Memo Regarding Zero Tolerance Policy/ Family Separation Policy

With all of the rapid changes taking place with regard to President Trump’s zero tolerance policy and family separation actions, ImmiCore Law has put together a detailed overview of the legal roots of these policies, where these policies stand as of the release of this memorandum, as well as the implications of these policies.

1. IntroductionAccording to the Department of Homeland Security (DHS), as of June 20^th 2017, 2,053 children have been separated from their parents, and have been placed in the health and human services funded facilities.^[1] Once these children have been separated from their parents they are placed in the custody of Office of Refugee Resettlement (ORR).^[2]  According to a statement by Steve Wagner, Acting Assistant Secretary Administration for Children and Families, between October and December 2017, ORR was unable to determine with certainty the whereabouts of 1,475 UAC. On March 2017, the ORR had 755 referrals, while in March 2018, ORR had 4,204 referrals.^[3]While the family separation component of the administration’s zero-tolerance policy has been rescinded, the administration has failed to provide a method of reuniting children who have already been separated from their parents. The rescission of the family separation component of this policy arguably results in a violation of law.This article will discuss (1) the administration’s zero-tolerance policy, (2) the Flores Settlement and the laws regarding unaccompanied alien children, (UAC) (3) the implications of the zero-tolerance policy, and how it has led to massive family separations, and (4) lastly, it will analyze the difference between how the Obama administration and Trump administration have handled the treatment of UAC once they have been apprehended at the southern border.
2. President Trump’s Zero Tolerance Policy
   1. Zero Tolerance Policy- What Does This Policy Do? On April 6, 2018, Attorney General Jeff Sessions announced the Administration’s “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.^[4] President Trump’s “zero tolerance policy” requires all undocumented immigrants who have been apprehended after crossing the border illegally to be criminally prosecuted, a stark departure from the previous policy that was in place at the border.^[5]Previously, illegal entry into the United States was not met with criminal prosecution; undocumented immigrants were processed under the “catch and release” policy, in which undocumented immigrants were held together as a family in ICE custody and/or issued a Notice to Appear in immigration court, and thereafter released. Undocumented immigrants being held in ICE custody were evaluated based upon “immigration priorities:” Undocumented immigrants without a criminal record were not a priority and therefore were subject to the catch and release policy.^[6]Those with criminal records were subject to prosecution.^[7]Under the zero-tolerance policy, adults are placed in federal prison instead of an immigration detention center as they await their criminal trials. As a result of the new criminal prosecution policy, children are separated from the parents before going to federal prison: children, by law, cannot be held in a federal prison, and cannot be detained for longer than twenty days if they are held with their parents.^[8] We note that the administration has announced an end to the family separation component of this policy on Wednesday, June 20, 2018, allowing parents to remain with their children by being held in an immigration detention center. We discuss the implications of this policy later in this article.

      Up until the end of the family separation component of the administration’s “zero tolerance policy,” parents were in federal custody and being prosecuted while their children were taken away with no clear requirement that they be returned after the prosecutions.^[9] Children were transferred to the ORR, an agency within the Department of Health and Human Services (HHS). ORR is then tasked to find an adult sponsor for the child that resides in the United States (i.e., a relative or family friend). If one is not available, children are released to a foster family. Until then, children are held in ORR shelters.^[10] The administration has not announced a method or process for reuniting parents and children separated before June 20^th.

      This de facto family separation policy inflicts trauma on separated family members, restricts due process and violates fundamental norms of family unity and decency. The President of the American Physiological Association, Jessica Daniel stated, “We remain gravely concerned about the fate of the more than 2,300 children who have already been separated and are in shelters. These children have been needlessly traumatized and must be reunited with their parents or other family members as quickly as possible to minimize any long-term harm to their mental and physical health. “She further stated that psychological research has proven that children separated from their parents can suffer severe psychological distress, resulting in anxiety, loss of appetite, sleep disturbances, withdrawal, aggressive behavior and decline in educational achievement. The longer the parent and child are separated, the greater the child’s symptoms of anxiety and depression become.^[11]

      Along with the trauma that this policy has inflicted on children, it may also violate international law. Amnesty International’s Americas Director, Erika Guevara-Rosas stated that, “the severe mental suffering that officials have intentionally inflicted on these families for coercive purposes, means that these acts meet the definitions of torture under both US and international law.”^[12]

