A new Department of Justice and Department of Homeland Security “zero-tolerance policy” against illegal entry into the United States means that everyone caught trying to enter the country between lawful ports of entry would be referred for criminal prosecution. Because this policy would mean separating these adults from any children who accompanied them, many advocates and some lawmakers were quick to denounce the potentially harmful impact of the policy to these families.

What is the new “zero-tolerance policy”?

The Trump administration has chosen to prosecute immigrants under criminal statutes, rather than simply placing apprehended immigrants into civil immigration removal proceedings. Under the Immigration and Naturalization Act, people can be prosecuted in the criminal justice system for illegal entry, illegal re-entry, or assisting someone in illegal entry. However, past administrations have chosen to simply deport most offenders from the United States rather than use the resources of the criminal justice system to prosecute them. Criminal action has rarely been used in cases of families or parents and children coming across the border.

Why does this policy result in children being separated from their parents?

The use of criminal charges against parents caught crossing the border triggers a legal situation that necessitates separating children, while the use of civil immigration detention and removal does not require this to occur. When adults are detained and prosecuted in the criminal justice system for immigration offenses, their children cannot, by law, be housed with them in criminal jails, so the family unit is separated. The children are placed with the Department of Health and Human Services in shelters until they can be released to a family member, guardian, or foster family in the United States.

Previous administrations used family detention facilities, allowing the whole family to stay together while awaiting their deportation case in immigration court, or alternatives to detention, which required families to be tracked but released from custody to await their court date. Some children may have been separated from the adults they entered with, in cases where the family relationship could not be established, child trafficking was suspected, or there were not sufficient family detention facilities available. Both the Obama and Trump administrations have tried to establish more capacity to detain families and children, rather than releasing them until their hearing date. However, the zero-tolerance policy is the first time that a policy resulting in separation is being applied across the board.

Why did the administration adopt this policy of separating families at the border?

In March 2017, then-DHS Secretary John Kelly cited the deterrent value of family separation as a rationale for the policy. The rationale is that if immigrants believed that they would be separated from their child if they were caught, they might be less likely to illegally enter the country. DHS has also pointed to intelligence suggesting that unrelated children were often smuggled with migrants to avoid detention, meaning the zero-tolerance policy prevents those offenders from abusing the system. President Trump has tweeted that there are laws that require this separation. While there is no law that specifically requires separation (other than that children cannot be housed in criminal jails with adults), the president seems to be referring to the laws prohibiting extended detention of children who cross the border illegally, which the administration believes would allow them to be deported more quickly.

What happens to parents and children after they are separated?

Children separated from their families, or who arrive at the border unaccompanied, are put into the care of the Office of Refugee Resettlement (ORR), which operates under HHS. During Fiscal Year (FY) 2017, more than 40,000 immigrant children were diverted to ORR. The Office can place children in care facilities, such as shelters, or foster homes, or release them to other relatives or U.S. sponsors, but a trafficking law passed in 2008 and past legal court settlements require that children be placed in the “least restrictive setting,” which means they cannot be held in detention facilities.

Meanwhile, Border Patrol agents arrest the parents, who are to be charged by the U.S. Attorney’s Office and tried and sentenced before a Magistrate Judge. They carry out their sentence in the federal prison system under the control of the U.S. Marshals Service before being transferred back to U.S. Immigration and Customs Enforcement (ICE) for detention and eventual removal.

Will the parents and children be reunited?

Parents cannot be reunited with their children while they remain in federal prison, serving any sentence under the criminal laws. The U.S. Sentencing Commission reported that the average sentence for illegal entry, re-entry, and smuggling was 15 months as of FY2015, although sentences for first time illegal entry can be a matter of a few days or weeks, as many are sentenced to time already served as of their appearance before a magistrate judge. At the conclusion of their federal sentence, authorities refer parents back to ICE custody.

However, the children remain in the custody of ORR, or may have been released to a guardian in the United States or placed in foster care. The immigration cases of the adults and the children are handled separately in immigration court, and it can be hard for the parents and children to be reunited during this process. Finally, information sharing issues between DHS and ORR that make tracing children difficult means that it could take months before parents and children are reunited in the United States or in their home countries. Some reports are that parents have been deported without reuniting with their children.

Is this a new immigration enforcement policy?

Not completely. The George W. Bush administration implemented Operation Streamline in 2005, which also referred many people who violated these provisions for prosecution in federal courts, although the majority of prosecutions were for the felony charge of illegal re-entry and not for first-time offenders. The Obama administration continued and expanded the policy through 2014, but later shifted its enforcement priorities towards targeting specific criminal populations.

The Obama administration also used family separation when they prosecuted immigration offenses as a deterrent against illegal border crossings after 2014 as more children and families fled violence in Central American countries. However, immigration advocates allege that the new zero-tolerance policy against immigration violations will cause more families to be separated than before, with some claiming to have witnessed an increase in family separations since June 2017.

Is the new “zero-tolerance” policy legal under immigration law?

The Immigration and Naturalization Act clearly allows for criminal prosecutions of illegal entry and reentry. And as indicated above, it has been used previously. The issue here is whether the use of prosecutions, and the consequent separation of children from parents in the name of deterring would-be asylum-seekers is legal. Immigration advocates have argued that the application of this law must respect due process rights, and several law suits have been filed challenging the policy on that ground. On June 6, a federal judge in San Diego allowed a lawsuit by the ACLU to move forward on the basis that family separation might violate due process rights. However, the judge dismissed a separate claim in the lawsuit that alleged that family separation violated the rights of asylum seekers.

International organizations have also pointed to the 1951 Convention on the Status of Refugees that affirms that states should not punish asylum-seekers who violate immigration laws if they present themselves to authorities. The United States is not a party to the 1951 Convention but is a party to a 1967 Protocol to the Convention, and many of the provisions have been incorporated into U.S. law under the 1980 Refugee Act. However, the United States has always maintained its right to detain asylum seekers until their claims can be heard and, when deemed necessary, prosecute immigration crimes as well.

How does this relate to the issue regarding missing immigrant children?

It is a separate issue. In the last quarter of 2017, ORR used phone calls to follow up on the care of over 7,635 formerly unaccompanied immigrant children who had been placed with adult sponsors in the United States and were no longer in ORR custody. ORR received no response in 1,475 of these cases. However, no response does not mean the children are missing. The sponsors may simply not have responded, not received the messages, or chose not to respond because they or someone in their household is undocumented.

While some of these children may have been separated from their families at the border, others were likely children who crossed the border without their families. Family separation may have caused children to enter ORR custody, but the policy decisions relating to family separation at the border and oversight over released children are not directly related.

Is Congress weighing in on this issue?

Yes, many Democratic lawmakers and some Republicans have criticized this policy. Sen. Dianne Feinstein (D-CA) announced on May 31 that she would be introducing a bill to Congress to “prevent the intentional separation of families.” On June 1, Democrats from the House Judiciary Committee signed an open letter to DHS Secretary Kirstjen Nielsen and Attorney General Jeff Sessions requesting information on how and when the administration implements family separation, especially in cases of voluntary asylum seekers. Finally, on June 8, 108 Democratic lawmakers signed a letter to Rep. John Carter (R-TX), chair of the House Appropriations homeland security subcommittee, requesting a ban on appropriations that fund family separation.

Some Republican members of Congress have also expressed concerns over the policy, including Sen. Jeff Flake (R-AZ) and Sen. Rob Portman (R-OH), while Sen. James Lankford (R-OK) sent a letter to DHS asking for more information and indicating that “you don’t want a child trafficked…but you also don’t want to separate families.” Sen. Dean Heller (R-NV) also expressed concern over the policy.