Image by Michele Stapleton from the June 30 Families Belong Together Rally in Portland
As many feared, the Trump administration announced its plans to withdraw from the Flores Settlement, the court agreement that sets rules for the treatment of children in federal custody. Such a withdrawal will enable the government to indefinitely detain immigrant families and unaccompanied children in unlicensed internment camps, including those being planned on military bases. The public comment period on this proposal closes on November 6. Submit your comment via the American Immigration Lawyers Association’s form.
Once it removes the regulations that limit the amount of time families can be held in detention, the Trump administration is prepared to implement a new family separation policy, this time offered to parents as a “binary choice” between separation and long-term family detention in internment camps.
A recent story by The New Yorker showed that some amount of family separation has continued even after the policy was ordered to end, and children as young as five are being forced to sign away their rights before being lost in the shelter system for months. A recent AP investigation also showed that some separated children whose parents were deported without them are being adopted by American families without their parents’ knowledge or consent.
A new report by the Department of Homeland Security Inspector General confirms that the Trump administration’s Zero Tolerance Policy was purposefully intended to separate children from their parents. It also shows widespread and continuing dysfunction and chaos as a result of the policy’s implementation and the resulting court ordered reunification. Among the findings: hundreds of children were held in chain-link pens without beds beyond the maximum 72 hours allowed by law, the government did not maintain any kind of database of the children it separated or even provide identifying information like ID bracelets to babies and toddlers. It also found that Customs and Border Patrol purposefully restricted the flow of asylum seekers at legal points of entry.
Hundreds of unaccompanied children were quietly moved under cover of darkness and without warning from shelters around the country to an internment camp in Tornillo, TX in late September. The “tent city” is unregulated, and the children are not provided schooling or regular access to legal services. So far 1,600 have been moved there, and the camp was recently expanded to hold a total of 3,800 children.
In July, the Trump administration failed to meet its court-ordered deadline to reunify the 2,634 children separated from their parents since its “zero tolerance” policy was implemented in May. More than 100 children remain in government custody. Most were forcibly stranded in the US when their parents were deported without them. Other parents are still being vetted or are classified as “ineligible” to regain custody — sometimes as a result of minor and years-old offenses. The government says it will not retrieve deported parents, but will allow them to reapply for asylum. An unknown number of children who arrived with an adult other than their parents also remain separated and misclassified as “unaccompanied minors,” and may have completely disappeared within the disorganized government system.
The Trump administration’s official “zero tolerance” policy was rolled out in May, and calls for criminal prosecution of all adults entering the US without authorization at the Southwest border, even those seeking asylum and those attempting to apply at ports of entry. As a result, thousands of children between the ages of nine months and 18 years were forcibly taken from their parents and sent to far-flung states where they remained separated for months at a time. Reports abound of parents unable to locate or contact their children, toddlers forced to appear in court alone, children being drugged without parental consent, internment center employees being ordered not to touch or comfort distressed children, children stranded in the US alone after parents are deported, and parents being told that the only way they will see their children again is if they agree to deport. Legal experts note that the forced separation policy meets the legal definition for torture and violates federal and international law. The administration’s policies prompted widespread outrage and condemnation from the United Nations, the American Academy of Pediatrics, mental health professionals, retired U.S. military officers, Pope Francis, the US Conference of Catholic Bishops, a coalition of other religious leaders, evangelical leaders, legislators, airlines and business leaders. A lawsuit filed by the ACLU resulted in a court-ordered reunification of all separated families by the end of July. The Trump administration did not meet the deadline, and more than 100 children have yet to be reuinited with their parents.
Of the families that have been reunited, some are reporting receiving children who are traumatized, angry, and confused, and the children report scenes of desperation and isolation in the internment centers. Numerous reports of sexual abuse of children as young as six have been documented. The judge that oversees the Flores settlement announced that the court would appoint a special monitor to oversee detention facilities and investigate allegations of abuse and inhumane conditions, and ruled that detention facilities must stop drugging children without parental consent. Meanwhile, the military is moving forward with plans to detain 20,000 unaccompanied children in internment camps on military bases, and the administration is seeking approval to expand that plan to include 15,000 beds for families. Multiple lawsuits are still underway, brought by the ACLU, a coalition of 18 states’ attorneys general, and others.
ACTION: Submit a Public Comment!
The public comment period on Trump’s proposal to withdraw from the Flores Settlement closes on November 6. Submit your comment via the American Immigration Lawyers Association’s form.
ACTION: Contact Your Reps!
Tell them that they should use all legislative tools to…
Ensure ALL Separated Families are Reunited Immediately. Congress should focus on pressuring the administration to provide a complete accounting of ALL separated families, not just those separated since the zero tolerance policy was put in place, and allocating all necessary resources to locating separated parents and reuniting them with their children. It should be made clear that it is the Government’s responsibility to locate and reunite the families it separated.
