The zero tolerance policy’s most visible outcome was the mass separation of asylum-seeking parents and children. The Trump administration’s ham-fisted effort to implement the policy affected over 2,575 families in about 50 days. The nation was convulsed by images of tearful children, the chain-link cages used to hold them at Border Patrol’s temporary processing center in Texas, tent cities, pediatricians reporting on the conditions in “tender age” detention centers for toddlers, as well as a leaked recording of young children crying inconsolably for their parents.
Family separations at the border have stopped for now, but may be replaced by something just as severe: long-term incarceration of families awaiting adjudication of their asylum claims. Meanwhile, effective, cheaper alternatives exist and have worked in the past yet the Trump administration has curtailed their use.
“We witnessed a clear and indelible departure from long-held U.S. values.”
WOLA’s third and final report in this border series will discuss U.S. authorities’ severe disregard for human rights, and for migrants’ humanity and dignity, before, during, and in the chaotic aftermath of the 50 days during which family separation was official policy. Detailed media reporting and research along the border, including our own during a June visit to Arizona, made visible the callousness, cruelty, and incompetence with which the administration separated thousands of children from their parents. We witnessed a clear and indelible departure from long-held U.S. values. But even as we seek to draw lessons and avoid repetition, the path to reunification for hundreds of families remains unclear. While U.S. authorities are no longer separating families at the border as a policy, this report outlines the ramifications of mass family detention in place of family separation.
The wave of family separations resulted directly from the zero-tolerance policy, because when parents are charged with a criminal offense (in this case “improper entry” at the border), held pending trial, or serving time in prison, they cannot be detained with their children. After release from the criminal justice system, most families persisted in seeking asylum in the United States, although hundreds of parents desisted from their claims and were deported back to Central America believing that this would be the fastest way to be reunited with their children. The Trump administration has sought the ability to keep entire families in immigration detention while they await decisions on their asylum cases. So far, that cannot happen: current jurisprudence, by way of the 1997 Flores Settlement setting “the best interest of the child” as the standard, prohibits holding children in detention for more than 20 days, even with their parents. Flores, which continues to be upheld in U.S. courts, serves as the strongest existing safeguard against widespread family detention.
Between the onset of zero tolerance and a June 20 White House executive order suspending family separations, over 2,500 children were taken away from their parents and treated as though they had arrived as unaccompanied minors: placed in shelters or foster homes by the Office of Refugee Resettlement (ORR, part of the Department of Health and Human Services). Unaccompanied minors tend to remain in HHS shelter custody for an average of 57 days, after which more than 90 percent are placed with a relative living in the United States. (Finding relatives has become more difficult, however, because new regulations require those relatives to be fingerprinted, and for that information to be shared with the Department of Homeland Security. Relatives who are undocumented are unlikely to risk exposure.)
“All along, the Administration's rationale and messaging about the family separation policy were mixed, confused and lacked credibility.”
Parents were sent along a separate path, ending up in the custody of U.S. Marshals or the Bureau of Prisons and, after serving their sentences, turned over to ICE for deportation or—if given a chance to express fear of returning—for the beginning of their asylum processes.
Faced with an outcry from former first ladies, evangelical leaders, some Republican senators, U.S. airlines refusing to transport the children, and other quarters, the Trump administration was forced to back down. All along, the Administration’s rationale and messaging about the family separation policy were mixed, confused and lacked credibility.
Chief of Staff John Kelly set the stage with a May 11 National Public Radio interview that went badly off the rails (our emphasis):
NPR: Even though people say that’s cruel and heartless to take a mother away from her children?
Kelly: I wouldn’t put it quite that way. The children will be taken care of—put into foster care or whatever. But the big point is they elected to come illegally into the United States and this is a technique that no one hopes will be used extensively or for very long.
President Trump several times sought to blame the situation on Democrats, falsely insisting that he was enforcing a law that the minority party enacted. Some portrayed family separation as an effort to implement the letter of the law: “It appears our critics want a two tier legal system.… No jail because they have a family, no criminal consequences if they have children,” Homeland Security Secretary Kirstjen Nielsen said on a late-May visit to Arizona. “I’m here to tell you differently.” Added Attorney-General Sessions on June 5, “You can’t be giving immunity to people who bring children with them recklessly and improperly and illegally.”
By mid-June, as outrage mounted, messaging fell apart. Nielsen incredibly told the world on Twitter, “We do not have a policy of separating families at the border. Period.” Sessions resorted to a questionable reading of scripture, invoking Apostle Paul’s “clear and wise command in Romans 13 to obey the laws of the government.”
As noted in WOLA’s previous report on zero tolerance, some Trump administration officials said that they expected family separation to deter future migrants from coming. They were making an argument that seemed like an obvious statement of their intent—but that most officials have tried to avoid saying out loud because federal courts have ruled that it is illegal to detain migrants, or otherwise to increase their misery, to deter others from coming.
While family separations occurred on a sporadic basis during the Obama and previous administrations, in 2017 the new Trump administration made clear that it was considering the practice as part of its planned crackdown on immigration, both legal and undocumented. During the fall of 2017, Customs and Border Protection (CBP) and the Justice Department began prosecuting parents and removing their children on a pilot basis in Texas’s Rio Grande Valley and El Paso sectors. Between 700 and 1,800 families were separated in the pre-zero tolerance period.
About 50 days transpired between the effective launch of zero tolerance (May 5, 2018) and President Trump’s June 20 executive order calling a temporary halt to family separations. During those 50 days, U.S. authorities separated 2,575 children from their parents, according to a June 23 DHS statement. That is 51.5 children per day, more than two per hour. However, this figure is only a portion of the border-wide number of children separated because it does not account for children who were separated before zero tolerance went into effect. Indeed, court documents would later find 2,614 separated children in ORR custody, in addition to 538 who were still in CBP custody on June 20, not yet turned over to ORR as unaccompanied children, meaning that over 3,000 children had been separated in total.
Most of the 538 who were in CBP custody at the time the Trump Administration called a halt to separations were quickly reunited with their parents. The rest, though, were in HHS custody. Some had been without their parents for weeks or months. As discussed below, reuniting them with their parents proved to be a process fraught with obstacles, ranging from bureaucracy to incompetence to lack of human empathy, and carried forward only under heavy pressure from the judicial branch of government.
