Family Separations: Evolved Not Resolved

With all that is going on, the issue of family separations at the border has slipped from view. But, a new article in the current issue of The New Yorker about the gut-wrenching ordeal of 5-year-old Helen, an asylum seeker from Honduras who was taken from her grandmother by border patrol agents and later encouraged to sign away her rights to a court hearing, reminds us that since Trump halted the practice in June,

The family-separation crisis hadn’t been resolved, as many Americans believed—it had simply evolved.

Now, in a new development, the U.S. District Court for the Southern District of California has approved a settlement in a set of family separation cases.

One of the cases was Ms. L. v. ICE, which actually pre-dates the immediate family separation crisis. Ms. L and her 7-year-old daughter fled violence in the Democratic Republic of Congo—once deemed the rape capital of the world—but were eventually detained separately without explanation, 2,000 miles apart. The indomitable American Civil Liberties Union (ACLU) first brought suit in February on behalf of Ms. L. (The original complaint is here). At the time, the Department of Homeland Security (DHS) claimed it did not have a “policy” of separating mothers and their children, although they retained the right to do so to protect children from human traffickers. Ms. L was eventually reunited with her daughter, but the case was expanded in March to a nation-wide class action suit to cover all detained immigrant parents separated from their children. (The class certification motion is here). As such, the case continued under Ms. L’s name.

On June 26, Judge Dana Sabraw in the Southern District of California in San Diego granted the ACLU’s request for a preliminary injunction requiring that separated children covered by the class certification order be returned to their families within 14 days or 30 days depending on the ages of the children. He also ordered the Trump administration to stop deporting parents without their children. The Trump administration later admitted that it would need to miss these reunification deadlines. Surprisingly, the government did not immediately appeal these Temporary Restraining Orders (TROs) but rather sought a time extension to reunify the separated families. Sabraw refused to relax the original deadlines—calling them “firm deadlines” not just “aspirational goals”. The ACLU then sought a remedy for the government’s failure to meet the original July 10 deadline to reunite small children (under 5) with their parents.

Eventually, the government appealed the class-wide preliminary injunction to the 9th Circuit Court of Appeal. While the appeal was pending, however, a settlement was reached in September. It had to be approved by a judge per Federal Rule of Civil Procedure 23(e) to ensure it was in the best interests of class members. This has now occurred.

The new settlement contains a number of procedural protections for families who suffered through the family separation policy. (The motion for preliminary settlement can be found here and the notice of the proposed settlement is here.) For one, parents who already underwent the asylum interview process after being forcibly separated from their children and who received a negative “credible fear determination” will have a second chance to have their asylum claim reviewed de novo. Plaintiffs in one of the settled cases, Dora et al. v Sessions, had argued that parents who were pushed through the asylum system after suffering the severe trauma of being forcibly separated from their children could not participate meaningfully in the asylum process. Physicians and child psychologists associated with the Human Rights in Trauma Mental Health Program at Stanford University, which is a collaboration between faculty and students within the Schools of Medicine and Law and the Handa Center for Human Rights & International Justice, produced a brief explaining the impact of this trauma on parents’ ability to effectively participate in legal processes. Pursuant to the settlement, parents will from now on be interviewed with their children, and still-separated children will continue to receive their own procedural protections. For children whose parents have been deported, the ACLU can argue for the return of the parents, although this will be for individual rare and unusual cases.

This settlement does not address the harm already inflicted on the parents and children by the family separation policy. In a subsequent post, I will review the literature on early childhood trauma and outline this harm, arguing that it rises to the level of torture. To help put the recent settlement into perspective, here is a backgrounder on the family separation policy.