Call for the Resignation of Homeland Security Secretary Kirstjen Nielsen. Despite warnings of the crisis that would result by enacting the zero tolerance policy, Secretary Nielsen allowed the agencies under her direction to proceed with a plan that purposefully caused trauma to children in order to deter immigration, did not make any effort to track or reunite separated family members until a court ordered her to do so, and failed to provide accountability for her agency’s inability to reunite families, respond to cases of child abuse, and ensure asylum seekers are afforded constitutional protections. In addition, Secretary Nielsen repeatedly lied to Congress, and continues to promote policies that separate families, including the elimination of Temporary Protected Status for the working parents of American children.
Institute True Alternatives to Detention. Family prisons endanger children’s health and safety and cost millions of dollars to maintain. Even DHS’s own Advisory Committee on Family Detention recommended discontinuing the practice. Congress should reinstitute the cost-effective Family Case Management Program which allowed families to be freed with supervision and ensured 100% of families attended their hearings in court. Alternative to Detention programs should be community-based and operated by non-profit organizations, not private prison companies.
Expand Access To Counsel. Congress should expand access to counsel for children and their parents to ensure they have the opportunity to present their asylum claims and seek relief from persecution and life-threatening violence. Expanding access to counsel helps families navigate confusing court proceedings and helps reduce the number of families who do not attend their hearings.
Preserve Current Protections for Children and Due Process in Asylum Law. No reform should weaken the current asylum laws in the United States, weaken protections for unaccompanied immigrant children, expand immigration detention, limit due process or otherwise make it more difficult for families to establish they have a valid claim for protection. Furthermore, no reform should weaken or undermine the current protections for children established in the Flores settlement.
Oppose New Funding for Family Separation, Long-Term Detention, and Non-Criminal Deportation. Our agencies should use the funds available to them to implement humane immigration policies that are effective and fiscally responsible, prioritizing criminal prosecution and deportation of violent criminals and human/drug/weapons traffickers.
Bills to Support:
- S.3036: Keep Families Together Act. (Angus King is a co-sponsor, and Chellie Pingree is a co-sponsor of the House version of this bill. No Republican legislators have yet signed on)
- H.R.5950/S.2937: HELP Separated Children Act. (Chellie Pingree is a co-sponsor)
- H.R. 2043/S. 2468: Fair Day in Court for Kids Act
- HR 2572: Protect Family Values at the Border Act
- Project Reunify – An effort spearheaded by the Center for Human Rights and Constitutional Law, a non-profit legal services organization that represents all detained immigrant children in the United States through the Flores v. Sessions class action case. Under the settlement, CHRCL is the only non-governmental organization in the country permitted to inspect every detention site where children are held and to interview and assess the treatment of all detained children. CHRCL’s project will locate separated immigrant children, conduct legal & mental health interviews, reunite them with their parents, and prevent unlawful deportation without hearings.
- The Refugee and Immigrant Center for Education and Legal Services (RAICES) – This organization is based in Texas and gives direct legal support to immigrants. Your donation will help pay bonds so that parents can be released from ICE custody and reunite with their children.
- Flights for Families – A Families Belong Together fundraising effort to raise money to fund travel costs, from flights to hotels and necessary personal items like soap and toothbrushes. Every cent will go to these travel costs for families, to support volunteers who are traveling with them for safety, or to commissary accounts that allow families who are still separated to call each other. If there is anything left after all of that, it will be donated to the Families Belong Together campaign, which is fighting to reunify families and end family separation.
- Kids at The Border ActBlue Fund – donate to 8 organizations working to protect kids separated from their families: Human Rights First, We Belong Together, Asylum Seeker Advocacy Project, Women’s Refugee Commission, American Civil Liberties Union (ACLU), United We Dream Action, La Union Del Pueblo Entero, and Kids in Need of Defense (KIND)
FAMILY SEPARATION Q & A
What is the Trump administration’s policy for immigrants crossing the Southwest Border?
The Trump administration officially announced its new “zero tolerance” policy in early May, after testing it out in El Paso last summer. All immigrant adults who cross the Southwest border between ports of entry without legal documentation are arrested and prosecuted for illegal entry, punishable by up to 6 months imprisonment on a first offense, followed by deportation. Contrary to Trump’s tweets, this policy is by his design, it is not a law or a “loophole”.
Is there a security crisis at the southern border?
No. While the number of immigrants crossing the southern border is significantly higher than last year, the number of apprehended immigrants at the border in 2017 was the lowest since 1971. In addition, violent crime rates in all but one of the 23 border counties are lower than the national average, suggesting that our borders are as safe and secure as they have been in nearly five decades.
Was the Trump administration separating parents and children?
Yes. Under Trump’s “zero tolerance” policy, all parents and children were forcibly separated when they attempted to enter the country without legal documentation, even those lawfully seeking asylum, and even those with babies and toddlers. The crisis was made worse by officials who told families seeking asylum to enter at legal check points, but then refused them the opportunity to apply when they got there. Children have also been taken from asylum seekers who applied properly at ports of entry. After separation, children are classified as “unaccompanied”, placed in the custody of the Office of Refugee Resettlement (ORR), and sent to states all over the country without their parents being notified of where they were going or how to contact them. Records linking children to their parents have disappeared, and in some cases have been destroyed.
