What Everyone Has Gotten Wrong About Family Separation

Secretary of Homeland Security Kirstjen Nielsen took a fair amount of flak at a Senate Homeland Security and Governmental Affairs Committee (HSGAC) hearing earlier this month from Senator Kamala Harris (D-CA) over the administration’s policy of separating children from their parents at the border. While Nielsen defended the policy as lawful, Harris attacked it for being unsafe and improperly abused.

In part, they are both right. There has always been a policy of separating children from parents at the border when the adults are facing criminal charges but—and it’s a big caveat—the current administration is manipulating and exploiting—and indirectly expanding—that policy to deter migration.

To be perfectly clear, the U.S. has had a long-standing policy of family separation during criminal prosecutions. Another related long-standing policy is  prosecuting illegal entry. What has changed, however, is Attorney General Jeff Sessions’s recent announcement of the “zero tolerance” policy means many more parents will be subject to criminal prosecutions if they did not attempt to cross at a port of entry, instead of merely sending them back to Mexico. That applies even if the parent is trying to go through the legal asylum process.  

Despite justifying the new policy by reference to supposed rampant illegal immigration,  even as it ramps up enforcement and broadens its web for criminal prosecutions of migrants, the administration is lagging behind its predecessor with regard to criminal prosecutions for entry because illegal border crossing attempts are way down. According to a report by the Transaction Records Access Clearinghouse (TRAC) on the most recent DOJ data, compared to five years ago where there were 53,822 criminal prosecutions under 8 U.S.C. §1325 (entry of alien at improper time or place), the estimate for FY18 is down 32 percent.

When an individual is charged with crossing the border at the wrong place, any accompanying children are usually placed in the custody of the Department of Health and Human Services (HHS). This policy was initially put in place to make sure that traffickers would not maintain custody of accompanying children they might be smuggling.  But there are other alternatives when trafficking is not a risk. Those alternatives, like family detention or bond, are often used for families claiming asylum

The problem with the Trump administration’s new policy is that not only that are they ignoring alternatives, but also that they are increasing the use of separation and care under HHS—generally considered the most severe option—for people who are trying to follow the legal process

Anecdotes about an uptick in family separations began after President Trump was inaugurated, but has gained momentum in recent months, particularly in light of the caravans of asylum seekers arriving at the border.

Clearly, the impact of the policy is most problematic as it applies to families claiming asylum, or who are illegally present in the U.S. (a civil offense). Whereas placing children with HHS was previously an option, it now looks like the default choice.  

The administration is effectively removing discretion from federal law enforcement officials, prosecutors, and immigration judges who previously considered legitimate factors to determine whether a child ought to be removed from the custody of a parent, or whether the interests of the child and family were better served in a family detention facility, for example.

Also alarming is that these separations are done without any hearing or notice. In a recent case documented by the American Civil Liberties Union (ACLU), a mother and daughter from the Congo presented themselves at the border and passed their initial credible fear interview. They were detained together for four days, when without notice, the 6-year-old child was taken from her mother—screaming, crying, and pleading—and placed alone in a detention facility across the country for four months, during which time she spoke to her mother only six times on the phone.

Without a hearing, it is impossible to accurately assess what is in the best interests of a child encountered with a family member, or whether the government has a legitimate interest in separating a child from a parent. Without notice, it is impossible to try to explain to a child what is happening to reduce potential trauma, or to contact relatives who may be able to take custody of the child as an alternative to placement in HHS custody.

A dangerous problem with HHS custody is that it not a safe place for children. Shockingly, a 2016 HSGAC report found that HHS inadvertently placed children in the custody of human traffickers over a dozen times, some of those times involving traffickers who kept the children as slave laborers. The scope of the entire problem is hard to quantify, because, as the report notes, no one really keeps track of the children placed in custody, consistently vets the sponsors with whom they are placed (including approving sponsors who can and do easily leave the country), or follows up with children post-release. However, according to Sec. Nielsen’s testimony, the departments are working to rectify this oversight.

Relatedly, there is evidence that suggest that separating children—particularly children under 4 years of age—is extraordinarily traumatic for the child and can cause irreparable harm, according to the American Academy of Pediatrics.

Even if you are not moved by the gross incompetence of the federal government to protect children in their custody, everyone should recognize that this policy is not appropriate to address illegal immigration or with enforcing our border security, and it is a huge drain on resources.

The bottom line is that enforcing our laws and treating human beings the right way are not mutually exclusive, unless we let them become so. Remember, most of the families crossing the border are doing so out of desperation—they are not violent criminals. They face death, violence, and hunger in their home countries. If they cross illegally, they can be returned. But intentionally inflicting more emotional distress is not in the legitimate interest of the nation and is downright inhumane.

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