Court documents reveal that 63 of the separated children were under the age of five, including infants, although Border Patrol’s Rio Grande Valley Sector at some point adjusted its enforcement to stop separating children of that age. Border Patrol management in that sector denies an allegation, reported by an immigration lawyer to CNN, that agents took a feeding baby from its mother’s breast; lawyers from the Texas Civil Rights Project stand by the story.
This accounting from DHS is only a portion of the children border-wide who could have been separated from their parents during this period. In mid-June, Rio Grande Valley Border Patrol Sector Chief Manuel Padilla told The Washington Post that his agents were turning over “about half” of parents for prosecution, due to capacity issues in the federal judicial system. “We are trying to build to 100 percent prosecution of everybody that is eligible,” the Chief told the Post. “We are not there yet, but that is our intent.”
During their June visit to the Yuma and Tucson sectors, WOLA staff found that families were being separated there, too. This was almost certainly happening in less than half of cases, though. Alternatives to detention, like release with a GPS-enabled ankle bracelet, appeared to be more common. As noted in our previous report on zero tolerance, Arizona’s courts were already near capacity due to years of Operation Streamline, which was a policy that led to the criminal prosecution of most individuals who crossed the border improperly. Zero tolerance in the Yuma and Tucson sectors meant that some separated parents were suddenly among those being prosecuted, but families were still being released every day.
One or two minors per day are separated at the ports of entry as well, even though their families are crossing the “legal and proper” way: 38 between May 1 and June 5, 55 in April, and 64 in March, according to the Associated Press. It’s not clear why this happens: it could be CBP determining that the adult and child aren’t related, or that the adult has a serious criminal record.
Authorities like Sessions have voiced a belief that many families are fraudulent, claiming that adults cross with unaccompanied kids in order to evade detention or ORR custody while making an asylum claim. Chief Padilla told The Washington Post that agents in his sector “had found more than 600 cases of what he called ‘fraud,’ including adults pretending to be parents of accompanying children or adults pretending to be minors,” since October 2017. Days later, the Post nailed down a much smaller “fraud” statistic:
A Homeland Security official later said the agency detected 46 such fraud cases during the government’s 2017 fiscal year, or about .06 percent of the more than 70,000 families taken into custody. The figure rose to 191 during the first five months of the current fiscal year.
Those who have interviewed separated parents say that in some instances U.S. personnel, usually Border Patrol agents at a short-term processing center, used threats or false pretenses to take children away from parents in their custody. Some were not even given a moment to say goodbye.
“Some were not even given a moment to say goodbye.”
Anne Chandler of the Houston office of the Tahirih Justice Center, a legal aid organization, described to Texas Monthly what her lawyers saw and heard. Her account is lengthy but worth reproducing:
Sometimes they will tell the parent, ‘We’re taking your child away.’ And when the parent asks, ‘When will we get them back?’ they say, ‘We can’t tell you that.’ Sometimes the officers will say, ‘because you’re going to be prosecuted’ or ‘because you’re not welcome in this country,’ or ‘because we’re separating them,’ without giving them a clear justification. In other cases, we see no communication that the parent knows that their child is to be taken away. Instead, the officers say, ‘I’m going to take your child to get bathed.’ That’s one we see again and again. ‘Your child needs to come with me for a bath.’ The child goes off, and in a half an hour, twenty minutes, the parent inquires, ‘Where is my five-year-old?’ ‘Where’s my seven-year-old?’ ‘This is a long bath.’ And they say, ‘You won’t be seeing your child again.’ Sometimes mothers—I was talking to one mother, and she said, ‘Don’t take my child away,’ and the child started screaming and vomiting and crying hysterically, and she asked the officers, ‘Can I at least have five minutes to console her?’ They said no. In another case, the father said, ‘Can I comfort my child? Can I hold him for a few minutes?’ The officer said, ‘You must let them go, and if you don’t let them go, I will write you up for an altercation, which will mean that you are the one that had the additional charges charged against you.’ So, threats.
Officials deny this. “Accusations of surreptitious efforts to separate are completely false,” a “Homeland Security official” told the Los Angeles Times.
Separation usually happened within a day or two of apprehension, while families were still in Border Patrol custody, or that of its parent agency, CBP. Children were then moved on to ORR shelters, where they awaited placement with relatives or in foster homes. For all children classified as “unaccompanied,” this transfer out of CBP custody is required to happen within 72 hours; in the Rio Grande Valley, it has averaged about 30 hours.
That period is spent under harsh conditions. Families are kept, and children are separated, in Border Patrol station headquarters’ holding spaces, which migrants often call “hieleras” or “freezers” because Border Patrol sets the air conditioning to exaggeratedly low temperatures.
In about half of all family separation cases, this period was spent in the Rio Grande Valley sector’s Central Processing Facility (CPC) on Ursula Avenue in McAllen, Texas.
Rio Grande Valley sector’s Central Processing Facility on Ursula Avenue in McAllen, Texas. (Photo: Google Street View)
Reporters and members of Congress have been allowed to visit that facility, and photos reveal an unpleasant place. Migrants call it “la perrera” because it looks like a dog kennel. Chain-link fencing separates the warehouse-like space into pens resembling cages, in which children are separated by age and gender, and parents are kept separately unless the child is very young. Inside the pens, children lie on mats, covered in shiny mylar disposable blankets, on concrete floors. The overhead lighting, resembling that of a big-box discount store, is always on.
Photos of this facility shocked the world and played a big role in stirring outrage about the family-separation policy. Viewers mostly didn’t realize that first, this was a short-term stop, not the actual shelters themselves, and second, these conditions were established during the Obama administration. The CPC opened in 2014, after the first wave of unaccompanied Central American children caught ORR badly off-guard, making 72-hour transfers impossible and forcing Border Patrol to keep kids in the hallways and out on the loading dock behind its sector headquarters in McAllen.
WOLA accompanies Rep. Jim McGovern in a visit to detention center “Ursula.” (Photo: Adam Isacson)
The difference during the Obama years was that the kids being “caged” there were, in most cases, unaccompanied minors days away from being reunited with relatives in the United States—often parents—with whom they would stay while awaiting their asylum decisions. Under the Trump administration, the CPC became a site of separation, not imminent reunification. Beyond the austere conditions, the most objectionable thing happening there was the separation of at least 1,174 families within its walls during the 50 days when zero tolerance was in full force.