The Existence of the Policy Emerges

As early as March 2017, John Kelly, then secretary of DHS, told CNN that the Trump administration was considering taking children from their parents at the border “to deter more movement along this terribly dangerous network.” Weeks later, he walked that statement back in an effort to assuage Senate Democrats. In April, the Trump administration formally adopted a “zero tolerance” policy for illegal border crossings to end what it called “catch and release” border practices—a dehumanizing term at best. We have now learned that a “pilot project” was previously launched in El Paso and elsewhere as early as January to test the system, although many questions remain about the policy’s precise origins and reach. Data suggest that the program did not “work” as a deterrent and that the number of attempts to cross the border remained flat, notwithstanding Trump administration claims to the contrary. Until this point, the government denied that it had such a “policy,” and families were ostensibly to be separated in only three narrow circumstances: when DHS could not confirm the identity of the parent, if the child was in immediate risk of harm, or if the parent faced criminal prosecution.

The nationwide policy to prosecute all adults who crossed the border “illegally” was announced April 11 by Attorney General Jeff Sessions in a memorandum to all U.S. Attorneys’ Offices. The misdemeanor in question, codified at 8 U.S.C. § 1325(a), makes it a crime to “improper[ly]” enter, or attempt to enter, the United States without appearing before an immigration officer or through the making of “willfully false or misleading representations.” The statute carries criminal penalties of up to six months’ imprisonment for the first such offense and/or a fine of $50 to $250 if no fraud is involved. In addition, there are immigration consequences in the form of deportation and bars to re-entry. In the past, most first-time offenders were dealt with through deportation alone. These statutory penalties increase for aliens who have previously committed the offense, and recidivism is categorized as a low-level felony and can also be prosecuted under 8 U.S.C. § 1326 (reentry of removed aliens). Incidentally, this is one of the statutes that has been used in the past to prosecute human rights abusers (most recently from Liberia) who enter the United States and fail to disclose their role in the persecution of others because the United States lacks the legal authorities to prosecute these individuals for the underlying international war crimes or crimes against humanity.

The Trump administration claimed that the new “zero tolerance” policy was necessary to respond to a “crisis” on the border and the “flood” of migrants, drugs, gang members and other contraband coming into this country. And yet, the policy applied to anyone improperly entering the country—even those requesting political asylum who have a legal right to press their claim for refuge. Government documents as well as statements from multiple U.S. officials—including White House Chief of Staff John Kelly, Sessions, and Acting head of the Department of Health and Human Services (HHS) Steven Wagner—reveal that the core purpose of the separation policy was actually

  1. to punish individuals who have crossed the border improperly and
  2. to deter other individuals from following suit.

As Kelly said, it would be a “tough deterrent.” These motivations are now clear even though DHS Secretary Kirstjen Nielson, in a Q &A with the press, denied that the policy was meant to be a deterrent, which she indicated would be “offensive.”  It was later revealed that Nielson actually signed a decisional memo in April (released in partially-redacted form under the Freedom of Information Act) indicating her approval of the family separation policy, thus contradicting her earlier statements. (Trump official statements revealing the actual purpose of the policy are compiled here by the Washington Post). We’ve now learned through congressional hearings that there was some dissension within the administration over the morality and feasibility of family separations. Concerns were expressed both about the risk of causing “traumatic psychological injury” to the children and their parents as well as basic operational and capacity limitations.  The purpose underlying this policy is important for a range of reasons, but it also becomes relevant to the torture determination taken up in a subsequent post.

Under the administration’s policy, it was envisioned that when a parent and child arrived at the border or a port of entry, the parent would be criminally prosecuted for his or her unlawful border crossing and placed in a detention center while awaiting a hearing. Because children cannot be incarcerated with their parents for more than 20 days due to an earlier court order (more on that below), they were rendered—in essence—unaccompanied under U.S. law (8 U.S.C.(g)(2)(C)(ii)). That statute considers children “unaccompanied” if they do not have a parent or legal guardian in the United States who is “available to provide care and physical custody.” The now “unaccompanied minor” would then fall within the jurisdiction of HHS’s Office of Refugee Resettlement (ORR) pursuant to the Homeland Security Act of 2002, which disbanded the former Immigration and Nationality Service (INS) and established DHS. HHS/ORR would then be responsible for the child’s shelter and care until he or she could be placed with another caregiver or sponsor.

