Even though the plenary powers doctrine grants the executive branch broad authority over immigration enforcement, it does not eliminate the right of family integrity in immigration contexts. No U.S. law mandates detention or prosecution of families caught illegally crossing the border. The desire to strictly enforce immigration laws in the service of “saving the American worker from the dissolution of our borders”1 or under other nativist political slogans must be secondary to humanitarian goals of maintaining family health and integrity of all people within our borders.
This Article will first give a historical and legal background to the immigration policies of the Obama2 and Trump Administrations.3 It then discusses the Trump Administration’s “zero tolerance” policy and the psychological impact of family detention and separations.4 Following this background, the Article examines current federal law and precedent regarding the separation of immigrant families in civil law and then discusses possible constitutional ramifications in the criminal law context.5
The Article then proceeds to offer some suggestions for addressing these prevailing legal and social challenges. These suggestions include expanding the dialogue surrounding family separations to encompass U.S. immigration policy as a whole,6 as well as eliminating (or greatly restricting) family detentions, creating an Article I court for immigration, and passing legislation outlining how immigrant families should be treated at the border.7 Finally, the Article offers some summary and concluding remarks.
The future of the U.S. policy after the 2020 presidential election is currently uncertain.8 Perhaps 2021 will bring a new political moment that would allow the U.S. government to address the immigration issues outlined here.
I. Obama Era Immigration Policy and Family Separation
U.S. immigration policy, as a whole, has a lengthy and complex history that is beyond the scope of this paper.9 However, to more fully understand the Trump Administration’s immigration policy it is helpful to compare it with the immigration policy of the Obama Administration.
The Obama Administration’s policies dealing with undocumented immigrants have been subject to a substantial amount of misinformation or simply lack of information. For example, the Obama Administration began the practice of reporting “voluntary” removals at the border as involuntary removals, thereby inflating removal numbers compared to previous administrations and giving the appearance of tougher border enforcement.10 Furthermore, official statistics on family separations at the border are unavailable because, according to DHS officials, the Obama Administration did not collect these data.11
The Obama Administration changed the focus of immigration enforcement to “removal of recent border crossers and criminals rather than ordinary status violators apprehended in the U.S. interior.”12 The apparent reasoning was to “deter illegal border crossing and remove unauthorized immigrants before they become integrated into U.S. communities.”13 Statistical evidence of this shift is found in the fact that interior removals decreased from 181,798 in 2009 to 65,332 in 2016, and during the same time period border removals increased, from 207,525 to 279,022.14
While the Obama Administration did prosecute some individuals who attempted to cross the border illegally, exceptions were made for asylum seekers and families.15 Additionally, the Obama Administration tried to limit family separations to specific situations where the child’s well-being might be at risk, such as when drugs were found on the parent.16 In practice, the Obama Administration generally did not criminally prosecute apprehended families, and if they sought asylum, they were detained together while those claims were processed.17
A. The Rise of Family Detention Under President Obama
By operating border enforcement in this manner, with respect to migrant families, President Obama resurrected the almost totally discontinued practice (since the 1997 Flores Settlement Agreement18) of detaining mothers and children apprehended at the border to deter future undocumented immigration. To begin with, the government had one 100-bed family detention facility in central Pennsylvania and added two larger facilities in Texas and New Mexico that could hold thousands.19 Leon Fresco, a deputy assistant attorney general under President Obama, stated that although some fathers apprehended at the border were separated from their children, most fathers and children were released together, often with ankle bracelets.20 “ICE [U.S. Immigration and Customs Enforcement] could not devise a safe way where men and children could be in detention together in one facility,” Fresco said. “It was deemed too much of a security risk.”21
B. The Secure Communities Program During the Obama Administration
President Obama continued immigration policies of his predecessor, President George W. Bush. Perhaps one of the most relevant policy initiatives to the discussion at hand is the “Secure Communities” program that ultimately led to the deportation and separation of families under the Obama Administration.22 Secure Communities began in 2008 under the administration of President Bush.23 The goals of the program included (1) identifying criminal aliens through biometric information sharing, (2) prioritizing apprehension and removal of dangerous criminal aliens, and (3) transforming the criminal alien enforcement system, including enhancing process efficiency and reducing time in ICE custody.24
By July 2011, Secure Communities had expanded to over 1,470 jurisdictions.25 Subsequently, Secure Communities was expanded to all 3,181 jurisdictions within the fifty states, the District of Columbia, and five U.S. Territories, with full implementation completed on January 22, 2013.26 From Secure Communities’ commencement through 2011, approximately 88,000 families with members who are U.S. citizens had a family member arrested under the Secure Communities program,27 meaning that tens of thousands of immigrant families were separated by this program.
In a memo dated November 20, 2014, then–Secretary of Homeland Security Jeh Johnson discontinued the Secure Communities program.28 Johnson stated the following:
[T]he program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program.29
Some of the Secure Communities program’s most serious constitutional violations were litigated in Moreno v. Napolitano30 and Makowski v. United States.31 These two cases and others were cited in a memorandum about the discontinuation of Secure Communities.32
Secretary Johnson replaced the Secure Communities Program with the Priority and Enforcement Program in November of 2014.33 Enforcement then shifted and “unless the alien pose[d] a demonstrable risk to national security, enforcement actions through the new program [would] only be taken against aliens who [were] convicted of specifically enumerated crimes.”34 These enumerated crimes were generally higher-level offenses, and this change scaled back the reach of the program.35
C. Family Detention and Revisiting the Flores Settlement Agreement
Nevertheless, the Obama Administration continued to detain immigrant families in make-shift detention centers with deplorable conditions.36 When the Administration was challenged on this policy, it defended family detention by citing deterrence of undocumented immigration and potential flight risks of the families.37 However, federal courts found both interests to be inadequate to sustain the practice.38 Beyond this, the 2014 influx of unaccompanied minors from Central America had stretched immigration enforcement to its breaking point and created a full-fledged humanitarian crisis.39 At the end of June 2015, around 2,600 immigrant women and children were held in three family detention centers across the United States.40
On July 24, 2015, Judge Dolly Gee of the federal District Court for the Central District of California ruled that the Obama Administration’s long-term detention of children and their mothers who were apprehended crossing the border illegally violated the longstanding Flores Settlement Agreement (FSA) and that the families should be released immediately.41 There was uncontradicted evidence presented in federal court of deplorable conditions in family detention facilities at that time.42 While ordering the Administration to develop a plan to release the families, Judge Gee decided that if a parent was detained with her child, immigration officials should release her with the child, provided that they were not a flight or security risk.43
The FSA is key to understanding the current status of family separations at the border, and it is worthwhile to discuss its background. In 1997, the FSA “established a nationwide policy for the detention, treatment, and release of all alien children, both accompanied and unaccompanied.”44 It was Judge Gee’s interpretation of the FSA, cited above, that established that children accompanying apprehended adults could not be held in family detention for more than an average of twenty days.45 Under the FSA, officials should first attempt to place a child with a parent, whether or not they are apprehended.46 If the parents are detained and cannot be released with the children, such children are typically treated as unaccompanied children and referred to the Office of Refugee Resettlement (ORR).47 For children who cannot be released, the FSA generally requires officials to place them in nonsecure facilities run by agencies licensed for child care.48
Near the end of President Obama’s second term in office, family detentions were generally limited to less than three weeks and the immigrant families in question were released under supervision with ankle monitors until their asylum claims were processed.49 Secretary Johnson reported that apprehensions of family units at the southwest border peaked in the 2016 fiscal year at 77,674,50 and DHS managed this influx of family units under these new guidelines.
