Glossary
Border Patrol: The United States Customs and Border Protection agency responsible for immigration and customs enforcement between official border stations (“ports of entry”).
CBP: US Customs and Border Protection, the branch of the US Department of Homeland Security that includes the Border Patrol.
DHS: US Department of Homeland Security, the federal department created in 2002 that includes US Customs and Border Protection, US Citizenship and Immigration Services, and US Immigration and Customs Enforcement, along with other agencies.
DOJ: US Department of Justice, the federal department responsible for enforcing federal law. The department is headed by the Attorney General and includes the Federal Bureau of Investigation, the US Marshals Service, the Executive Office for Immigration Review, and other agencies, in addition to federal prosecutors.
HHS: US Department of Health and Human Services, the federal department that includes the Administration for Children and Families.
ICE: US Immigration and Customs Enforcement, the agency of the US Department of Homeland Security that enforces immigration laws in the interior of the United States.
Migrant: This term has no precise definition in international law but is commonly used to refer to a person who moves away from their place of usual residence, whether within a country or across an international border, temporarily or permanently, and for any of a variety of reasons or combination of reasons.
ORR: Office of Refugee Resettlement, the agency in the US Department of Health and Human Services’ Administration for Children and Families responsible for the care and protection of unaccompanied children.
Port of entry: An official border crossing point
Refugee: A person who has fled their country to escape conflict, violence, or persecution and has sought safety in another country.
Separated child: A child who has been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives.
Unaccompanied child: A child who has been separated from both parents and other relatives and is not being cared for by an adult who, by law or custom, is responsible for doing so.
USCIS: US Citizenship and Immigration Services, the branch of the US Department of Homeland Security that adjudicates visa petitions, naturalization applications, and asylum applications (other than those made in the course of a removal, or deportation, hearing).
Government Officials Behind the Forcible Family Separation Policy
L. Francis Cissna: Director, US Citizenship and Immigration Services (USCIS), October 2017-June 2019
Gene Hamilton: Senior counselor to the secretary of homeland security, January-October 2017; counselor to the attorney general, October 2017-January 2021
Thomas Homan: Acting director, US Immigration and Customs Enforcement (ICE), January 2017-June 2018
John Kelly: Secretary of homeland security, January-July 2017; White House chief of staff, July 2017-January 2019
Kevin McAleenan: Acting commissioner, US Customs and Border Protection, January 2017-March 2018; CBP commissioner, March 2018-April 2019; acting secretary of homeland security, April-November 2019. (The Government Accountability Office (GAO) found in August 2020 that McAleenan’s appointment as acting secretary was invalid.)
Kirstjen Nielsen: Chief of staff under Secretary Kelly, Department of Homeland Security (DHS), January-July 2017; White House principal deputy chief of staff (also under Kelly), September-December 2017; secretary of homeland security, December 2017-April 2019
Rod Rosenstein: US deputy attorney general, April 2017-May 2019
Jeff Sessions: US attorney general, February 2017-November 2018
Matthew Whitaker: Chief of staff to Attorney General Jeff Sessions, September 2017-November 2018; acting US attorney general, November 2018-February 2019
Chad Wolf: DHS chief of staff under Secretary Nielsen, July 2017-February 2019. Wolf was later acting secretary of homeland security, November 2019-January 2021, an appointment the GAO found invalid.
Methodology
This report reviews government memoranda, internal investigations, the statements of public officials, congressional hearings, court filings, and news reports on forcible family separation. It draws on Human Rights Watch interviews with separated children, parents, lawyers, and Border Patrol officials in 2018 and 2019 and Human Rights Watch’s observations during site visits of immigration holding cells during this time.
Human Rights Watch conducted interviews in McAllen (June 2018), Brownsville (July 2018), Karnes City (July 2018), Port Isabel (July 2018), Tornillo (October 2018), El Paso (July 2019), and Clint (July 2019), all in Texas; Santa Teresa, New Mexico (July 2018); San Pedro Sula and Yoro, Honduras (July 2018); and Homestead, Florida (March 2019).
The researchers who conducted these interviews also took part in inspections of and interviews at immigration detention facilities as part of periodic monitoring teams assessing immigration authorities’ compliance with the 1997 Flores settlement agreement. Court filings reviewed for this report include the sworn declarations collected by Flores monitoring teams in 2018 and 2019, including those collected by teams that did not include Human Rights Watch staff. These declarations are publicly available in redacted form on the federal courts’ electronic records system and, for the relevant period, on the website of Project Amplify.
Many of the memoranda and other government documents on the development and implementation of the forcible family separation policy were disclosed in litigation by the ACLU and other groups or in response to Freedom of Information Act requests, including those by the American Immigration Council and other groups, American Oversight, and
Caitlin Dickerson, an investigative journalist with The Atlantic. Others were leaked to journalists and described in news accounts.
Human Rights Watch researchers conducted interviews in 2018 and 2019 with separated children and parents in Spanish or Portuguese. We explained to all interviewees the purpose and public nature of our reporting, that the interviews were voluntary and confidential, and that they would receive no personal service or benefit for speaking to us, and we obtained oral consent from each adult interviewee and oral assent from each child interviewee.
This report uses pseudonyms for all migrant or asylum-seeking children and adults. Human Rights Watch interviews are assigned a pseudonym consisting of a first name followed by an initial (for example, “Edgar Q.”) and note the date and place of the interview. Sworn declarations collected by the Flores monitoring teams and other references to separated children or parents in court documents follow the form used in those documents, which in most cases identify children and their parents by initials.
Human Rights Watch has also withheld the names and other identifying information of some lawyers and government officials who requested that we not publish this information.
Human Rights Watch sought comment from each of the government officials we identified as having developed or approved the forcible family separation policy. As of December 2, 2024, when this report was finalized for publication, none of these officials had provided comments on our findings or answers to our questions.
In line with international standards, the term child refers to a person under the age of 18. As the United Nations Committee on the Rights of the Child and other international authorities do, we use the term unaccompanied children in this report to refer, in the context of migration, to children
Separated children are those who are “separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives,” meaning that they may be accompanied by other adult family members."who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so."
This report uses refugee to mean a person who meets the criteria in the 1951 Refugee Convention and its 1967 Protocol, under which a refugee is a person with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” who is outside of the country of nationality and is unable or unwilling, because of that fear, to return. The UN Refugee Agency (UNHCR) has concisely restated this standard in these terms: “Refugees are people who have fled their countries to escape conflict, violence, or persecution and have sought safety in another country.” People are refugees as soon as they fulfill the criteria in the Refugee Convention and Protocol. UNHCR explains:
A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.
The term migrant is not defined in international law; our use of this term is in its “common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons.” It includes asylum seekers and refugees, and the term migrant children includes children who may be refugees or seeking asylum.
I. Systematic Separations in 2017 and 2018
A distraught but determined 6-year-old Salvadoran girl pleads repeatedly for someone to call her aunt. Just one call, she begs anyone who will listen. She says she’s memorized the phone number, and at one point, rattles it off to a consular representative.
—Ginger Thompson, “Listen to Children Who’ve Just Been Separated from Their Parents at the Border,” ProPublica, June 18, 2018
Abrupt separation from primary caregivers or parents is a major psychological emergency.
—Jack P. Shonkoff, professor of pediatrics, Harvard Medical School, interviewed by Isaac Chotiner for The New Yorker, July 13, 2019
Rolando B. and his son, Johan, then 11 months old, crossed the US-Mexico border into Texas on March 16, 2018, and turned themselves in to the Border Patrol. They were held for four days together in the chain-link cages of the Ursula detention center in McAllen. On the fourth day, an officer wearing a US Immigration and Customs Enforcement (ICE) t-shirt told Rolando to hand over his child. “He said, ‘Say goodbye to your son, because you’re not going to see him anymore,’” Rolando told Human Rights Watch in San Pedro Sula, Honduras, in July 2018.
Well before March 2018, there had been ample indication that the US government was considering family separation. John Kelly, then secretary of homeland security, had publicly floated the idea 12 months before and then quickly walked it back. But Attorney General Jeff Sessions did not issue his “zero tolerance” policy until April 2018, and the US Department of Homeland Security (DHS) did not implement it along the border until the following month.
As Rolando and Johan’s case illustrates, however, the US government began separating children from families well before Sessions formally issued the policy. In addition to carrying out a targeted pilot program in New Mexico and western Texas, the US government had, elsewhere along the border, “quietly begun taking hundreds of children away from their parents to deter would-be asylum seekers from coming to the United States,” according to Lee Gelernt of the American Civil Liberties Union (ACLU). Just a few days after US border agents forcibly separated Rolando and Johan, the ACLU asked a federal judge to issue a nationwide injunction to stop the practice.
