President Donald Trump's 2017-2018 policy of family separation was a new approach to the issue of children at the U.S. border. Treatment of non-criminal undocumented minors, including the length of their detention and the standards of their treatment, has been dictated since 1997 by the Flores settlement agreement (1996), which was further developed in subsequent court actions, but never codified into legislation that would thoroughly establish national policy on the treatment of these children and confer rights upon them. The George W. Bush and Barack Obama administrations developed methods of dealing with children who had reached the border with or without their parents as guided by the Flores settlement agreement, but neither had worked to separate parents from their children as a means of deterring illegal entry, a civil misdemeanor.
The Trump administration used the term "zero tolerance" to describe the policy regarding illegal entry that was overseen by the Department of Justice and enforced by the Department of Homeland Security, and the term has its origin in the G. W. Bush administration. However, "zero tolerance" in the Bush administration referred more to how those caught entering illegally, other than those claiming asylum, would be detained and immediately enter deportation procedures, while maintaining illegal entry as a civil issue. Parents and children were detained together in new "family detention centers" established by Immigration and Customs Enforcement (ICE) and run by subcontractors. Until 2006, the Bush administration, to meet the requirements of the Flores settlement agreement requiring that children not be held indefinitely, followed a practice known as "catch and release" by which families with children were held for a short time and then released to come back later for an immigration hearing. After 2006, ICE detained families as a group in family detention centers. The Bush administration was sued over the living conditions of one of the family detention centers as it related to children, and that center later stopped housing families under the Obama administration.
Due to an influx of women with their children and unaccompanied minors, primarily from Central America, the Obama administration created temporary tent cities and later opened a new facility to house them. The administration also pushed for greater deportation of undocumented men, women, and children, including both criminals and non-criminals.
The Trump administration interpretation of "zero tolerance" shifted illegal entry from a civil to a criminal matter and at the same time made it harder for potential asylees to claim asylum. Given that some of the people caught entering illegally had brought their children with them, enforcing the zero tolerance policy was used to justify separating parents, who were put in ICE detention facilities, from their children, who were then declared "unaccompanied" and became the responsibility of the Department of Health and Human Services' Office of Refugee and Resettlement (a procedure established in the Homeland Security Act of 2002). The Trump administration reports that 2,654 children were separated from their parents due to the policy. The family separation policy was eventually halted by executive order following a massive international outcry, but the issue of uniting all affected parents with their children, and the care and protection of those children, is still unresolved (as of Aug. 24 2018).
The timeline below explains the recent history of national immigration policy as it relates to the treatment of non-criminal, undocumented children.
The settlement agreement reached in Flores v. Reno establishes national policy on the treatment of unaccompanied minors taken into federal custody by Immigration and Nationalization Services (INS).
"Zero tolerance" enforcement policy adopted to deter illegal entry but families with small children were generally exempted per the Flores settlement agreement, and instead released after being held for usually 21 days in a practice known as "catch and release," on the understanding that they would return for an immigration hearing at a later date, though ICE ended this practice in 2006.
Immigration and Nationalization Services establishes the first family detention center in Berks, PA, converting a residential nursing home into the Berks Detention Center.
The Homeland Security Act of 2002 is signed into law, replacing the office of Immigration and Nationalization Services with Immigration and Customs Enforcement and Customs and Border Patrol, and establishing that the responsibility for unaccompanied minors taken into federal custody belongs to the Department of Health and Human Services' Office of Refugee and Resettlement.
Immigration and Customs Enforcement establishes the second family detention center in Taylor, TX, converting a former prison into the (T. Don) Hutto Detention Center, run by the for-profit company Corrections Corporation of America (now known as CoreCivic) and mostly housing women and children seeking asylum.
The Bush administration is sued for violating the Flores settlement agreement over living conditions for children at the Hutto Detention Center (which included threats of separating children from their parents as a disciplinary measure), leading to an agreement to improve conditions and an understanding that the Flores guidelines regarding unaccompanied minors also related to accompanied minors but only those in Hutto.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 further establishes practices regarding unaccompanied minors.
Families detained together in designated Family Residential Centers operated by subcontractors managed by Immigrations and Customs Enforcement (ICE). Obama administration policy is that the provisions of the Flores settlement do not apply to accompanied minors, which leads to Flores v. Lynch (2016).
Parents of American-born children deported at a high rate.
Obama administration stops housing families at the Hutto Detention Center and it instead becomes a woman-only facility. Berks is the only remaining facility to house families.
Following a surge in migration of women and children, the Obama administration opens several emergency tent campuses and a new facility to detain families in Dilley, TX, known as the South Texas Family Residential Center, run by the for-profit company Corrections Corporation of America (now known as CoreCivic).
Advisory Committee on Family Residential Centers formed under the Assistant Secretary of Immigrations and Customs Enforcement.
Flores v. Lynch establishes that the Flores settlement agreement policies for unaccompanied minors also apply to accompanied minors but not to the parents.
Separation of families policy floated.
Escalation of prosecution for illegal entry.
End of Family Case Management Program and Central American Minors Program, both created under the Obama administration.
U.S. Attorney General Jeff Sessions announces new interpretation of "zero tolerance" policy, beginning in May, to make illegal entry a criminal issue rather than civil. Later announcements from the Department of Homeland Security explain the process by which the children of people caught crossing the border illegally would be separated from their parents.
The policy is in full effect and "[a] total of 2,342 children were separated from families between May 5 and June 9 of this year, according to Customs and Border Protection" (Bialik 2018).
Following intense outcry, Trump signs Executive Order 13841 to order that families be detained together.
Customs and Border Patrol Commissioner announces the end of referring anyone caught illegally entering for prosecution, implicitly ending "zero tolerance," due to issues regarding staffing.
U.S. federal court issues an injunction to halt the separation of families and mandate reunification. A total of 2,634 children were separated from their parents (Miroff, Goldstein & Sacchetti 2018).
Court-ordered reunification of children and parents hits roadblocks as the Trump administration admits to having deported a number of parents without their children.
Attorney General Jeff Sessions tightens restrictions on qualifying for asylum, mentioning in particular that "[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum" (Sessions 2018, p. 320).
The government announces that 1,923 out of the 2,654 children separated from their parents have been reunited, while 528 are still in government custody (23 under the age of 5) and 203 (19 under the age of 5) were not reunited but were released from government detention.
More families are united as some of the deported parents are located, yet the number of children held in detention continues to rise. This is primarily due to the crackdown on undocumented immigrants, which deters potential sponsors (usually relatives or family friends) from retrieving unaccompanied children for fear of being deported themselves. The U.S. acknowledges gaps in tracking unaccompanied children once they've been released to sponsors, and also works to lessen the effect of the Flores settlement on its ability to detain children.
A November joint status report from the Department of Justice and the ACLU reports progress made with the children who had since been reunited with their parents, and those who still had yet to do so. As of November 8:
Following the Flores settlement of 1997, Congress passed two laws to address provisions of the agreement relating to the care of unaccompanied minors taken into federal custody (the Homeland Security Act of 2002 and the Trafficking Victims Reauthorization Protection Act in 2008). Further legal proceedings were brought against the Obama and Trump administrations regarding provisions of the agreement that had not been enforced. This is a list of the relevant laws and some of the legal documents that have affected the aspect of U.S. immigration law relating to unaccompanied minors.
Court Settlements and Decisions