II. The Trump “Zero Tolerance” Policy and Family Separation
President Trump’s immigration policy expanded enforcement at the southwest border and arguably implemented the policy recommendations outlined by Jeff Sessions in his Immigration Handbook for the New Republican Majority.51 The hardline approach to reducing undocumented immigration was understood to be a top political priority (if not the top priority) by President Trump and former Attorney General Jeff Sessions. It was not an influx of undocumented immigration that caused President Trump to tighten border security, like President Obama faced in 2014. President Trump was fulfilling campaign promises and sought to appease his constituency by increasing border enforcement.52 Security and the protection of the American worker were the stated twin aims of this policy approach.53
On January 25, 2017, Trump signed an executive order to restart the Secure Communities program.54 This order directed all agencies to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”55 The plan included the following: (1) construction of a border wall and increase in detention capacity, (2) systematic reporting mechanisms across levels of government, (3) increase in number of administrative officials, (4) increase in the number of judges, and (5) ending the policy of “catch and release.”56
Although apprehensions at the border were close to historical lows,57 the Trump Administration publicly stated that undocumented immigration was a security threat and chastised any domestic resistance to harsher immigration policy.58 The proposed solution to this problem was the “zero tolerance” policy, specifically the criminal prosecution of all undocumented border crossers and the end of “catch and release.” “Catch and release” referred to the practice of releasing some individuals or families in the U.S. interior under supervision while their asylum cases or other immigration proceedings were pending.59
A. The “Zero Tolerance” Pilot Program
In fall of 2017, DHS started a secret pilot program in El Paso to prepare for the full rollout of the “zero tolerance” policy.60 During this program, Customs and Border Protection (CBP) officials reported that their software prevented them from keeping records of which families had been separated, thereby creating an obstacle to reunification.61 Hundreds of families were separated during this pilot program and officials tried to create spreadsheets and white board lists to keep track of families.62 Unfortunately these makeshift records were inadequate for tracking family separations. When these concerns were brought to the Trump Administration in Washington, the response was that these issues were “not a high enough priority to warrant the time and resources required for system modifications.”63 Furthermore, none of the agencies involved (i.e., CBP, ICE, ORR, and U.S. Department of Health and Human Services (HHS)) had the capacity to synchronize their systems to keep track of separated families; yet despite all this, the Trump Administration went forward with the “zero tolerance” policy knowing these issues were unresolved.64
B. The El Paso Five and the End of the Pilot Program
The pilot program of “zero tolerance” ended with the criminal trials of the El Paso Five, four parents and one grandparent, all from Central America, who were all separated from their children.65 They were all caregivers with children who crossed the southwest border. They were prosecuted for improper entry66 and detained without their children. Later, the El Paso Five were all convicted and received no information about their children until after their trials were over.67 The end of these trials also signaled the end of the “zero tolerance” pilot program, and the government evaluated the outcomes of the program at that point.68
Consequently, the government was emboldened by the results in the El Paso Five cases, and by the fact that border officials reported in a memo to Secretary of Homeland Security Kirstjen Nielsen that these prosecutions and family separations resulted in a 64% drop in unlawful family border crossings in the El Paso Sector.69 This seemed to be the deterrent effect that the Trump Administration wanted. In the eyes of the Trump Administration, the ground was now ready for a full rollout of the “zero tolerance” policy.
C. The Full Implementation of “Zero Tolerance”
As stated above, the policy of “zero tolerance” involved the criminal prosecution of all individuals, including parents with children, who crossed the border between ports of entry without the requisite immigration documents.70 Unlike previous administrations, no exceptions to prosecution were made for asylum seekers if they crossed the border between ports of entry without immigration documents.71
Rather than processing apprehended immigrants through civil removal proceedings, the Trump Administration chose to prosecute immigrants under criminal statutes.72 Under the Immigration and Nationality Act (INA), unauthorized border crossers can be prosecuted for illegal entry, illegal reentry, or assisting someone in illegal entry.73 In contrast, previous administrations decided to remove offenders rather than use the criminal justice system to prosecute. As a consequence of this unprecedented shift, the system was not equipped to handle the number of prosecutions because families and parents were rarely prosecuted for illegal entry in the past.74
In prior administrations, family detention centers were used to house whole families together while their immigration cases were pending, or these families might be released under some sort of supervision.75 In the past, children would only be separated from their families in cases where identity and familial relationship could not be established, where there was suspicion of child trafficking, or when there was no more space in family detention centers.76 Both the Obama and Trump administrations attempted to increase capacity to detain families and children, rather than release them until their court dates. However, the “zero tolerance” policy was “the first time that a policy resulting in [family] separation [was] being applied across the board.”77
Eventually, the Trump Administration apprehended 90,563 family units from October 2017 through August 31, 2018,78 a more-than 16% increase from the Obama Administration’s highest family unit apprehension numbers in the 2016 fiscal year cited above.79 With the new “zero tolerance” policy, immigration courts and family detention centers were stretched to their breaking point.
With these policies in place, if a family unit was apprehended crossing illegally between ports of entry (or even if a family presented themselves at a port of entry and requested asylum), the “zero tolerance policy” mandated that border patrol refer all adult immigrants to the Department of Justice (DOJ) for criminal prosecution. Processing all of these individuals created a backlog in the immigration courts, and because immigration enforcement agencies could not detain a child for more than twenty days under the FSA,80 immigration agencies separated children from their parents and funneled them into the foster care system. The children who accompanied apprehended adult parents were not allowed to be incarcerated in adult criminal detention centers with their parents; thus, the children were processed as unaccompanied children. Then these children were transferred to the custody of ORR, which placed them in agency-supervised, state-licensed shelters. If possible, the ORR attempted to place the children with relatives, sponsors, or foster care.
