/16/children-parents-separated-border/]
Is the new “zero-tolerance” policy legal under immigration law?
According to BiPartisan Policy Center, “The Immigration and Naturalization Act clearly allows for criminal prosecutions of illegal entry and reentry. The issue here is whether the use of prosecutions, and the consequent separation of children from parents in the name of deterring would-be asylum-seekers is legal. Immigration advocates have argued that the application of this law must respect due process rights, and several lawsuits have been filed challenging the policy on that ground. On June 6, a federal judge in San Diego allowed a lawsuit by the ACLU to move forward on the basis that family separation might violate due process rights. However, the judge dismissed a separate claim in the lawsuit that alleged that family separation violated the rights of asylum seekers.”
‘International organizations have also pointed to the 1951 Convention on the Status of Refugees that affirms that states should not punish asylum-seekers who violate immigration laws if they present themselves to authorities. The United States is not a party to the 1951 Convention but is a party to a 1967 Protocol to the Convention, and many of the provisions have been incorporated into U.S. law under the 1980 Refugee Act. However, the United States has always maintained its right to detain asylum seekers until their claims can be heard and, when deemed necessary, prosecute immigration crimes as well.”
[sources:
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.nytimes.com/2018/06/06/us/family-separations-migrants-court.html
http://www.unhcr.org/en-us/1951-refugee-convention.html
http://www.unhcr.org/en-us/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html
https://www.gpo.gov/fdsys/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf]
How does this relate to the issue regarding missing immigrant children?
“It is a separate issue”, states BiPartisan Policy Center. “In the last quarter of 2017, ORR used phone calls to follow up on the care of over 7,635 formerly unaccompanied immigrant children who had been placed with adult sponsors in the United States and were no longer in ORR custody. ORR received no response in 1,475 of these cases. However, no response does not mean the children are missing. The sponsors may simply not have responded, not received the messages, or chose not to respond because they or someone in their household is undocumented.
While some of these children may have been separated from their families at the border, others were likely children who crossed the border without their families. Family separation may have caused children to enter ORR custody, but the policy decisions relating to family separation at the border and oversight over released children are not directly related.”
[source: https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/]
What are the alternatives to separating families?
There are several alternatives that can be implemented right away, without any change to legislation. Family detention centers, although not without their flaws, can be used to house mothers and children as they wait for their deportation or asylum claim to be processed. Federal court rulings known as the Flores settlement limit family detention time to a maximum of 20 days. Those with valid credible fear claims may need to wait months or years for the full asylum case to be closed, so alternative tracking systems have been utilized for those cases.
Intensive Supervision Appearance Program (ISAP) is once such alternative tracking program which, according to Landerholm Immigration,“relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants”. ISAP II data in 2012, shows that 91.1 percent complied with their court orders and either left the country or earned some sort of legal status. Appearance rates at immigration courts were 99.6 percent. The costs of this program “are estimated at 17 cents to $17 per person per day”.
ICE’s formal but now terminated Family Case Management Program had compliance rates of 99 percent with immigration requirements such as court hearings and immigration appointments, at a cost of only $36 per day per family. Family detention costs on average $798 per day for a family (2.5 individuals). This program has focused on vulnerable populations such as pregnant women, nursing mothers, families with very young children. Several other community support style alternatives to detention have been piloted and achieved over 90% rates of showings for all immigration hearings or check-ins.
[sources:
https://www.womensrefugeecommission.org/images/zdocs/The-Real-Alternatives-to-Detention-FINAL-06-27-17.pdf
https://www.cato.org/blog/alternatives-detention-are-cheaper-indefinite-detention
https://www.aclu.org/other/aclu-fact-sheet-alternatives-immigration-detention-atd
http://www.landerholmimmigration.com/intensive-supervision-appearance-program/
https://www.csmonitor.com/USA/Foreign-Policy/2017/0609/ICE-shutters-helpful-family-management-program-amid-budget-cuts]
What does it mean for someone to claim asylum?
The definition of an asylum seeker depends on the laws of a given country. Based on federal law in the United States, someone has claim to asylum if their “race, religion, nationality, membership in a particular social group, or political opinion” subjects them to persecution either by the government in their home country, or by an entity that the government cannot or will not control. The burden of proof is on an asylum seeker to establish their case, and the legal process commonly takes several months or even years to be concluded.
