Trump administration family separation policy

Bush administration

President George W. Bush began the trend of a "zero tolerance" approach in 2005 with Operation Streamline, but during his administration, exceptions were generally made for adults traveling with minors.^[23]

Obama administration

U.S. President Barack Obama made changes to immigration policy, releasing parents and focusing on deportation of immigrants who committed crimes in the U.S.^[24] Attempting to cope with the 2014 American immigration crisis, a surge of refugees fleeing violence in Central America, while complying with the 1997 Flores v. Reno Settlement Agreement consent decree by keeping families together, under Obama the Department of Homeland Security built family detention centers in Pennsylvania, New Mexico, and Texas.^[25][26][27]

In 2015 Obama introduced the Family Case Management Program which, according to the fact sheet about the program, specifically prioritized "families with certain vulnerabilities, including pregnant or nursing family member; those with very young children; family members with medical/mental health concerns; families who speak only indigenous languages; and other special needs" to offer an alternative to being held in detention centers while awaiting the court to process their asylum claims, which often takes years.^[28]

In 2016, the Ninth Circuit Court of Appeals ruled in Flores v. Lynch^[29][30] that detained immigrant children should be released as quickly as possible, but that parents were not required to be freed. The Obama administration complied by releasing women and children after detaining them together for 21 days.^[31][30]

Trump administration

Presidential candidate Donald Trump said ending "catch and release" was the second of his two priorities for immigration reform, after walling off Mexico.^[32][33] When the administration began separating families, pro-Trump pundits argued that the administration was implementing the same policy as the Obama administration.^[26] According to PolitiFact, the assertion that Trump was implementing the same policy as Obama is "false", noting "Obama's immigration policy specifically sought to avoid breaking up families. While some children were separated from their parents under Obama, this was relatively rare and families were quickly reunited even if that meant the release of a parent from detention."^[26] The Obama Administration did consider separating families, but decided against it.^[34]

Number of children

The Department of Homeland Security confirmed on June 15 that 1,995 immigrant children were separated from their parents during the six weeks from April 19 and May 31.^[85] This figure does not include children of families that asked for asylum at an official border crossing and were then separated.^[86][87] Speaking on Face the Nation on June 17, Senator Susan Collins suggested that the number may well be higher.^[2]

Steven Wagner, the Acting Assistant Secretary for the Administration for Children and Families under HHS, was unable to say in June 2018 how many separated children had been placed with sponsors or reunited with their parents. But that the department is "under a legal obligation" to place children quickly with a sponsor, however, "we actually don't have a time limit in terms of days" that the children are allowed to stay in HHS care.^[88]

Zero tolerance and the separation of children was suspended for an indefinite period of time on June 20, 2018, through an executive order. On June 26, a federal judge issued a nationwide preliminary injunction against the family-separation policy and required the government to reunite separated families within 30 days and to reunite children under five years of age with parents within 14 days. On that date DHS stated that 522 migrant children, all of them in the custody of Customs and Border Protection, had been reunited with their families.^[89] After a site visit to DHS facilities, Senator Elizabeth Warren reported that, "Mothers and children may be considered 'together' if they're held in the same gigantic facility, even if they're locked in separate cages with no access to one another."^[90] The Secretary of Health and Human Services Alex Azar testified that 2,047 children—out of a total of around 2,300 ever in HHS custody—continued to be held in HHS-contracted facilities.^[18]

On July 5, Azar declared that the total number of children that had been separated was under 3,000 and that, of these, the number of children under five years was fewer than 100.^[91] On July 6, government lawyers informed Judge Sabraw that HHS would be able to meet the deadline of July 19 for only about half of the concerned children.^[92] The government had connected 46 of the toddlers with parents still in custody.^[93] Concerning the other half, the lawyers stated that the parents of 19 of the children had been released and now had unknown whereabouts, and the parents of further 19 children had been deported. Two children had been connected to parents criminally ineligible to re-take custody of their children.^[93] Judge Sabraw said the time limit for reunifying the youngest children could be extended under the condition that the government would provide a master list of all children and the status of their parents. A list of 101 children was to be shared with the ACLU within the following day.^[92] A status conference was scheduled for the morning of July 9 concerning which cases would merit a delay.^[94][92] On July 6, a government lawyer provided the status of 102 children under 5 in custody to Federal Judge Dana Sabraw, and stated that numbers are approximate and "in flux".^[93]