Prior to “zero tolerance” in the 2017 fiscal year, border patrol separated 1,065 (1.4%) of 75,622 alien family units.81 In the five months prior to the enactment of the “zero-tolerance” policy, border patrol separated 703 (2.3%) of 31,102 alien families.82
D. The End of “Zero Tolerance”
After family separations began, there was great national outcry and confusion about the scale of implementation. DHS first reported figures in June 2018, showing that 2,342 children were separated from their parents between May 5 and June 9.83 The Trump Administration subsequently reported that 2,815 children who were separated from their parents were in ORR custody as of June 26, 2018 (the date when a preliminary injunction was issued).84
President Trump issued an executive order on June 20, 2018, that ended family separations, prioritized the cases of detained families, and ordered the establishment of more family detention facilities.85 The order also required the Attorney General to seek a modification of the FSA so that families could be detained together for a longer duration.86
Soon thereafter, on June 25, 2018, CBP temporarily stopped referring for criminal prosecution adults who crossed the border with children because ICE lacked bed space in family detention centers.87 On the same day, the Trump White House announced that “zero tolerance” would be in force as soon as more resources were acquired.88
On June 26, 2018, the Trump Administration’s practice of separating families was finally reversed by Judge Dana Sabraw of the U.S. District Court for the Southern District of California, who issued a preliminary injunction in a class action lawsuit filed by the American Civil Liberties Union (ACLU).89 The court ordered all separated families to be reunited within thirty days, and fourteen days for children under the age of five.90 Furthermore, the order stipulated that immigrant children could only be separated from their parents if the adults were determined to be unfit or to present a danger to the children, and it also generally provided that parents could not be deported without their children.91
Besides these developments, on July 9, 2018, Judge Gee, who oversees the FSA, ruled against DOJ’s request to modify the agreement. Judge Gee held that there was no basis for amending the FSA and therefore alien minors could not be detained past twenty days, irrespective of any pending prosecution of the parents.92
Subsequently, on July 10, 2018, ICE officials stated that reunited families would take part in alternatives to detention programs, such as ankle monitor supervision, and would be released into the U.S. interior.93 A status report filed in Ms. L. in March 2020 showed that 2,166 out of 2,815 children covered by the court’s reporting requirements had been reunified with their parents.94
In a more recent status report filed in October 2020, plaintiffs in Ms. L. indicated they had identified 1,556 children of potential expanded class members (a number that includes families separated by immigration officials as early as July 1, 201795), with 1,134 being confirmed by the government.96 Of this undisputed group of children of expanded class members, the government provided a contact number for a sponsor or parent for 1,030 of the children.97 Ultimately, the reunification effort for this group of children had, as of the date of the report, failed to reach the parents of 545 children (apart from the 104 children for whom the government had provided no contact information).98
The reunification process was delayed because the family separations were mismanaged from the beginning. From the outset, immigration enforcement had no plan to reunify parents with children and no memos were drafted to provide guidelines to deal with family separations. Border Patrol agents were classifying children, whose accompanying parents were being criminally prosecuted for illegal border crossings, as unaccompanied minors and could not register a family identification number for all members of the family unit.99 The lack of family identification numbers that could be used to locate parents and children made reunifying families extremely difficult.100 In prior administrations, a child and parent would be given a family identification number just in case they were separated in order to facilitate reunification.101 Adding insult to injury, the Trump Administration separated families even when there was no finding made that the parent was a threat to the child.102
By September 2018, more children were in immigration detention centers than ever before.103 The overall number of children reached 12,800, over five times the number of migrant children detained in May 2017 (a total of 2,400 children).104 This massive increase was not due to “an influx of children entering the country, but a reduction in the number being released to live with families and other sponsors.”105
The Trump Administration weighed its options with regard to immigration enforcement and migrant families.106 Family separations were not resurrected, but the Trump Administration considered other ways to deter immigrant families from attempting to enter the U.S. without immigration documents. The Trump Administration’s approaches included building an $11 billion border wall107 and implementing the Migration Protection Protocols unveiled in early 2019.108
III. The Psychological Impact of Family Detentions and Separations
A multitude of social workers, immigration attorneys, legal organizations, and medical organizations have spoken out against the unacceptable psychological consequences of family separations brought about by the “zero tolerance” policy. There have been reports of developmental regression and lasting psychological damage in children even after they have been reunited with their parents.109 These children often exhibit fear of abandonment and experience attachment issues.110
The president of the American Psychological Association, Dr. Jessica Henderson Daniel, issued a brief statement in May 2018 regarding the detrimental impact of family separations forced upon families who were attempting to enter the United States without proper documentation. Dr. Daniel stated the “longer that children and parents are separated, the greater the reported symptoms of anxiety and depression for the children.”111
Similarly, around the same time, the American Academy of Pediatrics (AAP) released a policy statement written by Dr. Collen Kraft condemning immigrant family separations and family detentions at the southwest border. Dr. Kraft emphasized that “[s]tudies of detained immigrants have shown that children and parents may suffer negative physical and emotional symptoms from detention, including anxiety, depression and posttraumatic stress disorder.”112 Dr. Kraft reported that immigrant children are traumatized in detention centers when they are forced to sleep on cement floors and use open toilets, are constantly exposed to light, are given insufficient food and water, lack bathing facilities, and deal with extremely cold temperatures.113 Dr. Kraft also wrote a prior letter asserting that “family separation causes irreparable harm to children.”114 She explained that “[t]his type of highly stressful experience can disrupt the building of children’s brain architecture. Prolonged exposure to serious stress—known as ‘toxic stress’—can lead to lifelong health consequences.”115
Furthermore, the AAP released a policy statement in 2017 that outlined the issues surrounding family detention, and provided a number of recommendations including the following:
Separation of a parent or primary caregiver from his or her children should never occur, unless there are concerns for safety of the child at the hand of parent. Efforts should always be made to ensure that children separated from other relatives are able to maintain contact with them during detention.116
The American Medical Association (AMA) also urged the Trump Administration to stop its “zero tolerance” policy because it would only exacerbate the stress and trauma refugee families face when seeking refuge in a foreign nation.117 AMA Chief Executive Officer and Executive Vice President Dr. James Madara noted that the trauma of family separations could “create negative health impacts that can last an individual’s entire lifespan.”118
IV. The State of the Law Regarding Unlawful Immigration of Family Units
Neither the Constitution nor the federal or administrative law of the United States requires the separation of immigrant family units that cross the U.S. border without documentation. However, it should be recognized that there are national interests, such as security and economic stability, that are often balanced against the interests of the immigrants attempting to enter the United States. The Trump Administration’s attempt to criminally prosecute all unlawful immigration led to the legal paradox of family separation outlined below. The increase in criminal prosecutions of unlawful immigrant parents with children led to conflicting mandates between federal precedent and federal regulations. Federal precedent allows for only short-term detention of children, and federal regulations do not allow children to be held in federal detention facilities for immigrant parents awaiting prosecution. The following is a sketch of the legal landscape that ultimately led to the family separation controversy.
In terms of statutory authority, the Immigration and Nationality Act (INA) codifies both civil and criminal penalties for foreign nationals who attempt to enter the U.S. without inspection, and for those who enter the U.S. legally but overstay their visas.119 These offenders are subject to removal (deportation) and go through a formal court process.120
Additionally, the INA codifies criminal penalties for “(1) persons who enter or attempt to enter the United States illegally between ports of entry, (2) persons who elude examination or inspection by immigration officers, or (3) persons who attempt to enter or obtain entry to the United States through fraud or willful misrepresentation.”121 Unlawful reentry into the United States is also criminalized in the INA.122 Therefore, all parents of unlawfully entering family units are subject to prosecution by DOJ in federal criminal courts, at least in theory. Thus, one of the Trump Administration’s main arguments supporting family separation was that it was necessary for the enforcement and prosecution of immigration law because parents would need to be transferred to federal detention facilities where children were not allowed.
It is worth mentioning that courts have long recognized that the legislative and executive branches wield plenary power within the immigration context: the power to exclude aliens from the United States, which is among the most comprehensive powers of government.123 But are there constitutional arguments that would prevent the executive branch from using its plenary power to separate immigrant families? Judge Dana Sabraw, of the U.S. District Court for the Southern District of California, seems to have answered in the affirmative.124 Judge Sabraw held that the plaintiffs in the Ms. L case, a class action case challenging the validity of the zero tolerance policy and family separations, had a strong likelihood of success in their due process claim against the federal government. The judge also ordered that all separated families be reunified, and status reports of reunification progress are still regularly being filed.125
Although immigrants may lack some procedural due process rights,126 the protections of the Fifth Amendment’s due process clause apply to all “persons,” not merely U.S. citizens.127 In most of the Trump Administration’s child separation cases there were no showings in court that the parents were unfit to care for their children, and this violated the Fifth Amendment protections of the family liberty interest to stay together (substantive due process) and procedural due process.
Family integrity is one of the most fundamental liberty interests the Constitution protects. Indeed, the Supreme Court declared in Santosky v. Kramer128 that there is a “fundamental liberty interest of natural parents in the care, custody, and management of their child.”129 This parental liberty interest includes the control over the establishment of the home and the upbringing of a child.130 The Fifth and Fourteenth Amendments guarantee more than fair procedure for interference with family integrity. There is also a substantive component that “provides heightened protection against government interference” with this right.131
In this sense, the Constitution protects parents from being separated from their children without due process of law.132 The government must prove that a parent is unfit in order to separate their children from them.133 Thus, if we view family separation as a sort of punishment or substantial encroachment on a liberty interest, then the federal government is prohibited from meting out this punishment, which deprives these families of liberty without due process.
