Immigration 101: Family Separation

If you are paying attention to immigration news right now, you are going to be hearing, again, about family separation and “zero-tolerance”. With the departure of Kirstjen Nielson as head of the Department of Homeland Security (DHS), there is widespread speculation that the Trump administration, among many aggressive actions from DHS, is going to renew efforts to return, at least in some form, to the public facing policy of family separation as a way to deter asylum seekers. This is a complicated issue and what follows is a primer for anyone who wants some very basic education to sort through the media reports and contextualize this issue in history and broader conversations about refugee policies and our national debate about immigration. This particular piece is intended to be factual, not political. The facts speak for themselves and will hopefully provide readers with information to fuel their advocacy needs. I am an immigration attorney with a ton of experience with asylum cases, our border, and immigration detention and the Executive Director of a legal services non-profit called Santa Fe Dreamers Project.

• Is seeking asylum a crime?

Seeking asylum is not a crime. This is not an opinion. This is a fact that any lawyer or lawmaker, even the White House counsel will agree with. The US is signatory to the United Nations Convention and Protocol Relating to the Status of Refugees. This was developed post WWII when the world faced the horrors of the Holocaust and the need to develop an international right to seek protection in other countries when someone is being persecuted by their government (or by people their government is unable or unwilling to protect them from). As part of this protocol, someone fleeing violence is legally allowed to go to another country (any country, it doesn’t have to be the first one they arrive at) and ask for protection. This is what’s known as seeking political asylum. In the US, asking for asylum doesn’t mean you will be allowed to stay, per se, but it does initiate a series of interviews and hearings that are required by law to determine if you meet the refugee definition. It is a complicated and lengthy process.

• How do people ask for asylum?

There are two ways to ask for asylum. The first is to come to a port-of-entry on the US border and wait in line and when you get to the United States, inform them that you are seeking political asylum. People who do this are known as Arriving Aliens. Generally once this happens, they are detained by our government, most often in notoriously horrific and deadly Customs and Border Protection (CBP) detention facilities called hieleras (ice-boxes) while the legal protocol is initiated. They are often transferred out of the hieleras into long term ICE detention while their claims are adjudicated. Some people are eventually released to pursue asylum from the outside but many stay detained for the duration of their claim.

One of the issues with asking for asylum at the port-of-entry is that they have started the process of “metering” asylum seekers at the ports. This means that they are only letting a limited number of people ask for asylum on any given day and people are given numbers and put on a list and told to wait until their number is called. This can take weeks or even months and in some places like Tijuana and Juarez, thousands of people are living in the streets and shelters and de-facto refugee camps while they wait. Additionally, the US instituted the Migrant Protection Protocals in January (also known as Remain in Mexico) where people are processed as asylum seekers and then sent to Mexico to await their court dates. This is questionably legal and was enjoined by a Federal court in the first week in April.

The second way of asking for asylum is to cross the border between ports-of-entry, essentially illegally crossing the border, and asking for asylum the moment you first make contact with a CBP agent or any other law enforcement agent. This is a perfectly acceptable way of asking for asylum under the Refugee Protocol. Once declaring that they are seeking asylum, people are generally sent to the hieleras and ICE detention just like their counterparts who turned themselves in at the ports.

Lately there have been a surges of asylum seekers released from CBP custody directly into the US bypassing ICE detention so they essentially pursue their asylum cases in courts throughout the United States while living with friends and family.

• But isn’t crossing the border between ports of entry illegal?

It is! When someone crosses the border without permission for the first time it is a federal misdemeanor. When someone crosses the border in violation of a removal order then it is a felony. However, it is an acceptable way to ask for political asylum, which makes the decision to prosecute an asylum seeker for illegal entry or re-entry an awkward one, especially when people were seeking asylum with children.

• How does this relate to “zero-tolerance”?

In the late spring of 2018, the Trump Administration quietly started the “zero-tolerance” policy which became known as their family separation policy. They emphatically denied that they had a policy to separate kids from their parents which is technically true. The policy was to start charging illegal entrants with misdemeanors and detaining them in federal criminal correctional facilities. This trick to this was, children cannot be detained in federal criminal facilities, so when parents were arrested and detained and charged, the children were suddenly alone and had to be put into the custody of the Office of Refugee Resettlement (ORR) thus creating a de-facto family separation policy even if one didn’t actually exist in writing. This is what caused the several thousand children to be separated from their parents in the summer of 2018.

