Kara Sears
Former US President Donald Trump's zero-tolerance immigration policy led to the separation of thousands of migrant children from their parents. Despite Trump's claims that he inherited the policy from the Obama administration, it was only instituted during his tenure in April 2018. The policy resulted in a humanitarian crisis, with children being detained in poor conditions and no plan for reunification. Trump's actions were deemed unlawful and inhumane, violating the rights of refugees to seek asylum and be free from torture. The Biden administration has since worked towards reuniting families and considered compensation for those affected.
| Characteristics | Values |
|---|---|
| President's name | Donald Trump |
| Policy name | Zero tolerance immigration policy |
| Number of children separated from their parents | Over 5,000 |
| Tracking process or records to reunite children with their parents | None |
| Status of the policy | Ended |
| Number of children reunited with their families as of Dec 16, 2021 | 2,248 |
| Number of children not reunited with their families as of Dec 16, 2021 | 1,703 |
| Number of children in the process of being reunited with their families as of Dec 16, 2021 | 206 |
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What You'll Learn
Trump's zero-tolerance policy
In June 2018, it became widely known that the Trump administration had implemented a zero-tolerance immigration policy that led to the separation of families. The policy was aimed at deterring illegal immigration by criminally charging and jailing adult undocumented migrants who crossed the US-Mexico border.
The policy was introduced in April 2018 by then-Attorney General Jeff Sessions, who instructed federal prosecutors to adopt a zero-tolerance approach to all offenses related to the misdemeanor of improper entry into the United States. This policy superseded any existing policies. Sessions warned the public that if they did not want their children to be separated, they should not bring them across the border illegally.
The Trump administration's zero-tolerance policy resulted in the separation of over 5,000 children from their parents, with no tracking process or records to facilitate reunification. This led to widespread public outrage and criticism from human rights activists, who argued that the policy violated international law and statutory and constitutional law. The American Civil Liberties Union (ACLU) filed a class-action lawsuit against the Trump administration, alleging violations of the plaintiffs' Fifth Amendment Due Process rights, the Administrative Procedure Act, and the right to seek protection under the Asylum statute.
The policy was officially ended by an executive order issued by President Trump on June 20, 2018. However, this executive order did not include a plan to reunite the thousands of children who remained separated from their parents. The Trump administration signaled that it would detain all families with children, regardless of their asylum status or risk to the community.
The origins of the zero-tolerance policy have been traced to Thomas Homan, who was appointed by Trump as the head of Immigration and Customs Enforcement (ICE). Homan had long advocated for the separation of children from their families as a means of deterring illegal immigration. Trump's senior adviser, Stephen Miller, was also a driving force behind the policy. Despite the policy's end, the current administration has not held Trump administration officials accountable, and the Department of Justice (DOJ) has defended the individuals involved in family separation in court.
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The Flores Settlement law
The Flores Settlement Agreement (FSA) is a US federal law that sets national standards for the detention and treatment of minors in federal custody. It was signed in 1997 by the Clinton administration and the Center for Human Rights and Constitutional Law (CHRCL) following years of litigation.
The Flores Settlement Agreement requires that unaccompanied minors who arrive in the US be released to their parents, a legal guardian, an adult relative, or another appropriate adult. The Agreement also includes regulations on facility conditions and the timing and terms of minors' release.
The Flores Settlement Agreement was central to debates over President Trump's "zero-tolerance" policy at the border and accusations of family separations. Trump, his administration, and supporters cited the FSA as justification for the policy, arguing that it required the separation of families. However, the Agreement does not recommend separating families. Instead, it was intended to protect children and ensure they were not held in detention for long periods.
The National Center for Youth Law and co-counsel are authorized to visit federal detention centres to monitor conditions and interview detained immigrant children. They have witnessed harm to children in federal immigration custody, including a lack of basic hygiene and children being held in overcrowded facilities. The Center has filed multiple motions to enforce the Settlement against the government’s violations of its terms.
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Anti-trafficking statute
In 2008, Republican President George W. Bush signed an anti-trafficking statute that required unaccompanied minors to be transferred out of immigration centers within 72 hours. This statute did not recommend separating families. Instead, it was designed to protect unaccompanied minors from lengthy or indefinite detention in poor conditions.