The Trump Administration’s violation of this longstanding fundamental liberty interest is a definite break with past enforcement. In terms of administrative policy, in June 2018 the DHS reported that it had a policy of separating children from adults when (1) it could not determine identity or family relationship, (2) it found that the child was being smuggled or trafficked or was at risk (including possible child abuse), or (3) the parent or legal guardian was referred to criminal prosecution.134 Under “zero tolerance” prosecutions, family separations were extended to all families apprehended at the border trying to cross without inspection.
A. The Ms. L. Case and Legal Challenges to Family Separation in the Civil Law Context
In Ms. L., the Trump Administration argued that since no citizens have the right to be detained with their children in pretrial criminal proceedings, immigrants apprehended at the border do not have that right either.135 This comparison loses sight of the misused discretion involved in criminally prosecuting immigrant parents with children, which forced the separation of families in the first place. Even if one believes that the executive branch can theoretically enforce the law to its fullest extent and prosecute these parents and separate them from their children, if these parents are fit to care for their children, then humanitarian concerns and constitutional liberties outweigh the desire for a draconian application of the law. Forcibly separating families for extended periods of time causes irreparable harm to parents and children,136 a fact that hardly needs scholarly support, and the federal government should respect family integrity by only resorting to criminal prosecution and separation when children are endangered.
Furthermore, the rules governing detention of adult aliens are different than those governing alien children apprehended at the border. While the INA grants the federal government wide discretion to detain adult aliens during pending removal proceedings,137 child detentions function under the FSA (applying to all alien children), and other laws may also apply in unaccompanied children cases.138
The primary issue boils down to whether prosecuting adults from family units apprehended at the border and the resulting separation of children from parents to deter future undocumented immigration is legal. Challenging this policy, plaintiffs in the Ms. L. case claimed that family separation violated their due process rights under the Fifth Amendment to the Constitution, the Administrative Procedure Act (APA), 5 U.S.C. § 706, and the Asylum Statute, 8 U.S.C. § 1158.139 However, Judge Sabraw dismissed the APA and Asylum Statute claims because of the plaintiffs’ failure to state a claim.140 The APA claim failed because the family separations were not alleged to be “final agency actions,”141 and the court held that there was no private right of action under the Asylum Statute.142 So, only the due process claim survived in the Ms. L. lawsuit.143 The most recent order on plaintiffs’ motion to enforce the preliminary injunction in Ms. L. was mostly denied, and the court found that the government had stopped systematically separating families.144
The district court properly found that the plaintiffs in Ms. L. stated a due process claim. Where substantive due process claims are asserted in a lawsuit, “the ‘threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”145 This standard aims at prohibiting
governmental conduct that violates the “decencies of civilized conduct,” interferes with rights “‘implicit in the concept of ordered liberty[,]’” and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency[.]”146
Accordingly, substantive due process protects all persons against arbitrary government power.147
There is a strong case to be made that separating parents from their children without a showing that the parent is unfit “shocks the conscience.” Family detention and separation causes physical and psychological harm to children.148 Some children come out of these experiences with irreparable psychological damage, and others have even died in custody.149 Even when reunited, the children are sometimes never the same again. The detention centers are overcrowded and unsanitary and lack adequate food and medical care.150 The trauma and pain that have resulted from the “zero tolerance” policy are extremely well documented, and to many this is the epitome of arbitrary government power. Time will tell if the federal courts will ultimately prohibit this practice of family separations in the immigration context.
B. Separating Families and Prosecuting Parents Is Unconstitutional in a Criminal Context
In criminal courts, migrant parents have full constitutional rights, as would any criminal defendant, and arguably “zero tolerance” prosecutions have violated these rights. The federal public defender who represented the El Paso Five, Sergio Garcia, wrote an article arguing that “zero tolerance” criminal prosecutions of migrant parents who are separated from their children are unconstitutional for the following reasons:
- the plea bargains involve duress;
- the prosecutions violate the right to a fair trial;
- the prosecutions violate the right against self-incrimination;
- the prosecutors are forced to eschew duties imposed by Brady v. Maryland;151
- the deportations may effectively result in termination of parental rights without due process; and
- the family separations constitute cruel and unusual punishment.152
While these arguments failed when the Fifth Circuit reviewed the El Paso Five cases,153 the claims are legally sound and may have traction in other jurisdictions if raised again. A brief analysis of these arguments follows.
Garcia argues that a migrant parent cannot voluntarily enter a guilty plea when they do not know where their children are being held by the government. To pressure parents into accepting a plea deal when the whereabouts of their children are unknown is duress in Garcia’s analysis.154 There can be no voluntariness in a decision to plead guilty when a defendant’s child is held hostage. This lack of voluntariness in entering pleas is a violation of due process and, therefore, void by law.155 Therefore, plea deals struck by the government with parents in this vulnerable position are invalid and unconstitutional.
Moreover, how can one have a fair trial if a key material witness is spirited away by the government and nowhere to be found? This was the situation of parents prosecuted under “zero tolerance.” Key material witnesses, their children, were prevented from testifying by the U.S. government.156 The government prevented the children from testifying by failing to inform parents of the whereabouts of their children. The testimony of these children could support defenses and provide evidence of conditions of the country of origin that support an asylum claim. If these key witnesses are kept from these migrant parents, only the parents themselves can testify on their own behalf.
This brings us to Garcia’s next point: Forcing migrant parents to testify against themselves violates the Fifth Amendment right against self-incrimination.157 Essentially, if the government refuses to release a key material witness, then these parents can only present a defense by testifying on their own behalf. Or these parents can choose not to testify and, therefore, present no testimony to the court. These parents find themselves between a rock and a hard place with no recourse. This is yet another violation of their constitutional right to a fair trial.158
Furthermore, the Brady rule is violated by prosecutors who fail to disclose the specific whereabouts of the children of the parents prosecuted under “zero tolerance.”159 Brady v. Maryland established that prosecutors have a duty to disclose exculpatory evidence to a defendant.160 In this case, the exculpatory evidence would be the testimony of the defendant’s child that may support an asylum claim or other defense, but the government did not divulge the specific whereabouts of the defendants’ children until it was too late. Abuse of prosecutorial discretion by not making the children available for testimony in these cases would constitute bad faith and violate due process even if this “testimony is considered only potentially useful rather than exculpatory.”161
One might even argue that separating families, prosecuting parents, and deporting them without their children is tantamount to termination of their parental rights.162 The children may enter foster care and later be adopted.163 At that point, the parents lose all rights to reunite with their children. This is a disproportionate penalty for a petty misdemeanor.164
Building on this, Garcia also argues that permanently separating families and prosecuting parents is a form of cruel and unusual punishment.165 This prohibition has two prongs: “First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime.”166 Not only is family separation an illegal and unnecessary infliction of suffering, but it is also an extreme punishment for a mere petty misdemeanor. “‘The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’”167 Surely these government acts that create orphans and punish parents even before they have their day in court are forms of punishment past which the United States has matured. The public outcry against family separations and the executive order that ended this practice bear this out as well.
V. Broadening the Scope of the Crisis of Family Separations
It is a misconception to believe that the separation of immigrant families is an issue that began and ended with the Trump Administration’s “zero tolerance” policy. In many ways, this unfortunate policy is merely the tip of the iceberg. In the interior of the United States, immigrant parents are routinely detained by immigration enforcement and deported. These detentions and deportations often tear apart families of mixed citizenship and have impacts similar to termination of parental rights. The Applied Research Center determined that in 2011, “at least 5,100 children” in foster care had immigrant parents who had been detained or deported; and estimated that by 2016, an estimated 15,000 more children would be in foster care while their parents faced immigration detention or deportation.168 Immigrant parents have often been detained and deported, with their children sent to foster care and later adopted, never to see their parents again.
