Detention or Separation: Administration Sets False Choice for Families

The legal parameters around immigration and detention have been hotly debated in the past few weeks. I turned to the experts in immigration law for the answer, and here’s what I learned. The Administration has falsely asserted that the law requires them to separate children from their families, but there is no such requirement.

As is often the case with complicated areas of the law, there’s a mixture of case law and federal statutes that come into play. The key pieces here are the settlement of the Flores v. Reno case, known as the Flores Settlement, plus a few other cases that followed, and the Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457), which codified parts of the Flores Settlement.

The Flores Settlement followed years of court battles about the detention of unaccompanied migrant children in the 1980s. It ended practices that allowed children to be detained for long periods of time in prison-like conditions and instead required that children be released from custody without delay (preferably to a parent or family member). If release is not possible, the Flores Settlement required children to be held in the least restrictive and appropriate setting possible, typically a non-secure facility licensed by a child welfare entity.

In 2008, the Trafficking Victims Protection Reauthorization Act codified into law the requirement that unaccompanied minors be released to a suitable family member or detained in the least restrictive setting possible. It also limited the use of secure facilities to circumstances where the child is determined to be a danger to his or herself or others or charged with committing a criminal offense.

In 2015 and 2016, new court rulings clarified that the Flores Settlement applies to all children, not just unaccompanied minors, but does not apply to parents. Using this, the Trump Administration jumped to the incorrect legal conclusion that children cannot be detained in secure facilities but parents can, so it had no choice but to separate the children from their parents.

But there is nothing at all in the Flores Settlement that requires separation.

Moreover, the Administration’s policy misses the whole point of the Flores Settlement. The law requires children to be released from custody, preferably to their parents, underscoring a principle of family unity. The Administration should therefore keep families together by treating the whole family unit as the law demands the children be treated. In fact, this has been the typical practice for prior administrations, and it is only the Trump Administration’s zero tolerance policy (announced just over two months ago) that is breaking up families.

Under the zero-tolerance policy, the Trump Administration is criminally prosecuting everyone who crosses the border without documentation, which means all adults, including parents, are detained in secure facilities while they await court proceedings. This is true even of families fleeing their homelands and exercising their legal rights to seek asylum in the United States. The children cannot be detained in these secure facilities, so the Trump Administration is separating them from their parents. This is why immigration law experts describe the zero-tolerance policy as a de facto family separation policy.

There is a better way. A cheaper and more effective way, but more importantly, a more humane way. In the past, the government has used alternative-to-detention (ATD) programs that allow families to stay together in the community while applying for asylum. These programs are cheaper than detention and have high compliance rates with court hearings and, when applicable, removal. These programs are sometimes pejoratively referred to in shorthand as “catch and release” but that unfairly diminishes their effectiveness with compliance with immigration proceedings.

While the increase in families crossing the border is rapid and startling, it is not altogether new. In the past, when faced with an influx of families fleeing, the courts have allowed the government some leeway. In these emergency situations, the government can detain families together but because ICE family detention centers do not comply with the Flores Settlement, the government must release children from these facilities within 20 days.

The Administration has set up a false choice – either detain children with their families (violating Flores) or separate them (exposing children to potentially irreparable harm and risking permanent separation between children and parents). The reality is that the Administration has a much better choice.

The Administration could end the zero-tolerance policy and stop criminally prosecuting everyone who crossed the border. By so doing, the Administration could keep families together, in the community, while they undergo immigration proceedings. The Administration could rely on cost-effective, proven programs like ATD while applications for asylum are processed and even while removal proceedings are underway. Most importantly, children who have already been exposed to traumatic and violent conditions that led to their parents deciding to flee their home countries could begin the path to healing.

Thank you to the Women’s Refugee Commission, Kids in Need of Defense, and the Migration Policy Institute for their informative reports, fact sheets and interviews that contributed to this post.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.