June 30, 2018

ABA president urges end to “zero tolerance” policy separating families at southern border

ABA President Hilarie Bass urged U.S. Attorney General Jeff Sessions and Homeland Security Secretary Kristjen Nielsen this month to rescind the government’s “zero tolerance” policy instituted in May that has resulted in approximately 2,000 children being separated from their undocumented parents who are entering the United States at the southern border.

The policy requires that all undocumented adults entering the United States without authorization must be referred for criminal prosecution. As a result, their children become unaccompanied, are taken from their parents, and are put in the custody of the Office of Refugee Resettlement in the Department of Health and Human Services (HHS). They are placed in separate removal proceedings before an immigration judge.

In her letter, Bass pointed out that while incidental separation of parents and children has taken place in the past, the practice has never been applied uniformly as a strategy to deter migration before now. Public statements from high-ranking administration officials make clear, she said, that family separation is “an explicitly intentional goal” of the new policy, not a collateral consequence of regular law enforcement.

“Although the Supreme Court has never addressed a case involving the exact facts presented by the current practice of family separation, existing law suggests the policy violates rights to family integrity and due process. Moreover, the policy appears particularly unfair, inhumane, and, in the end, ineffective,” Bass wrote.

She explained that a long line of Supreme Court precedent underscores the fundamental relationship between children and their parents and makes clear that intentional government intrusion into this relationship is only permissible in very limited circumstances when necessary for the child’s welfare and safety. Even in those circumstances, a parent is constitutionally entitled to a hearing on fitness before a child is taken away, and these federal constitutional rights and protections have been applied equally to immigrant and citizen parents in child welfare cases, Bass said.

Medical professionals, including the American Academy of Pediatrics, condemn the practice of family separation, explaining that “[f]ear and stress, particularly prolonged exposure to serious stress without the buffering protection afforded by stable, responsible relationship … can harm the developing brain and harm short- and long-term health.”

Bass also noted that experience has shown that punitive measures are not likely to deter desperate parents from seeking protection for their children. These parents and their children are coming primarily from El Salvador, Guatemala, and Honduras − among the most dangerous countries in the world − and often present valid claims to asylum.

“As long as the conditions of extreme violence and endemic corruption in these countries of origin exist, families will seek refuge in the United States,” Bass said.

She acknowledged the challenges faced by the government, but maintained that the “systemic practice of separating parents and children is antithetical to our values as a country, appears to violate longstanding precedent protecting rights to family integrity, burdens the federal criminal justice and immigration adjudication systems, and increases costs to the government.”

When families are apprehended and placed in removal proceedings, parents and children should be kept together in the least restrictive environment necessary or released on an appropriate alternative to detention, she concluded.

In response to the new policy, Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) and 48 cosponsors introduced legislation on June 8. The bill, S. 3036, would limit the separation of parents and children at or near ports of entry to the United States by setting certain conditions that must be met to ensure that the action is in the best interests of the child.

Members in both the Senate and House are also weighing other proposals to address the issue.

Back to the June 2018 Washington Letter