In September 2018 it was reported that 12,800 children were being held in federal custody, and that federal shelters housing migrant children were filled to around 90% since May 2018.^[95]

Fiscal costs and diversion of resources

The costs of separating migrant children from their parents and keeping them in "tent cities" are higher than keeping them with their parents in detention centers.^[102] It costs $775 per person per night to house the children when they are separated but $256 per person per night when they are held in permanent HHS facilities and $298 per person per night to keep the children with their parents in ICE detention centers.^[102]

To handle the large amount of immigration charges brought by the Trump administration, federal prosecutors had to divert resources from other crime cases.^[103] The head of the Justice Department's major crimes unit in San Diego diverted staff from drug smuggling cases.^[103] Drug smuggling cases were also increasingly pursued in state courts rather than federal courts, as federal prosecutor were increasingly preoccupied with pursuing charges against illegal border crossings.^[103] In October 2018, USA Today reported that federal drug-trafficking prosecutions on the Southern border plummeted, as prosecutorial resources were diverted to the family separation policy.^[104]

It was reported in June 2018, that the Trump administration plans to pay a Texas Non-Profit Southwest Key Programs Inc, more than $458 million in the fiscal year of 2018 to care for immigrant children detained crossing the US border illegally.^[105]

In July 2018, it was reported that HHS had diverted at least $40 million from its health programs to care for and reunify migrant children, and that the HHS was preparing to shift more than $200 million from other HHS accounts.^[106] In September 2018, it was reported that the Trump administration planned to shift more than $260 million from HHS programs, including those on cancer research and HIV/AIDS research, to cover the costs associated with detaining children and delaying releasing them to adults.^[107]

ProPublica audio tape

On June 18, 2018, as reporters waited for a briefing by the Secretary of the Department of Homeland Security Kirstjen Nielsen, ProPublica posted a recording of crying children begging for their parents just after being separated from them, which the reporters listened to as they waited for her to speak. Nielsen arrived and spoke, blaming Congress for the administration's policy of separating parents from their children and saying that there would be no change in policy until Congress rewrote the nation's immigration laws. At one point during the briefing, New York magazine reporter Olivia Nuzzi played the tape. Nielsen refused to answer any questions about the material in the tape, such as "How is this not child abuse?"^[108]

Most of the tape consists of children crying and wailing for their parents, but a six-year-old girl is heard to repeatedly beg that her aunt be called, who she is certain will come and pick her up. ProPublica was able to contact the aunt, however the aunt was unable to assist for fear that her own petition of asylum would be put in jeopardy due to the recent Trump Administration decision to discontinue asylum protections for victims of gang and domestic violence. The aunt said that she was able to keep in touch with her niece by phone and that she had talked to her sister; however, her sister had not yet been allowed to speak with her child. The aunt said that the authorities had told the child that her mother may be deported without her.^[109]

Commenting on President Trump's executive order and how it was related to the tape of the children crying, Republican commentator Leslie Sanchez commented on Face the Nation, "And a lot of Republicans I talked to, even bundlers, people that put big amounts of money together, said, when they heard the cries of the children, without visual, being separated, that was the moment where America knew this was too far. And that's when the president retreated."^[110]