In order for someone to claim asylum, they must be physically present in the US or at the border; it is legally not possible to claim asylum outside the US. While many asylees claim it at the border when they first arrive, it is possible to claim asylum up to one year after entry into the US, whether that entry was documented or not. Once inside the US, regardless of how entry to the country was achieved, a migrant is legally allowed to make their claim for asylum.
Claiming asylum is separate from other ways to enter the US. It is not part of the refugee entry process and the caps on refugees do not apply to asylees. This can be confusing since the words “refugee” and “asylum” and “asylee” are used interchangeably by many, but under US law, both have discrete entry processes that have nothing to do with each other. It is also separate from the immigrant visa process. Asylees have their own “line” and they cannot get ahead of anyone in the refugee line or immigrant visa line.
[sources:
https://www.uscis.gov/humanitarian/refugees-asylum/asylum
https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states
http://www.alllaw.com/articles/nolo/us-immigration/overview-refugee-process.html]
Why are so many people coming to our border?
While there is no way to know every factor that may be motivating persons to seek entry to the United States, we do know that many of those currently seeking entry are from Central America (rather than Mexico, where the majority of border crossers used to stem from). Currently in Central America there are alarmingly high levels of crime and violence, as well as political instability. Women are especially vulnerable as Latin America was recently found by the UN to be the “most violent region in the world against women outside of conflict contexts”, this violence includes the rate of sexual violence against women, which is also highest in the world. Many of those coming to our border are seeking asylum.
To give further context, we will provide accounts from professionals who have worked with asylum seekers from Central America. Obviously these cannot be factually validated, so we will leave the decision of validity to readers.
From immigration attorney Deborah Anthony: “[E]very single woman I spoke with had endured horrific experiences. There were no exceptions. The risk if they had stayed was always death. For themselves and their children. Always. Not one of them came for better jobs, higher pay, education, or anything else of that sort. They wanted to live. They wanted their kids to be safe.”
“One woman and her children couldn’t leave their home for 6 months because they were told that if they were seen, they’d be killed. At night men would throw rocks at their house and scream threats so they couldn’t sleep. She described the look in her children’s’ eyes as they watched out the window longingly as other children played or went to school.
‘One woman was brutally raped by a stranger 22 days after having a c-section and had to be hospitalized for her injuries.
‘Another had seen four neighbor families all get slaughtered, including an infant. She was told her family was next.
One 8 year old girl had fled to her uncle’s house with her mother after being threatened with death. Her uncle went to the police to ask for protection for her and her mother. Two days later the girl watched as men broke into the home and shot her uncle in the head, right in front of her. Her mother took her and fled that night.”
“One little boy had to be prepped for an interview with an asylum officer. He tried unsuccessfully not to cry as he told me about how he hid in the bedroom and heard his father tell his mother that he was going to kill her after killing him and his siblings. He told me about his father beating him and holding a knife to his throat and thinking he was going to die. He told me how terrified he was to go back, because they would all be killed.”
From pediatrician David Bolour: “I had a 6-year-old who witnessed his grandfather’s hands being chopped off right in front of his eyes” and goes on to state that many of his patients from Central America have physical problems caused by the psychological and emotional damage they’ve suffered.
From Hilda Cruz of the Interfaith Movement for Human Integrity reports that she was told that an asylum seeker “had witnessed the slaughter of a neighboring family that refused to pay extortion, and four of her relatives had been murdered. Her aunt in Los Angeles sent her $3,500 for coyotes, who then locked the woman and her son in a warehouse in Mexico and threatened to torture them unless the aunt sent another $3,500, which she did.”
[sources:
https://www.nbcnews.com/storyline/immigration-border-crisis/central-america-s-violence-turmoil-keeps-driving-families-u-s-n884956
http://www.digitaljournal.com/news/world/latin-america-is-world-s-most-violent-region-for-women-un/article/508290
Deborah Anthony, pro-bono immigration attorney, direct quote
http://www.latimes.com/local/california/la-me-lopez-central-american-refugees006192018-story.html]
Why would someone cross illegally instead of at a port of entry?