ORR ended up housing children in federally run shelters all over the country, sometimes thousands of miles away from where their parents were being detained. Many children were placed in makeshift centers, such as retrofitted big box stores, warehouses, and tent cities. Adults, by contrast, were held in criminal detention by ICE.

It is indisputable that there is no law that mandates these draconian family separations. And, as has also been made clear, no action by Congress was necessary to end the practice, despite false claims by Nielson and Trump to the contrary. These separations were the result of a policy choice implemented (and then subsequently partially dismantled) by the Trump administration to incarcerate all parents for the purpose of prosecution—regardless of the seriousness of the crime committed, the circumstances of their leaving their home country, or the ages of their children. It was this decision that led to the family separation crisis, with all its humanitarian, political, and diplomatic costs.

As a result of the policy, over 2,300 children were separated from their parents between the beginning of the policy and June 20, when Trump ordered a halt to it. This included infants, toddlers, disabled children, and at least one child with Down’s Syndrome (who was cruelly mocked by Corey Lewandowski, Trump’s former campaign manager). Very few of these children were able to adequately advocate for themselves or even tell U.S. authorities the full names of their parents. ProPublica recorded gut-wrenching audio of the wails of children being separated from their families. Journalists have reported heart-breaking stories of children being separated for so long that they did not immediately recognize their parents when they were finally reunited. Advocates have also indicated that many parents thought that they would be separated for a matter of hours, not months or even indefinitely. Parents were also pressured to sign voluntary departure forms out of desperation to be reunited with their children. This generally results in a waiver of any asylum claims. As we have now learned, in many cases, the willingness to leave the country did not necessarily result in their being reunited with their children. In other words, the U.S. government lied to them.

The Outcry

The policy immediately generated international and domestic outcry, with critical statements issued by former First Lady Laura Bush, Pope Francis, and the President of the American Bar Association Hilarie Bass, among others. The American Academy of Pediatrics called the practice “abhorrent” and “government-sanctioned child abuse.”

The U.N. High Commissioner for Refugees and the then-U.N. High Commissioner for Human Rights both asserted that the policy violated international law and particularly the human rights of children. The latter, the indomitable Zeid Ra’ad Al Hussein, called the practice “government-sanctioned child abuse” and stated:

The thought that any State would seek to deter parents by inflicting such abuse on children is unconscionable.

(For a discussion of relevant rights, see here).

The Policy Reversal

In response to the sharp and unrelenting domestic and international outcry over the policy of family separation, Trump hastily issued an executive order (E.O. 13841) on June 20, announcing the ostensible end of the family separation policy (belying his earlier protestations that congressional action was necessary for it to end) and directing DHS to detain family units together. The policy thus shifted from one of forcible family separation to one of family detention. The order announced that:

It is … the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.

In a laughable effort to shift the blame for the uproar that resulted from his original policy, Trump’s executive order acbeing responsible cused Congress of for the previous family separations:

It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.

The new E.O. sought to transform a system of indefinite family separation into a system of indefinite family detention. (See our earlier coverage here). The Defense Department was ordered to identify, provide or build facilities as necessary since there were inadequate appropriate facilities available. The government sought to allow unlicensed facilities for this purpose, but a judge rejected this proposal.

Complicating this policy shift was a nationwide consent decree (essentially a court settlement) reached by the federal government back in 1997 in a class action lawsuit known as Flores v. Reno (now Flores v. Sessions). The Flores settlement created a presumption in favor of releasing minors from detention and effectuating family reunification as soon as possible. It requires the U.S. government to liberate non-citizen children from immigration detention to their parents or, in the event that this is not possible, to other adult relatives or licensed programs that can take custody of them. In most cases, children are to be released within 20 days. Per the settlement terms, this reunification imperative requires “prompt and continuous efforts” on the part of the government. Furthermore, children must be held in the “least restrictive” conditions available while their circumstances are being adjudicated “consistent with” a concern for “the particular vulnerability of minors.” All told, the conditions must be “safe and sanitary.” Since no regulations were ultimately released codifying the settlement, it continues to govern the detention of non-citizen minors, both accompanied and unaccompanied, as determined by the Ninth Circuit Court of Appeal. Many aspects of the family separation policy ran afoul of the Flores settlement, prompting lawsuits to be filed around the country.

