What You Need to Know About US Immigrant Family Separation Policies and Practices
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By Sylvia Longmire
Columnist, In Homeland Security
In early May, the Trump administration decided to refer all persons caught crossing the U.S. border illegally for federal prosecution. This policy has resulted in the largest separation of parents from their children at the border in history. At the same time, this “zero tolerance” policy as a means to deter illegal immigration has resulted in a huge wave of protest and controversy across the United States.
Here is what we know about the policy and the impact it is having.
Is it true that children are being separated from their families at the border?
Yes. According to the Washington Post, nearly 2,000 immigrant children were separated from their parents during six weeks in April and May 2018, citing the Department of Homeland Security (DHS) statistics.
Is it legal to separate children from their parents?
Yes. Under current U.S. law, children of illegal immigrant parents crossing the border can be separated from their parents when:
- Their legal parentage has not been determined,
- The children are thought to be in danger,
- Their parents are going through criminal proceedings.
Because a 1997 court settlement bars children from being imprisoned with their parents, Justice Department officials say they have no choice but to isolate the children.
Is this separation a new policy?
No. It relates to another policy called “Operation Streamline” that was established in 2005 to rapidly prosecute most illegal border crossers as criminals at mass trials. These mass trials declined in number several years ago, but have lately been reinstated in several Texas courts. While many are calling the Trump administration’s policy of criminally prosecuting illegal immigrants new, technically it’s not a new policy.
What happens to children who are taken from their parents?
Children taken from their parents are placed in the custody of the Department of Health and Human Services (HHS). In the vast majority of cases, they are handed over to a family member or friend already living legally in the U.S. while the parent or parents are either going through criminal proceedings or are in the asylum process.
How many people are we talking about?
Customs and Border Protection (CBP) reported that 50,924 people were detained in April of this year, including 9,647 family units and 4,314 unaccompanied children. In late May, HHS said it was holding 10,773 migrant children in custody, a 21 percent increase from the 8,886 HHS was holding in April, according to Business Insider. However, it’s not clear exactly how many of the 10,773 children being held by the government were actually forcibly separated from their parents.
Where are these children being held?
To house migrant children, HHS says it relies on “an existing network of approximately 100 shelters in 14 states.” HHS has also reportedly weighed housing migrant children on military bases, but an HHS official told the Washington Post that measure is considered only as a “last option.”
Why is the Trump administration doing this?
Speaking in San Diego on May 7, Attorney General Jeff Sessions explained this “zero tolerance” policy as a means to deter immigrants – and especially those with children – from crossing the border illegally. Sessions said, “If you’re smuggling a child, we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring them across the border illegally.”
The Department of Justice (DoJ) is also narrowing the ability of immigrants to claim asylum on the basis of criminal violence in their home country. President Trump recently suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include further funding the border wall, tightening border enforcement and curbing legal entry through changes in current immigration laws. This indicates that Trump is also using immigration policy as a political negotiation tool.
Can migrants arriving at the border still request asylum?
Yes. If migrants request asylum, they will still undergo a “credible fear” interview to determine if their claim merits an asylum hearing. However, instead of being released under a monitoring program to await the hearing, as has been common practice for migrants with no criminal history, there is a greater likelihood now that they will be detained until the hearing, which could take many months or even years.
According to CNN, the current DHS plan makes no special arrangements for those who claim asylum when apprehended. That mean that “even if immigrants caught at the border illegally have valid asylum claims, they could still end up with federal criminal convictions on their record regardless of whether a judge eventually finds they have a right to live and stay in the US.” While they could eventually be found to have a legitimate right to live in the U.S., they could still have a conviction for illegal entry on their record.
What impact is this having on the court system?
Asylum claims are handled through immigration courts that fall under the Justice Department. The backlog of cases is well into the hundreds of thousands, and it can take years for an asylum applicant to go before an immigration judge. Now that more illegal immigrants are being placed into criminal proceedings, these courts will likely become overwhelmed, perhaps leading again to the mass trials that were common in the early days of Operation Streamline.
Is this revived policy having an impact on illegal immigration?
It’s too soon to tell. Word spreads quickly from the U.S. border to Mexico and the Central American countries through family members. But the impact won’t truly be known until apprehension numbers in the coming months are released. What is almost a certainty is that human smugglers – most often employed by drug cartels – will be raising their smuggling fees due to the increased risk.