While it is difficult to answer this question with certainty, Immigration attorney Deborah Anthony, who has worked with many asylum seekers from Central America, offers some insights. She suggests that two main reasons, first is simply a lack of understanding of a need to cross the border at a particular location. Many asylum seekers will cross the border outside of a port of entry and immediately turn themselves into border authorities and state that they are seeking asylum. Another factor is a fear of our government. Multiple verified reports have captured several instances where an asylum seeker has presented at a port of entry and has still been separated from their children, which validates this fear. This is not the stated policy of the administration, but has occurred in some cases. There are also media reports of those seeking asylum encountering wait times of several days to be admitted to a port of entry, or turned away at the border and asked to try again another time. This difficulty in admittance may be impacting the use of illegal entry.
[sources:
Deborah Anthony, pro-bono immigration attorney, direct interview https://www.aclu.org/cases/ms-l-v-ice
https://www.azcentral.com/story/news/politics/immigration/2018/06/18/sessions-asylum-seekers-go-border-ports-but-its-not-easy/710796002/]
Why don’t they seek asylum somewhere else? Like South America or Mexico?
Many are. According to the UN Refugee Agency, “Traditionally, [North Central American] citizens seek international protection in Canada and the United States of America. However, in the last two years, UNHCR has witnessed a significant increase in the number of asylum-seekers from the NCA in Belize, Costa Rica, Mexico and Panama. Guatemala is also increasingly being perceived by people of concern as a country of asylum, not only of transit. This is expected to continue in 2018.”
In May, the New York Times reported that “In 2016, the last full year for which statistics are available, nearly 8,800 people applied for asylum in Mexico, almost seven times as many as in 2013, according to Mexico’s government. About the same number applied during the first eight months of 2017.”
Other data that adds context to the question of why Central Americans are not seeking asylum in Mexico is that the number of those seeking asylum who are citizens of Mexico is nearly as high as those from other Central American countries, suggesting that Mexico may not be considered a ‘safe country’.
[sources:
http://reporting.unhcr.org/node/10823
https://www.nytimes.com/2018/05/17/world/americas/mexico-migrants-caravan-asylum.html
https://www.nolo.com/legal-encyclopedia/which-countries-do-most-people-granted-asylum-the-us-come-from.html
https://www.politico.com/story/2018/05/16/trump-mexico-asylum-immigration-547919]
Can someone seek asylum at a U.S. Consulate or Embassy in Mexico?
According to Nolo.com, an online legal encyclopedia, “U.S. embassies and consulates cannot process requests for this form of protection because, under U.S. law, asylum seekers can apply only if they are physically present in the United States (or at least at a U.S. border or other point of entry).” Multiple US Embassy websites confirm that US diplomatic locations abroad cannot legally accept claims of asylum.
[sources: https://www.nolo.com/legal-encyclopedia/how-obtain-protection-us-embassy-consulate.html
https://it.usembassy.gov/embassy-consulates/rome/sections-offices/dhs/uscis/refugeesasylum/
https://pl.usembassy.gov/visas/politica-asylum-and-refugees/]
What is Mexico doing to strengthen their southern border?
Eric Olson, deputy director of the Latin American Program at the Wilson Center was interviewed stating that “In January and February of this year, Mexico detained and deported over 15,000 Central Americans. In 2015, Mexico deported more Central Americans than the United States did.” The US has also contributed to Mexico’s efforts to secure their southern border. “Well over $100 million has been destined, or designated, for use on the Mexican-Guatemalan border. [The US has provided] intelligence, communications equipment… X-ray technology, even canine units.”
In April, Latin American news agency teleSUR reported that “Mexico’s government announced it was increasing the number of federal police currently guarding Mexico’s southern border in an attempt to prevent undocumented migrants from Central and South America from crossing into Mexico.”
[source: http://www.wbur.org/hereandnow/2018/04/04/mexico-border-enforcement-migrants
https://www.telesurtv.net/english/news/Mexico-Follows-US-Lead-Sends-More-Federal-Security-Forces-to-Southern-Border-20180411-0011.html]
What is the U.S. doing to help these migrants be able to stay in their own country?
Our government has been involved in diplomatic efforts to help stabilize Central America for many years now. From a State Department summary of efforts to bring stability to Central America, “The U.S. Strategy for Central America (Strategy) is a bipartisan, multi-year U.S. government plan promoting institutional reforms and addressing developmental challenges. The Strategy aims to protect American citizens by addressing the security, governance, and economic drivers of illegal immigration and illicit trafficking, while increasing opportunities for U.S. and other businesses.”
