Children Remain Separated from Parents as Migrant Policies Stress “Zero Tolerance”

Last week more than 1,600 migrant children were quietly moved during the night to a new tent facility in Tornillo Texas.  After a national outcry over the separation of children and parents during the summer, the number of separated children remains high with no remedies in sight.  Dr. Gráinne McEvoy, a regular contributor on the history of migration, looks at the ongoing situation:

“Children are not instruments of deterrence but a blessing from God.” – Bishop Joe S. Vásquez, Chairman of USCCB Committee on Migration

Last June, the nation’s attention was riveted by a new aspect of the Trump Administration’s “zero tolerance” immigration policy, one which resulted in the separation of more than 2,500 children from parents detained while crossing the southern border. The reports were heart-breaking: separation through subterfuge, children denied human touch or any comfort from supervising adults, and the evidence that at least 100 were under the age of five. The backlash was vociferous and widespread, and, in July, the administration was ultimately forced to walk back this tactic.

Gráinne McEvoy is an independent scholar based in South Bend, Indiana, and is currently writing a book on American Catholic social thought and immigration policy in the 20th century.

In recent months, there have been press reports of “missing” children, record levels of minors in detention, and preparations for family detention centers. The details are troubling, but the issues and policies have also been confused and conflated. It is vital that our citizenry take time to understand the practices and proposals at stake in the administration’s treatment of migrant families and children.

Family Separations

In early April, Attorney General Jeff Sessions announced that federal authorities would adopt a new policy of “zero tolerance” for illegal entry into the United States, particularly along the southwest border. This meant the prosecution of anyone who crossed the border between ports of entry, even those seeking asylum. The decision to ramp up detentions in this way had particular significance for migrant families. Under the terms of a 1997 federal court ruling Flores v. Reno, the government’s ability to keep children in immigration detention is limited, and so the prosecution and detention of parents entails the removal of their children to the custody of a separate federal agency, the Office of Refugee Resettlement (ORR). Pointing to the Flores settlement, the administration repeatedly claimed that it was legally bound to separate detained families, and that, without legislative reform by Congress, its hands were tied. This deliberate obfuscation omitted the fact that previous administrations of both parties, noting serious moral and ethical questions, have generally avoided separation by exempting migrating families from prolonged detention. In both public statements and internal memos, the administration has demonstrated that the separations were a deliberate policy choice, designed to act as a deterrent to future border crossings.

At the end of June, a federal judge issued an injunction ordering the government to reunify families within 30 days, and 14 days for children under five-years-old. It soon became clear that the administration had no plan, nor had they made any advance provision, for reunification. It has only been through cooperation with non-profits and volunteer lawyers that federal authorities have been able to reunite the majority of children with either their parents or another relative. As of mid-September, however, more than 400 children remain in custody. The parents of the majority of this group have already been deported and are proving extremely difficult to locate. The long-term effect of this policy foray on the mental health of thousands of children and their families remains to be seen.    

Detention of Families and Unaccompanied Minors

In early September, in light of its truncated family separation tactic the administration announced a new proposed regulation aimed at family detention. This would effectively eliminate the Flores settlement and enable the authorities to detain families in federal facilities until the conclusion of typically far-off immigration hearings. Policy analysts interpret this proposal as another arrow in the “zero tolerance” quiver, and a second stab at deterring further unauthorized arrivals. A necessary accompaniment to this approach is an expansion of U.S. Immigration and Customs Enforcement’s (ICE) family detention capacity, a process which requires congressional authorization.  

It has also come to light that a record number of unaccompanied minors, a five-fold increase over the past year, are being held in federal custody. As of mid-September, approximately 13,300 unaccompanied minors are currently spending an average of 59 days in shelters, foster homes, and, increasingly, “tent cities” run by the Department of Health and Human Services (HSS). Mostly older children fleeing violence and instability in countries like Guatemala, El Salvador and Honduras, they have arrived at the southern border without a parent or legal guardian, often intending to reunite with a family member in the U.S. The children still separated from their parents since the early summer comprise just a small fraction of the total number.

The reasons for this record level of child detention are complex, but a major factor is the dramatic drop in the rate at which children are discharged into the custody of relatives or sponsors. While it is true that the process for securing sponsor approval has become lengthier and more difficult, critics have pointed to the chilling effect of various Trump administration procedural changes that have discouraged potential sponsors from coming forward to claim their young relatives. These include a new policy of fingerprinting all household members and sharing that information with ICE, a major disincentive when many relatives may themselves be undocumented or at least live in mixed-status homes. Reports also emerged that ICE agents arrested 41 unauthorized immigrants who had come forward to take custody of unaccompanied children.

Holding Law-Makers to Account

It is true that certain aspects of the challenging family migration situation precede the tenure of the current administration and are not of its making. But critics and analysts have raised questions about the legality and morablity of current strategies explicitly aimed at “general deterrence” and their efficacy as regards reducing undocumented border crossings. 

For instance, in a statement on the family separations last June, Bishop Joe S. Vásquez, Chairman of the USCCB Committee on Migration, described family unity as “a cornerstone of our American immigration system and a foundational element of Catholic teaching.” The position taken by Church leaders and immigration experts over many decades is the intersection at which these two traditions meet.

Since at least the 1920s, Catholic spokespersons have applied the teachings of Catholic social thought to immigration questions of the day, insisting upon both the right of sovereign nations to control their borders in the national interest, and the right of individuals and families to migrate in order to secure safety and a decent standard of living. When the restrictive immigration laws were enacted in the 1920s, Catholic representatives criticized the ways in which the new regulations resulted in the separation of immigrant men already in the U.S. from their wives and children still abroad. Through debates over Chinese exclusion, discrimination according to national origins, the practice of importing Mexican migrant labor, and refugee admissions, Catholic voices have insisted that the integrity of the family unit is the most important feature of a just, moral immigration policy, and, by extension, of a stable, humane society. Also recognizing the importance of the family unit, from the 1920s, law-makers introduced incremental protections of the migrating family unit. The Immigration and Nationality Act of 1965 then enshrined the principle of family reunification as a central plank of American immigration law.

It is hard to avoid becoming distracted by the many pressing, high drama flashpoints in our current political life. In the meantime, the administration is detaining children and arresting their family members while simultaneously calling for Congressional action to prevent family separations.  The contradictions are apparent but the solutions are still not in sight.



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