The Trump administration has made repeated efforts to severely curtail immigration and asylum in the U.S., justifying dangerous and deceitful policies by stoking fear amongst Americans about asylum seekers on our southern border. Despite court decisions ordering the administration to end the most unscrupulous — and illegal — programs aimed at separating children from their parents who seek humanitarian aid, separations have continued. What’s worse,, the government is utterly failing to account for the whereabouts and safety of children in its custody.
In 2018, the Trump administration instituted one of the most controversial “deterrence” policies aimed at immigrants in recent memory: the zero tolerance policy. The administration implemented large-scale family separations at the U.S. border, ostensibly to deter new migrants from entering the U.S.
Yet, the number of children and families apprehended at our border continued (and continues) to rise. According to U.S. Customs and Border Protection (CBP), there was a 34 percent increase in apprehensions of families and children at the southwest border from fiscal year 2017 to FY 2018, from 75,000 families and at least 41,400 children to about 107,200 families and 50,000 children.
Furthermore, despite a judicial order requiring the federal government to track the whereabouts of separated children, federal immigration agencies have struggled to track and reunify families separated by zero tolerance. They have continued to systematically separate families without making meaningful changes to the process to avoid repeating these mistakes.
Insufficient oversight, technology, and communication within the U.S. immigration system has subjected thousands of children and families to harm.
Children are still routinely separated from their family members based on discretionary reviews by untrained CBP officers.
In July 2019, the ACLU filed a legal memorandum alleging that the administration systematically separated migrant families despite the end to zero tolerance. In the filing, the ACLU alleges:
From June 28, 2018, through June 29, 2019, Defendants [the government] have now separated more than 900 children — including numerous babies and toddlers — based on criminal history, Defendants’ unilateral, unsupported determination that the parent is unfit or a danger, or mistakes about the identity of the adult as the child’s parent.
A report by the inspector general for the Department of Homeland Security published in November 2019 estimates that 3,014 children were separated from their families during the approximately six weeks zero tolerance was in effect. According to figures disclosed through litigation, an additional 1,500 children were separated from their parents before zero tolerance was fully implemented. In addition, approximately 1,000 children have been separated from their parents after the termination of zero tolerance.
While separations are happening on a smaller scale than during zero tolerance, they are significantly higher than the numbers before 2017. One reason for the increase in separations is the broad authority granted to CBP agents to determine which families to separate. Prior to zero tolerance, Border Patrol agents rarely used their discretion to separate families unless there was strong evidence that the parent was a risk or had a criminal record.
The 2018 injunction restricted CBP to separating families only when there is “a determination that the parent is unfit or presents a danger to the child.” According to the ACLU, CBP agents have abused this broad discretionary authority, and separate families based on allegations or arrests instead of convictions; offenses that took place many years ago; and based on criminal offenses such as traffic violations, misdemeanor property damage, and disorderly conduct. Additionally, there are reports of CBP separating families based on flimsy assertions that the parent does not appear to be doing a proper job caring for the child or cannot adequately prove his or her relationship to the child.
In January 2020, federal judge Dana Sabraw of the U.S. District Court in San Diego issued a ruling ordering federal agencies to conduct DNA tests before separating children from parents when there are questions about parentage, but otherwise refusing to create new limitations for CBP agents to separate a family. While this new mandate protects families from being wrongfully separated based on the allegation that they are unrelated, CBP agents still have too broad of an authority to separate families for minor infractions or perceived slights.
Family reunification is still dogged by technical and procedural problems.
In November 2019, the DHS inspector general found that DHS was aware that they were not equipped to track separated families under zero tolerance and had not established a plan to reunite separated family members after the parent was released.
Insufficient technology, miscommunication among agencies, and lack of uniform guidance has created a chaotic system for reunifying families separated by and since zero tolerance.
The 2018 injunction required DHS to identify and reunite children younger than age five with their families within 14 days, and children aged five and older within 30 days. The Department of Health and Human Services (HHS) immediately began a concerted data-sharing effort with DHS to identify the families separated under zero tolerance. This largely manual process, conducted by HHS, Border Patrol, and Immigration and Customs Enforcement (ICE) as well as contractors, required approximately 800 hours of analysis and review.
Tracking and reunification efforts were and continue to be complicated by the lack of technological infrastructure and guidance for Border Patrol agents. DHS electronic systems lack the critical capability to separate grouped family members, track separations once a family unit was deleted from the system, and reunite family members. When a family is separated, the entire family unit record is deleted from the system and the members reentered as single adults and unaccompanied minors (UAC).
