In recent weeks, the Trump Administration's "zero tolerance" policy, announced by Attorney General Jeff Sessions in April 2018, has been a source of controversy. The policy relates to offenses under 8 U.S.C. § 1325(a), which sets forth monetary and criminal penalties for unlawful border crossings. While this provision grants immigration officers broad discretion to determine which cases warrant the imposition of the harshest punishment, through the "zero tolerance" policy, the Trump Administration seeks to strictly enforce 8 U.S.C. § 1325(a). As such, all individuals who cross the border illegally will be subject to criminal prosecution. This policy focuses on illegal crossings at ports of entry and across the U.S. border, focusing primarily on the Southwest Border. It applies to all individuals crossing the border with families as well as those seeking asylum. The stated need for the policy is the 203 percent increase in illegal border crossings from March 2017 to March 2018.

To date, the most drastic consequence of the "zero tolerance" policy has been the separation of families. Pursuant to Flores v. Reno, or the “Flores Settlement,” a child may not be held in custody by the Government for more than twenty (20) days. As a result, parents have been detained for criminal prosecution in facilities separate from their children who have been taken into Health and Human Services (HHS) custody. The separation of these families is yet another example of the Trump administration taking action through executive orders and/or policy changes without consideration for the practical implications.

In response to public outcry over the separation of families, the Department of Homeland Security (DHS) published a document entitled "Myth vs. Fact: DHS Zero Tolerance," on June 18, 2018. In the document DHS purported to clarify the circumstances under which children are being separated from their families. One of these circumstances that, according to the DHS, warrant separation, is when the parent or legal guardian is referred for criminal prosecution. As noted above, however, under the "zero tolerance" policy, presently, virtually all adults unlawfully crossing the border are being referred for criminal prosecution pursuant to 8 U.S.C. § 1325(a). As a result, in the event of capture, virtually all children crossing unlawfully with their families are facing separation.

On June 20, President Trump issued an Executive Order entitled "Affording Congress an Opportunity to Address Family Separation," which purports to end the practice of separation. The Executive Order addresses separation by mandating that families be kept together while in custody. However, the Executive Order does not end the "zero tolerance" policy and, more importantly, does not set clear standards or procedures for ending the separation of families at the border; detaining families as one unit; or reunifying the families who have already been separated.

In response to continued public criticism, on June 23, 2018 DHS published a document entitled “Fact Sheet: Zero Tolerance Policy and Family Reunification.”  Some key points shared with the public in this fact sheet are:

·       As of June 20, 2018, Health and Human Services has 2,053 separated minors being cared for in Health and Human Services (HHS) funded facilities.

·       Currently, only 17% of minors in HHS funded facilities were placed there as a result of the “zero tolerance” policy. The remaining 83% arrived in the U.S. without a parent or guardian.

·       The steps ICE has taken towards reunification include:

o   implementation of an identification mechanism to ensure on-going tracking of linked family members throughout the detention and removal process;

o   designation of detention locations for separated parents;

o   working closely with foreign consulates to ensure that travel documents are issued for both the parent and child at the time of removal; and,

o   coordination with Health and Human Services for the reuniting of the child prior to the parents’ departure from the U.S.

·       CBP has already reunited 522 minors in their custody who were separated from adults as part of the “zero tolerance” policy.

·       A parent who is ordered removed from the U.S. may request that their minor child accompany them.

·       ICE has posted information in all of its facilities advising detained parents who are trying to locate or communicate with a separated child to call the Detention Reporting and Information Line for assistance.

·       Within 24 hours of arriving at an HHS funded facility, minors are given an opportunity to communicate with a vetted parent, guardian or relative.  While in HHS funded facilities’ care, every effort is made to ensure minors can communicate with their parent or guardian at least twice per week.

·         Minors in HHS funded facilities are permitted to call both family members and sponsors living in the U.S. and abroad. Attorneys representing minors have unlimited telephone access.

As of the posting of this blog on July 11, 2018, the administration has yet to reunite all minors with their families who were separated as a result of the “zero tolerance” policy.

The American Immigration Lawyers Association (AILA), a professional body of immigration attorneys, recently issued a statement arguing that while separation of families was the most controversial issue, it is the "zero tolerance" policy which is the root problem because even if the Executive Order is implemented effectively to end separation, the result will be the detention of entire families, which implicates both moral and legal issues. 

As written, the Executive Order calls for children and families, including asylum seekers, to be jailed indefinitely. Separation of families as well as the detention of families seeking protection in our country is contrary to international refugee law, to our own asylum law, and to the integrity of this nation. Our laws are clear: if you express a fear of returning to your home country, you have a right to a credible fear screening. If the asylum officer finds you have a credible fear of persecution in your home country, then you have a right to have an Immigration Judge hear your case.

The Executive Order purports to fast-track family cases, but children and their families must have meaningful access to justice. They need time to find a lawyer and prepare their cases. Fast-tracking these cases in the way this Executive Order contemplates would deny due process to detained children and families.

Contrary to some claims, family detention is not the only alternative to separating families. Alternatives to family detention such as electronic monitoring are less expensive and have proven effective, but the administration has chosen to halt them and institute these inhumane policies instead.