For better or worse, labeling something as a “crisis” can inspire change, and it is up to advocates to frame the legal issues surrounding migrant families and children in a way that benefits all migrant families.169 If the crisis narrative is too narrow, then many problems remain unresolved.170 If the crisis narrative is too broad, then the movement will lack focus. Furthermore, if crisis is weaponized by the opposition in order to deter or punish migrant families, then this narrative must be vigorously challenged. Perspective is everything when it comes to these issues. For example, if there is a huge influx of immigrant families from the southwest border, then U.S. society can view this as a humanitarian crisis that requires charity or as a threat to national security that requires retribution. How the “crisis” is characterized can have tremendous impact.
With this in mind, it is worthwhile to consider Stephen Lee’s claim that the term “family separation” characterizes the U.S. immigration system in its entirety.171 For instance, immigration enforcement in the U.S. interior also breaks up families. Undocumented immigrants in the United States may choose not to visit their family outside of the country for fear that they will be denied reentry.172 Similarly, the difficulties of obtaining visas and modifying immigration status also keep families apart. Even when a family member obtains legal immigration status, it is an uncertain and protracted process to petition for immigration status even for close family members outside of the country.173 The U.S. immigration system as a whole should be reoriented to family reunification rather than family separation.
To understand family separation as an isolated episode in U.S. immigration policy during the Trump Administration would result in an unacceptable narrowing of the crisis. Advocates should expand the scope of what is considered the family separation crisis to encompass all policies in immigration enforcement and administration that result (directly or indirectly) in families being separated or kept apart. Family reunification is promoted by U.S. child welfare systems and should also be adopted by the federal government with respect to immigrant families.
VI. Possible Ways Forward
Turning to more solution-oriented considerations, there have been some suggestions that alternative options to family detention, such as supervised release, are more cost-effective. The Family Case Management Program (FCMP), for example, which monitored families requesting asylum, reported a high compliance rate with immigration requirements.174 The FCMP began in January 2016 and was terminated by the Trump Administration in June 2017.175 The FCMP average daily cost of thirty-six dollars per family reportedly surpassed that of other “intensive supervision” programs (five to seven dollars daily per adult), but both programs are considerably less expensive than the average daily cost of family detention ($319 per person).176
Regardless, there seems to be some truth in the claim that family detention should never be permitted, much less family separation. However, the state of the law at this point allows for family detention for about twenty days. At the very least, with the availability of cost-effective supervised release programs, immigrant families should never have to fear prolonged detention apart from each other. It is also sobering to note that the Obama and Trump Administrations expanded family detentions to a level not seen since the Japanese internment camps during World War II.177 This is not the path the United States wants to take.
Another reform strategy that has been suggested since 2013 by the Federal Bar Association (FBA) is for “Congress to establish Article I ‘United States Immigration Court’ to replace the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice as the principal adjudicatory forum under title II of the Immigration and Nationality Act.”178 This would overhaul an overloaded and broken immigration court system. Creating an Article I court system would also create independence and model the immigration courts after the federal court system at large. The FBA outlines the present lack of independence in immigration courts in the following statement:
Currently, Board of Immigration Appeals members and Immigration Judges are considered to be “attorneys representing the United States in litigation”—not as independent judicial officers. They are subject to discipline if the Attorney General disagrees with their decisions, and thus lack of independence to freely adjudicate the matters before them. The potential for political influence puts due process at risk.179
An Article I court system would be more independent from political decision-making and would more readily check abuses of power by the executive branch.
Congress could also pass legislation detailing how families who are caught trying to cross the border should be detained and processed. But this option, like the new Article I immigration court suggested above, seems unlikely in the 2020 political climate in the United States. Bipartisan cooperation for immigration reform is unlikely in a country that is so polarized at the moment. Currently, the federal courts have cleaned up the mess created in the legislative power vacuum that allowed the Trump Administration to criminally prosecute adults apprehended with their children at the border, thereby leading to family separations. If Congress has the political will, then this option that has already harmed so many families can be blocked in the future and replaced with more humane consequences for these families who have already risked so much.
Overall, children involved in the immigration system should be treated with more care and compassion. The federal government should keep better track of families and children, so that if they are somehow separated, they can be reunified efficiently. Moreover, the government should keep better track of immigrant children (including unaccompanied children) after they are placed with sponsors because reports show that the government has lost track of over a thousand children.180
The U.S. government should also end its policy of detaining immigrant families that have no criminal histories and pose no threat. The practice is damaging to immigrant families and is extremely costly. Perhaps the U.S. should treat these families less like criminals and more like refugees who risked a perilous journey to escape danger for a chance to enter the famed “land of opportunity.”
The separation of immigrant families by U.S. immigration enforcement is an issue that cuts across bipartisan lines. Grave mistakes were made by both President Obama and President Trump with respect to immigrant children and their families. Their mistakes built upon one another until the pain and suffering became intolerable with the rollout of “zero tolerance.” That crisis has ended, but a wider crisis remains. Family separations will not truly stop until U.S. immigration policy becomes fully geared toward family reunification rather than being protectionist and punitive.
Substantive due process legal arguments defending family integrity are what ultimately stopped family separations under “zero tolerance.” However, other constitutional arguments may be available and argued in the future, relating to the right to fair trial and other rights guaranteed to immigrants by the Constitution.
Independent immigration courts are also needed as well as federal legislation that protects migrant children and families detained at the border. Democratic and Republican lawmakers must come together to protect this politically powerless group. Deterrence is not a persuasive enough government interest to justify implementing policies that needlessly harm innocent children.
As stated above, extended family detentions should be stopped because of the harm they cause to children, and because they violate the FSA. There are also several less-costly alternatives to family detentions that also minimize the risk of flight and failure to appear at immigration proceedings.
The prevailing policies have failed immigrant children in a myriad of ways, and “zero tolerance” family separations are just one example. More humane immigration and asylum policies will avoid a human rights crisis in the future. So far, the courts have held an unsteady line against human rights abuses in immigration enforcement. The time has come to cut off future opportunities to abuse executive power with detailed legislation protecting immigrant families. Immigration law must be overhauled, or another crisis will emerge.
President Joe Biden inherits a nation ravaged by the COVID19 pandemic and politically polarized. Both parties can agree that immigration policy is broken and is in need of reform. Hopefully this Article has charted a way forward with respect to more humane immigration policies and has identified some pitfalls to be avoided. All families should be protected within U.S. borders, no matter the immigration status of the families or the political affiliation of the party in power.
1. Jeff Sessions, Immigration Handbook for the New Republican Majority: A Memo for Republican Members 5 (2015), https://www.aila.org/File/DownloadEmbeddedFile/69750.
2. See infra Part I.
3. See infra Part II.
4. See infra Part III.
5. See infra Part IV.
6. See infra Part V.
7. See infra Part VI.
8. This Article was initially written before the 2020 presidential election and was completed in December 2020. The issues discussed in this article are still relevant but now have a new political context.
9. See generally Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America (2006).
10. Brian Bennett, High Deportation Figures Are Misleading, L.A. Times (Apr. 1, 2014, 8:55 PM), http://www.latimes.com/nation/la-na-obama-deportations-20140402-story.html#page=1.
11. Franco Ordoñez & Anita Kumar, Yes, Obama Separated Families at the Border, Too, McClatchy (June 21, 2018), https://www.mcclatchydc.com/news/politics-government/white-house/article213525764.html#storylink=cpy; Lori Robertson, Fact Check: Did the Obama Administration Separate Families?, USA Today (June 23, 2018), https://www.usatoday.com/story/news/politics/2018/06/23/trump-obama-administration-separate-families-immigration/728060002/.