Most of these separations were of children from parents who had entered the United States irregularly. Improper entry is a misdemeanor, and the government used this minor federal charge to deem parents “unavailable,” transferring their children to shelters run by the Office of Refugee Resettlement (ORR), an agency of the US Department of Health and Human Services (HHS). In addition, US Customs and Border Protection (CBP) separated dozens of children from parents who had requested asylum at ports of entry—cases that involved no improper entry—following vague guidance and in many instances for reasons that appeared to be inconsistent with CBP policy.
By June 2018, with “zero tolerance” in full swing, forcibly separated parents were arriving in federal court anxious to know when they would see their children again. “All the parents asked about their kids, but the judge said he was not there to handle the children. He was just there to sentence us for the crime of crossing the river,” a 28-year-old Honduran woman told members of a volunteer team of lawyers monitoring compliance with the Flores settlement agreement, which had set minimum standards of care for children in immigration detention.
Most parents later learned that their children had been or were about to be sent to an ORR shelter, but in at least one case, a woman returned from court to learn that her 13-year-old son had been returned to Mexico.
In some cases, parents spent weeks without knowing where their children were; in other cases, they were deported alone with no information about their separated children, who remained in the United States. Some parents said that immigration officials induced them to waive their rights, including to seek asylum, telling them it was the only way, or the fastest way, to be reunited with their children.
Similarly, many of the children interviewed by Human Rights Watch lawyers and others on the Flores monitoring teams said they did not know where their parents were, how long they would be locked up, or what would happen next.
Forcible separation was unquestionably devastating for children and their parents. Health professionals warned at the time that family separation inflicted severe, potentially lifelong psychological harm. Six years later, therapists who work with reunited families confirm that children and parents are still struggling with trauma stemming from their forcible separation.
The forcible family separation policy was rolled out along the US-Mexico border as President Trump described immigrants as “animals” and “rapists” and in other overheated, dehumanizing, and racist terms.
The government officials who developed the forcible family separation policy aimed to separate all families who crossed the US-Mexico border irregularly, or at least as many as possible.
When somebody is deprived of liberty, as all separated parents and children were, and the government then refuses to disclose the whereabouts of the person it has detained to the person’s family, the result is an enforced disappearance, a gross violation of human rights. As discussed in subsequent chapters, forcible family separation also may have met the constituent elements of torture.The Mechanism
The forcible family separation policy deployed minor federal charges to transfer parents from the custody of US Customs and Border Protection (CBP), an agency within DHS, to that of the US Marshals Service, part of the US Department of Justice (DOJ). DHS and DOJ then interpreted a provision of federal anti-trafficking laws to treat their children as unaccompanied—even though DHS had apprehended the family together, would resume custody of parents facing federal charges within a few days, and knew at all times where the parents were.
The first step in this process was a federal criminal charge for improper entry. First-time improper entry is a misdemeanor—a federal magistrate judge described it as “quite literally one of the least serious federal offenses.” These cases are often disposed of in a matter of minutes and usually result in sentences of time already served. Improper entry charges had long been problematic: they were disproportionately pursued against people with no criminal record or whose only convictions were for minor offenses; they effectively criminalized efforts to seek asylum, in violation of international refugee law; and they inappropriately deployed criminal law to regulate migration. Criminalization of irregular entry is inconsistent with international standards.
Nonetheless, Attorney General Jeff Sessions directed federal prosecutors to make improper entry, along with several more serious charges, “higher priorities” in April 2017. DHS officials described these prosecutions as a means of deterring parents and other relatives from bringing or paying to have children brought to the United States. In early April 2018, Sessions instituted a “zero tolerance” policy for improper entry, publicly announcing the policy in a May 2018 speech.
Next, DHS and DOJ employed a strained interpretation of federal law intended to afford specific protections to unaccompanied children. Under federal anti-trafficking legislation and regulations, an “unaccompanied child” is an undocumented child under 18 who has no parent or legal guardian in the United States who is available to provide care and physical custody.
The parents charged with improper entry were still in the United States—they were in a federal courthouse, in many cases just a few miles from the CBP holding cells where their children remained. But at that point they were in the custody of the US Marshals Service, and DHS and DOJ treated this temporary transfer of custody as the basis for stating that charged parents were not “available.” The departments made no allowance for the fact that the parents would be back in DHS custody within days.
Finally, once DHS deemed their children “unaccompanied,” it handed the children off to ORR, the HHS agency responsible for the care of unaccompanied migrant children. ORR placed the children in shelters while it sought longer-term placements with other relatives already in the United States, other “sponsors,” or foster care.
In fact, as established in combination by official memoranda, emails, notes of internal discussions, and interviews by investigative journalists, the “zero tolerance” directive was a policy designed to systematically separate children from migrant parents who entered the United States irregularly.Children in Cages
The children will be taken care of—put into foster care or whatever.
—White House chief of staff John Kelly, in a National Public Radio interview, May 11, 2018
DHS had done no real planning for how it would provide age-appropriate care for the hundreds of children it had abruptly and forcibly separated from their parents. Transfers of children to ORR are not immediate—DHS ordinarily has 72 hours to carry them out and is allowed more time in “exceptional” circumstances. In the meantime, the children were DHS’s responsibility.
CBP holding cells have no recreational areas, no place to run around and play, and no toys or books of any kind. “We’re not set up as a child-care facility,” an official in the Central Processing Center, on Ursula Avenue in McAllen, told Human Rights Watch in June 2018. That was stating the obvious: people held in the Ursula detention center usually called it the perrera, or “dog kennel,” because its rows of caged pens look like they might have been designed to hold animals.
Human Rights Watch lawyers and others taking part in Flores monitoring visits in June 2018 watched as hundreds of unaccompanied children—toddlers, teenagers, and all ages in between—sat in Ursula’s caged pens. Two boys, each about 10 years old, improvised a game with their water bottles, tossing them back and forth. Most of the children huddled under foil blankets for warmth. Some looked bewildered and lost.
The only staff we saw were uniformed guards—a handful assigned to a cluster of cages that each held 20 to 30 children. Their interactions with the children consisted almost entirely of barked commands, either for individual children to come forward or for everybody in a particular area to move to another or to line up for food.
The cages were very cold, as were holding cells in other border detention centers Human Rights Watch visited as part of the monitoring team. In fact, hielera, meaning “freezer,” is the term commonly used by detained children and adults, along with many border agents, to refer to Border Patrol holding cells other than Ursula, which is no less frigid but stood out for its distinctively inhumane cages. “Human heat was not enough to warm the babies,” a 23-year-old Honduran woman told the inspection team.
As in all immigration holding cells, the lights in the Ursula facility were on 24 hours a day and never dimmed, with potentially severe physical and mental health impacts. Children found the experience disorienting: when Human Rights Watch interviewed a 13-year-old boy in the early afternoon, he asked whether the sun had risen yet.
Immigration holding cells have specific rules that children and their parents struggled to understand. Guards sometimes ordered children not to touch each other. All but the youngest children were usually held apart from parents, and men and women are separated, so members of a single family might be placed in three different cells. At Ursula, guards told some women and children they would be “punished” or “deported right now” for looking at each other while they were in different cages.
Too often, border guards casually subjected children and adults to other degrading treatment in these holding cells. Commonly, this took the form of insults or other verbal abuse, but many of the parents and children in Ursula also described waking up to guards kicking them. In one case, guards refused to let an 8-year-old girl shower or rinse out her underwear after she soiled herself, forcing her to remain in that state for several days.
These and other longstanding inadequacies made border cells inappropriate and inhumane places for children. These cells were not designed for overnight stays—nor were they designed to house children, so they did not have beds and often did not have enough mats for everybody. Food typically consisted of microwaved frozen burritos, sometimes only partially thawed, or ham sandwiches, with no attempt to provide food adjusted to the needs and tastes of infants and toddlers. Guards usually confiscated toiletries, medication, and other personal items. Holding cells did not issue toothbrushes or toothpaste, often did not provide soap, and had limited access to showers. Children of all ages spent nights on concrete floors cold, hungry, and dirty, without parents or other caregivers to comfort them. Click to expand Image
Children in the Ursula processing center, McAllen, Texas, June 17, 2018. © 2018 Mil image / Alamy Stock Photo
Guards were not equipped to deal with children. At one point during a June 2018 visit, Michelle Brané, then the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission, interrupted her interview with a teenage girl to break up a squabble between two 5-year-old boys who had begun to sob. The lone guard standing 30 feet away had either failed to notice that two of his charges had been reduced to tears or had not bothered to intervene.