   2. What was the government’s reasoning for the zero-tolerance policy?This policy was implemented as a deterrent to illegal immigration—the Department of Homeland Security (DHS) cited a 203 percent increase in illegal border crossings into the U.S. from March 2017 to March 2018 in support of the policy.^[13] While the administration highlights a “crisis of illegal immigration,” to the contrary government data also shows that monthly border crossings have dramatically decreased since 1999.^[14]We note that the majority of migrants apprehended at the Southwest border are from Central America as opposed to Mexico. The administration’s new zero tolerance policy primarily impacts Central Americans, often who are seeking asylum and fleeing violence in their home countries.^[15] Applicants must physically be in the United States to apply for asylum, which requires their physical presence and entry at the U.S. border to do so.^[16]
   3. How the Flores Settlement Agreement and Various Laws Play a Role in the Administration’s Zero-Tolerance PolicyThe administration used the Flores Settlement Agreement of 1997 and the UAC statute as a legal basis for the recent widespread separation of parents from their children while carrying out its zero tolerance policy.^[17] We discuss the various laws that played a role in the zero-tolerance policy as they apply to UAC below.
      1. Unaccompanied Alien Children UAC are an extremely vulnerable group entitled to certain protections under U.S. law. “UAC is defined by law as, a child who “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”^[18]
      2. The Flores Settlement Agreement of 1997 In the 1980s, the U.S. experienced an influx of alien children from Central America to the U.S.^[19]During this period, a class action lawsuit on behalf of immigrant children who had been detained by the legacy Immigration Naturalization Service (INS) resulted in the foundation of the U.S.’s policies on UACs. The lawsuit was the result of years of litigation regarding the detention of UACs who crossed the border from Central America in the 1980’s at that time fleeing primarily Civil Wars. The case, Reno v. Flores, challenged the procedures regarding detention conditions, treatment of children in detention, and created terms governing the release of children from detention. ^[20]The first case, which sparked the need for reform was Flores v. Messe, 934 F.2d 991 (9th Cir. 1990. In this case, the Center for Human Rights and Constitutional law filed the class action lawsuit against the Attorney General, Messe.^[21] The respondents were a class of alien minors arrested by (INS) and then detained pending deportation hearings pursuant to the regulation 8 CFR § 242.24, which provides for the release of detained minors only to their parents, close relatives, or legal guardians, except in unusual and compelling circumstances.^[22] One of those children was fifteen-year-old UAC Jenny Flores, who crossed the border without inspection in 1985 and was caught by INS. She was detained with adults, strip searched daily, and was not able to be released to anyone aside from her legal guardians. The case was appealed to the Ninth Circuit. The panel found that there was no due process violation. The Court said that even if a minor had a right to be released to an unrelated adult, that right was not fundamental, and was thus subject to reasonable restriction. Absent a fundamental right, minimal scrutiny of the regulation sufficed. The panel cited the plenary power of the U.S. to control its’ borders, and the limited nature of juveniles’ rights compared to adults’ rights, as the reason for the ruling.^[23]The plaintiffs then sought rehearing en banc on August 9, 1991. The en banc Ninth Circuit held that the INS’ blanket detention of children during the pendency of deportation proceedings was unconstitutional. The court explained that undocumented immigrants had due process rights, ny detaining the, during their deportation proceedings.  The court stated that the interests of minors was not within the agency’s area of expertise, and therefore the minors were not entitled to the usual deference. Therefore, the en banc court held that the INS’s policy was unconstitutional, and they held in favor of the plaintiffs. Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc) (Circuit Judge Mary Schroeder).

         Building from Flores v. Messe, the Supreme Court decided to hear the case of Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439 (1993) in order to determine whether the ruling that alien juveniles should be released to responsible adults was constitutional. The court examined the language in the uniform deportation-exclusion rule, 8 C.F.R. § 242.24 (1992), in order to determine whether the ruling mandating that alien juveniles be released to responsible adults violated their due process rights.^[24] The court held that INS’s regulations and procedures regarding the detention and release of UACs did not violate the minors’ substantive due process rights or the equal protection clause.^[25] In 1997, the case was remanded to the District Court, which resulted in the two parties agreeing to the Flores Settlement Agreement.

         The Flores Settlement Agreement established the immigration obligations and policies for the treatment of UACs. The Flores Settlement Agreement required that immigration officials detaining minors provide (1) food and drinking water, (2) medical assistance in emergencies, (3) toilets and sinks, (4) adequate temperature control and ventilation, (5) adequate supervision to protect minors from others, and (6) separation from unrelated adults whenever possible.^[26]

          