One of Trump’s current arguments is that Obama started this policy. It is true that Obama did use this tactic, however, generally speaking they charged border crossers who were carrying drugs or otherwise violating laws beyond simply crossing the border and only sometimes did those people have kids. While family separation did happen, there is not overwhelming evidence that asylum seekers were detained in federal criminal prisons with the intent to create a de-facto policy of family separation as a deterrent tactic.

The public outcry against the “zero-tolerance” policy was swift as “kids in cages” became a meme that outraged millions of people. This caused the Trump administration to publicly retreat from the policy and for a Federal Judge to order the reunification of the separated children with there parents. As the summer stretched on and turned into 2019, the government has been slow to reunite children and information is being uncovered that the numbers of children being separated dating back to 2017 may be much larger than the initial estimates.

• What is the deal with kids in ORR Custody?

The Office of Refugee Resettlement is an agency housed under the Department of Health and Human Services (important: not under DHS). When children arrive from non-contiguous countries (read: not Mexico and Canada) and are not with their parents or legal guardians, they cannot be detained by CBP and ICE but instead are put into the custody of ORR. When children are separated from their parents they are also put into ORR custody. At this point ORR detains the Unaccompanied Alien Children (UAC’s) as they are known as long as it takes to find an appropriate sponsor to send them to. This can take weeks or months. The ORR system for UAC’s has been around for years but as numbers of asylum seekers surge on the border, the ORR system has been overwhelmed and large tent camps like the Tornillo, TX facility have opened, and the speed at which UAC’s are processed and moved out of detention has slowed down dramatically. Estimates put the number of migrant children detained by ORR at around 15,000.

• What is the Flores Settlement Agreement?

The Flores Agreement is an important part of any discussion of the detention of children. It is a law suit that imposes several obligations on federal immigration authorities when it comes to children in custody that largely governs the treatment of UAC’s in ORR custody:

A) The government is required to release children from immigration detention without unnecessary delay in order of preference beginning with parents and including other adult relatives as well as licensed programs willing to accept custody.

B) With respect to children for whom a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.

C) The government is required to implement standards relating to the care and treatment of children in immigration detention.

• How is family separation different from family detention?

Family Detention is a different phenomena. Family detention is the practice of detaining immigrant women with their children who are under the age of 18 in one of 3 specifically designated detention centers in Dilly and Karnes City in TX, and in Berks County in PA. Family Detention was ended as a practice by President Obama in 2009 only to see it revived by Obama in 2014 as a deterrent strategy to prevent waves of families from Central America from seeking asylum. There has been considerable dispute in federal court about how Flores governs the detention of children in family detention considering they are with their parents and not unaccompanied. Right now children cannot be detained indefinitely in family detention per Flores but the Trump Administration could seek to change that soon.

• Why is this coming back up in the news?

Kirstjen Nielson’s departure as the head of DHS raises significant alarm bells. Secretary Nielson proved to be an extremely hard-liner when it came to immigration policy but apparently had limits in what she would do to satisfy the President’s public war on asylum seekers. Trump is now saying he wants someone to take it in a “tougher direction” which is hard to interpret as anything other than an illegal direction. Stephen Miller, who notoriously holds an even harder line than Secretary Nielson when it comes to immigration, is basically running the department. There is talk that the Department will attempt to revive the potentially legal “binary choice” which would essentially force a parent to choose between family detention with their child or being separated and having their kid put into ORR custody. The result of offering this choice would be higher numbers of families indefinitely detained in family detention facilities or seeing another huge surge in children being separated from their families. It would also mean meddling with Flores to make sure that families could be indefinitely detained. Neither option is good from the perspective of the damage it does to children’s health and emotional well being and the potential it has for life-long trauma. It is also extremely questionable what deterrent effect it has, if any, on people who are seeking asylum because their lives are in danger in their home country.

Certainly if this primer is effective, then it raises as many questions as it answers. Though not much of what is written here is in dispute, it doesn’t come close to explaining these issues on the level they deserve to be understood. Hopefully it will help whoever is reading to sort through some of the extremely complicated issues being presented by the President and the media.