A 17-year-old who was in Ursula at about the same time of the monitoring team’s visit gave a similar account:
It felt like there were a ton of people in the cage with me. My guess is that there were 40 to 50 children in the cage with me. Some of them were teenagers like me. Others were much younger, including children only four and five years old. . . . They did not have their parents with them. There was no one to care for them. The guards did not care that the little kids were crying.
Brané also discovered that a group of teenage girls had been taking turns caring for a young girl in diapers for three days. The teens reported that guards had done nothing more than check off the girl’s name at roll call.
During the same monitoring visit on the same day, a Human Rights Watch lawyer spoke to a 5-year-old boy the lawyer had seen the day before with his mother. Asked about his mother, his face dropped. “I haven’t seen her since yesterday,” he said. “I don’t know where she is.” He had been sitting in a caged area for nearly 24 hours with older children he didn’t know; nobody had told him where his mother was or what would happen to him.
When children realized they were being separated from their parents, many were despondent and anxious. Some were furious—at their parents, whom they blamed for abandoning them.
Pablo Z., deported to Honduras without his 4-year-old son, told Human Rights Watch he could not communicate with the boy for two weeks. “He said he didn’t want to talk to me because he said I left him there,” Pablo said. “When he says this, it makes me cry. I can’t speak. I just want to see him and hug him.”
A 14-year-old Honduran girl said, “I found out my mother will be charged with a crime and I will be sent away to a shelter. I am very sad and afraid. I want to be with my mom. I don’t know what will happen to her.”No Explanations, Outright Lies
I was worried when we weren’t in the same group. Then started putting us into vehicles. When I left and my dad wasn’t with me, they told me not to worry, that he would be coming in a moment. I went in the car and felt very relieved and happy that he would follow. But it wasn’t like that. He didn’t come. I haven’t seen him since then.
—S.C., a 16-year-old Guatemalan boy, Brownsville, Texas, July 13, 2018
CBP agents often did not tell parents they were forcibly taking their children from them. For example, in mid-June 2018, Michelle Brané of the Women’s Refugee Commission was in the middle of an interview with a man and his daughter in a McAllen immigration holding cell when officials started to pull the girl out of the room without explanation; when Brané determined that the officials were separating the family, she prevailed on them to give the two a few minutes to say goodbye. In another such case the same month, a man identified in court documents as F.G. said that guards asked his 17-year-old son to come with them without telling either F.G. or his son that they were being separated. He did not see his son again for more than 50 days.
In many instances, immigration agents simply lied about what they were doing, parents and children said. For example, Jessyca N., from El Salvador, told Human Rights Watch in July 2018, “The agents told us our children would be waiting for us when we returned from court.”
Edwin H., a 45-year-old Honduran man interviewed in July 2018, said, “When they took us to court, they said we would see our kids right afterward. I thought I would come right back and see my son again. When we realized we weren’t going back to where our children were, we all started crying and pleading.”
Héctor G., 28, from El Salvador, spoke to us a month after CBP forcibly separated him from his 6-year-old son on June 12, 2018: “They took me away from my son when we were in the hielera. They said I had to go to court and would see my son right after. I haven’t seen him since.”
Eduardo M., an 11-year-old from Guatemala, told Human Rights Watch:
After two days a guard came and called my name. He said come with him. When I asked why, he said so I could shower in another center. I asked if I could see my father and say goodbye and he said “no” and kept walking. They put me in a van and took me to another detention center.
A month later, Eduardo was in an ORR shelter in Brownsville, Texas, waiting to hear what would happen to him. Eduardo’s account of a border agent lying about taking him to a shower was not unusual. “It depends on who the agent is on that day. They’ll be told, ‘We’re going to separate your kids so they can bathe.’ And that’s not true,’” a public defender told CNN in June 2018. Such reports even reached the US attorney for the Western District of Texas.
In other cases, immigration agents took children from their parents in the middle of the night.Limited or No Contact After Forcible Separation
Many children and parents said they had no contact with each other for weeks after their forcible separation. As one indication of the scale of this issue, ORR Director Scott Lloyd emailed senior DHS officials in June 2018 saying, “We have 790 kids in our shelters who are not able to contact their parents.” Those Human Rights Watch interviewed consistently described this period of uncertainty and dread as anguishing. For example, Erick P., a 15-year-old Guatemalan boy, told Human Rights Watch that after border agents separated him from his father in May 2018:
I didn’t know where my father was for over 20 days. . . . During those 20 days, I did not know if my father was dead or alive, if he was sent back home, or where he was. I was scared and sad. I asked everyone to help me find my father but they told me they could not tell me where he was.
Dozens of children gave similar accounts in sworn declarations filed with the judge overseeing the Flores settlement agreement. In one, a 16-year-old boy from Nicaragua said that he was separated from his mother on June 2, 2018, and had not seen her in six weeks. “After I was separated from my mother, I felt very afraid that I would never see my mother again. I feel terrorized, nervous, anxious and worried,” he told the judge. Another boy, 16 and from Guatemala, said he had no idea where his father was 40 days after they were separated: “I worry about him. . . . I am very sad because I don’t know where my dad is. I don’t know if he is okay.” S.C., a 16-year-old from Guatemala, reported that he was not able to speak to his father for a month after they were separated in May 2018, adding:
I have only spoken with my father a total of 20 minutes in these 45 days, and did not speak with any family at all for one month. I had absolutely no idea what was going on and have been very scared.
Other parents and children also described very limited contact with each other after their forcible separation: often just phone or video calls once a week for 10 minutes at a time. Many went for a week or longer without any word about where their loved ones were or how they were doing. For example, Jenri Q., separated from his father on May 19, 2018, told Human Rights Watch:
It is very stressful to be away from my father. We have been separated for almost two months and I have only spoken to him once. It was so great to talk to him so he could assure me he was okay and I could tell him that I was okay too.
Human Rights Watch heard similar accounts from separated parents.
Edwin H., detained in the Port Isabel immigration detention center in Texas, spoke to his 11-year-old son twice between June 11 and July 16, 2018. “I tried to call the number they gave me maybe five other times, but there was no answer,” he told us.
On July 16, 2018, Aurelio L., a Honduran man who was also detained in Port Isabel, told Human Rights Watch he had spoken to his 10-year-old son only once in the 33 days since they were forcibly separated.
Jessyca N., from El Salvador, told us she was not able to speak to her 9-year-old daughter for six days after they were forcibly separated in McAllen on June 14, 2018.
Héctor G. had no word on his 6-year-old son’s whereabouts or well-being for 20 days, until a guard in the Port Isabel detention center handed him a phone number on a slip of paper, without explanation. “Until then, I had no idea what had happened to him,” he told Human Rights Watch.
“We couldn’t see him on his first birthday,” said Rolando B., who was separated from his son, then 11 months old, and deported to Honduras. “We can only talk to him via video once a week for 20 minutes. It’s so painful.”
Calls from some immigration detention centers cost $5 or more for 10 minutes, an amount detained parents struggled to afford. ORR did not authorize shelters to accept collect calls from detained parents until May 31, 2018, and shelter providers then found that they did not have an easy way to authorize payment for collect calls.
Eduardo M., an 11-year-old from Guatemala, told Human Rights Watch that the cost of calls limited his communication with his father, from whom he had been forcibly separated, and added to the stress he felt:
I can only talk to my dad when he can call from detention but the amount of time we can talk is very short. Sometimes the phone cuts off, I think because he runs out of money to pay for the call. I’m so scared they will deport him and I’ll be here alone.
Until July 13, 2018, DHS required parents to pay for the cost of their children’s transport. Those costs were $1,900 in one case documented by the American Civil Liberties Union.Pressure on Parents to Accept Deportation
Some parents told Human Rights Watch they agreed to deportation because officials told them they would be deported with their child or said they should waive their right to seek asylum in exchange for reunification. Others described being pressured to sign forms they did not understand. As discussed more fully later in this report, such practices violated norms of fundamental fairness, may have denied people the right to seek asylum, and risked refoulement (that is, return to serious harm), among other human rights violations.
In one such case, Edwin H., from Honduras, told Human Rights Watch:
An official gave me the results of my interview . He pointed to a box and told me to mark it and sign the form. I said I wasn’t going to sign it because I didn’t know what I was signing. He got angry. “You have to sign. You don’t want to have your son back?” Under that pressure, I signed. I didn’t understand it because it was all in English.
When Human Rights Watch examined the document he signed, we saw that he had waived the right to see an immigration judge to explain the reasons why he feared returning to Honduras.