      3. Homeland Security Act of 2002 The Homeland Security Act of 2002 outlined the agencies that would be responsible for    meeting the obligations of the Flores Settlement Agreement and handling UACs.The Office of Refugee Resettlement (“ORR”), an agency under the umbrella of the Department of Health and Human Services, were tasked with managing UACs. Those responsibilities include:“…coordinating and implementing the care and placement of the UACs who are in Federal Custody based on their immigration status, ensuring that the interests of the child are considered in decisions and actions relating to their care, making and implementing placement determinations for all UACs, identifying a sufficient number of qualified individuals… to house UACs, and oversee the infrastructure and personnel of facilities in which UACs reside.”^[27]
      4. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 In 2008, Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) to address issues of human trafficking. As part of the TVPRA, certain protocols were put into place to protect UACs from trafficking.The TVPRA mandated that the Customs and Border Patrol (CBP) screen each UAC within 48 hours of apprehension to determine whether the UAC has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that the minor is at risk should the minor be returned to his/her country of nationality or last habitual residence, that the UAC does not have a possible claim to asylum; and the UAC is able to make an independent decision to voluntarily return to [their] country of nationality or last habitual residence. ^[28]The TVPRA also created various obligations for the ORR regarding their duties to UACs. UACs must:

         “…be promptly placed in the least restrictive setting that is in the best interest of the child.”^[29]The HSA requires that ORR develop a plan to ensure the timely appointment of legal counsel for each UAC, ensure that the interests of the child are considered in decisions and actions relating to the care and custody of a UAC, and oversee the infrastructure and personnel of UAC residential facilities, among other responsibilities.”^[30]

         Through this Act, the ORR was also tasked with screening children to determine whether they may have a claim for humanitarian relief.

          

      5. These Laws Were Intended to Protect the Constitutional and Human Rights if UACs, and Not to Traumatize Children Through Forced Family Separation.The progression and development of the protections of UACs can be seen through the UAC statute, the Flores Settlement Agreement, the Homeland Security Act, and the TVPRA. The intent of these laws and agreements was to ensure that the vulnerable group of UAC minors’ constitutional and human rights are protected while they are being detained away from their parents.Yet, the current administration used these policies and legal obligations as the legal basis for separating parents from their children.Under the zero-tolerance policy, undocumented immigrants who have been caught at the border are referred to federal court for criminal prosecution. When this occurs, undocumented immigrants are sent to federal jail, rather than held in immigration detention facilities until they have hearings in front of a federal judge. During this time, parents are separated from their children, because children cannot be held in adult detention centers, including federal prisons. This is because the Flores Settlement Agreement places limits on the length of detention for children, and mandates that they are housed in the least restrictive conditions possible if they cannot be released to a guardian or licensed facility. Thus, this allowed the administration to justify the separation of parents from their children.
   4. President Trump’s Executive Order ending family separation on June 20, 2018After much backlash and uproar against the family separation policy on both the national and international stages, President Trump issued an Executive Order (EO) on June 20, 2018 “ending” family separation. The EO states that family unity will be maintained “where appropriate” and consistent with “available resources.” Families are to be detained together in detention centers where possible.Even with the EO in place, there remains numerous issues with the zero-tolerance policy, even after family separation has been stopped.  One issue includes the limit to how long children can be detained; since criminal prosecutions are now requirement for undocumented adult immigrants under the zero-tolerance policy, there is no telling how long families will be detained until a trial takes place. There are not enough resources to detain immigrant families together, because detention centers are currently full.^[31] As mentioned above, many families are entering the U.S. seeking asylum; there are issues surrounding the legality of detaining asylum seekers while they await trial. (See next section.)It appears that the government is looking to circumvent its responsibilities to minors — in fact, the EO also stated that it seeks to amend the Flores Settlement Agreement in order for children and their families to be detained for prolonged periods of time.^[32] The Department of Justice (DOJ) has filed a request to temporarily amend the Settlement on Thursday June 21, 2018 asking the United States District Court for the Central District of California to grant limited emergency relief that would:

• Exempt the DHS from the Flores Settlement Agreement’s release provisions so that ICE may detain undocumented minors who have arrived with their parent or legal guardian together in ICE family residential facilities; and
• Exempt ICE family residential facilities from the Agreement’s state licensure requirement.^[33] 

1. Separation of Children from Parents as well as Prolonged Detention When Seeking Asylum Violates Human Rights Law.As a member of the Organization of America States (OAS), the U.S. has various obligations under international law. According to the Inter-American Commission of Human Rights (IACHR), IACHR’s 2010 Report on Immigration in the United States, Detention and Due Process, all deprivations of liberty must have a legitimate aim, be proportionate to the aim pursued and have a fair balance struck between the concerning interests. The Working Group on Arbitrary Detention further explained this, and affirmed that the detention of asylum seekers, refugees, and migrants in an irregular situation is a measure of last resort and that the necessity to have recourse to a detention on measure must be evaluated in each individual case. According to the Working Group, mandatory or automatic detention must be considered arbitrary. ^[34]According to the IACHR’s 2010 Report on Immigration in the United States, Detention and Due Process, the Commission stated that, “detention is only permissible when a case‐ specific evaluation concludes that the measure is essential in order to serve a legitimate interest of the State and to ensure that the subject reports for the proceeding to determine his or her immigration status and possible removal. ^[35]Therefore, the detention of immigrants, when they are seeking asylum should be a measure of last resort. Furthermore, deprivations of liberty must be proportionate and have a legitimate aim. Immigrants seeking asylum are vulnerable, as they are fleeing persecution in their home country. These immigrants should not be separated from their children, during this time. Since detention for this group is a matter of last resort under international law, this administration has violated international norms.Article 14 of the Universal Declaration of Human Rights recognizes the right of persons to seek asylum from persecution in other countries. The UN Convention relating to the Status of Refugees, which was adopted in 1951, and amended in 1967 serves as the protection for refugees today.^[36] The Convention lays out various obligations for the treatment of refugees. It states that refugees should not be penalized for their illegal entry or stay. In regards to refugees unlawfully in the country Article 31 states that,

   “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.^[37]

   2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”^[38]

   The convention acknowledges that asylum seekers may break immigration rules when seeking refuge. The convention, for example, would prohibit penalties against asylum seekers for minor immigration or criminal offenses through the process of seeking asylum. The convention further prohibits arbitrary detention on the basis of seeking asylum.^[39]

   Furthermore, Article 32 states the obligations regarding expulsion of refugees. The relevant portion states that,

   “2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.”^[40]

   Lastly, Article 33 provides for various safeguards against the expulsion of refugees stating that,

   “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” ^[41]

   These principles demonstrate that the U.S. as a party to these treaties has several obligations regarding the treatment of refugees. The U.S. violates international human rights law when it arbitrarily detains those who come to its borders seeking asylum, without giving them due process of law, which consists of the ability to have their case heard in front of an immigration judge.^[42]

2. How the Zero Tolerance Policy Differs From Previous Administration’s PoliciesThe Bush AdministrationUnder the Bush Administration in 2005, President Bush created Operation Streamline. Under Operation Streamline, immigrants who illegally crossed the border faced automatic prosecution when they were apprehended. This policy continued throughout President Obama’s administration.^[43]The Obama AdministrationThe Obama Administration dealt with a surge in migrants by detaining families together in administrative facilities, or releasing them, with a Notice to Appear in court. ^[44] In 2014, the Obama administration authorized the detention of hundreds of families and UAC who had crossed the border.^[45]During the year of 2014, the Border Patrol apprehended more than 69,000 UAC and 68,000 family units, compared to 38,000 and 15,000, in 2013.^[46] Initially, children who arrived with their parents were not detained or quickly deported during this time. Pursuant to statutes, there are strict limits and policies regarding children in immigration detention.^[47]Therefore, under the Obama administration many families were released from detention with a notice to appear in immigration court, rather than separating the children from their parents.^[48]

   Furthermore, in November 2014, President Obama announced a number of other changes in immigration enforcement including an agency-wide policy of applying immigration priorities to prosecution. This policy identified categories of removable noncitizens that should be the highest priority for enforcement. The highest priority for ICE and CBP included “national security threats, noncitizens apprehended immediately at the border, gang members, and noncitizens convicted of felonies or aggravated felonies as defined in immigration law.” ^[49] As a result, undocumented immigrants without a criminal record were not pursued or sought for removal proceedings after with the same rigor as undocumented violent immigrants.

   In 2015, the Ninth Circuit held that the requirements laid out in the Flores Settlement applied to UAC along with “accompanied” children. The Judge ordered DHS to release parents with their children. Yet, the requirement that parents be released with their children was reversed in 2016 on appeal. ^[50] While Flores does not state that parents may be released, under the Obama administration families were often released together after 20 days.

   The Trump Administration

   As discussed in the sections above, the Trump administration took the zero-tolerance policy that existed under previous presidents and imposed family separation, and removed discretionary authority from Border Patrol officers. While this administration claims it was acting according to the policies on the books, the actions taken up through June 20, 2018 were in stark contrast to the policies that were in effect under both Bush and Obama: children were not separated from families, and children and families were released after 20 days.

   While rescinding its family-separation policy, the Trump administration is looking to circumvent other protections afforded to UACs under the Flores Settlement Agreement. President Trump is seeking for an amendment to the Flores Settlement Agreement, which allows families with children to be detained for undetermined periods of time.^[51]

3. Conclusion

The Trump administration has made its anti-immigration platform very clear in its many policy changes since January 2017. Previous administrations have exercised discretion and really, humanity, by ensuring children and their parents are not separated and are not kept in sub-par conditions. Many of the immigrants coming to our border are seeking refuge and fleeing violence and persecution. This administration is looking to curtail immigration by whatever means necessary, even if it means treating families and their children, and other asylum applicants who have trekked thousands of miles to legally seek refuge like criminals.

By: Kalpana Peddibhotla, Roujin Mozaffarimehr, Maleeha Haq, Chloe Tomlinson