Allegations of forced medication and mistreatment

There are concerns that the facilities that children were held in may have in the past been associated with the forcible drugging of children. The Texas Tribune reported that detained children who had previously been held at the Shiloh Treatment Center said they had been forcibly treated with antipsychotic drugs by the facility personnel, based on legal filings from a class action lawsuit. According to the filings, the drugs made the children listless, dizzy and incapacitated, and in some cases unable to walk. According to a mother, after receiving the drug, her child repeatedly fell, hitting her head and eventually ending up in a wheel chair. Another child stated that she tried to open a window, at which point one of the supervisors hurled her against a door, choked her until she fainted and had a doctor forcibly administer an injection while she was being held down by two guards. A forensic psychiatrist consulted by the Tribune compared the practice to what "the old Soviet Union used to do".^{[111][112][113][114][115]}

The treatment center is one of the companies that have been investigated on charges of mistreating children, although the federal government continues to employ the private agency which runs it as a federal contractor.^{[111][112][113][114][115]}

On July 30, a federal judge ruled that government officials have been in violation of state child welfare laws when giving psychotropic drugs to migrant children without first seeking the consent of their parents or guardians. According to the ruling given by Judge Dolly Gee, staff members have admitted to signing off on medications in lieu of a parent, relative, or guardian. The judge also ordered that the government must move all children from the facility except for those deemed by a licensed professional to pose a “risk of harm” to themselves or others.^[116]

Deterrence

Government data of arrests by border agents suggest that the family separation policy did little to deter migrants from crossing the US border illegally.^[117]

ACLU challenge and nationwide injunction

The American Civil Liberties Union filed an class-action lawsuit against the federal government on behalf of two mothers (one from Brazil, one from Democratic Republic of the Congo) who had been separated from their children, seeking a halt to the policy. On June 25, the ACLU requested an injunction halting the policy.^[118][119] On June 26, 2018, U.S. District Judge Dana Sabraw of the U.S. District Court for the Southern District of California issued a nationwide preliminary injunction against the family-separation policy.^[19][20]

In his opinion, Sabraw wrote: "The facts set forth before the court portray reactive governance — responses to address a chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children."^[19][20] Judge Sabraw wrote that the federal government "readily keeps track of personal property of detainees in criminal and immigration proceedings", yet "has no system in place to keep track of, provide effective communication with, and promptly produce alien children".^[120] The injunction barred the U.S. government from separating parents and children at the border unless the adults presented a danger to children, and required the government to reunite separated families within 30 days, to reunite children under five years of age with parents within 14 days, and to permit all separated minors to speak with their parents within ten days.^[19][20]

Challenge by 17 states

On June 26, a separate legal challenge to the family separation was brought by 17 states (California, Delaware, Iowa, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington) against the Trump administration.^[19] The suit was filed in the U.S. District Court in Seattle. The plaintiff states, all of whom have Democratic state attorneys general, challenge the forcible separation of families as a "cruel and unlawful" violation of the constitution's Due Process and Equal Protection Clause.^[124][19] Washington Attorney General Bob Ferguson is leading the suit. California Attorney General Xavier Becerra, who represents California, called Trump's executive order putting a halt to the policy as an "empty and meaningless order that claims to take back policies that he [Trump] put in place himself as a political stunt".^[125]

In a new motion filed on July 2, the group asked for immediate information and access to those that are being detained. The motion included more than 900 pages of declarations from family members as well as others that have been involved in the separation of the families. On July 5, PBS Newshour reported on 12 of the 99 declarations that they believe "offer a window into what's has been happening under the family separation policy". PBS included information from the declaration of one mother who wrote that her 1-year-old son was taken from her at a legal point of entry in November. She said that when they were reunited after three months he cried continually and when she removed his clothing she found him to be dirty and infected with lice. Others spoke of multiple detainees, including young children, held in very small rooms or cages, sometimes "freezing" cold, and without adequate bathroom facilities. Several others wrote of a lack of food, including food for children. One woman wrote that she was kept in a cell with nearly 50 other mothers and they were told "that they could not eat because they were asking about their children."^[126]