After being separated, children were then placed in one of over 100 ORR-funded shelters in 17 different states, mostly run by non-profit corporations. Here, as noted, they spend an average of 57 days before placement in a foster home or with a relative. Shelters are usually for one gender, and those of “tender age,” 12 years old or under, are kept in separate facilities.
Older children have been kept in larger facilities that hold hundreds at a time. Here, they usually sleep four or five to a room, eat in a cafeteria, and receive some classroom instruction and recreation time. The most notorious of these is “Casa Padre,” a former Walmart in Brownsville, Texas run by Southwest Key Programs, an Austin-based nonprofit that has more than $450 million in HHS contracts this year. (The organization has gone on record opposing family separation.) This is the facility where Sen. Jeff Merkley (D-Oregon) made headlines after being denied entry, on video, in early June, and which later hosted a visit of U.S. reporters. (Legislators and press have complained of access to these facilities; ORR contends that it must restrict access to children and their identities because at least some portion of them may have been trafficked, and their traffickers may be seeking to “reacquire” them.) Still more notorious, as photos depict children lined up outdoors between rows of air-conditioned tents, is a “tent city” built to house 360 boys in Tornillo, Texas, outside El Paso, which was scheduled to close in July.
Defense and security contractors, some of them with ties to Trump administration officials, are also obtaining HHS contracts to shelter the expanding population of separated and unaccompanied children. General Dynamics, manufacturer of the Abrams tank and Stryker combat vehicles, is advertising positions for data entry, policy analysis, and tracking placements within ORR’s system for minors. Private prison management companies Geo Group and Core Civic, which run the Karnes and Dilley family detention centers discussed below, each donated US$250,000 to President Trump’s inaugural fund. Bethany Christian Services, which provides foster care to migrant children, has received over US$400,000 in grants from the family foundation of Education Secretary Betsy DeVos. BCFS, the company that operated the Tornillo tent city, has “long retained Ray Sullivan, a lobbyist and onetime chief of staff to Rick Perry, the former Texas governor who is now Mr. Trump’s energy secretary,” according to The New York Times.
“General Dynamics, manufacturer of the Abrams tank and Stryker combat vehicles, is advertising positions for data entry, policy analysis, and tracking placements within ORR’s system for minors.”
Child advocates agree that long-term stays in such facilities are not in children’s best interest. “Kids, particularly young kids, should be in a smaller, more community-based setting, as opposed to the larger scale institutional-like settings,” Kathryn Kuennen of the United States Conference of Catholic Bishops told The Houston Chronicle. Whistleblowers have denounced mistreatment or resource shortfalls in some of the privately-run ORR shelters. Antar Davidson quit his job at a Southwest Key shelter in Arizona and went to the media to denounce “a facility he described as understaffed and unequipped to deal with children experiencing trauma.… During his time at the shelter, children were running away, screaming, throwing furniture and attempting suicide.” Colleen Kraft, president of the American Academy of Pediatrics, told NPR about witnessing a two-year-old child crying and screaming while staff at a south Texas shelter stood by. She said “the staff told her that federal regulations prevented them from touching or holding the child to soothe her.”
Throughout the shelter network, public records show citations for mistreatment of children and failing to administer medication. Reveal News has published two alarming reports about MVM, a defense contractor whose recruitment materials bill its “extensive domain expertise in counter-narcotics, criminal and civil investigations, public safety, and national security.” ICE contracts MVM to transport families and children. It found that the company has been storing families on a short-term basis in empty Phoenix, Arizona office buildings that are not licensed as child care facilities. There, neighbors have observed children having to bathe in bathroom sinks.
Among those most articulately voicing horror at the child separations were pediatricians, child psychologists, and child welfare advocates in the United States. Groups warned that having “adverse childhood experiences (ACEs)” like long-term separation from parents, in the words of Physicians for Human Rights, “affects brain development and is correlated with increased risk of developing chronic mental health conditions, such as depression and post-traumatic stress disorder (PTSD) and even physical conditions such as cancer, stroke, diabetes, and heart disease.”
The American Academy of Pediatrics, whose director condemned the new policy’s “sweeping cruelty,” recalled that “highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress—known as toxic stress—can carry lifelong consequences for children.” “Children should never be detained for reasons related to their own or their parents’ migration status,” read a strongly worded statement from the UN High Commissioner for Human Rights. “Detention is never in the best interests of the child and always constitutes a child rights violation.”
“Detention is never in the best interests of the child and always constitutes a child rights violation.”
On June 26, federal judge Dana Sabraw in San Diego called a halt to the separation of families. His injunction, the result of a suit brought by the American Civil Liberties Union (ACLU), gave the Trump administration 30 days to reunite all 2,614 children with their parents; 14 days if the child was less than five years old.
No process to help parents locate separated children was in place when zero tolerance began. The judicial order forced authorities to throw one together hastily. As of early July, the family reunification process was barely underway. The Secretary of Health and Human Services told a Senate panel on July 5 that along with 2,047 children that had been separated from their parents as part of the zero tolerance policy, the agency had almost 3,000 children total that needed to be reunited with their parents, including many separated prior to the new policy and some children that were separated from the parents during their journey. Because verification through birth certificates and other documents may take too long, HHS was taking DNA samples to match children with their parents, as well as instituting a vetting process that is painstakingly long for parents waiting to be reunited with their children.
By August 9, of the 2,614 separated children in ORR custody, the U.S. government had reunited:
About 900 or more children, though, remained separated, of which 559 were still in ORR custody:
Unless the parent has already been deported back to his or her home country, when children are reunited with their parents, the family units are usually released pending an asylum hearing. The Trump administration would prefer to hold families together in ICE detention facilities while their asylum claims are processed, which takes months and raises strong concerns, discussed below, about prolonged family detention.