The Trafficking Victims Protection Act (TVPA) of 2000 was the first comprehensive federal law to address trafficking in persons. The law provided a three-pronged approach that included prevention, protection, and prosecution. The TVPA was reauthorized through the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2005, 2008, 2013, 2017, and 2018.
The TVPRA of 2005 established a grant program for states, Indian tribes, local governments, and non-governmental organizations (NGOs) to develop, expand, and strengthen assistance for trafficking victims. It also established a grant program for state and local law enforcement agencies to combat trafficking.
In 2015, the Justice for Victims of Trafficking Act (JVTA) was passed, improving the U.S. response to human trafficking. It included changes in the criminal liability of buyers of commercial sex from victims of trafficking and the creation of a survivor-led U.S. Advisory Council on Human Trafficking.
In 2018 and 2019, Congress amended the TVPA by passing four separate bills. These amendments strengthened the minimum standards for eliminating trafficking and addressed labor contract fraud.
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Trump's executive order
On June 20, 2018, President Donald Trump signed an executive order to stop the practice of separating children from their parents at the US-Mexico border. The order stated that the administration would attempt to detain families together instead of separating them. The order also instructed the Department of Homeland Security to maintain custody of parents and children jointly and directed the Department of Defense to provide facilities for the housing and care of alien families.
The "zero-tolerance" policy, which led to the separation of families, was introduced by the Trump administration. Under this policy, adult undocumented migrants crossing the US-Mexico border were criminally charged and jailed. The Department of Justice began to criminally prosecute all suspected illegal border-crossers, even those who crossed for the first time. This resulted in the separation of families, as parents or adult relatives were charged with unlawful entry and held in federal jails prior to trial.
Trump had blamed the policy on President Obama and the Democrats, claiming that he had inherited and ended it. However, this claim was refuted, and it was confirmed that the policy was introduced and approved under the Trump administration. The idea to use family separation as a deterrent for migration originally came from Tom Homan, the head of ICE under Trump, who first proposed it during the Obama administration.
The executive order did not include measures to reunite the thousands of children who had already been separated from their parents, and family separations continued even after the order was issued. The Trump administration's handling of the situation was widely criticized as a humanitarian crisis and a human rights disaster. The administration was also criticized for its attempts to shift the blame and for inflicting "unfathomable harm" on immigrant families.
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Biden's reunification task force
The Biden-Harris Administration established the Family Reunification Task Force in February 2021 to address the issue of family separation at the US-Mexico border. The task force aims to reunify families who were separated under the previous administration's Zero-Tolerance policy between January 2017 and January 2021. This policy, implemented by the Trump administration, systematically separated migrant families, with minors being detained in poor conditions.
The task force takes a whole-of-government approach, utilizing the combined efforts of the Department of Homeland Security, the Department of State, the Department of Health and Human Services, and the Department of Justice, along with trusted partner organizations like the International Organization for Migration (IOM) and migrant rights organizations. These organizations assist families in the reunification process by helping them apply for travel documents and immigration papers to enter the United States. The process is free of charge and typically takes a few months. Once approved, families are allowed to return to the US to reunify with their children and can live and work there for three years, with the option to apply for renewal.
As of May 2022, the task force has registered 1,344 families for special services, with 260 families reunified and 329 receiving government assistance. The task force has faced criticism from some Republican politicians, who argue that it goes against typical practices for those expelled for illegal border crossing. Despite these challenges, the Biden administration remains committed to the safe reunification of families unjustly separated during the specified period.
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Frequently asked questions
The Trump administration implemented a zero-tolerance immigration policy in 2018, which led to the separation of over 5,000 children from their parents.
There were no laws mandating the separation of parents and children entering the US illegally. However, in 1997, President Bill Clinton signed the Flores Settlement law, which required unaccompanied minors to be released to their parents, a legal guardian, or an adult relative. In 2008, President George W. Bush signed an anti-trafficking statute that required unaccompanied minors to be transferred out of immigration centres within 72 hours. While these laws did not recommend separating families, they may have contributed to family separations in certain circumstances.
There have been legal efforts to reunite families and hold the Trump administration accountable. President Joe Biden established a family reunification task force within the government, and the ACLU has been working to reunite families and seek damages for those affected.