Flores filings

On June 21, 2018, the Department of Justice (DoJ) asked U.S. District Court Judge Dolly Gee to alter her 2015 ruling in Reno v. Flores on the conditions of family detention by the Department of Homeland Security. The government seeks to end a 20-day limit on family detention and to end the requirement that children be held in day care centers that are state-licensed.^[120] The DoJ filing claims that limits on detention must be ended due to "a destabilizing migratory crisis".^[120] Attorney Peter Schey, who represents the child plaintiffs in Flores, vowed to oppose the filing^[127] He filed an opposition on the grounds of there having been no significant change in circumstances warranting such a revision of the ruling.^[128] On June 29, the DoJ filed a statement that in future the Government will ″detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry″ in place of separating them.^[129]

On July 9, Judge Gee denied the government's request to hold families together indefinitely in ICE facilities, and its request to exempt detention facilities from state licensing requirements for that purpose.^[130][131] Gee wrote that, "Absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion."^[131][132]

August DHS complaint

On August 23, the American Immigration Lawyers Association and the American Immigration Council filed a complaint with DHS alleging the “pervasive, and illegal, practice of coercing separated mothers and fathers into signing documents they may not have understood.” According to the complaint, “the trauma of separation and detention creates an environment that is by its very nature coercive and makes it extremely difficult for parents to participate in legal proceedings affecting their rights.” It also describes the use of "physical and verbal threats, the denial of food and water, the use of solitary confinement, the use of starvation, restrictions on feminine-hygiene products, and the use of pre-filled forms."^[133]

Other challenges on behalf of individuals

Separately, a Guatemalan woman filed a federal lawsuit in the U.S. District Court for the District of Columbia in Washington challenging the Trump administration's practice on June 19, before the Executive Order. It is one of a small number of similar court challenges, with demands such as the immediate release of the child, an order prohibiting US authorities from separating the family, and money for damages of pain and suffering.^[134][135]

Another lawsuit is that of a 9-year-old boy from Honduras who, according to the family, had fled with his father after his grandfather was murdered, was detained at the border and was separated from his father while sleeping. Another case is that of a 14-year-old girl who, so the lawsuit, had fled persecution in El Salvador and was lured away from her mother at a detention facility in Texas under the pretext of taking her to bathe. In both cases, the child was brought thousands of miles away.^[136]

Federal class action lawsuit

On September 5, a federal lawsuit was filed to seek monetary damages on the basis of the inflicted psychological harm and the creation of a fund to support the mental health treatment of the children.^[137]

During separation

• The Ursula detention facility, operated by Customs and Border Protection, in McAllen, Texas, in the Rio Grande Valley—On June 17, the facility housed 1,129 people, including 528 families and nearly 200 unaccompanied minor children. The facility has been called, "the dog kennel" because chain link fencing is being used to create areas for those waiting to be processed, including children who have been separated from their parents. The caged areas are bare without toys or books for the children. Oregon Senator Jeff Merkley toured the facility in June and said that the parents were being told that they would only be separated from their children for "just a very short period—they go to a judge and then they're reunified [but] the reality is it's very hard for the parents to know where their kids are and to be able to connect with them".^[138]

Detention of parents

• Port Isabel Detention Center, operated by Immigration and Customs Enforcement, in Los Fresnos, Texas—This facility is surrounded by swampland and houses detained parents. Several members of Congress toured the facility in June and met with 10 women who had been separated from their children. Some of them did not know where their children had been transferred to and none had been able to speak with a lawyer. One women said that she was told that her child would be put up for adoption. Rhode Island Representative David Cicilline said the women were uncontrollably sobbing.^[138]
• South Texas Detention Facility, operated by the GEO Group, in Pearsall, Texas^[139]
• Eloy Detention Center, owned and operated by CoreCivic, in Eloy, Arizona—This privately run immigration jail is ringed by barbed wire and an electrified fence. In late May, detained parents had counted at least 40 people who had been separated from their children among the 1,500 people detained in the facility; Immigration and Customs Enforcement did not release its own figures.^[140][141]
• Northwest Detention Center in Tacoma, Washington—Adults separated from their child relatives were transferred to this facility, which suffered a chicken pox outbreak in late June, preventing a visit by Congressman Derek Kilmer.^[142]