Prior to the June court ruling, parents and other individuals who were being criminally prosecuted saw their chances of requesting asylum curtailed. An Arizona lawyer told WOLA that public defenders, who handle dozens of migrant misdemeanor cases in the same trials, are often required to take the initiative and e-mail ICE on the day of the trial, informing the agency, “My client is likely to be sentenced to time served today, and has told me he/she fears returning to his/her country.” This happens only occasionally, so some parents were very likely being deported back to situations where their lives are in danger.
Incredibly, the agencies holding the parents (ICE, Bureau of Prisons, or U.S. Marshals) have very little interface with the agency managing the children (ORR), and made little effort to track family members in each other’s custody. Still more incredibly, in nearly all cases, CBP kept no record of the link between the parents and children at the moment it separated them.
Parents being charged with “improper entry” were given no receipt, claim check, or any other document establishing their link to their children. No database maintained a record of the parent-child relationship. Parents, and the agencies holding the parents, were given no information about their children’s whereabouts, as ORR moved them to shelters and homes all around the country.
A June 23 CBP statement insists that there is a process:
Minors come into HHS custody with information provided by DHS regarding how they illegally entered the country and whether or not they were with a parent or adult and, to the extent possible, the parent(s) or guardian(s) information and location. There is a central database which HHS and DHS can access and update when a parent(s) or minor(s) location information changes.
Note that, by this statement’s admission, HHS only has a record of whether or not the child in its custody came with a parent, and only knows the identity of that parent “to the extent possible.” Note also that the existing database only lists parents’ or children’s names and locations without indicating a link between them, and that the database “can” be updated—but isn’t necessarily, every time—when a parent or child is relocated.
“Parents being charged with ‘improper entry’ were given no receipt, claim check, or any other document establishing their link to their children. No database maintained a record of the parent-child relationship.”
At the moment of separation, parents were handed a flyer with numbers to call. (And at first, they weren’t even given that, or were given flyers with incorrect numbers, or with 800 numbers that couldn’t be called from detention centers or after deportation.) In some cases, government agencies couldn’t even get it together to facilitate phone calls between anguished parents and children. As of June 21, the Texas Civil Rights Project, a legal aid organization, told The Washington Post that, of more than 300 parents it was representing, its lawyers had been able to locate only two children. “Either the government wasn’t thinking at all about how they were going to put these families back together, or they decided they just didn’t care,” said Project representative Natalia Cornelio.
Circumstances resulting from “zero tolerance” further complicated family reunification. Younger children can’t communicate information about who their parents are, or even what countries they are from, making it still harder to piece together relationships.
Before the court-ordered reunification process got underway, attorneys and advocates said that ICE was using the prospect of reunification to pressure parents to drop their asylum cases. Lawyers interviewed by WOLA, and a growing number of media reports, spoke of a one-page “Separated Parents Removal Form” that ICE was encouraging parents in its custody to sign, agreeing to immediate repatriation and abandoning asylum claims. The form lets them choose only whether they wish to be deported with or without their children. Among those being encouraged to abandon their asylum processes were parents who had already passed their initial credible fear interviews. ICE insists that its agents are not giving the form to parents with pending asylum claims, but numerous lawyers dispute that.
The family separations inspired a wave of outrage throughout the country, dominating U.S. headlines for much of June. Rejection of the practice came from quarters normally supportive of President Trump, or normally reluctant to express views about current events. Republican senators like Lindsey Graham (R-South Carolina) and Orrin Hatch (R-Utah) went on record against it. Religious leaders, from the National Association of Evangelicals to the Southern Baptist Convention to the U.S. Catholic Bishops’ Conference, issued statements. All four living former first ladies, most prominently Laura Bush in a Washington Post column, voiced concern.
On June 20, six days before the federal injunction put a hold on family separations, the national outcry forced President Trump to take the rare step of backing down, at least partially. An executive order put a stop to family separations, stating that the new policy would be “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” In other words, the White House proposed to replace family separation with family detention: holding entire families together in ICE custody while their asylum claims are adjudicated. Indeed, shortly after the executive order was issued, the Department of Justice announced that it will be keeping families “during the pendency” of their asylum proceedings. 
It is far from clear how the administration would do this. ICE maintains three family detention centers, with a total capacity of just over 3,300 families. Two, in Dilley and Karnes City, Texas, are privately run and not certified childcare facilities. A third, in Leesport, Pennsylvania, is a certified facility (though that certification is under appeal) run by the government of Berks County, Pennsylvania. Karnes and Dilley opened in 2014, after the first major wave of Central American families and children arrived at the U.S. border. With these new facilities, according to the Marshall Project, “the national capacity for parents and children locked up together was greater than at any time since Japanese internment.”
As of June 22, ICE told Reuters that these family detention facilities were at 79 percent capacity. With at least 100 families arriving each day at the border, the June 20 executive order mandating that all be locked up was impossible to implement. Since June 20, the vast majority of asylum-seeking families have again been released, usually with tracking devices.
The executive order calls on the Defense Department to provide existing facilities, or build new ones, to house families, presumably on military bases. Initially, ORR was considering temporary sites at three bases in Texas (Fort Bliss, Dyess Air Force Base, Goodfellow Air Force Base) and one in Arkansas (Little Rock Air Force Base) to house as much as 20,000 children and families. The Texas Tribune reported in early August on plans for an eventual 7,500 children at Goodfellow, near San Angelo, Texas, with an additional 4,000 family members at Goodfellow and 4,000 family members at Fort Bliss, near El Paso. For now, the Defense Department has secured legal and environmental clearance on a plan to construct temporary housing or tents at Goodfellow. This facility could include up to 12,000 beds for families, including 2,000 beds that could be available within 45 days of ORR sending a request letter to the Defense Department. The design may resemble “tent cities” like a 350-child space in Tornillo, Texas (which is not a military base), where boys, including some separated from parents, are housed in rows of air-conditioned tents.
This is not wholly unprecedented: the Obama administration used bases for four months in 2017 to house 7,700 unaccompanied children. But the idea of long-term detention of entire families at military facilities has no precedent since World War II.
The Trump administration’s ambitions to lock up 100 percent of asylum-seeking families face practical obstacles. The first is the cost. ICE’s 2019 budget request to Congress estimates that it costs an average of US$318.79 per day to detain a family. Expanding capacity beyond Karnes, Dilley, and Berks would quickly break ICE’s detention budget, and it is hard in the current climate—in which at least nine Democratic senators’ votes are needed to avoid a filibuster—to imagine congressional appropriators agreeing to a further increase.