12. Muzaffar Chishti et al., The Obama Record on Deportations: Deporter in Chief or Not?, Migration Pol’y Inst. (Jan. 26, 2017), https://www.migrationpolicy.org/article/obama-record-deportations-deporter-chief-or-not.
14. Id. Reporting is for fiscal, not calendar, years. Id.
15. Dara Lind, What Obama Did with Migrant Families vs. What Trump Is Doing, Vox (June 21, 2018, 2:45 PM), https://www.vox.com/2018/6/21/17488458/obama-immigration-policy-family-separation-border.
18. Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) [hereinafter Flores Settlement Agreement, or FSA], https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf.
19. Ordoñez & Kumar, supra note 11.
22. Frontline: Lost in Detention (PBS television broadcast Oct. 18, 2011).
23. Secure Communities, U.S. Immigr. & Customs Enf’t, http://www.ice.gov/secure_communities/ (last updated Mar. 20, 2018).
24. U.S. Immigr. & Customs Enf’t, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens (Strategic Plan) (July 21, 2009), http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesstrategicplan09.pdf.
25. U.S. Immigr. & Customs Enf’t, Activated Jurisdictions (2011), https://www.hsdl.org/?view&did=682236.
26. Press Release, U.S. House of Representatives Judiciary Comm., Collateral Damage: President’s Unilateral Actions Make Our Communities Less Safe (Dec. 3, 2014), https://republicans-judiciary.house.gov/press-release/collateral-damage-president-s-unilateral-actions-make-our-communities-less-safe/ [https://perma.cc/CQ87-6TUV].
27. Arti Kohli et al., Secure Communities by the Numbers: An Analysis of Demographics and Due Process 2 (2011), https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf.
28. See generally Memorandum from Jeh Charles Johnson, Sec’y of U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., ICE, et al., Secure Communities (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf [hereinafter Johnson Secure Communities Memorandum].
29. Id. at 1.
30. No. 11 C 5452, 2014 U.S. Dist. LEXIS 136965, at *2, *9 (N.D. Ill. Sept. 29, 2014) (addressing the issue of whether ICE violated the Fourth, Fifth, and Tenth amendments and exceeded its statutory authority when it issued detainers to local law enforcement agencies “without probable cause, without providing the subject with notice, and without providing a sufficient mechanism by which the subject can challenge the grounds for the detainer”).
31. 27 F. Supp. 3d 901 (N.D. Ill. 2014).
32. Johnson Secure Communities Memorandum, supra note 28, at 2 n.1.
33. Id. at 2–3.
34. Id. at 2.
35. See Memorandum from Jeh Charles Johnson, Sec’y of U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., ICE, et al., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf. For example, offenses such as terrorism, unlawful entry into the U.S., gang affiliation, felonies, and “aggravated felonies” under INA § 101(a)(43) would be top priority. Id. at 3.
36. Dara Lind, Why Is the Obama Administration Still Fighting to Keep Immigrant Families Behind Bars, Vox (July 29, 2015, 2:20 PM), https://www.vox.com/2015/7/29/9067877/family-detention-immigration-flores.
39. Haeyoun Park, Q. and A.: Children at the Border, N.Y. Times (Oct. 21, 2014), https://www.nytimes.com/interactive/2014/07/15/us/questions-about-the-border-kids.html.
40. Julia Preston, Judge Orders Release of Immigrant Children Detained by U.S., N.Y. Times (July 25, 2015), https://www.nytimes.com/2015/07/26/us/detained-immigrant-children-judge-dolly-gee-ruling.html.
41. Id.; see Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015), aff’d in part, rev’d in part, 828 F.3d 898 (9th Cir. 2016).
42. Flores, 212 F. Supp. 3d at 916.
43. Id. at 916–17.
44. William A. Kandel, Cong. Res. Serv., R45266, The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy 5 (July 20, 2018), https://digital.library.unt.edu/ark:/67531/metadc1228517/; see Flores Settlement Agreement, supra note 18.
45. Judge Gee wrote:
At a given time and under extenuating circumstances, if 20 days is as fast as Defendants, in good faith and in the exercise of due diligence, can possibly go in screening family members for reasonable or credible fear, then the recently-implemented DHS polices [sic] may fall within the parameters of Paragraph 12A of the [FSA], especially if the brief extension of time will permit the DHS to keep the family unit together.
Flores, 212 F. Supp. 3d at 914.
46. Judge Gee’s order provided as follows:
Unless otherwise required by the Agreement or the law, Defendants shall comply with Paragraph 14A of the Agreement by releasing class members without unnecessary delay in first order of preference to a parent, including a parent who either was apprehended with a class member or presented herself or himself with a class member. Class members not released pursuant to Paragraph 14 of the [FSA] will be processed in accordance with the Agreement, including, as applicable, Paragraphs 6, 9, 21, 22, and 23.
Id. at 916.
47. Frequently Asked Questions Regarding Unaccompanied Alien Children, U.S. Dep’t of Health & Human Servs, https://www.hhs.gov/programs/social-services/unaccompanied-alien-children/faqs/index.html (last updated Aug. 7, 2018).
49. Julia Preston, A Rush of Central Americans Complicates Obama’s Immigration Task, N.Y. Times (Jan. 8, 2016), https://www.nytimes.com/2016/01/09/us/a-rush-of-central-americans-compounds-obamas-immigration-task.html.
50. United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016, U.S. Customs & Border Prot., https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 (last updated June 17, 2019) [hereinafter Unaccompanied Alien Children Apprehensions 2016].
51. See Sessions, supra note 1.
52. See Sarah Pierce et al., Migration Policy Inst., Trump’s First Year on Immigration Policy: Rhetoric vs. Reality (2018), https://www.migrationpolicy.org/research/trump-first-year-immigration-policy-rhetoric-vs-reality.
53. See id.
54. Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 30, 2017); see Secure Communities, supra note 23.
55. Exec. Order No. 13767, 82 Fed. Reg. at 8793.
56. Id. at 8794–96.
57. Kandel, supra note 44, at 18 fig. A-1.
58. See, e.g., Gregory Korte & Alan Gomez, Trump Ramps up Rhetoric on Undocumented Immigrants: “These Aren’t People. These Are Animals.”, USA Today (May 16, 2018), https://www.usatoday.com/story/news/politics/2018/05/16/trump-immigrants-animals-mexico-democrats-sanctuary-cities/617252002/.
59. See Dara Lind, “Catch and Release,” Explained: The Heart of Trump’s New Border Agenda, Vox (Apr. 9, 2018), https://www.vox.com/2018/4/9/17190090/catch-release-loopholes-border-immigrants-trump.
60. Jonathan Blitzer, A New Report on Family Separations Shows the Depths of Trump’s Negligence, New Yorker (Dec. 6, 2019), https://www.newyorker.com/news/news-desk/a-new-report-on-family-separations-shows-the-depths-of-trumps-negligence.
63. Id. (internal quotation omitted).
65. Patrick Timmons, El Paso Case a Road Test for Prosecuting Migrant Parents, UPI (July 13, 2018, 9:32 AM), https://www.upi.com/Top_News/US/2018/07/13/El-Paso-Five-case-a-road-tes-for-prosecuting-migrant-parents/3171531487742/.
66. See 8 U.S.C. § 1325(a).
67. See Timmons, supra note 65.
69. Maria Sacchetti, Top Homeland Security Officials Urge Criminal Prosecution of Parents Crossing Border with Children, Wash. Post (Apr. 26, 2018, 7:58 PM), https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urge-criminal-prosecution-of-parents-who-cross-border-with-children/2018/04/26/a0bdcee0-4964-11e8-8b5a-3b1697adcc2a_story.html?noredirect=on.