Detention of children

• Casa Padre, a private facility owned and operated by Southwest Key Programs, in Brownsville, Texas—A housing facility for children built in a former Walmart and operated under contract for the Department of Health and Human Services. On June 13, it housed 1,469 children, a plurality of whom arrived as unaccompanied minors crossing the border. Southwest Key estimated that 5% of children held there had been separated from their parents.^[143]
• Homestead Temporary Shelter for Unaccompanied Children in Homestead, Florida—A housing facility for around 1,100 children. Approximately 70 children separated from their families are housed at the facility.^[144] The facility had been opened and closed during the Obama administration and was recently reopened.^[144]
  

  Unaccompanied minors walk in a Homestead, Florida, facility supervised by the Office of Refugee Resettlement, on June 20, 2018.
• Estrella del Norte, a private facility owned and operated by Southwest Key Programs, in Tucson, Arizona—A 300-bed housing facility for children, that housed 287 children in mid-June 2018. A former staff member described conditions in the facility as increasingly "prison-like", and recounts being told to forbid siblings without their parent from hugging one another.^[145]
• Tornillo tent city, operated by the Federal government in Tornillo, Texas—Erected in the desert at the Marcelino Serna Port of Entry in western Texas. The site was chosen for a tent camp slated to house thousands of migrant children, including both unaccompanied minors and children separated from their parents.^[146] Representative Beto O'Rourke, who led a protest on Father's Day, June 17, 2018, was told that 200 children were being detained in the camp, 20% of whom were separated from their parents.^[147]
• Three facilities in Combes, Raymondville and Brownsville (Casa El President, operated by Southwest Key), in southern Texas, have been set up to hold children under five and have been referred to as "tender age shelters". Medical professionals and lawyers who visited the facilities described "play rooms" filled with preschool children crying and in crisis.^[148] Colleen Kraft, the president of American Academy of Pediatrics, visited the Coombs facility and said she was "shaken" by what she saw, calling it "a heartbreaking scene" and unlike anything she'd seen in her decades as a pediatrician. She termed the practice of removing the children from their parents "government-sanctioned child abuse".^[13]

• Upbring New Hope Children’s Shelter in McAllen, Texas. As of June 21, about 60 children were housed in this facility, including six who had been separated from their parents while the remaining children had arrived alone. According to American Academy of Pediatrics President Colleen Draft, this center, like other centers, confiscates any possessions the child may arrive with and care givers are not allowed to comfort or touch the children. Following President Trump's June 20 executive order to stop separating undocumented immigrant parents and their children, on June 21 First Lady Melania Trump visited this facility saying, "I'm here to learn about your facility, in which I know you house children on a long-term basis and I'd also like to ask you how I can help these children to reunite with their families as quickly as possible." Critics have argued that this visit did not give the First Lady an accurate look at what many have called an unfolding crisis. She was also widely criticized for wearing a jacket that on the back stated "I Really Don't Care, Do U" when she boarded the plane for her trip to the facility.^[149][150]
• An East Harlem, New York shelter run by Cayuga Centers, Children's Village in Dobbs Ferry, New York, and additional shelters in Long Island, in Westchester and the Bronx are among nine facilities in New York state housing separated children.^[151] In a June 22 interview New York Governor Andrew Cuomo said that he believes that HHS sent about 700 children to his state but he is not certain because HHS has refused to release any information about the children. The Governor said that he also contacted the foster care agencies in his state in an attempt to assess the number of children and to make sure that their needs were being met, but HHS had put a gag order on the agencies and they were not able to disclose any information either. He was allowed to visit one facility and the staff there told him that the children in their care "have a high level of psychological trauma [and] anxiety disorders".^[152]