Current jurisprudence exists as a safeguard against widespread family detention. A 1997 judicial consent decree known as the Flores settlement, which was bolstered by a ruling in 2015 and upheld in the Ninth Circuit of Appeals in 2016 after the Obama administration opened Karnes and Dilley, sets standards for holding children and families in immigration detention. Using “the best interest of the child” as its standard, Flores prohibits holding children in detention centers, including family detention, for more than 20 days, unless they are licensed childcare facilities. Only the Pennsylvania family detention center, which holds 96 families, meets that standard.
The June 20 executive order, then, will violate Flores if it results in long-term family detention at Karnes, Dilley, or military bases. The executive order calls on the Justice Department to request that Flores be modified “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.” However, the Justice Department’s filing after the executive order makes the dubious argument that because the U.S. government is no longer able to separate families, it may detain families indefinitely until their cases are finalized, essentially violating the Flores settlement.
As the Department of Justice filing makes clear, although most families are once again being released from detention, the administration and Congress are considering measures that would enable families to be held in detention indefinitely, pending their asylum decisions. As WOLA has documented and as recommended by a Department of Homeland Security advisory committee in a 2016 report, the prolonged detention of migrant families awaiting court hearings is expensive and unnecessary, and detention is never in the best interest of children. Prolonged detention, even with parents, can have negative impacts on children’s mental and behavioral wellbeing, and that of their parents.
Evidence shows that a suite of options known as “alternatives to detention” is effective in ensuring that asylum seekers attend their hearings, and is substantially less expensive for the U.S. government.
As noted above, ICE’s 2019 budget request reports a cost of $318.79 per day to hold a family in detention; it costs around $140 per day to detain adults. However, there are more humane and cost-effective alternatives to detention such as home visits, telephone monitoring, and in some cases ankle bracelets, to ensure that individuals appear for their immigration hearings.
“Evidence shows that a suite of options known as ‘alternatives to detention’ is effective in ensuring that asylum seekers attend their hearings, and is substantially less expensive for the U.S. government.”
The Department of Homeland Security estimated for FY2018 that alternatives to detention cost a mere $4.50 a day. An ICE-run Family Case Management Program (FCMP), which operated on a limited basis until the Trump administration ended it in 2017, linked asylum-seeking families with caseworkers without the need for ankle bracelets. The FCMP cost only $36 per day, and 99 percent of families showed up for their court appearances. Another alternatives-to-detention effort, ICE’s Intensive Supervision Appearance Program, also achieved a 99 percent appearance rate, according to 2013 data, using a combination of telephone check-ups, in-person visits, and GPS monitoring.
The story of zero tolerance, family separation, and family detention is a grim account of suffering caused by Trump administration policymakers who were either being deliberately inhumane in order to attempt to force changes in laws and in migration patterns, or who in the best of cases were blind to the human consequences of their choices. At lower levels of government, this story also lacks heroes. Bureaucrats followed procedure, routinely dehumanizing parents and children while lacking the creativity even to come up with a way to keep records of links between them. Accounts of petty cruelties and insults have proliferated, along with a lack of compassion for migrants’ suffering.
“Bureaucrats followed procedure, routinely dehumanizing parents and children while lacking the creativity even to come up with a way to keep records of links between them.”
Elsewhere, though, the story is brighter. U.S. civil society awakened in response to the crisis: not just in the streets and on social media, but in the border communities themselves. Border towns have strong communities of lawyers providing pro-bono legal aid to asylum seekers. Advocates, some of them volunteers, are accompanying parents and children through the bureaucratic labyrinth that stands in the way of their reunification. Some are out at the borderline, accompanying asylum-seekers who face obstacles at the official border crossings (discussed in a previous report). Volunteers are maintaining places of respite for families newly released, exhausted and wearing new ankle monitors, from ICE custody. Volunteers are putting out water and first aid equipment in the desert to prevent unnecessary deaths. Others, along with lawyers, are documenting and denouncing allegations of abuse at the hands of U.S. or Mexican authorities. Still others are working at the local level to educate their communities and seek changes to a dysfunctional policy. Journalists are continuing to document the impact of zero tolerance policy, gathering testimonies and revealing information withheld by opaque government agencies.
These private citizens are the heroes of this story, and a reason to maintain hope. WOLA staff were honored to meet with many of them during our visit to Arizona. We are thankful for their work, and encourage the public to support them:
Family separation and reunification
Detention and alternatives
U.S. civil society
1. Ginger Thompson. “Listen to Children Who’ve Just Been Separated From Their Parents at the Border.” ProPublica. June 18, 2018. https://www.propublica.org/article/children-separated-from-parents-border-patrol-cbp-trump-immigration-policy.
2. Subcommittee on Border Security and Immigration. “Statement of Steven Wagner, Acting Assistant Secretary, Administration for Children and Families, U.S. Department of Health and Human Services.” Committee on the Judiciary United States Senate. May 23, 2018. https://www.judiciary.senate.gov/imo/media/doc/05-23-18%20Wagner%20Testimony.pdf.
3. Katy Vine. “What’s Really Happening When Asylum-Seeking Families Are Separated?” Texas Monthly. June 15, 2018, https://www.texasmonthly.com/news/whats-really-happening-asylum-seeking-families-separated/.; Nick Miroff. “In Trump’s efficient U.S. family separation system, reunions take far longer.” Washington Post. June 19, 2018. https://www.washingtonpost.com/world/national-security/in-efficient-us-family-separation-system-reunions-take-far-longer/2018/06/19/4aa9b898-7349-11e8-9780-b1dd6a09b549_story.html?utm_term=.3f3d602e0a85. ; Miriam Jordan. “Swift Frontier Justice for Migrants Brought to Federal Courts.” Washington Post. June 19, 2018. https://www.nytimes.com/2018/06/19/us/border-immigration-courts.html?smid=tw-nytimes&smtyp=cur.
4. John Burnett. “Transcript: White House Chief of Staff John Kelly’s Interview with NPR.” NPR. May 11, 2018. https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-interview-with-npr.