In fact, the only way to note that a family had been separated was a manual entry by a Border Patrol agent indicating a relationship both in the parent and child’s individual records. Of course, there is also no guidance for CBP agents to record these critical details in training manuals.
The reliance on manual input by agents has made it impossible to determine how many family separations actually occurred, and has led to extensive inaccuracies in data included in files.
Recorded errors included incorrect codes to indicate reasons for family separations. In some cases, separations were not recorded at all, and family relationships were created for adults and minors who were unrelated.
This lack of uniformity has resulted in cases where DHS had no data at all for certain family separations, or the data was so flawed as to be rendered useless. In instances when DHS had no data at all on family separations, DHS only discovered these separations when HHS or nonprofit entities advocating on behalf of the UAC notified the department. The DHS inspector general identified an additional 1,369 children with potential family relationships who were not accurately recorded by Border Patrol. Without reliable data on separations, it is impossible to determine how many families DHS and HHS still need to reunify.
In order to reunify families separated under zero tolerance by the court-mandated date, DHS and HHS employees had to coordinate (via email) thousands of itineraries to arrange meetings between parents and children at facilities across the country. Once children arrived at detention centers, CBP personnel had to process the parents and children together again, assign new family unit numbers (potentially duplicating records), and note in the case files that family members were reunited.
Then, ICE agents have had to reprocess the families for release, which often takes hours for each case. This chaotic process led to missed transfers and long wait times. ICE personnel reported to the inspector general that children were often waiting hours and staying overnight in hotels before their parents arrived for the reunification and on one occasion, a child arrived at a detention center with no notification from HHS.
The government knew it was ill-equipped to handle reunification of separated children.
Again, according to the November 2019 inspector general report, CBP was well aware that its systems would make it impossible to properly reunite families. In a 2017 pilot program in El Paso, Border Patrol separated nearly 280 families and border agents requested assistance from CBP headquarters to develop functionality to track family separations. While DHS noted the need for increased cooperation among agencies, it did not make any technological updates to its systems until August 2018, two months after the zero tolerance policy had ended.
Enhancements included features for recording the separation and reunification of family members, as well as tracking unaccompanied children’s (UACs) time in custody. The updated system recorded separations in both CBP and ICE systems through flags that alerted agents and officers that a detainee was part of a separated family. While these updates increased awareness of family separations, they do not provide the necessary details to track separated family members or update the information when a family has been reunified.
While DHS estimated it had completed 2,155 reunifications in response to the court order, the inspector general’s report stated that “without a reliable account of all family relationships, we could not validate the total number of separations, or reunifications.”
Failure to share information has led to more incompetence.
The federal agencies responsible for managing family separations use various IT systems to record and track detainees and family information. The DHS system has the most information that is necessary to track and reunify families; however, DHS does not allow access to this system by HHS, parents, or legal service providers seeking to reunify a family. DHS maintains that “HHS is not a law enforcement entity, and therefore is not able to receive or store law enforcement sensitive information.” DHS also refuses to transfer information to the HHS system, claiming that it “is not equipped to store such information with appropriate protections.”
The government defends its use of separate systems and lack of information-sharing as protecting privacy and security. This process requires legal service providers representing UACs in removal proceedings or parents seeking to be reunified with their children to submit a request for information to DHS, which will only provide information on a “need to know basis.” HHS officials have stated that they have difficulty getting information from DHS about parent’s criminal backgrounds, which impedes their ability to provide appropriate care and placement for separated children. This cumbersome system of information-sharing creates unnecessary roadblocks in the family reunification process and creates backlogs that can keep children in detention and shelters for longer than is necessary.
Additionally, ICE claims that a hotline has been set up to help parents and children find each other. Of course, the hotline is difficult to access for parents in detention, with extensive wait times and the impossibility of leaving a callback number. Parents or family members in other countries have to pay for expensive international calls, if they are able to make 1-800 calls at all.
Ongoing violence and insecurity in Central America, Mexico, and South America will continue to drive families to the southwest border. Deterrence policies such as zero tolerance have failed to accomplish their goals and caused widespread harms to migrants, especially migrant children. The federal government should commit to new policies that protect vulnerable children and families rather than inflict more harm upon them.
An important first step would be to actually end the policy of family separations by limiting the discretion of CBP agents to separate families upon arrival. Second, immigration agencies, including DHS and its subsidiaries, should urgently develop technological capabilities to reunite families who have been separated as quickly as possible. This would bring DHS into compliance with the 2018 court order which terminated the zero tolerance policy. Finally, agencies should enhance their information-sharing and collaboration efforts to avoid replicating the mistakes that were made under the zero tolerance policy.
These changes are necessary to preserve the dignity of migrants and to protect vulnerable children and family unity.