In April 2018, U.S. Attorney General Jeff Sessions announced a “zero-tolerance policy” administered by CBP and ICE to criminally prosecute every adult who illegally crossed the border, or tried to do so, including asylum seekers attempting to enter between ports of entry. As part of implementing this policy, the Trump Administration stepped up efforts to separate parents from children at the border in unprecedented numbers never before seen as a deterrent policy to preventing asylum seekers from arriving at the borders. Parents were placed in separate detention facilities facing federal criminal charges for illegal entry and illegal reentry while the children were placed into the custody of the US Department of Health Human Services (DHHS) and its sub-agency, the Office of Refugee Resettlement (ORR). From there, the children were moved to various shelters and licensed facilities across the nation.

The White House - Washington D.C.
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There was no indication in the Trump Administration policy that children would be reunited with their parents after the criminal prosecutions. This policy of separating asylum seeking families runs directly counter to US and international humanitarian and asylum law. Many immigration lawyers, advocates, and leaders in the various local communities, including myself, immediately took to public media criticizing the legality of these practices and expressing moral outrage over these inhumane family separation policies.  Over the course of the next 6 weeks, the unpopularity of the Trump Administration’s immigrant family separation policy rose to an uproar with many sectors of American society speaking out against Trump’s family separation policy.

As a result, on June 20, 2018, President Donald Trump bent to public pressure and signed an executive order, indicating that it is a new policy of the Trump Administration to keep families arriving at the border detained together for an indefinite time period.() The family separation executive order calls for the opening of ad hoc detention facilities and even military bases to be used to house “alien families” together. At the same time, the Executive Order indicates that it will continue to enforce the zero tolerance policy of criminally prosecuting the parents.

Government officials report that approximately 2300 children have been separated from their parents since April 2018 under the zero tolerance policy. At this time, children already in the custody of DHHS and ORR will be processed under prior procedure of releasing children to a qualifying sponsor including another close relative or another parent if not simultaneously detained. There is no clear indication how the Executive Order will be implemented nor how families will be reunited.

There are a number of significant hurdles in how immigration cases are processed as well as limits on federal immigration custody that could prevent the children’s reunification with their parents long-term and/or even permanently. Going back more than 30 years, multiple different US Federal Courts have ruled on the immigration detention of children. In 1993, the US Supreme Court granted certiorari/appellate review in the landmark case of Flores v. Reno in order to address the federal detention of immigrant children. In 1997, the US government and plaintiffs in that case reached a consent decree settlement which set guidelines to protect unaccompanied minor children from unlawful mistreatment while held in federal custody. Collectively known as the Flores Settlement Agreement, these holdings evolved over time and also eventually became codified into US regulations.

In 2014, the Ninth Circuit Court of Appeals in California ruled that the Flores Settlement Agreement covered not just unaccompanied minor children but also expanded it to cover children accompanied by their migrant families as well. It also set a general standard that children cannot be kept in federal detention facilities for more than 20 days at a time due to the physical and mental health ramifications of prolonged detention on children.  In attempting to implement his Executive Order and open the door to permit long-term family detention, Trump will hit significant legal barriers in trying to overturn these historical binding case law precedents passed to protect immigrant children from that very thing, prolonged detention.

Children will also not be released to parents who are not bond eligible and remain in detention to pursue their family’s asylum cases taking upwards of a year.  When short-term parental reunification is not possible due to parental detention and/or inability to locate the parents or vice versa, ORR will be forced to determine what is “in the best interests” of the child.  That could mean filing local state family court guardianship petitions to declare the children permanent wards of the state under the appearance that it looks like the children were abandoned by the parents due to the parents’ unintentional absences while stuck in ICE detention and/or deported abroad. Children who were separated from their parents at the border were given different non-sequential  9 digit alien numbers (A file numbers) as opposed to immigrant families processed as family units.  An alien number is similar to an immigrant’s social security number. It is how immigrants undergoing immigration court proceedings are tracked.  Trying to track a separated missing child with a non-sequential alien number would be worse than finding a needle in a haystack even for ICE officials.

There are currently extremely long immigration court backlogs spanning the course of approximately 3-5 years. Immigration courts process juveniles on different dockets from adult and family unit dockets.  Even if parents elect to quickly give up and take voluntary departure/ removal orders in order to attempt to expedite reunification with their children, that does not mean that the children could do the same. Parents could find themselves stuck outside the US waiting years for reunification with their children while the children’s juvenile immigration court proceedings drag on in the United States.

Kristen Schneck is a partner in Fox’s Immigration Practice Group, based in Pittsburgh. She focuses her practice on removal and asylum matters.