5. Rafael Carranza. “Faith groups to feds: Migrant family separation not ‘consistent with biblical values.’” AZ Central. June 4, 2018. https://www.azcentral.com/story/news/politics/border-issues/2018/06/04/religious-groups-push-back-against-border-separations/670182002/.
6. Brett Samuels. “Sessions: Migrants shouldn’t ‘recklessly’ bring children across border if they don’t want to be separated.” The Hill. June 5, 2018, http://thehill.com/homenews/administration/390733-sessions-migrants-shouldnt-bring-children-across-border-if-they-dont.
7. Secretary Kirstjen Nielsen. “We do not have a policy of separating families at the border. Period.” Twitter. June 17, 2018, https://twitter.com/SecNielsen/status/1008467414235992069.
8. Julie Hirschfeld Davis and Michael D. Shear. “How Trump Came to Enforce a Practice of Separating Migrant Families.” New York Times. June 16, 2018, https://www.nytimes.com/2018/06/16/us/politics/family-separation-trump.html.
9. Adam Isacson, Maureen Meyer, and Adeline Hite. “The Zero Tolerance Policy.” Washington Office on Latin America. July 16, 2018. https://www.wola.org/analysis/wola-report-zero-tolerance-policy/.
10. Dara Lind. “What Obama did with migrant families vs. what Trump is doing.” Vox. June 21, 2018. https://www.vox.com/2018/6/21/17488458/obama-immigration-policy-family-separation-border.
11. Caitlin Dickerson. “Hundreds of Immigrant Children Have Been Taken From Parents at U.S. Border.” The New York Times. April 20, 2018. https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html.
12. Department of Homeland Security. “Fact Sheet: Zero-Tolerance Prosecution and Family Reunification.” DHS. June 23, 2018. https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family-reunification.
13. “Ms. L V. ICE – Joint Status Report,” American Civil Liberties Union, August 9, 2018, https://www.aclu.org/legal-document/ms-l-v-ice-joint-status-report-1.
14. Department of Homeland Security, “Fact Sheet: Zero-Tolerance Prosecution and Family Reunification,” DHS, June 23, 2018, https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family-reunification.
15. “Ms. L V. ICE – Joint Status Report,”American Civil Liberties Union, July 12, 2018, https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family-reunification; Michael Miller, “Family Separations could double, says Border Patrol chief in Rio Grande Valley,”Washington Post, June 16, 2018. https://www.washingtonpost.com/local/family-separations-could-double-says-border-patrol-chief-in-rio-grande-valley/2018/06/16/13cdc042-70ee-11e8-bf86-a2351b5ece99_story.html?utm_term=.310a617e47f3; Katy Vine. “What’s Really Happening when Asylum Seeking Families are separated?,” Texas Monthly, June 15, 2018. https://www.texasmonthly.com/news/whats-really-happening-asylum-seeking-families-separated/; Michael Miller, “They just took them? Frantic parents separated from their kids fill courts on the border,”Washington Post, June 9,2018. https://www.washingtonpost.com/local/they-just-took-them-frantic-parents-separated-from-their-kids-fill-courts-on-the-border/2018/06/09/e3f5170c-6aa9-11e8-bea7-c8eb28bc52b1_story.html?utm_term=.fcde27519cbe;
16. Molly Hennesy-Fiske, “Was a breastfeeding infant really taken from an immigrant mother? The answer to this and other questions about families separated at the border.” LAtimes. June 16, 2018. http://www.latimes.com/nation/la-na-immigration-families-border-wall-20180616-htmlstory.html
17. Miller, “Family Separations could double, says Border Patrol chief in Rio Grande Valley.”
18. Colleen Long. “Figures show about 2,000 minors separated from families,” AP news. June 16,2018. https://apnews.com/227a90dbf32a46bf9545b4524aa7af64
19. Dara Lind. “The Trump administration’s separation of families at the border, explained,” Vox. June 15, 2018.https://www.vox.com/2018/6/11/17443198/children-immigrant-families-separated-parents
21. Miller, “Family Separations could double, says Border Patrol chief in Rio Grande Valley.”
22. Nick Miroff. “In Trump’s efficient U.S. family separation system, reunions take far longer.” Washington Post. June 19, 2018. https://www.washingtonpost.com/world/national-security/in-efficient-us-family-separation-system-reunions-take-far-longer/2018/06/19/4aa9b898-7349-11e8-9780-b1dd6a09b549_story.html?utm_term=.3dfa6e3645c4
23. Vine. “What’s Really Happening when Asylum Seeking Families are separated?”; Miriam Jordan. “‘I Can’t Go Without My Son,’ a Mother Pleaded as She Was Deported to Guatemala.’” New York Times. June 17, 2018. https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html; Michael E. Miller. “‘They just took them?’ Frantic parents separated from their kids fill courts on the border.” Washington Post. June 9,2018. https://www.washingtonpost.com/local/they-just-took-them-frantic-parents-separated-from-their-kids-fill-courts-on-the-border/2018/06/09/e3f5170c-6aa9-11e8-bea7-c8eb28bc52b1_story.html?utm_term=.64c951ea8c9
24. Vine. “What’s Really Happening when Asylum Seeking Families are separated?”
25. Hennesy-Fiske. “Was a breastfeeding infant really taken from an immigrant mother? The answer to this and other questions about families separated at the border.”
26. Miller. “Family Separations could double, says Border Patrol chief in Rio Grande Valley.”
27. Nick Miroff, “Amid migrants’ complaints of frigid holding cells, a battle for control of border thermostats,” The Washington Post, August 7, 2018, https://www.washingtonpost.com/world/national-security/amid-migrants-complaints-of-frigid-holding-cells-a-battle-for-control-of-border-thermostats/2018/08/07/ad3bbb98-9728-11e8-80e1-00e80e1fdf43_story.html.
28. Jacob Saboroff and Julia Ashley. “McAllen, Texas, immigration processing center is largest in U.S.” NBC. June 18,2018.