Proposed facilities

• Houston facility for young children, pregnant girls, and teenage mothers—Southwest Key has leased a 53,600-square-foot building—419 Emancipation Avenue—formerly occupied by the non-profit Star of Hope in Houston, Texas, and applied to use it as a detention center for up to 200 migrant youth "from age 0 to 17".^[153] Advocates report that the facility would house "children younger than 12 as well as pregnant and nursing teenagers"; the Department of Health and Human Services refers to this younger age group as "tender-age children"^[154] Houston Mayor Sylvester Turner opposes the facility and has urged the Texas state government not to license it. At a press conference, Turner said, "I do not want to be an enabler in this process. I do not want the city to participate in this process. The health department has yet to provide a food permit or shelter permit.... If we don't speak, if we don't say no, then these types of policies will continue."^[154]
• Military detention camp for migrant families at Fort Bliss
• Military detention camp for migrant children on Goodfellow Air Force Base

Opposition and condemnation

A protester compares child detention by the government to the Nazi concentration camps

About 10,000 people gathered downtown Minneapolis and marched through the streets to protest against immigrant children being taken from their families

The policy attracted significant condemnation from a wide array of sources including medical, scientific, religious and human rights groups. It is extremely unpopular with the public, with approximately 25% of Americans supporting the policy, less than any recent major piece of legislation.^[57] The detainment of children by the U.S. government has been compared to the Nazi concentration camps by some observers and politicians.^[163][164]

Protests

Rally to end family separation in Cleveland, Ohio (June 30, 2018)

Main article: Protests against Trump administration family separation policy

Beginning in June, protests were held in numerous cities across the nation as plans for a larger nation-wide protests were being formulated. On June 30, a national protest organized by the newly-formed group "Keep Families Together" was held which drew hundreds of thousands of protesters from all 50 states to demonstrate in more than 600 towns and cities. Approximately 30,000 marchers crossing the Brooklyn Bridge in New York City, chanted, "Immigrants built this bridge." Some demonstration speakers stressed the urgent need for political activism. In Atlanta Representative John Lewis spoke saying, "We've got to get out and vote like we never voted before." Lin-Manuel Miranda performed for the protesters, singing a song from his musical Hamilton, and commented, "We will not stand for a country separating children from their families, and if you are silent on that issue, or you are somehow for that issue you're not getting re-elected."^[14]

Support

White House Press Secretary Sarah Huckabee Sanders, Senator Chuck Grassley and House Speaker Paul Ryan have asserted that the Trump administration are required to separate migrant families due to the 1997 Flores settlement,^[223][224] which requires that unaccompanied minors be released to their parents or relatives, and if a relative cannot be found then a government agency can appoint an appropriate guardian for the child.^[224][225] Trump administration officials also cited the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), a 2008 anti-human trafficking statute, as a justification for the policy.^[225] Neither the Flores settlement nor the TVPRA, however, require or recommend family separations.^[225][226]

Following President Trump's executive order ending family separation David French criticized the Democrat's position saying, "those of us with a trace of historical memory know that the Trump administration is merely asking the courts and Congress to adopt the Obama administration’s legal position.[...]But despite this victory, Democrats are still furious. It’s not enough to stop child separation. Now, they want to prevent family detention entirely."^[227]

Conservative commentator Ann Coulter on June 17 dismissed immigrant children as "child actors weeping and crying" and urged Trump not to "fall for it".^[228] Fox News television host Laura Ingraham on June 18 described the facilities where migrant children were housed as "essentially summer camps".^[229][230] She described criticism of the immigration policies as "faux liberal outrage".^[231] Also on June 18, conservative commentator and author Ben Shapiro pointed to the 2016 Ninth Circuit Court of Appeals ruling in Flores v. Lynch, which he said "meant that the government either had to release whole families, or that the government had to separate parents from children".^[232]

Fox & Friends co-host Brian Kilmeade defended Trump's family separation policy, arguing that migrant children are being treated as though they are more important than "people in our country who pay taxes and have needs as well." He states, "Like it or not, these aren't our kids. Show them compassion, but it's not like [Trump is] doing this to the people of Idaho or Texas. These are people from another country."^[233]

Trump administration response

On June 19, 2018, a fact checker for The Washington Post critiqued a number of statements by Trump and members of his administration, characterizing them as "Orwellian stuff" and designating them as Four Pinocchios — the Post's highest rating of falsehood.^[226] The Trump administration had offered at least 14 contradictory statements about its policy, including contradictions about whether it was a Justice Department policy, whether separations are a deterrent, whether there was a prepared process to separate families, and whether separations are required by law. Trump has also said that he could not reverse his administration's policy via executive order, while later writing an executive order to reverse the policy.^[234]

Continued detention of separated children

Following the issue of the Executive Order, the Department of Health and Human Services stated that the status of children already detained would not be affected by the Executive Order, and that they would not be immediately reunited with their families.^[17] However, it was later reported that the statement by Kenneth Wolfe, a spokesman for the Administration for Children and Families, that "there will be no grandfathering of existing cases" was based on incorrect information and no decision had been made.^[259]

A fact sheet on "Zero-Tolerance Prosecution and Family Reunification" that was released by the Department of Health and Human Services, stated that a parent may request that their child be deported with them. However, the agency said that in the past many parents had elected to be deported without their children.^[260]

On June 26, Secretary of Health and Human Services Alex Azar testified that 2,047 children continued to be held in HHS-contracted facilities.^[18] He said that only parents who are deported or who are granted entry to the United States could be reunited with their children.^[18] He further testified that the Department would only reunite children with their detained parents if Congress passed legislation lifting the 20-day limit on family detention required under the Flores settlement.^[18] Azar also implied that around 250 children formerly in HHS custody had been reunited with family members in the United States, rather with those they had accompanied across the border.^[18]

On June 28, a bill was passed at the initiative of Senator Tom Udall that requires HHS to make information about migrant children in its care publicly available. This obligation includes weekly public updates on its website of the number of children who have been reunited with separated family members, as well as monthly publication of the information on migrant children that the HHS makes available to the United States Senate Committee on Appropriations under the Labor, Health and Human Services, and Education (Labor-HHS) Appropriations Bill.^[261]

Transition and continued separation

On June 22, the office of U.S. Attorney John Bash stated that the zero tolerance policy was still in effect. He spoke of "a necessary transition" during which those who were charged would no longer be transferred to the custody of US Marshals but would stay in the custody of the DHS together with their children. The office confirmed that several cases that had been pending when the executive order had been issued were dismissed as part of that transition.^[262]

Parents and children crossing the border illegally were intended to have the same A-file number given to them by immigration officials. Family reunification was complicated by the fact that in many cases families were separated before an A-file number was given, resulting in parents and children receiving different numbers which makes it more difficult to reunite them afterwards.^[263] Days after the formal end of the policy, authorities still were not able to tell the separated children how their parents were doing, or where their parents were.^[264]

DHS and HHS stated that they "have a process established to ensure that family members know the location of their children and have regular communication after separation to ensure that those adults who are subject to removal are reunited with their children for the purposes of removal", and that ICE had "implemented an identification mechanism to ensure on-going tracking of linked family members throughout the detention and removal process".^[265] The Port Isabel Service Processing Center was intended to become the primary family reunification and removal center for adults who were in the custody of the ICE.^[265] The document did not set out any timeline for reuniting the remaining children that had been separated from their families due to the policy.

The DHS and HHS documents stated that adults who had been processed for removal would have the choice of whether to or not their child would accompany them.^[89] CNN reported that adult detainees were being offered the opportunity to see their children if they agreed to sign voluntary departure orders, waiving their right to go before a judge. Immigration advocates criticized the policy; Attorney Efrén Olivares of the Texas Civil Rights Project said, "We have no reason to believe that (voluntary deportation) is the fastest way for parents to be reunited with their children. Putting them in that position is not a voluntary (deportation); it's being obtained under duress."^[266]

HHS also stated that ICE officials had posted notices in all of its facilities advising detained parents who were trying to find or communicate with their children to call a hotline, staffed from 8 AM to 8 PM, Monday through Friday. Further according to ICE, the parents can also contact the Office of Refugee Resettlement (ORR) National Call Center, to determine if the child is in custody of HHS.^[260] ORR is able to locate every child within seconds, but has limited access to information about whether a child arrived at the border with an adult.^[267]

Preparations for new detention facilities

The June 20 Executive Order instructs that, "The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law."^[253] On June 21, the Department of Health and Human Services requested facilities to house migrant children. Pentagon spokesmen and a memorandum sent to Congress confirmed that the Department of Defense was preparing facilities at four military bases in Texas and Arkansas—Fort Bliss, Dyess Air Force Base, Goodfellow Air Force Base, and Little Rock Air Force Base—to house 20,000 "unaccompanied alien children".^[268] On June 25, the Associated Press reported that Fort Bliss and Goodfellow Air Force Base had been chosen, and that one will house unaccompanied migrant children, while the other will house migrant families.^[269]

On June 22, 2018, Time Magazine reported the contents of an internal Navy planning memorandum that proposed constructing "tent cities" to house migrants in "temporary and austere" facilities at Navy Outlying Field Wolf in Orange Beach, Alabama, Navy Outlying Field Silverhill, and two abandoned airfields near Mobile, Alabama. The memorandum also proposes that up to 47,000 people could be house at both the former Concord Naval Weapons Station in northern California and Camp Pendleton in southern California. These would be built by the Navy and operated by the Department of Health and Human Services.^[270]

Suspension of detentions for new cases

On June 21, 2018, The Washington Post reported that Customs and Border Protection had suspended criminal referrals for parents arriving across the border with their children. At the time, Justice Department officials said the zero tolerance policy remained in force and they would continue to process all adults for illegal entry.^[271]

On June 25, U.S. Customs and Border Protection Commissioner Kevin McAleenan announced a temporary suspension of detaining migrant adults who traveled with children.^[272][273] In this context, White House press secretary Sarah Sanders explained that the government was "out of resources" and could not hold all the undocumented families coming across the US-Mexico border.^[273]

Difficulties of the reunification process

"Separated Parent's Removal Form" gives parent being deported the option of leaving their child behind.^[274]

In early July, ORR staff were still missing instructions on how to proceed in order to reunite the separated children with their parents. The deadline for reuniting children under five years of age with their parents was July 10, for all others it was July 26. After the court order, the HHS manually reviewed all case files of the approximately 11,800 children in their custody to determine whether HHS missed any who had been separated from adults at the border. Matters were further complicated by the fact that parents may have been in different situations: released, still detained, or deported.^[267][94]

The usual procedure for the release of a child to a sponsor involves a background check. Sponsors must submit documentation proof that they are legitimate relatives and financially capable. They also have to pay for travel costs, in some cases thousands of US dollars for air fares.^[275] Since June 2018, the procedure also involves the fingerprinting of every adult in a potential sponsor's household. The procedure is said to be intended to avoid the risk of releasing children to unauthorized persons or child traffickers. Representatives of plaintiffs argue that the usual procedure is too slow for the release of a child to their parent.^[267]

CNN reported that DNA testing was performed to expedite parental verification and ensure reunification with verified parents, without details being reported as to whether consent has been asked. Human rights advocates have criticized that migrant children, some as young as two months old, cannot give their consent to DNA testing.^[276] Medical experts have recommended to use DNA testing only as a last resort. Thomas H. Murray, president emeritus of The Hastings Center, emphasizes the danger to social ties in the family given that "the risk misattributed fatherhood, and even motherhood, is more common than most people realize".^[277]

Second chance

In September 2018, the Department of Justice changed their handling of asylum claims of asylum seekers who had undergone family separation. The change, which is said to give about 1,000 persons a second chance to claim asylum, is the result of a negotiation covering three lawsuits that had been filed against the government over the family-separation policy.^[284]