“The United States is providing more than $2.6 billion in foreign assistance to Central American countries in fiscal years 2015–2018. But we are not doing this alone. The Strategy complements the region’s Alliance for Prosperity (A4P) initiative. In 2016–2017, the governments of El Salvador, Guatemala, and Honduras (Northern Triangle) committed $5.4 billion of their own funds to support the A4P initiative to develop opportunities for their people, improve public safety, enhance access to the legal system, and strengthen institutions.”
In June of 2018, secretary of the DHS Kirstjen Nielsen met with the President of Honduras Juan Orlando Hernández and according to a DHS press release she “reaffirmed her support for Honduran efforts to increase security and prosperity in their country, and reiterated the Department’s commitment to combating transnational organizations and the illicit flow of narcotics entering the United States.”
‘Further, Secretary Nielsen and President Hernández discussed tangible ways to improve citizen security and enhance the rule of law in Honduras… [and Secretary Nielsen] reaffirmed her commitment to a more stable and secure Central America.”
What is the Flores Settlement, and how is it related to 20 day limits on detention?
In 1997, the settlement of a class-action lawsuit set policies for the treatment and release of unaccompanied children who are caught at the border. The Flores settlement, named for a teenage girl who brought the case in the 1980s, was, as reported by Vox, brought forward because “Flores and other minors in federal custody sometimes had to share sleeping quarters and bathrooms with unrelated adult men and women. Flores was strip-searched regularly, and she was told she could only be released to her parents, not her aunt.”
‘The case went through several federal courts before reaching the Supreme Court in 1993, and the high court mostly sided with the government. But the real consequence was a consent decree agreed to by the Clinton administration and the plaintiffs in the litigation in 1997. The decree, known as the Flores settlement, set standards for unaccompanied minors who were in the custody of federal authorities.”
The Flores Settlement requires the government to release children from custody and to their parents, adult relatives or other caretakers, in order of preference. If those options are exhausted, authorities must find the ‘least restrictive’ setting for the child. and assure that they According to a summary by the Congressional Research Service, the settlement also requires that “that immigration officials detaining minors provide (1) food and drinking water, (2) medical assistance in emergencies, (3) toilets and sinks, (4) adequate temperature control and ventilation, (5) adequate supervision to protect minors from others, and (6) separation
from unrelated adults whenever possible”.
In 2014, when the Obama administration attempted to expand the widespread detention of families in response to the “border crisis,” the federal courts stepped in and ruled that under the Flores settlement, families couldn’t be kept in detention for longer than 20 days. As a result, children and families were released together with intensive tracking, often called ‘catch-and-release’.
As reported by The New York Times, “In 2015, a federal judge in Los Angeles expanded the terms of the settlement, ruling that it applies to children who are caught with their parents as well as to those who come to the U.S. alone. Other recent rulings, upheld on appeal, affirm the children’s rights to a bond hearing and require better conditions at the Border Patrol’s short-term holding facilities.”
‘In 2016, the 9th U.S. Circuit Court of Appeals ruled that child migrants who came to the border with parents and were held in custody must be released. The decision did not state parents must be released. Neither, though, did it require parents to be kept in detention, apart from their children.”
The administration wants Congress to pass legislation overturning the settlement.
[sources:
https://www.nytimes.com/aponline/2018/06/14/us/politics/ap-us-immigration-fact-check.html
https://www.vox.com/2018/4/9/17190090/catch-release-loopholes-border-immigrants-trump
https://www.vox.com/2018/6/20/17484546/executive-order-family-separation-flores-settlement-agreement-immigration
https://www.sfbar.org/forms/lawyerreferrals/immigration/unaccompanied-alien-children-an-overview.pdf
https://www.aclu.org/files/pdfs/immigrants/flores_v_meese_agreement.pdf
https://www.cbsnews.com/news/trump-ill-be-signing-something-to-keep-families-together/ ]
What justifications exist for a 20 day limit on children being held in Family Detention?