29. Craig Harris. “Housing separated children is big business for Southwest Key; CEO paid $1.5 million.” AZCentral. June 22,2018. https://www.azcentral.com/story/news/politics/immigration/2018/06/22/southwest-key-gets-458-million-house-migrant-children/726551002/
30. SouthwestKey. “Southwest Key Programs does not support separating families at the border.” Twitter. June 20,2018. https://twitter.com/SouthwestKey/status/1009524503909675008
31. Adam Wernick. “Oregon Senator is Denied Access to Migrant Childrens Center in Texas.”PRI. June 6, 2018. https://www.pri.org/stories/2018-06-06/oregon-senator-denied-access-migrant-childrens-center-texas;
32. Robert Moore. “Inside Texas’s New Tent City for Children.” Texas Monthly. June 16, 2018. https://www.texasmonthly.com/news/inside-texass-new-tent-city-children/
33. Betsy Woodruff and Spencer Ackerman. “Defense Contractors Cashing In On Immigrant Kids’ Detention.” June 14, 2018. https://www.thedailybeast.com/defense-contractors-cashing-in-on-immigrant-kids-detention
34. Ben Protess, Many Fernandez and Kitty Bennet. “Some Contractors Housing Migrant Children Are Familiar to Trump’s Inner Circle .” New York Times. July 4, 2018. https://www.nytimes.com/2018/07/04/us/migrant-families-contractors-campaign-contributions.html
35. Lomi Kriel. “Fate of immigrant children separated from parents at Texas border is unclear.” Houston Chronicle. June 21, 2018. https://www.houstonchronicle.com/news/houston-texas/houston/article/Fate-of-immigrant-children-separated-from-parents-13015827.php
36. Molly Hennesy-Fiske. “’Prison-like’ migrant youth shelter is understaffed, unequipped for Trump’s ‘zero tolerance’ policy, insider says.” Los Angeles Times. June 14, 2018. http://www.latimes.com/nation/la-na-border-migrant-shelter-20180614-story.html
37. Joel Rose. “Doctors Concerned About ‘Irreparable Harm’ To Separated Migrant Children.” NPR. June 15, 2018. https://www.npr.org/2018/06/15/620254326/doctors-warn-about-dangers-of-child-separations
38. Manny Fernandez. “National Guard Has Eyes on the Border. But They’re Not Watching Mexico.” New York Times. May 15, 2018. https://www.nytimes.com/2018/05/15/us/national-guard-texas-mexico.html;
39. Aura Bogado, Ziva Branstetter, and Vanessa Swales. “Defense contractor detained migrant kids in vacant Phoenix office building.” Reveal News. July 6, 2018. https://www.revealnews.org/article/defense-contractor-detained-migrant-kids-in-vacant-phoenix-office-building/; Aura Bogado. “Exclusive: Immigrant kids held in second Phoenix office seen bathing in sinks.” Reveal News. July 18, 2018.
40. Physicians for Human Rights. “Dear Secretary Nielsen and Attorney General Sessions.”June 2018. https://secure.phr.org/secure/family-separation-sign-letter;
41. Miriam Jordan. “‘It’s Horrendous’: The Heartache of a Migrant Boy Taken From His Father.” New York Times. June 7, 2018. https://www.nytimes.com/2018/06/07/us/children-immigration-borders-family-separation.html; Colleen Kraft. “AAP Statement Opposing Separation of Children and Parents at the Border.” American Academy of Pediatrics. June 8, 2018. https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/StatementOpposingSeparationofChildrenandParents.aspx
42. Ravina Shamdasani. “Press briefing note on Egypt, United States and Ethiopia.” Office of the UN High Commissioner for Human Rights. June 5, 2018. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23174;
43. Julia Ainsley. “U.S. has nearly 3,000 separated migrant kids, will use DNA to find parents.” NBC News. July 5, 2018. https://www.nbcnews.com/politics/immigration/u-s-has-nearly-3-000-separated-migrant-kids-will-n888986
44. “Ms. L V. ICE – Joint Status Report,” August 9, 2018; “Ms. L V. ICE – Joint Status Report,” July 12, 2018.
45. WOLA Staff conversation with volunteers at Law Clinic in Tucson, Arizona. June 21, 2018.
46. Jordan. “‘I Can’t Go Without My Son,’ a Mother Pleaded as She Was Deported to Guatemala.’”; Jonathan Blitzer. “The Government Has No Plan for Reuniting the Immigrant Families It Is Tearing Apart.” The New Yorker. June 18, 2018. https://www.newyorker.com/news/news-desk/the-government-has-no-plan-for-reuniting-the-immigrant-families-it-is-tearing-apart
47. Brad Heath. “DOJ: Trump’s immigration crackdown ‘diverting’ resources from drug cases.” USA Today. June 22, 2018. https://www.usatoday.com/story/news/2018/06/22/zero-tolerance-immigration-crackdown-diverting-resources-drug-cases/727532002/
48. Dara Lind. “The Trump administration’s separation of families at the border, explained.” Vox. June 15, 2018. https://www.vox.com/2018/6/11/17443198/children-immigrant-families-separated-parents; Lomi Kriel. “New ‘zero tolerance’ policy overwhelms South Texas courts.” Houston Chronicle. June 19, 2018. https://www.houstonchronicle.com/news/houston-texas/texas/article/New-zero-tolerance-policy-overwhelms-South-12981190.php; Vine. “What’s Really Happening when Asylum Seeking Families are separated?”; Blitzer. “The Government Has No Plan for Reuniting the Immigrant Families It Is Tearing Apart.”; Kevin Sieff. “The chaotic effort to reunite immigrant parents with their separated kids.” Washington Post. June 21, 2018. https://www.washingtonpost.com/world/the_americas/the-chaotic-effort-to-reunite-immigrant-parents-with-their-separated-kids/2018/06/21/325cceb2-7563-11e8-bda1-18e53a448a14_story.html?utm_term=.3d2515f3ca07
49. Sieff. “The chaotic effort to reunite immigrant parents with their separated kids.”
51. Jay Root and Shannon Najmabadi. “Kids in exchange for deportation: Detained migrants say they were told they could get kids back on way out of U.S.” The Texas Tribune. June 24, 2018. https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promised-they-could/; WOLA interview with legal non-profit in Tucson, AZ. June 21, 2018.