In another case, Pablo Z., also from Honduras, told Human Rights Watch he and his 4-year-old son had gone to the port of entry in Brownsville, Texas, on June 11, 2018. He said:
We were held for two days at the bridge. On the first day, the officers there asked me why I came to the United States. I told them I was coming to ask for asylum for me and my son and that I was afraid of returning to my country. I told them that we had both been threatened by a narco-trafficker. They told me to sign some papers, but I didn’t know what they were. They told me that the papers weren’t a deportation, so I signed them.
Pablo told us he never spoke with another official further about his claim of fear before he was deported without his son one week later.
Case workers at ORR shelters heard similar accounts.
Other parents said forcible separation from their children left them unable to focus on their asylum claims, despite officials’ insistence that they continue through adjudication procedures. Jessyca N., from El Salvador, interviewed by Human Rights Watch in a Texas detention center in July 2018, said:
The officials told me I would have to do an interview in the next few weeks. I want to have this interview, but right now all I can think about is how my daughter is and when I’ll see her. It’s not right to make me do that interview now because I can’t focus. I’m just thinking about my daughter.
Similarly, when Ariel P., from Guatemala, had a credible fear interview in an immigration detention center near San Antonio, he had not spoken to his son in more than 20 days and had not been told where his son was. He said the forcible separation and uncertainty left him despondent and affected his ability to concentrate on his interview:
All I could think about was how he was and when I would see him again. Every night when I went to sleep, I would think about where he was sleeping. At every meal, if there was some food I didn’t like, I would wonder if he was eating food he didn’t like. If I didn’t eat and felt hungry, I would wonder if he was also hungry that day. I kept returning to these thoughts, and it was impossible for me to focus on anything else.No Plan to Reunite Children and Parents
The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property.
—Judge Dana Sabraw, issuing a preliminary injunction in Ms. L. v. ICE, June 26, 2018
DHS had neither developed a plan for how to care for separated children while they were in its custody nor alerted ORR in advance of either the 2017 El Paso initiative or the 2018 border-wide separations policy.
In fact, DHS actively misled ORR. When ORR staff asked DHS in November 2017 about the increase they were seeing in the numbers of children reporting that they had crossed the border with a parent, “DHS officials stated that DHS did not have an official policy to separate families.” The separations ORR was identifying were the product of a pilot program in the El Paso area that ran from July to November 2017, an initiative that served as a model for border-wide forcible family separations in 2018.
DHS did not, on its own or with HHS, do any meaningful advance planning to enable families to reunite after parents returned from federal court. “Data systems maintained by Customs and Border Protection and by the Office of Refugee Resettlement did not include a designated field to indicate a child had been separated from a parent,” the Government Accountability Office found. CBP did not send Border Patrol agents guidance on how to document family separations until separations had already begun. DHS did not even begin discussing with HHS how the two departments would share information on family separations until April 2018. When senior DHS officials asked in June 2018 how many parents were reunited with their children after their improper entry convictions, they received the reply: “this is a mess. No tracking at all.”
As a result of this lack of coordination and other failures to prepare for the policy’s implementation, “n June of 2018, no centralized system existed to identify, track, or connect families separated by DHS,” the HHS Office of Inspector General found in a January 2019 review.
After a federal judge ordered the US government to identify and reunite separated families, a government attorney admitted, “I can't say today that there is a formalized process” for communication among DHS, DOJ, and HHS on separated families. The judge eventually found:
Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months. Some parents were deported at separate times and from different locations than their children. Migrant families that lawfully entered the United States at a port of entry seeking asylum were separated. And families that were separated due to entering the United States illegally between ports of entry have not been reunited following the parent’s completion of criminal proceedings and return to immigration detention.
“As of March 2019,” the DHS Office of Inspector General found, a joint ICE-HHS working group that had been created in June 2018 “still did not have a formal reunification plan in place.”
Well before the El Paso pilot, nongovernmental organizations had already been warning of “the government’s lack of consistent mechanisms for identifying and tracking family members,” including children it separated from their parents. These problems were apparent once the El Paso initiative was underway:
This poor family reunification planning mirrored what occurred during the 2017 El Paso initiative. In a July 2017 draft memo, El Paso Sector management acknowledged concerns from local judges that Border Patrol, ERO , and ORR needed a coordinated reunification plan for rejoining and repatriating families. However, they never developed a plan and children separated under the El Paso initiative could have remained separated from their parents for long periods.
By mid-2017, ORR had begun seeing a significant increase in the number of children who reported that CBP had separated them from their parents. It tracked such cases, but its processes for doing so were informal; there was no integrated system between HHS and DHS for identifying and tracking separated families.
After April 2018, some CBP agents also added codes or notes to records in an attempt to link adults and children who, following their separation, had individual electronic records, they told Human Rights Watch and other members of the Flores monitoring team in June 2018. Describing these methods, the DHS Office of Inspector General wrote, “Border Patrol agents used ad hoc workarounds to capture the reasons for family separations.” The inspector general’s report continued:
The downstream effect of ad hoc typing in case notes became apparent when CBP headquarters began efforts to identify separated families needing reunification after the policy ended in June 2018. To locate and reunify family members, Border Patrol headquarters personnel had to review all separations coded as “Criminal History” or “Other Reasons” in the system, as well as all the accompanying case notes. This process was neither easy nor accurate.
As a result, government agencies struggled to identify all separated children and match them with their parents. In January 2019, the HHS Office of Inspector General reported, “The total number and current status of all children separated from their parents or guardians by DHS and referred to ORR’s care is unknown.” For its part, as of November 2019, the DHS Office of Inspector General still “could not confirm the total number of families DHS separated during the Zero Tolerance period.”A Context of Racist Rhetoric
The senior government officials who developed and implemented the forcible family separation policy did so in a context of overheated, dehumanizing, and racist official rhetoric. Donald J. Trump had referred to Mexican migrants as “rapists” and “bringing drugs” when he announced his campaign for the presidency in June 2015, and he brought up those remarks again in April 2018. In a closed-door meeting in January 2018, he questioned why the United States would want to admit people from Haiti and “shithole countries” in Africa. In May 2018, he described immigrants as “animals,” later saying that he meant only MS-13 gang members. As criticism of the forcible family separation policy mounted in June 2018, he equated Latin American migrants with gang members, saying that they “pour into and infest our Country.” And at the end of 2018, he suggested that migrant caravans were filled with “tough people” who have “injured” and “attacked,” saying, “Some people call it an invasion.”
President Trump continued to describe migrants as security risks in 2019 and throughout his time in office. Assessing the claims he made in a January 2019 speech in McAllen, Texas, Houston Chronicle reporter Lomi Kriel wrote, “he crisis he has repeatedly tried to portray — dangerous migrants pouring across the border, bringing massive drugs and crime— does not exist.”
II. Official Denials and Misleading Messaging
It’s strange to behold Trump distancing himself from the zero-tolerance policy (“the Democrats gave us that law”) while Nielsen claims it doesn’t exist (“it’s not a policy”) and Sessions defends it in speech after speech.
—Salvador Rizzo, “The Facts About Trump’s Policy of Separating Families at the Border,” Washington Post, June 19, 2018
Reporters increasingly sought comment from the government in April 2018 and the months that followed on whether it was separating children from their parents and, if so, why. In response, officials offered a combination of denial, deflection, and dismissal of the impact of their policy choices. Notably, Attorney General Jeff Sessions and Kirstjen Nielsen, who had become secretary of homeland security in December 2017, appeared at times to contradict each other—and in Nielsen’s case, herself. Overall, the government’s approach to media inquiries and widespread criticism was to offer a variety of responses in turn, seemingly testing what would placate the public.
The government’s public statements were in many cases deliberately deceptive. In combination, they also reveal that officials sought to cover up what they were doing.
Nielsen advanced the most categorical of the denials. In mid-May 2018, she told the Senate Homeland Security and Government Affairs Committee, “We do not have a policy to separate children from their parents. Our policy is, if you break the law we will prosecute you.” The following month, she posted on Twitter (now X), “We do not have a policy of separating families at the border. Period.”
But the department she headed had already been qualifying its denials for several months. As an ACLU complaint on behalf of a woman and her daughter—the Ms. L case—was beginning to draw media notice, Chad Wolf, then Nielsen’s chief of staff, emailed Nielsen on March 4 to advise her, “We're receiving a number of press inquiries regarding an asylum seeking Congolese woman and her child who have been separated and are currently in detention facilities in the U.S.” Wolf told Nielsen that DHS was replying to the media with a statement that began:
DHS does not currently have a policy of separating women and children. However, we retain the authority to do so in certain circumstances—particularly to protect a child from potential smuggling and trafficking activities.
In April, James W. McCament, the deputy undersecretary of the Office of Strategy, Policy, and Plans at DHS, repeated this line, telling a Congressional committee, “We do not currently have a policy of separating women and children.” Also that month, DHS told Caitlin Dickerson, a journalist then with the New York Times, that the department did not separate families at the border for deterrence purposes.
And in May, the government included the following carefully worded statement in a court brief:
ICE has no family separation policy for ulterior law enforcement purposes, and considers each case on the facts available at the time a placement decision must be made. In addition, such a policy would be antithetical to the child welfare values of ORR, which is not a law enforcement agency.
Even at the time, these qualified denials were telling: saying DHS did not “currently” have a policy, that separation was not “for deterrence purposes,” and that there was no policy “for ulterior law enforcement purposes” did not deny that there was a planned border-wide family separation policy for other purposes.
By early April, internal communications among senior DHS staff were focused on justifying family separation rather than disavowing it. In advance of Nielsen’s April testimony at a congressional hearing, her chief of staff sent an internal email with the subject line “Messaging on FAMU Separation”:
In preparation for S1’s hearing next week, I want to develop a good narrative (supported by facts and cases) on the separating issue.
“Human smuggling” and “human trafficking,” both suggested by Wolf in early March, were two of the three narratives DHS landed on in response to the April messaging email. (The other was “unclear family relationship.”) In late April, after the leak of a DHS draft family separation memo, DHS spokesperson Katie Waldman told reporters:
DHS does not have a policy of separating families at the border for deterrence purposes. DHS does, however, have a legal obligation to protect the best interests of the child whether that be from human smugglings, drug traffickers, or nefarious actors who knowingly break our immigration laws and put minor children at risk.
Notwithstanding Wolf’s request prior to the April hearing for “support by facts and cases,” the internal emails make clear that DHS developed this messaging in the hope that facts would follow: just before Nielsen’s congressional testimony on April 26, staffers were still being asked for supporting “case examples” for these narratives. At an earlier hearing on April 11, Nielsen’s response to a question about family separation began, “When we separate, we separate because the law tells us to” and went on to refer generically to “instances where traffickers have used children to cross the border and gain illegal entry” without describing specific cases.
Nielsen’s reply at the April 11 hearing and the March line for media response misleadingly implied that the government separated families only in exceptional cases. But DHS had separated at least 700 children, and likely many more, from their parents in the previous six months.
As with attempts to deny the existence of the policy, the implication that family separation was rare was quickly disproven and served only to suggest that the US government was careless, deceitful, or both. When Dickerson, the New York Times journalist, asked HHS in April for official comment on the estimate of more than 700 separated children, shared with her by an ORR source, HHS initially claimed that the numbers did not come from ORR. Dickerson’s blistering response prompted a flurry of emails among half a dozen officials, including the ORR director, until one contacted a field supervisor who informed them that ORR had in fact been keeping statistics on separations and that by mid-April, the agency’s estimate had increased to more than 800 children separated by DHS since October 2017.
HHS ultimately responded to Dickerson with the anodyne comment, “When UAC are referred to ORR, ORR is not routinely informed about how or when the UAC became separated from their parent(s) or the whereabouts of the parents.” The response continued:
For safety and other reasons children can be separated, by DHS, from their parents and referred to ORR. In some cases, after arriving in ORR care, UAC will disclose that they have been separated from their parent(s). In other cases, parents, attorneys and other relatives will also contact ORR looking for separated children. Since October 2017, ORR has collaborated with DHS in approximately 700 cases to locate parent(s) in DHS custody.
This and similar responses were by that point transparent attempts to avoid acknowledgement that the forcible family separation policy was different in kind and degree than previous instances of family separation at the border. In a message that was typical of the media inquiries DHS and HHS received in early March after the ACLU sued on behalf of Ms. L and her child, a Washington Post editorial writer asked:
Could you please shed light on why it isn’t possible to detain them together? And is it now the policy of DHS to detain asylum-seeking parents and children separately? If so, is this meant as a deterrent for future asylum seekers? Or for another reason?
Nonetheless, DHS continued such attempts at deflection long after litigation and leaks had begun to establish the true scope of the forcible family separation policy. In late July, as one example, Secretary Nielsen wrote to DHS staff:
For years—and under previous Administrations—adults and children have been separated at our borders in cases where DHS is unable to determine there is a custodial relationship, when DHS determines that an adult may pose a risk to the child, or when an adult is charged with a crime and transferred to a criminal detention setting.
Perhaps in recognition of the reality that denial and dissembling were ineffective, by May, DHS and HHS leadership had largely pivoted to talking points that attempted to justify family separation as a necessary and logical consequence of the rule of law. This approach brought DHS and HHS closer to the line Sessions was taking, as exemplified in a May 7 speech in which he stated, “We need legality and integrity in the system.” In late May, DHS deputy press assistant Katie Waldman suggested this public response:
Families with children that enter into the United States illegally will be separated when the parent is transferred to federal criminal custody. If parents do not wish to be separated from their children, they should not break the law.
An HHS fact sheet developed at the same time with Waldman’s input contained similar wording. Earlier in the month, President Trump had already taken up this line and added to it by claiming, untruthfully, that lawmakers from the opposing party were to blame: “We have to break up families. The Democrats gave us that law. It’s a horrible thing. We have to break up families.”
By mid-June, administration officials were frequently relying on variations on the rule-of-law line. Speaking to a group of law enforcement officers on June 18, Nielsen declared, “We will not apologize for the job we do.” Four days earlier, responding to reporters’ questions about why the government was separating families, White House press secretary Sarah Huckabee Sanders claimed, “Because it’s the law, and that’s what the law states.” The Border Patrol issued a five-paragraph statement elaborating on this theme. Sessions even quoted a New Testament verse in defense of family separation, saying, “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for the purpose of order.”
The government also promoted President Trump’s false claim that his administration was not responsible for family separation. For instance, a June 18 White House Twitter post claimed, “This Administration did not create a policy of separating families at the border.” Similarly, a June 22 message from Nielsen to DHS staff included the line, “Congress must change the law to provide a lasting solution to family separation.” In fact, the law Sanders, Trump, and presumably Nielsen were referring to, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, did not require family separation.
For his part, Sessions relied frequently on the anti-smuggling narrative as a justification for family separation. On June 7, he said, “I hope that we don’t have to separate any more children from any more adults. But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children.” On June 18, he included the following line in a speech to a conference of sheriffs: “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”
Nielsen reiterated this anti-smuggling justification in her own remarks at the June 18 sheriffs’ conference, saying that DHS had seen “a staggering 315 percent increase in illegal aliens fraudulently using children to pose as family units to gain entry into the country.” This statement, perhaps the clearest articulation of the anti-smuggling rationale DHS had been advancing since March, is revealing: the statistic was technically accurate, but Nielsen did not specify that the total number of fraudulent cases was under 200, amounting to less than 1 percent of families apprehended at the US-Mexico border.
Nielsen’s defense of family separation in June was notable in another respect: while most senior officials and departmental spokespeople appeared to shift from one justification to another over time, she attempted to keep all options on the table. In a 20-minute press briefing in June, she alternately stated that family separation was a “long-existing policy,” that separation took place when “we cannot determine a familial or custodial relationship exists” or “if the adult is suspected of human trafficking,” and that family separation was “not a policy.”
III. Widespread Separations Continued into 2019
A Border Patrol agent came in our room with a two-year-old boy and asked us, “Who wants to take care of this little boy?”
—A 15-year-old girl held in the Clint Border Patrol Station, Clint, Texas, June 19, 2019
After images of children in cages, leaked recordings of border agents mocking crying children, and other news of the extent and impact of the administration’s policy prompted public outcry, President Trump signed an executive order on June 20, 2018, that he said ended family separation. Six days later, a federal judge halted systemic family separations and directed the government to reunite separated children and their parents.
President Trump’s executive order was not, however, a definitive directive to cease all family separation: it opened with the statement that the US government would continue to prosecute all instances of improper entry, the vehicle that the administration had used to separate parents from their children. The new policy it announced, family detention in the name of family unity, had foreseeable legal problems. (The order also falsely blamed Congress and the federal courts for the policy Trump’s administration had developed and implemented, continuing the narrative he had started to promote a month earlier.)
The judge’s orders, in turn, had significant caveats that gave the government broad latitude to continue separating families. Crucially, parents who DHS determined had a criminal history of any kind, even for minor offenses that had no bearing on their ability as caregivers, were not covered by the order. Nor were adult relatives other than parents, meaning that DHS could continue to separate children from their grandparents, aunts and uncles, and adult siblings.
Prior administrations had separated families on these grounds, and the Biden administration has continued to do so. But parent-child separations were rare before 2017. Under Trump, the US government made aggressive use of these grounds, particularly after the June 20 executive order. Between July 2018 and December 2019, the US government separated 1,150 children from their parents, HHS reports.
As with earlier forcible family separations, many of those that took place after June 2018 resulted in enforced disappearance and may have amounted to other forms of torture.
The continued use of forcible family separation led to other human rights violations. As a Flores monitoring team found in July 2019, separated children were held in immigration detention far longer than the regular 72-hour limit set by law—and in overcrowded, squalid conditions.
In fact, there is a direct line from the forcible family separation policy to President Trump’s alternative policy of family detention to other serious violations of migrant children’s rights in 2019. By normalizing neglect and abuse, the policy and the executive order enabled the prolonged mass detention of children in tents in the desert, a converted Walmart, a repurposed military base, and a border station so overcrowded that some children slept on a loading dock. The Trump administration only retreated from forcible separations in significant numbers as it developed and deployed alternative abusive means of migration management. These alternatives notably included its “Remain in Mexico” program and, after the Covid-19 pandemic, summary expulsions with no pretence of due process.Continued Forcible Separation of Children from Their Parents
“The immigration agents separated me from my father right away,” a 5-year-old Honduran boy held in the Clint border station in Texas told lawyers in June 2019. “I was very frightened and scared. I cried. I have not seen my father again.” The boy did not know how long he had been separated from his father. “I am frightened, scared, and sad.”
In another such case, a 17-year-old boy said he had been separated from his mother in early June 2019 immediately after entering the United States:
We presented ourselves to border patrol agents, who then separated us. They refused to explain why they were doing so. Since that moment, I have not known where my mother is. I have not known if my mother was in the United States or elsewhere, or even if she was alive. I have been extremely worried about her.
Forcible separations dropped sharply the month after the federal court’s order, from 1,510 in May and 991 in June to 11 in July 2018. As the table below illustrates, however, DHS continued to forcibly separate children from their parents in significant numbers through the end of 2019, particularly between November 2018 (52 forcible separations) through August 2019 (49 forcible separations). DHS forcibly separated more than 100 children each month from March through June 2019, and nearly 100 in July 2019. Click to expand Image
The June 2018 court order barred DHS from separating children from their parents “absent a determination that the parent is unfit or presents a danger to the child.” DHS interpreted the order to permit family separation because of health issues requiring hospitalization of either the parent or the child, danger to the child, concerns that the adult might not be the child’s parent, or because of a parent’s criminal history. In July 2019, for example, the first month for which a detailed breakdown is available, DHS separated 48 children from their parents because of “parent criminal history and immigration history,” 18 for “parent criminal history,” 5 for “parent cartel/gang affiliation and immigration history,” and 3 for “parent cartel/gang affiliation.” No children were separated from parents that month because of “parent fitness/child danger concerns” or because the family relationship could not be verified.
Separation was triggered in some cases by minor, nonviolent offenses by the parent, for instance, a 20-year-old nonviolent robbery conviction in one case and possession of a small amount of marijuana in another, analysis by the New York Times found. Most of these cases did not list detailed reasons for the separation. But as an HHS assistant inspector general told a House subcommittee hearing, “from a child welfare perspective, not all criminal history rises to a level that would imperil a child’s safety or preclude release back to their parents.”Children Taken from Grandmothers, Aunts, and Uncles
Before and since the forcible family separation policy, CBP has regularly separated children from adult relatives who are not parents. The US government has never disclosed how many children it separates from these relatives, but Human Rights Watch identified many such cases in 2019 in our own interviews and the declarations we reviewed.
In one of these cases, an 8-year-old Honduran boy detained along with his 6-year-old sister in the Clint Border Station in Texas said, “They took us away from our grandmother and now we are all alone.” He did not know precisely how long they had been apart from their grandmother, saying only, “We have been here for a long time.”
In another, a 12-year-old girl who traveled to the United States with her grandmother and 8- and 4-year-old sisters said that border agents woke them up at 3 a.m. :
he officers told us that our grandmother would be taken away. My grandmother tried to show the officers a paper signed by my parents saying that my grandmother had been entrusted to take care of us. The officers rejected the paperwork saying that it had to be signed by a judge. Then the officers took my dear grandmother away. We have not seen her since that moment. . . . Thinking about this makes me cry at times. . . . My sisters are still upset because they love her so much and want to be with her.
Similarly, an 11-year-old boy who traveled to the United States with his 3-year-old brother and their 18-year-old uncle to escape gang violence in Honduras said that border agents separated him and his brother from their uncle when they were apprehended, saying, “I don’t know where they sent my uncle. We were not allowed to say goodbye to each other.” And a 12-year-old Guatemalan girl said that border agents separated her from her aunt and cousin when the three entered the United States at the beginning of June 2019.
In many of these cases, border agents separated children from relatives who were raising them. For instance, an 8-year-old told lawyers he had been separated from his aunt, who had been taking care of him back home in Guatemala. “I cried and they did not tell me where I was going,” he said.Siblings Forced Apart
Similarly, US border agents regularly separate children travelling with adult siblings, a practice that began long before the forcible family separation policy. In one such case, a 14-year-old Guatemalan girl said that immediately after she and her 18-year-old sister crossed the river to enter the United States, border agents “lined us up and checked our skin and our hair. . . . That is when they took my sister away from me and now I am very worried about her. I don’t know where she is or if she is ok.”
A Salvadoran girl, 15, said that she and her younger brother, age 11, were separated from their 19-year-old brother. Similarly, two 11-year-old Salvadoran twin girls were separated from their 19-year-old sister and her 3-year-old son. In their case, the separation meant that they had not been able to call their parents, who lived in New Jersey, during the 13 days they had been in Clint:
When they separated us from my sister, we lost contact with my family. My sister had a paper with my parents’ address and phone number on it, and she also has that information memorized. I don’t know my parents’ number. I have asked the guards here twice if they can ask my sister for my parents’ phone number.Detention in Inhuman Conditions
There are about 50 kids in and 8 or 10 beds. There are no workers inside to take care of us so the kids try to take care of one another. When the workers come to clean our room, we get to go out in the hallway. We have only been outside twice.
We sleep on a mat on the floor. There are about 10 kids who sleep on our mat. There is another mat, too. Some children sleep directly on the floor. It is tile. We shared our mat with a teenage mom and her baby, but she left so now one of the kids who has been sleeping on the floor can now sleep on the mat with us.
My brother and I have had one shower since we came here, but they have not called for any showers yet. We have only brushed our teeth once. We take a shower in a big truck with three showers inside.
The toilet is inside of the room where we sleep. There is no separate room, just two stalls with no doors. The older girls try to cover themselves with a blanket so we don’t see them when they go to the bathroom. The bunkbeds are right in front of the toilet stalls and so the people from the top bunks can see the kids going to the bathroom, but they try to look away to give the person on the toilet privacy and the person using the toilet usually tries to cover themselves.
Nobody takes care of us here. I try to take care of my little brother and sister since no one will take care of them. There are little kids here who have no one to take care of them, not even a big brother or sister. Some kids are only two or three years old and they have no one to take care of them.
—an 11-year-old boy from Ecuador, describing the conditions he and his siblings faced during more than two weeks in the Clint Border Patrol Station, Clint, Texas, June 18, 2019
More than 350 children, some as young as 5 months old, were being warehoused in a packed border station in Clint, Texas, about 30 minutes southeast of El Paso, when a Flores monitoring team visited the facility in June 2019. (Three Human Rights Watch lawyers were part of the monitoring team.) Some had traveled to the United States on their own; others had been separated from parents, older siblings, or other relatives upon apprehension.
Most had been in the Clint border station for weeks. When the monitoring team asked Border Patrol agents why so many children had been held in Clint far in excess of the 72-hour time limit for most transfers to Office of Refugee Resettlement (ORR) shelters, border agents replied that ORR shelters were at capacity as an ongoing consequence of the 2018 forcible separations.
The children the team saw were visibly dirty. In an account that was typical of those the team heard, one boy said he had been in the Clint border station for 11 days without being able to shower or change his clothes. Some children had matted hair, faces streaked with dirt, or clothing spattered with mud or vomit. When children did get access to showers, they were given three minutes to wash. “The stench of the children’s dirty clothing was so strong it spread to the agents’ own clothing—people in town would scrunch their noses when they left work,” the New York Times later heard.
Cinder-block cells held twice their capacity, a fact that children could readily see by comparing their numbers with the posted signs. Older boys were in a section of a loading area where staff had set up a row of triple-stacked bunk beds, they told the monitoring team. A 12-year-old Guatemalan boy said that in the 17 days he had been in the Clint station, his cellblock had held as many as 70 boys ranging in age from 3 to 17. Girls described cells so packed that many had to sleep on the concrete floor. Many children said they were not getting enough to eat.
In response to outbreaks of influenza, chickenpox, and scabies, border agents had begun to use some cells to quarantine sick children, meaning that the remaining areas were even more overcrowded.
Many children remained in these conditions for well over the 72 hours federal law ordinarily gives DHS to transfer unaccompanied children to ORR shelters. Another boy said he had been in Clint for 19 days; a third boy said he had been there for more than 14 days. Another 12-year-old, held together with his 4-year-old brother, had been in Clint for 13 days.
Children repeatedly told the monitoring team that they were left on their own, with nobody to care for them. In another such account, a 16-year-old girl, her 14-year-old brother, and their 16-year-old cousin reported:
There are very young children who are here all by themselves for many days. In the cell for boys, there is a four-year-old and his brother who is maybe seven or eight years old. They have been here for about 13 days. They do not have anyone to care for them. In the cell for girls, there are girls as young as three and four years old who do not have anyone to care for them.
A 15-year-old Salvadoran girl who was taking care of a 2-year-old boy at Border Patrol’s request described how guards punished everybody in her cell after one of them lost a comb:
Today a nurse got mad at us because a comb is missing. Two girls asked to use a comb, but only one was returned. We are not allowed to keep combs, so they came in and took out all of the beds and all of the blankets in order to punish us. Now we will have to sleep on the floor.
Other girls corroborated her account.
The same week the monitoring team was in Flint, a government lawyer argued in federal court that the legal requirement to hold children in “safe and sanitary” conditions did not include access to medicine, blankets, toothbrushes and toothpaste, or soap. One of the three judges at the hearing asked if she was serious. As awareness grew of the conditions children faced in CBP holding cells, Vice President Mike Pence faced questions about the position the government had taken at the court hearing. He confirmed that these items were “of course” basic necessities for children.
Conditions in Clint may have been even worse in the two months prior to the monitoring team’s June visit. In April and May, more than 700 children were held in the Clint border station, analysis by the New York Times and the El Paso Times found—twice as many children as there were during the team’s visit. Until about June, the station also held families in a warehouse.
Clint was not an aberration. Flores monitoring teams who went to CBP detention centers in the Rio Grande Valley earlier in June found substantially similar conditions. The reports they collected matched the findings of DHS inspectors from the same month, who observed dangerous levels of overcrowding in CBP detention facilities in the Rio Grande Valley; some cells were standing-room only. Children and adults had no access to showers. More than 800 children had been in the cells for more than 72 hours; 165 had been held for more than a week.
Nearly 30 incident reports obtained by NBC News documented alleged abuse, sexual assault, and mistreatment of detained children in Yuma, Arizona, between April and June 2019. In one of these reports, a 15-year-old Honduran girl said a male CBP agent put his hands inside her bra, pulled down her underwear, and groped her. In another, a 16-year-old Guatemalan boy said CBP agents pulled sleeping mats out of their cell in retaliation for complaints, an allegation of collective punishment that matched reports that the Flores monitoring team heard in Clint.
At least six children died while in or shortly after release from CBP custody between September 2018 and May 2019. One of these children, a 7-year-old girl held with her father, died in December 2018 from septic shock that “cascaded into multiple organ failure” after inadequate health screening by CBP and a four-hour delay in providing medical attention after her father requested it. In another case, a 16-year-old boy died after border agents placed him in a quarantine cell and then failed to check on him for at least four-and-a-half hours.
IV. The Serious, Long-Lasting Trauma of Forcible Separation
There may be nothing more frightening for a vulnerable child than to be forcibly separated from their parent. Even this short-term separation will have lasting impact on their physical and emotional well-being.
Separation of children from their parents threatens the parent-child relationship, especially if the child believes that the parent should have been capable of preventing the separation and thus any imagined or real subsequent injury. In a child's mind, a parent is supposed to protect them from evil and dangers. When the parent or primary caregiver is seen as impotent in a dangerous situation, this threatens their trust in that caregiver and will be difficult to restore.
—Dr. Marsha Griffin, a professor of pediatrics with extensive experience of providing clinical care to migrant children in the Rio Grande Valley, in a declaration filed in the Ms. L case, March 3, 2018
Children said everything about their forcible separation from their parents was profoundly distressing. Many had never been apart from their parents before.
For instance, a 15-year-old Guatemalan boy told Human Rights Watch in March 2019 that he felt “really desperate and heartbroken and worried” when he was forcibly separated from his father after border agents apprehended them six months earlier. He described the two months he had been apart from his father:
It is really difficult to be apart from my dad. I don’t know when I will be able to see him, and it makes me really sad. Because I am thinking about my dad and being apart from him, I have difficulty concentrating in class. It’s hard for me to pay attention to what I should be doing. I feel anxious and worried a lot. There are days I don’t have any appetite. I never had a problem eating before, and I think if I weren’t so sad about being apart from my dad I wouldn’t have a problem with eating now. . . . When I start thinking about what happened, I feel sad and I start to cry. This never happened before. . . . This is new. It’s caused by the stress I’m under now.
After they were reunited, parents told Human Rights their children had developed nightmares or mood swings. Some had mostly stopped talking; others blamed their parents for what had happened to them. Younger children became inconsolable if they were briefly out of sight of parents. Eight- and nine-year-olds had begun to wet their beds in the time they were separated. “When I met with one of the original families in the lawsuit after their reunification,” Lee Gelernt of the ACLU wrote, “the mother told me that her four-year-old was still asking her, two months later, whether anyone was going to come in the night and take him away.”
ORR staff recorded trauma reported by separated children in “significant incident” reports and other forms documenting children’s circumstances. For instance:
A 5-year-old boy from Guatemala who had been separated from his mother “was tearful when he arrived, and would not speak or engage in conversation with anyone.”
A 12-year-old Salvadoran boy “reported feeling sad for being separated from his mother and not knowing anything about her.”
A 12-year-old Guatemalan boy reported that he developed suicide ideation while in detention after his forcible separation from his aunt and 6-year-old cousin.
In some of these reports, as in the case of a 9-year-old Salvadoran girl’s forcible separation from her mother, ORR staff record the incident as “abuse in DHS custody.”
These accounts are consistent with research findings that family separation causes severe and long-lasting harm. As Dr. Martin H. Teicher, a psychiatrist at Harvard Medical School, observed:
Forcibly removing a child from their parents is one of the most profound traumas a child can experience, since it undermines a pivotal foundation they require for self-regulation and resilience. Similarly, having your children forcibly taken, not knowing where they are, and not being allowed to contact them, is many parents’ worst nightmare.
Dr. Teicher and other researchers have found that separation from a parent or other caregiver is inherently stressful, particularly for young children. Dr. Colleen Kraft, then the president of the American Academy of Pediatrics, noted:
ighly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health. This type of prolonged exposure to serious stress – known as toxic stress – can carry lifelong consequences for children.
Dr. Reshem Agarwal and Dr. Marsha Griffin, both pediatricians, explained, “This kind of stress makes children susceptible to acute and chronic conditions such as extreme anxiety, depression, post-traumatic stress disorder, hypertension and heart disease.”
Migrant children who have been forcibly separated from their parents demonstrate greater emotional and behavioral difficulties than children who have never been separated, suggesting that “separation is associated with an increase in psychological distress.” As a 2020 study found, even short periods of separation are traumatic for children:
hose who had been forcibly separated for shorter periods of time had similar rates of distress to those with longer duration of separation. This suggests that, regardless of how long a child is kept from their parent, the act of being separated may be particularly traumatic.
Separation also took a toll on parents. Parents repeatedly told Al Otro Lado, a legal services organization based in Tijuana, that forced separation from their children was “the worst thing they had ever experienced” and reported “continued disturbances in sleep, nightmares, loss of appetite, loss of interest, fear for the future, constant worry, hopelessness, and loss of the ability to concentrate.” In May 2018, a man killed himself after CBP agents forcibly separated him from his children.
Separated children spent days, weeks, or even months in immigration detention before US officials reunited them with their parents, allowed them to live with other relatives, or arranged foster placements. Such periods of immigration detention are an additional source of trauma. In fact, research has found that children find even brief periods of detention acutely stressful, with consequences that can persist months after release.