There is a considerable amount of data and commentary from medical professionals and advocacy groups on the harm to a child that can come from any amount of detention. A report by the American Academy of Pediatrics collected such data and summarizes that “Studies of detained immigrants, primarily from abroad, have found negative physical and emotional symptoms among detained children, and posttraumatic symptoms do not always disappear at the time of release. Young detainees may experience developmental delay and poor psychological adjustment, potentially affecting functioning in school. Qualitative reports about detained unaccompanied immigrant children in the United States found high rates of posttraumatic stress disorder, anxiety, depression, suicidal ideation, and other behavioral problems. Additionally, expert consensus has concluded that even brief detention can cause psychological trauma and induce long-term mental health risks for children.”
The 20 day limit is meant to provide sufficient time for immigration proceedings to process a family for expedited removal, or for the family to pass a credible fear screening to proceed with an asylum claim.
[sources: http://pediatrics.aappublications.org/content/early/2017/03/09/peds.2017-0483. https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening
What do we know about the conditions in Family Detention Centers?
Numerous advocacy groups have cataloged the conditions in immigration detention centers, and in a collection of those reports by the American Academy of Pediatrics, conditions include a “lack of bedding (eg, sleeping on cement floors), open toilets, no bathing facilities, constant light exposure, confiscation of belongings, insufficient food and water, and lack of access to legal counsel, and a history of extremely cold temperatures… At times children and families are kept longer than 72 hours, denied access to medical care and medications, separated from one another, or physically and emotionally maltreated.”
In a recent Deseret News op-ed, immigration lawyer Lauren Simpson shares her experiences volunteering with clients held in family detention and compares the setting to a typical jail. “…[W]omen and children must wear facility-issued sweatpants, T-shirts, coats and shoes. Women are not allowed to wear makeup. Multiple guards are stationed at building doors, where residents must check in and out using facility ID cards.” In her experience, she shares that “The children are often sick or crying; the air smells of dirty diapers. The water quality is suspicious, but only the migrant families drink it. We, like the detention center staff, drink bottled water.”
Also worth noting is that family detention centers are designed for women and children, but that adult males are typically separated to other facilities. When the LA Times was reporting on family detention centers in 2015, they stated that families are not always housed as whole units, and sometimes mothers and fathers are separated to different facilities, although in a response within the article, ICE stated that “every effort is made to keep a family together”. In a more recent 2017 publication by the Women’s Refugee Commission, their report corroborates that “Some mothers are detained with their minor children in family detention settings, but are still separated from other family members who are detained elsewhere. Fathers are rarely detained in family detention, so in cases of fathers with minor children in which ICE resists releasing the father, he will be separated from his minor children.”
Sources:
http://pediatrics.aappublications.org/content/early/2017/03/09/peds.2017-0483
https://www.vox.com/2018/6/20/17484546/executive-order-family-separation-flores-settlement-agreement-immigration
https://www.deseretnews.com/article/900022190/op-ed-family-detention-is-not-the-answer.html
http://www.latimes.com/nation/la-na-family-detention-fathers-20150829-story.html
https://www.womensrefugeecommission.org/rights/gbv/resources/1450-betraying-family-values
What does President Trump’s Executive Order on family separation do?
1. The first major change that this Order makes is for custody of alien families to remain with the Department of Homeland Security while any criminal and immigration charges are pending, rather than adults being transferred to custody of the U.S. Marshals Service and children to HHS while criminal charges are pending. That transfer of custody was triggering family separations, because children cannot legally be held in adult detention facilities.
[sources: https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy]
2. This Executive Order should prevent families from being separated in the future except in rare cases, although there is no provision in the EO for reuniting currently-separated families. Since the EO was issued, Politico reports that HHS has announced “to assist in the reunification or placement of unaccompanied alien children and teenagers with a parent or appropriate sponsor”.
[sources: https://www.politico.com/story/2018/06/22/separated-families-migrants-reunite-667172; https://www.reuters.com/article/us-usa-immigration/trump-backs-down-signs-order-to-end-family-separations-at-us-border-idUSKBN1JG27Q]
3. The EO also instructs the DOJ to request modification of the Flores Settlement to allow the government to detain children for more than 20 days. If this is allowed, it will be possible for the government to detain families indefinitely. The government currently does not have facilities for long-term detention of a large number of families or children, and agency heads have been ordered to find or construct more. As addressed above, indefinite family detention has many criticisms as well.
[sources: https://www.lawfareblog.com/whats-trumps-executive-order-separating-migrant-families-what-missing; https://www.npr.org/2018/06/20/622095441/trump-executive-order-on-family-separation-what-it-does-and-doesnt-do]
