Family Separation and Detention

    BACKGROUND

    In April 2018, Attorney General Sessions announced a “zero tolerance” policy under which the Department of Homeland Security (DHS) will refer all migrants who enter the U.S. without authorization to the Department of Justice (DOJ) for criminal prosecution. This policy expands “Operation Streamline,” a program which began in 2005.

    As a result of the zero tolerance policy, the government separated more than 2000 children from their parents at the border during the period of mid-April to June.  Since children cannot be held in criminal detention, the children are designated as “unaccompanied alien children” and placed in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement (ORR).  ORR places the children in shelters until they are released to a family member, guardian, or foster family.

    On June 20, President Trump signed an Executive Order intended to halt the separation of families. However, the order instructs DHS to detain alien families together throughout the pendency of criminal proceedings and immigration proceedings. The Border Patrol has temporarily halted the referral for criminal prosecution of parents arriving with children, but there is no procedure currently in place to reunite the thousands of families already separated.

    ABA ADVOCACY AND NEWS

    On visit to Texas border, ABA president advocates for migrants’ legal rights

    July 2, 2018 – In a two-day visit to the Rio Grande Valley, where thousands of parents and their separated children are detained as a result of the administration’s “zero-tolerance” policy, ABA President Hilarie Bass spoke out about the need for legal services to ensure they receive the due process to which they are entitled.

    Want to help at the border? ABA groups offer avenues to donate time and money

    June 27, 2018 – ABA Journal article highlighting what the ABA is currently doing to respond to the crisis and how ABA members and others can help.

    ABA president describes weeping mothers and due process concerns at the border

    June 27, 2018 – ABA Journal – ABA President Hilarie Bass traveled to the Rio Grande Valley of Texas to see how American lawyers can help families separated by federal immigration authorities. Public attention has focused on that situation over the past two weeks, as images of immigrants in chain-link holding cells and audio of children weeping for their parents found their way into the media. Bass was also looking at the due process implications of the “zero tolerance” policy—announced in early April by U.S. Attorney General Jeff Sessions—for people who cross the border without authorization.

    ABA President Bass to visit southern border to assess legal needs of children and parents

    June 22, 2018 – American Bar Association President Hilarie Bass will travel to the Texas Rio Grande Valley area on June 25-26 to assess the legal needs of children and parents caught up in shifting federal policy on the handling of immigrants at the southern U.S. border.

    Statement of Hilarie Bass, ABA president Re: Executive Order on separation of children at the border

    June 20, 2018 — The American Bar Association is pleased that the administration has decided to stop the inhumane and untenable policy of separating immigrant children from their parents. We call on the government to expeditiously and efficiently reunite families and minimize any further harm to the children. The ABA pledges its full support in working within the legal community to make this happen.

    ABA asylum project attorney describes representing separated families at the border

    June 20, 2018 – Attorneys representing asylum-seekers from Central America frequently have worked with traumatized clients. But since the federal government began separating families after arresting parents for illegal entry, Kimi Jackson of the ABA’s South Texas Pro Bono Asylum Representation Project says the trauma has gotten far worse.

    ABA President Hilarie Bass sends letter to DOJ, Homeland Security opposing separation of children

    June 12, 2018 — American Bar Association President Hilarie Bass sent a letter today to Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen expressing the association’s strong opposition to recent actions by the Department of Justice and DHS that have resulted in a drastic increase in the separation of children from their parents when arriving at the southern border.

    Statement of Hilarie Bass, ABA president Re: Separating immigrant children from parents at the border

    May 30, 2018 — The American Bar Association strongly opposes the government’s policy of forcibly separating minor children from their parents when families cross the southern border into the United States. This unnecessarily cruel action violates basic standards of human decency.

    LEGISLATION

    The House of Representatives rejected passage of H.R. 6136, the Border Security and Immigration Reform Act, on June 27, 2018.  Among other things, this bill included a provision to eliminate the separation of families by authorizing indefinite detention of parents and children pending immigration court proceedings.

    S. 3036/H.R. 6135, the Keep Families Together Act, was introduced in the Senate by Senator Dianne Feinstein (D-CA) and 31 cosponsors on June 8, 2018 and in the House by Rep. Jerrold Nadler (D-NY) and 194 cosponsors on June 19, 2018.

    S. 3091, the Protect Kids and Parents Act, was introduced by Senator Ted Cruz (R-TX) on June 19, 2018.

    S.3093, the Keep Families Together and Enforce the Law Act, was introduced by Senator Thom Tillis (R-NC) on June 21, 2018.

    LITIGATION

    On March 9, the ACLU expanded a previously filed lawsuit  challenging the practice of forcibly separating asylum-seeking parents and their children.  On June 26, a federal judge in California issued a nationwide injunction temporarily stopping the separation of children from their parents at the border and ordered that all families already separated be reunited within 30 days.

    On June 26, a coalition of 17 states filed suit over the family separation policy in the U.S. District Court for the Western District of Washington.  The lawsuit alleges the policy violates Fifth Amendment guarantees of due process and equal protection, federal asylum laws, and the Administrative Procedure Act.

    On June 27, the American Immigration Council filed a lawsuit to compel the federal government to release a variety of data and documents related to family separation.

    On June 27, the Northwest Immigrant Rights Project (NWIRP) filed a lawsuit in federal district court on behalf of three women who were separated from their children when they entered the U.S. to seek asylum.

    ABA RESOURCES

    Background on Separation of Families and Prosecution of Migrants at the Southwest Border, June 8, 2018, ABA Commission on Immigration  

    Family Immigration Detention: Why the Past Cannot Be Prologue, ABA Commission on Immigration, 2015

    ABA Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States, ABA Commission on Immigration, 2018

    ABA Civil Immigration Detention Standards, ABA Commission on Immigration, 2012

    TAKE ACTION

    Contact your legislators through the ABA Grassroots Action Center to tell them to stop separating immigrant families and ensure the reunification of parents and children who were subject to separation.

                Take Action

    Volunteer through the ABA and its partners:

    Donate to or volunteer with ABA immigration projects:

    Other Resources: