Separating Children at Border Is New and Is NOT Mandated by Law

Separating Children at Border Is New and Is NOT Mandated by Law

Proving a negative is notoriously difficult, including trying to prove that a law that’s been alluded to numerous times doesn’t exist.

Cynics might speculate that that’s exactly what the Trump Administration is counting on when it issues statements justifying its new (yes, new) policy of separating children from parents encountered at, or after having crossed, the southern U.S. border.

Trump himself tweeted, “Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border into the U.S.” And White House Counselor Kellyanne Conway stated, “nobody likes seeing babies ripped from their mothers’ arms, from their mothers’ wombs, frankly. But we have to make sure that DHS’s laws are understood…”

It has long been Nolo’s mission to make sure that U.S. laws are understood. But we really cannot do that when there IS NO SUCH LAW.

After much public outcry, that truth has been acknowledged by everyone from fact-checking website Snopes to the Executive Director of the American Immigration Lawyers’ Association (AILA), Mr. Ben Johnson, who called the Trump Administration’s approach a “cruel new policy of separating children from their parents as form of punishment, coercion, and deterrence” to former Acting Director of ICE (U.S. Immigration and Customs Enforcement) John Sandweg, who stated on a conference call with America’s Voice that “… there is no statute or legal framework requiring the government to separate families. That claim is completely false … Equally false is the idea that the United States must detain family and children in order to maintain border security. This policy puts Customs and Border Protection in a very difficult position. The agency is not trained or prepared to be the guardian of a few thousand children, which is how children end up in cages in warehouses.”

So, if there isn’t a law, under what authority is the Department of Homeland Security (DHS) and its subsidiary agencies (such as ICE and CBP) acting? The answer is found within the various references to the word “policy” found above.

A policy is vastly different than a law. Administrative agencies like DHS don’t solely follow statutes written by Congress. They must figure out how to apply the laws, day to day, for example in choosing what tasks to tackle first.

In order to clarify their interpretation of the relevant law, agencies often draft “regulations” (after public comment, though DHS has been lax about this of late), as well as use their discretion to set policies, within the limits of existing laws and regulations. Policies are often internal, and don’t necessarily need to be written down or receive outside approval. And, a policy can change overnight—as this policy of separating children from parents at the border basically did. But where did it come from?

The new policy is apparently woven out of three things:

  • the fact that crossing the border unlawfully can be prosecuted criminally (though normally as a misdemeanor, unless the person has entered repeatedly)
  • Attorney General Jeff Sessions’s creation (in April, 2018) of a “zero-tolerance” policy with regard to people entering unlawfully, meaning that he plans to prosecute them ALL criminally, and
  • a shift away from the view that, with limited resources, prioritizing enforcement actions against unlawful entrants who present a threat to U.S. society or have criminal backgrounds is more practical than attempting to arrest and detain every last one (and creates less suffering for families). The Obama Administration laid out these enforcement priorities in detail, but Trump undid them via Executive Order early in his administration.

Add to that an (understandable) tradition of not putting children into jail with a bunch of “criminals,” and you have the makings of the current policy—and humanitarian crisis.

With all the obvious changes to existing policies and practices this administration has made, it’s hardly surprising that everyone from faith-based groups to former First Lady Laura Bush have expressed deep skepticism about its supposed adherence to the letter of a supposed law.

The new family-separation policy could end overnight, if the agencies would simply reverse course. Trump could also fix it, by picking up the phone or even tweeting an order telling the agencies to stop it. But that looks unlikely to happen anytime soon.

In that case, can legal action be brought against the Trump Administration based on its policy of separating children from parents? They are arguably violating Constitutional due process standards and both U.S. and international law,  particularly in dealing with people who fear persecution in their home country and need or are requesting asylum. For more on that topic, stay tuned for an upcoming blog post.

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