There is no law currently on the books that require the forced separation of families at the border. None. There are several things at play:

  1. The law, 8 U.S.C. §1325(a) criminalizes the entry or attempted entry without inspection. It is a misdemeanor offense.
  2. When the person is arrested, the U.S. Marshalls may not take the child into custody, so the child remains with the Dept. of Homeland Security (DHS).
  3. DHS cannot keep the child in custody for an extended period (Flores Settlement), the children are released to the Office of Refugee Resettlement (ORR), under the Department of Health and Human Services (HHS) within 72 hours.  The Flores Settlement requires the government to do the following:
    • The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
    • If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
    • The government must implement standards relating to the care and treatment of children in immigration detention.

For additional resources on the Flores, Settlement click here

Now, we come to the Trump administration and Sessions (head of Dept. of Justice – DOJ). DOJ has a policy of “zero tolerance”  for entries or attempted entries without inspection at the Southwest border, pursuant to 8 U.S.C. §1325(a).  This policy was announced about 6 weeks ago.  In the past, prosecutors at DOJ were given discretion in deciding whether to charge persons who entered EWI.  Families with children were detained, and eventually released to proceed with the civil immigration case, and generally under an alternative to detention, such as reporting periodically with Immigration and Customs Enforcement (ICE), or a GPS ankle monitor.  This is no longer the case, and all EWIs are being prosecuted (zero-tolerance).  This has resulted in the unprecedented forced separation of children and their parents, which is neither mandated in our law, nor necessary to deter EWI.  Further, and most importantly, it is inhumane and immoral, and carries severe consequences to the well-being of the people affected by this policy.  Especially the children. 

Experts and prosecutors have decried this zero-tolerance policy as “dangerous, expensive, and inconsistent with the values of the Department of Justice.”

It also is contrary to our immigration law, and our international law obligations, as our law says that anyone, no matter how they entered, can apply for asylum (they must be inside the US to apply).

There are also reports that asylum seekers presenting at the port of entry (which is lawful) are being turned away (unlawfully by the government):

“REPORTER: People are being turned away from ports of entry.

NIELSEN: That actually is incorrect. We have limited resources, we have multiple missions at C.B.P. and what we do is based on the very high standards we have, if we do not have enough bed space, if we do not have enough medical personnel on staff, if we do not have enough caretakers on staff, then we will tell people that come to the border that they need to come back. We are not turning them away. We are saying we want to take care of you in the right way, right now we do not have the resources at this particular moment in time, come back.”

Logistically, of course, this means that they are being turned away, they can’t just “come back” later, they have been traveling for weeks, through the desert, in search of asylum protection, and they are being told they cannot come in and ask for protection, like the laws of the United States, and our international law obligations proscribe.

So, how can you help?