52. WOLA interview with legal non-profit in Tucson, AZ. June 21, 2018; Xeni Jarden. “Here’s the insane form Trump’s ICE makes parents fill out to ask for their children back.” BoingBoing.net. July 3, 2018. https://boingboing.net/2018/07/03/heres-the-insane-form-trump.html
53. Julia Ainsley and Jacob Soboroff. “New Trump admin order for separated parents: Leave U.S. with kids or without them.” NBC News. July 13, 2018. https://www.nbcnews.com/politics/immigration/new-trump-admin-order-separated-parents-leave-u-s-kids-n888631
54. Angelina Chapin. “ICE Officials Are Pressuring Separated Parents To Sign Deportation Forms.” Huffington Post. July 3, 2018. https://www.huffingtonpost.com/entry/immigration-officials-pressure-separated-parents-deportation-form_us_5b3c060ee4b09e4a8b28656e
55. Laurie Goodstein. “Conservative Religious Leaders Are Denouncing Trump Immigration Policies.” New York Times. June 14, 2018. https://www.nytimes.com/2018/06/14/us/trump-immigration-religion.html
56. Matt Stevens and Sarah Mervosh. “The 4 Former First Ladies Condemn Trump’s Border Policy.” New York Times. June 19, 2018. https://www.nytimes.com/2018/06/19/us/politics/first-ladies-trump-family-separation.html
57. Executive Order No. 13841. 3 C.F.R. (2018).
58. Dara Lind. “It’s official: the Trump administration has replaced family separation with indefinite family detention.” Vox. June 30, 2018. https://www.vox.com/2018/6/30/17520820/families-together-detention-separate-camp-military
59. Department of Homeland Security. Office of the Inspector General. “Results of Office of Inspector General FY 2016 Spot Inspections of U.S. Immigration and Customs Enforcement Family Detention Facilities.” June 2, 2017. https://www.themarshallproject.org/2018/06/22/inside-family-detention-trump-s-big-solution ; Emily Kassie and Eli Hager. “Inside Family Detention, Trump’s Big Solution.” The Marshall Project. June 22, 2016. https://www.themarshallproject.org/2018/06/22/inside-family-detention-trump-s-big-solution;
61. Sinead Carew and April Joyner. “Prison shares rise as U.S. eyes more migrant family detention space.” Reuters. June 22, 2018. https://www.reuters.com/article/us-usa-immigration-stocks-prisons/prison-shares-rise-as-u-s-eyes-more-migrant-family-detention-space-idUSKBN1JI2YU
62. Franco Ordonez. “Exclusive: Trump looking to erect tent cities to house unaccompanied children.” McClatchyDC. June 12, 2018. https://www.mcclatchydc.com/news/politics-government/white-house/article213026379.html; Phillip Elliot and W.J. Hennigan. “Exclusive: Navy Document Shows Plan to Erect ‘Austere’ Detention Camps.” TIME. June 22, 2018. http://time.com/5319334/navy-detainment-centers-zerol-tolerance-immigration-family-separation-policy/
63. Jolie McCullough and Chris Essig, “The Trump administration is making plans to detain more immigrants in Texas. Here’s where they would be held,” The Texas Tribune, August 2, 2018, https://www.texastribune.org/2018/08/02/trump-administration-texas-migrant-detention-facilities-map/.
64. “Texas Military Base Ready for Immigrant Housing Construction,” The Associated Press, July 31, 2018, https://www.nytimes.com/aponline/2018/07/31/us/politics/ap-us-immigration-military-housing.html.
65. Moore. “Inside Texas’s New Tent City for Children.”; Hennesy-Fiske. “Was a breastfeeding infant really taken from an immigrant mother? The answer to this and other questions about families separated at the border.”
66. Elliot and Hennigan. “Exclusive: Navy Document Shows Plan to Erect ‘Austere’ Detention Camps.”
67. Department of Homeland Security. U.S. Immigration and Customs Enforcement. “Fiscal Year 2019 Congressional Justification.” ICE-O&S-13. https://www.dhs.gov/sites/default/files/publications/U.S.%20Immigration%20and%20Customs%20Enforcement.pdf
68. Julie Hirschfeld Davis and Michael D. Shear. “How Trump Came to Enforce a Practice of Separating Migrant Families.” New York Times. June 16, 2018. https://www.nytimes.com/2018/06/16/us/politics/family-separation-trump.html; Flores v. Reno. United States District Court Central District of California – Western Division. 2016. https://www.clearinghouse.net/chDocs/public/IM-CA-0002-0034.pdf
69. Tim Arango. “Who Is Dolly Gee? A Look at the Judge Deciding the Fate of Trump’s Executive Order.” New York Times. June 21, 2018. https://www.nytimes.com/2018/06/21/us/immigration-judge-executive-order-trump.html
70. Maureen Meyer, Adam Isacson, and Carolyn Scorpio. “Not A National Security Cris.” WOLA Report. October 2016. https://www.wola.org/wp-content/uploads/2016/10/WOLA_NoNationalSecurityCrisis_October2016.pdf; U.S. Immigration and Customs Enforcement. “Report of the DHS Advisory Committee on Family Residential Centers.”September 30, 2016. https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc-16093.pdf;
71. Jaimie Ducharme. “Separating Kids From Parents Can Cause Psychological Harm. But Experts Say Detaining Them Together Isn’t Much Better.” TIME Health. June 21, 2018. http://time.com/5317762/psychological-effects-detaining-immigrant-families/
72. Women’s Refugee Commission (WRC), Lutheran Immigration and Refugee Service (LIRS), U.S. Conference of Catholic Bishops (USCCB), National Immigrant Justice Center (NIJC), and American Immigration Lawyers Association (AILA).“The Real Alternatives to Detention.” . 2016. https://justiceforimmigrants.org/2016site/wp-content/uploads/2017/07/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf
74. Moore. “Inside Texas’s New Tent City for Children.”; AILA, LIRS, NIJC, WRC, USCCB “The Real Alternatives to Detention.”; e-mail communication from non-governmental partner, June 15, 2018.
75. Kassie and Eli Hager. “Inside Family Detention, Trump’s Big Solution.”
76. Adam Isacson, Maureen Meyer, and Adeline Hite, “‘Come Back Later’: Challenges for Asylum Seekers Waiting at Ports of Entry,” Washington Office on Latin America, August 2, 2018, https://www.wola.org/analysis/come-back-later-challenges-asylum-seekers-waiting-ports-entry/.