70. Kandel, supra note 44, at 7–8.
71. Sergio Garcia, The Unconstitutional Prosecution of Asylum-Seeking Parents Under Trump’s Family Separation, 47 Hastings Const. L.Q. 49 (2019); Dara Lind, Beyond Family Separation: Trump’s Ongoing War on Asylum, Explained, Vox (Aug. 6, 2018, 9:30 AM), https://www.vox.com/explainers/2018/8/6/17501404/trump-asylum-separate-legal-definition.
72. Tim O’Shea & Theresa Cardinal Brown, Why Are Families Being Separated at the Border? An Explainer, Bipartisan Pol’y Ctr. (June 13, 2018), https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/.
73. Id.; see also 8 U.S.C. § 1325 (2018).
74. O’Shea & Brown, supra note 72.
78. Patrick Timmons, Crackdown at U.S.-Mexico Border Shows Asylum System in Crisis, UPI (Oct. 8, 2018, 3:37 PM), https://www.upi.com/Top_News/US/2018/10/08/Crackdown-at-US-Mexico-border-shows-asylum-system-in-crisis/1941539024455/.
79. See Unaccompanied Alien Children Apprehensions 2016, supra note 50, and accompanying text.
80. See Park, supra note 39.
81. Kandel, supra note 44, at 8.
82. Id. at 8–9.
83. Sen. Dianne Feinstein, Many Republicans Say They Oppose Family Separation. But None Have Joined Our Bill, Wash. Post (June 20, 2018, 12:05 PM), https://www.washingtonpost.com/news/theworldpost/wp/2018/06/20/family-separation/?utm_term=.16f9e860aea7; see also Arit John & Jennifer Epstein, All About the U.S. Separating Families at Its Border, Bloomberg (June 18, 2018, 2:30 PM), https://www.bloomberg.com/news/articles/2018-06-18/all-about-the-u-s-separating-families-at-its-border-quicktake.
84. Joint Status Report at 1–3, Ms. L. v. U.S. Immigr. & Customs Enf’t, No. 3:18-cv-00428 (S.D. Cal. Mar. 4, 2020), ECF No. 519; see infra notes 89–91 and accompanying text.
85. Exec. Order No. 13841, 83 Fed. Reg. 29435 (2018).
86. Id.; see Kandel, supra note 44, at 9.
87. Ron Nixon et al., Border Officials Suspend Handing Over Migrant Families to Prosecutors, N.Y. Times (June 25, 2018), https://www.nytimes.com/2018/06/25/us/politics/border-officials-suspend-handing-over-migrant-families-to-prosecutors.html.
89. The ACLU case, Ms. L., was originally filed on behalf of two families separated at the southwest border: a woman from the Democratic Republic of the Congo who, at a port of entry, was separated from her six-year-old daughter for five months, and a woman from Brazil who, crossing into the United States illegally between ports of entry, was separated from her fourteen-year-old son for eight months. Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133, 1137 (S.D. Cal. 2018), modified, 330 F.R.D. 284 (S.D. Cal. 2019), enforcement granted in part, denied in part sub nom. Ms. L. v. U.S. Immigr. & Customs Enf’t, 415 F. Supp. 3d 980 (S.D. Cal. 2020).
90. Id. at 1149.
91. Id.; see Michael D. Shear et al., Federal Judge in California Halts Splitting of Migrant Families at Border, N.Y. Times (June 26, 2018), https://www.nytimes.com/2018/06/26/us/politics/family-separations-congress-states.html.
92. Flores v. Sessions, No. CV 85-4544-DMG (AGRx), 2018 WL 4945000 (C.D. Cal. July 9, 2018); see Miriam Jordan & Manny Fernandez, Judge Rejects Long Detentions of Migrant Families, Dealing Trump Another Setback, N.Y. Times (July 9, 2018), https://www.nytimes.com/2018/07/09/us/migrants-family-separation-reunification.html.
93. Miriam Jordan et al., As Migrant Families Are Reunited, Some Children Don’t Recognize Their Mothers, N.Y. Times (July 10, 2018), https://www.nytimes.com/2018/07/10/us/politics/trump-administration-catch-and-release-migrants.html.
94. Joint Status Report, supra note 84, at 1–3, Table 1. Six hundred thirty-one children were discharged from ORR under other circumstances, such as placement with sponsors or turning eighteen years old. Id. at 3.
95. Ms. L. v. U.S Immigration & Customs Enf’t, 330 F.R.D. 284, 292–93 (S.D. Cal. 2019).
96. Joint Status Report at 6–7, Ms. L. v. U.S. Immigr. & Customs Enf’t, No. 3:18-cv-00428 (S.D. Cal. Oct. 20, 2020), ECF No. 556.
97. Id. at 6–7, 6 n.11.
98. See id.
99. The Daily: “Divided,” Part 2: The Chaos of Reunification, N.Y. Times (Aug. 24, 2018), https://nyti.ms/2BIT9Hp.
103. Caitlin Dickerson, Detention of Migrant Children Has Skyrocketed to Highest Levels Ever, N.Y. Times (Sept. 12, 2018), https://www.nytimes.com/2018/09/12/us/migrant-children-detention.html.
105. Id. (interpreting data collected by the Department of Health and Human Services).
106. Nick Miroff et al., Trump Administration Weighs New Family-Separation Effort at Border, Wash. Post (Oct. 12, 2018), https://www.washingtonpost.com/local/immigration/trump-administration-weighs-new-family-separation-effort-at-border/2018/10/12/45895cce-cd7b-11e8-920f-dd52e1ae4570_story.html?noredirect=on&utm_term=.47c2fab3608e.
107. John Burnett, $11 Billion and Counting: Trump’s Border Wall Would Be the World’s Most Costly, NPR (Jan. 19, 2020), https://www.npr.org/2020/01/19/797319968/-11-billion-and-counting-trumps-border-wall-would-be-the-world-s-most-costly.
108. Press Release, U.S. Dep’t of Homeland Sec., Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols (“The Migrant Protection Protocols (MPP) are a U.S. Government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico—illegally or without proper documentation—may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.”).
109. See, e.g., Miriam Jordan, A Migrant Boy Joins His Mother, but He Is Not the Same, N.Y. Times (July 31, 2018), https://www.nytimes.com/2018/07/31/us/migrant-children-separation-anxiety.html.
111. Press Release, Am. Psychological Ass’n, Statement of APA President Regarding the Traumatic Effects of Separating Immigrant Families (May 29, 2018), https://www.apa.org/news/press/releases/2018/05/separating-immigrant-families.aspx.
112. Colleen Kraft, AAP Statement on Executive Order on Family Separation (June 20, 2018) (on file with author).
114. Colleen Kraft, AAP Statement Opposing the Border Security and Immigration Reform Act (June 15, 2018) (on file with author).
116. Julie M. Linton et al., Am. Acad. Pediatrics, Detention of Immigrant Children 7 (2017), https://pediatrics.aappublications.org/content/pediatrics/139/5/e20170483.full.pdf.
117. Press Release, Am. Med. Ass’n, AMA Urges Administration to Withdraw “Zero Tolerance” Policy (June 20, 2018), https://www.ama-assn.org/press-center/press-release/ama-urges-administration-withdraw-zero-tolerance-policy.
119. See 8 U.S.C § 1325.
120. Kandel, supra note 44, at 3.
121. Id.; see 8 U.S.C. § 1325.
122. See 8 U.S.C. § 1326.
123. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).
124. Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018), modified, 330 F.R.D. 284 (S.D. Cal. 2019), enforcement granted in part, denied in part sub nom. Ms. L. v. U.S. Immigr. & Customs Enf’t, 415 F. Supp. 3d 980 (S.D. Cal. 2020).
125. See, e.g., Joint Status Report, Ms. L. v. U.S. Immigr. & Customs Enf’t, No. 3:18-cv-00428 (S.D. Cal. Oct. 20, 2020), ECF No. 556.