In the June executive order, Trump also ordered Sessions to seek a modification of the Flores settlement to allow DHS to detain families indefinitely as they waited the parents’ criminal proceedings, unless this would pose a risk to the child’s welfare. One July 9, Judge Dolly Gee refused, reasoning that there were no legitimate grounds to do so and the solutions proposed would have gutted the terms of the original Flores arrangement. In connection with the family separations policy reversal, the administration indicated that it has stopped referring migrant adults with children who have entered unlawfully to prosecution. Some previously incarcerated individuals were released into the community on bond and with tracking ankle bracelets.

The Trump administration is still endeavoring to withdraw from the Flores settlement. It has proposed new regulations that would enable it to hold minors in immigration detention for months (or more) while their cases have been adjudicated. In the alternative, families could agree to be separated so the children would not have to remain in detention. The current Trump administration proposal would also apparently strip minors of several rights recognized by the Flores settlement, including the right to a bond hearing, the right to be represented by counsel, the right to present evidence and rebut the government’s evidence, and the right to have their detention independently assessed. These proposed rules are available for comment until November 6. The Trump administration is reportedly building its capacity to detain families under this new scheme. Litigation is expected to challenge the new regulations under Flores if implemented.

The Chaotic Attempts at Family Reunification

Remarkably, the Trump administration has been unable to offer definitive data on the number of families and children affected by family separations—a deficiency that prompted members of the Senate to demand regular briefings on the administration’s evolving approach to families with children crossing the border. The Trump administration tried to propose putting the onus on the ACLU to reunite the remaining separated families, including over 400 children whose parents have been deported—a shifting of responsibility squarely rejected by Judge Sabraw. The ACLU has also asked for the federal government to pay for counseling to reflect the trauma experienced by forcible separations.

Even as court-ordered reunifications began, the Trump administration could not indicate how many children were still separated from their parents. Reunions were hampered by the fact that some parents had been released from custody into the United States, were already deported, were already serving criminal sentences, or had been accused of serious criminal violations. DNA tests were also deemed necessary to ensure accurate reunions.

It is now clear that DHS implemented this forcible separation policy with no guidelines on how to keep track of the location of children and their parents or guardians. In January, a federal magistrate judge ruled that the Flores settlement requires that children be allowed to remain in contact with their family members, even if the latter are incarcerated for immigration violations. (See our earlier coverage here). This includes having knowledge of where each other’s whereabouts and the ability to remain in contact.

The interagency disarray is, in the words of Sabraw, who is hearing the case brought by the ACLU,

a chaotic circumstance of the Government’s own making.

In a Joint Status Report filed at the end of September, the government finally revealed that 2,296 children had been “discharged” but that 136 still remained in the custody of ORR and were proceeding towards reunification or some other resolution. The parents of some of these children had already been deported or voluntarily departed from the United States; others have “waived” reunification in the hope that their children can remain in the United States. The Report contains a detailed chart of the status of all these children. It should be noted that these numbers only concern children who fall within the class certified in the Ms. L litigation; there are countless numbers of other children still separated from their families who fall outside that litigation for various reasons (e.g., because they arrived with a non-parental relative).

The harm and suffering caused by family separations is still unfolding, and yet, the Trump administration is reportedly considering reviving the practice, once again believing it would have a deterrent effect, despite zero evidence to support this. And despite the acute harm caused by the policy, as detailed in a subsequent post.

Image: Richard Misrach, Artifacts from California and Texas on view at Pier 24 Gallery in San Francisco (photo by Beth Van Schaack) 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).