How many children have been separated?
We aren’t sure. The administration has yet to release a complete accounting. The ongoing court cases refer to numbers of 2,634 children separated since the zero tolerance policy went into effect in May. But other reports indicate that the administration began separating children as part of a pilot program last summer, which could raise the current estimation to as many as 4,100 children. While court orders have resulted in many families being reunited, hundreds of children continue to languish in internment centers. More than 12,000 children (including children who crossed the border alone) are currently being held in 100 holding facilities in 17 states, including tent cities and “tender age” detention facilities for babies and toddlers.
Does the law require the Trump administration to separate immigrant children from parents?
No. Prior to Trump’s zero tolerance policy, families were processed through immigration or civil courts, rather than criminal courts. Criminal proceedings were used for repeat offenders, violent criminals, or human/drug traffickers. When the Trump administration chose to prosecute parents traveling with children as criminals rather than asylum seekers, it also made the decision to separate those children from their parents, since children cannot be detained for more than 20 days and cannot be detained in restrictive, jail-like settings that are not certified for children. Before Trump’s zero tolerance policy, immigrant families who passed their “credible fear” asylum hearing were released on immigration parole or bond, or were placed in the Family Case Management Program, but still were required to meet legal obligations that included showing up for court hearings and leaving the country if their asylum petition was denied.
Are there alternatives to family separation that comply with immigration laws?
Yes. The Trump administration is very familiar with effective alternatives, because it helped dismantle them last year as they were preparing to implement the zero-tolerance policy. The highly effective Family Case Management Program allowed families to be placed into a program, together, that connected them with a case manager and legal orientation that ensured they understood how to apply for asylum and attend immigration court proceedings. The program had a 99.6% appearance rate at immigration court hearings for those enrolled in the program. It’s not only a more humane alternative to family prisons, but it’s also fiscally responsible — just $36 per day per family, compared to $319 per day per person for family detention.
Were children being held in cages?
Yes, in some locations. The large immigrant processing facility in McAllen, TX, known as “Ursula” contains cages, and separated children could be held there for three days before being moved to longer term facilities. The press was recently granted access to a larger holding facility in a former Walmart in Brownsville, TX. While there were no cages or pens there, the facility held 1,500 boys, some as young as 10, in a detention-like environment. Facility employees are instructed not to touch, hold, or console the children. Babies and toddlers are held in three “tender age” detention facilities. No access has yet been granted to inspect these facilities. In addition to housing children like stray dogs or criminals, parents had no way to communicate with their children after they were separated, were often not given information on their child’s location, and were sometimes even deported without being told how to find their child.
Does forced separation from their families harm children?
Yes. Reports abound of toddlers forced to appear in court alone, children being drugged without parental consent, children as young as six being sexually abused in government custody, internment center employees being ordered not to touch or comfort distressed children, and children stranded in ORR custody after parents are deported. With reunification now underway, we finally have new first-hand accounts of life inside these detention centers from the children themselves. A new ACLU report chronicles widespread emotional and physical abuse of child immigrants in the custody of U.S. Customs and Border Protection and the Department of Homeland Security. According to a report released by the American Academy of Pediatrics, detention of immigrant children and forced separation from their families can cause lasting psychological damage. Legal experts note that the forced separation policy meets the legal definition for torture and violates federal and international law.
Will the separated children be reunited with their parents?
The Administration is under court order to do so. A lawsuit brought by the ACLU on behalf of parents whose children were forcibly taken from them resulted in a court order to reunite all separated children. The administration failed to meet the deadline, but the court continues to pressure compliance. So far the process has been disorganized, chaotic, and incomplete.
Is seeking asylum a crime?
No. In fact, it is a fundamental human right. The United States is a party to the 1951 Refugee Convention which prohibits penalizing asylum seekers “on account of their illegal entry or presence.” Today, under both international and U.S. law, those fearing persecution in their home country don’t need approval to seek asylum here. That’s why the UN has called for an immediate halt of the practice and why the ACLU has filed a class action lawsuit. Immediately following the official enactment of Trump’s zero tolerance policy in May, Attorney General Jeff Sessions also announced changes to asylum policy, eliminating domestic violence, rape, and gang violence as legitimate reasons for asylum. It’s worth noting that many of the immigrants heading north from Guatemala, Honduras, and El Salvador (which hold three of the four highest murder rates on Earth) are fleeing the very gangs that Trump paints them as being a part of. The ACLU is also now suing Attorney General Jeff Sessions for restricting asylum eligibility and denying asylum seekers due process.
Are all undocumented immigrants committing a crime?
Not necessarily. It is a misdemeanor to cross the border without authorization. 45% of undocumented immigrants actually entered the country legally. Most of those overstayed their visas, which is a civil violation that gets handled in immigration, not criminal, court.