126. See Kwai Fun Wong v. United States, 373 F.3d 952, 971–73 (9th Cir. 2004) (discussing that non-admitted aliens have “no procedural due process rights in the admission process,” but have other constitutional protections).
127. Plyer v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”).
128. 455 U.S. 745 (1982).
129. Id. at 753.
130. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925).
131. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
132. Even parents accused of abuse or neglect of their children are afforded procedural due process prior to the government terminating their parental rights. See Santosky, 455 U.S. at 747–48, 758–70.
133. See Stanley v. Illinois, 405 U.S. 645 (1972).
134. Press Release, U.S. Dep’t of Homeland Sec., Myth vs. Fact: DHS Zero-Tolerance Policy (June 18, 2018), https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy.
135. Respondents’ Response in Opposition to Petitioner Ms. L’s Motion for Preliminary Injunction at 1, 16–17, Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133 (S.D. Cal. 2018) (No. 18cv0428 DMS (MDD)), modified, 330 F.R.D. 284 (S.D. Cal. 2019), enforcement granted in part, denied in part sub nom. Ms. L. v. U.S. Immigr. & Customs Enf’t, 415 F. Supp. 3d 980 (S.D. Cal. 2020).
136. See supra Part III; see also Petitioner-Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction Exs. 1–8, Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133 (S.D. Cal. 2018) (No. 18cv0428 DMS (MDD), modified, 330 F.R.D. 284 (S.D. Cal. 2019), enforcement granted in part, denied in part sub nom. Ms. L. v. U.S. Immigration & Customs Enf’t, 415 F. Supp. 3d 980 (S.D. Cal. 2020) (containing statements from various experts that state the detrimental impact family separations have on child well-being).
137. Alison Siskin, Cong. Res. Serv., RL32369, Immigration-Related Detention: Current Legislative Issues 2–3 (Jan. 12, 2012), https://digitalcommons.ilr.cornell.edu/key_workplace/882/.
138. Kandel, supra note 44, at 5 (discussing the Homeland Security Act of 2002, Pub. L. No. 107-296, § 462, 116 Stat. 2202 (codified as amended at 6 U.S.C. § 279), and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 235, 122 Stat. 5044 (codified as amended at 8 U.S.C. § 1232)).
139. See Ms. L. v. U.S. Immigr. & Customs Enf’t, 302 F. Supp. 3d 1149, 1154 (S.D. Cal. 2018) (summarizing claims).
140. Id. at 1167–68.
141. Id. (quoting 5 U.S.C. § 704). This term relates to the pending nature of an agency’s decision; if an agency has not made a final decision on a matter, that “decision” or agency action cannot be challenged. See id. (quoting U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)).
142. Id. at 1168 (quoting 8 U.S.C. § 1158(d)(7) (“Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.”)).
143. Id. at 1161–67.
144. Ms. L. v. U.S. Immigr. & Customs Enf’t, 415 F. Supp. 3d 980, 997–98 (S.D. Cal. 2020).
145. Ms. L., 302 F. Supp. 3d at 1165 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
146. Id. at 1166 (citations omitted; quoting Rochin v. California, 342 U.S. 165, 173 (1952); id. at 169 (citation omitted); and Breithaupt v. Abram, 352 U.S. 432, 435 (1957)).
148. See Dylan Gee, I Study Kids Who Were Separated from Their Parents. The Trauma Could Change Their Brains Forever, Vox (June 20, 2018), https://www.vox.com/first-person/2018/6/20/17482698/tender-age-family-separation-border-immigrants-children.
149. Nicole Goodkind, Trump Officials Acknowledge Sixth Migrant Child Death in U.S. Custody in 6 Months After None the Previous Decade, Newsweek (May 23, 3019), https://www.newsweek.com/border-family-separation-child-death-democrats-investigate-1434591.
150. See U.S. Comm’n on Civil Rights, Trauma at the Border: The Human Cost of Inhumane Immigration Policies 57–68 (2019), https://www.usccr.gov/pubs/2019/10-24-Trauma-at-the-Border.pdf.
151. 373 U.S. 83 (1963).
152. Garcia, supra note 71.
153. United States v. Vasquez-Hernandez, 924 F.3d 164, 169, 171, 172 (5th Cir. 2019) (affirming district court’s judgment because “[n]othing in [8 U.S.C.] § 1225(b)(1)(A)(ii) prevent[ed] the government from initiating a criminal prosecution before or even during the mandated asylum process”; their deportation without their children “was not a punishment imposed or even caused by [their] § 1325(a) misdemeanor convictions”; there was no Brady violation since the appellants “‘made [no] effort to call the children as witnesses,’” and “the children’s testimony would not have been material to a duress defense”; “[t]he fair trial claim simply repackage[d] the Brady claim”; and the self-incrimination claim failed as “[n]othing in the record suggest[ed] that the government prevented the children from testifying” or “exerted undue pressure on Appellants to testify”) (citation omitted).
154. Garcia, supra note 71, at 54.
155. Id. at 53–54 (citing McCarthy v. United States, 394 U.S. 459, 466 (1969)).
156. See Timmons, supra note 65 (discussing the El Paso Five case and how the whereabouts of defendants’ children were not revealed until after the trials).
157. Garcia, supra note 71, at 61.
158. Id. at 60–62.
159. Id. at 62.
160. 373 U.S. 83 (1963).
161. Garcia, supra note 71, at 67.
162. Id. at 76–78; see also Olivia Saldaña Schulman, “Now They’ve Robbed Me:” The Use of Termination of Parental Rights in Government-Fractured Immigrant Families, 43 N.Y.U. Rev. L. & Soc. Change 361 (2019).
163. See Schulman, supra note 162, at 363.
164. Id. at 363–64.
165. Garcia, supra note 71, at 73–76.
166. Id. at 74 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (citations omitted)).
167. Id. (quoting Gregg, 428 U.S. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958))).
168. Schulman, supra note 162, at 365 (citing Seth Freed Wessler, Applied Res. Ctr., Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System 6 (2011), https://www.raceforward.org/research/reports/shattered-families).
169. See Stephen Lee, Family Separation as Slow Death, 119 Colum. L. Rev. 2319, 2363–64 (2019).
170. Id. at 2365–66.
171. Id. at 2322.
172. Id. at 2323.
174. Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Redacted) 5 (Nov. 30, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-22-Nov17.pdf.
175. Frank Bajak, ICE Shutters Detention Alternative for Asylum-Seekers, Associated Press (June 9, 2017), https://www.apnews.com/32b2408c9c8d47d2971c63a6fca1d8b0.
177. Lynnette Arnold & Miranda Cady Hallett, Locking Up Families Is Inhumane—and Unconstitutional, Sapiens (Mar. 17, 2017), https://www.sapiens.org/culture/family-detention-unconstitutional/.
178. Congress Should Establish an Article I Immigration Court, Fed. Bar Ass’n, http://www.fedbar.org/Advocacy/Article-1-Immigration-Court.aspx (last visited Oct. 11, 2020).
179. Why Should Congress Establish an Article I Immigration Court?, Fed. Bar Ass’n (2019), https://www.fedbar.org/wp-content/uploads/2019/12/GRC-Why-Establish-Immigration-Court-pdf.pdf.
180. See Eliza Collins, Senate Investigators Say Feds Fail to Keep Tabs on Immigrant Children Released from Custody, KGW, https://www.kgw.com/article/news/nation-now/senate-investigators-say-feds-fail-to-keep-tabs-on-immigrant-children-released-from-custody/465-5a4ad5e9-4d38-4dc6-8cd7-1a0172c595cb (last updated Aug. 16, 2018).