Mayra S., a 29-year-old woman from Mexico who was not separated from her children, told a Flores monitoring team how detention had affected her 9-year-old:
My son is badly traumatized. He has been wetting his bed and is fearful all the time. He saw someone bound with chains and asked me whether I would be chained in the same way. He also overheard a woman say that she had been separated from her children, and asked me whether we would be separated as well. He wonders when we will get to the United States. I do not tell him that we are already here. He wouldn’t believe that the United States would treat us this way.
The known harms to children of immigration detention are serious enough that the American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics, and the American College of Physicians have opposed immigration detention of families with children.
The forcible separation of children from their parents at the border was different in kind and degree from other contexts in which children are separated from their parents, including the separation of families that results from a parent’s incarceration or deportation. As with Mayra’s 9-year-old son, many had arrived in the United States in the belief that they would find protection. Other than the minor offense of irregular entry, they had not committed a crime. Many arriving parents and children were asylum seekers, who should not be penalized for improper entry. More generally, the criminalization of irregular entry does not prevent or resolve irregular status and, under international human rights standards, exceeds governments’ legitimate interests in regulating migration. Border agents frequently lied to children and their parents about what was happening. In many cases, children did not know for days or weeks where their parents were, and vice versa. Once they did, they had very limited opportunity to communicate. Separated children often faced prolonged periods of immigration detention—including, as in Clint, in overcrowded and otherwise abusive conditions—before they were transferred to ORR facilities.
Dr. Jack P. Shonkoff, a professor of pediatrics at Harvard Medical School, told Isaac Chotiner of the New Yorker:
From the perspective of what we know about children’s health and well-being, what we know about trauma, abrupt separation is one area where we have a lot of research and a lot of evidence about its consequences. But prolonged institutionalization is a separate area in which we have an equally deep research base and knowledge about how damaging that kind of setting is for kids. We are dealing with two very well-studied, serious assaults on the health and well-being of children.
V. Efforts to Reunite Families
Numerous lawsuits challenged the 2017 and 2018 forcible family separations. Several of these were incorporated into a suit brought by the American Civil Liberties Union (ACLU), known as the Ms. L case. That litigation had immediate impact, including an injunction against systematic separations of parents and children in June 2018 and subsequent orders to locate and reunite many separated children with their families. Another case, J.P. v. Sessions, ordered the government to provide mental health treatment for parents and children who had been separated.
These efforts were still ongoing when President Joe Biden took office in 2021. That February, less than two weeks after his inauguration, President Biden established a task force to reunite the families separated by the US government during the Trump administration.
More than six years after the court ordered reunification of families, more than 1,300 of more than 4,600 children separated during the Trump administration remain unaccounted for.The Struggle to Identify Separated Children
The US government’s failure to identify and prepare for the consequences of the forcible family separation policy, as described earlier in this report, meant that ORR scrambled to identify all separated children.
DHS had not consistently flagged for ORR which children it had separated. In fact, DHS maintained a “large number of data sets from the numerous information systems maintained by its various components, sectors, and offices . . . . that were neither de-conflicted nor integrated,” ORR found when it began to work with DHS in response to a court order.
Moreover, HHS recordkeeping systems were “not originally designed for aggregated tracking of separated children in ORR care,” Jonathan White, former ORR deputy director, told the court; instead, it was created to manage individual children’s care plans. As a result, “when the Ms. L. Court issued its orders on June 26, 2018, there was not an aggregated list of the children who had been separated by DHS and were then in ORR care.”
By August 2021, six months after President Biden ordered the establishment of the Interagency Task Force on the Reunification of Families, it had identified more than 3,900 children whom DHS separated from their parents at the border between July 2017 and January 2021. At that point, 2,073 children had been reunified with their parents either as the result of litigation or the task force’s efforts. These numbers increased as the task force continued its work.
Locating parents who had been deported was particularly challenging. Representatives of Justice in Motion, the nongovernmental organization that led many of these efforts, obtained and reviewed parents’ birth records and then sent representatives who spoke Indigenous languages to their places of birth to try to locate them. An August 2018 update to the court reported that nearly two months of “hese efforts have reached six parents and will continue . . . .”
In 2022, nongovernmental organizations working with the task force and the Ms. L Steering Committee were still contacting families outside the United States. The task force estimated that it took 20 hours per family to make contact and register them. When Justice in Motion’s government contract ended at the end of April 2023, it continued its searches outside the United States using private funds.
Other factors impeded swift reunification. New background check requirements that ORR implemented in June 2018 required fingerprints from parents and all adults living in the household. Lengthy home studies also delayed the process until the court ordered the government to adopt a streamlined process.
As of March 20, 2024, the task force reported that 4,656 children had been separated during the Trump administration. Of that total, it had identified 3,225 children who had reunited with their parents—many as an outcome of the Ms. L litigation, others as the result of the task force’s efforts, and some thanks to their families’ or their own efforts. Another 71 children were in the process of being reunited with their parents. Some 1,360 children were still “without confirmed reunifications,” including 648 for whom the task force had no contact information.
The table below shows the number of children identified as having been separated along with the cumulative number of children reunified with their families by the dates given.Reunification Progress
Date
Number of Children Identified as Separated
Number of Children Reunited with Parents
2018
July 12, 2018
81*
58
July 18, 2018
2,551
364
July 19, 2018
2,654
364
August 1, 2018
2,654
1,535
August 9, 2018
2,654
1,569
August 16, 2018
2,654
1,616
August 23, 2018
2,654
1,923
September 24, 2018
2,654
2,025
October 9, 2018
2,654
2,070
October 23, 2018
2,668
2,104
November 6, 2018
2,667
2,115
November 27, 2018
2,667
2,125
December 11, 2018
2,816
2,131
2019
February 1, 2019
2,816
2,155
February 13, 2019
2,816
2,155
March 4, 2019
2,816
2,155
March 25, 2019
2,816
2,159
April 11, 2019
2,814
2,162
May 6, 2019
2,814
2,166
June 4, 2019
2,814
2,167
July 7, 2019
2,814
2,167
August 13, 2019
2,814
2,167
September 6, 2019
2,814
2,168
October 9, 2019
2,814
2,168
November 4, 2019
2,814
2,168
2020
January 13, 2020
2,815
2,168
February 28, 2020
2,815
2,166
May 27, 2020
3,845
2,166
July 8, 2020
3,845
2,166
August 19, 2020
3,949
2,166
October 20, 2020
3,949
2,166
December 2, 2020
4,013
2,166
2021
January 13, 2021
4,013
2,166
February 2, 2021
4,013
1,779**
June 2, 2021
3,913
1,786
August 1, 2021
3,914
2,073
September 23, 2021
3,948
2,221
November 17, 2021
3,951
2,248
2022
January 17, 2022
3,842
2,290
March 17, 2022
3,843
2,331
May 1, 2022
3,843
2,521
July 14, 2022
3,851
2,634
September 14, 2022
3,855
2,766
November 18, 2022
3,811***
2,837
2023
January 17, 2023
3,923
2,896
March 16, 2023
3,925
2,969
May 16, 2023
3,927
3,033
July 16, 2023
3,932
2,092
September 15, 2023
4,227
3,126
November 14, 2023
4,227
3,147
2024
March 20, 2024
4,656
3,225
* The initial status report to the court focused on the identification and reunification of children under the age of 5; it did not report the total number of separated children the government had identified.
** Reunification numbers initially reported by the task force were lower than those reported to the court because the early task force numbers included reunifications that occurred while children were in government custody (for example, in ORR shelters) but not after placement with relatives or other sponsors.
*** As the task force reconciled overlapping government databases, the number of children it identified as separated decreased in November 2022 compared to the previous month.
Source: Ms. L. Status Conference Reports, July 2018-April 2021; Interagency Task Force on the Reunification of Families Progress Reports, June 2021-April 2024.
Addressing the Harm to Families
The Biden administration has taken notable steps to address the harms families faced from their forced separation, including allowing parents to enter and temporarily remain in the United States, agreeing to reopen their asylum cases and allowing them to work, and providing some mental health services to reunited parents and children. Many of these initiatives were in fulfilment of court orders in the Ms. L case. Others were at the recommendation of the task force.
The government has facilitated parents’ return to the United States in other ways. For example, at the task force’s recommendation, the US government negotiated with Guatemala to expedite passport applications from separated parents.
Parents who returned to the United States on their own to find their children can also receive temporary status under a program known as “parole in place.”
HHS provided “behavioral health screenings and appropriate treatment for behavioral health conditions caused by the family separation for separated parents and children living in the United States.” In May 2022, the court extended these health services for up to one year while settlement negotiations were continuing.
While positive, some of these initiatives have fallen short. The task force acknowledged in August 2021, “Many of the families that have been reunified by the Task Force are facing homelessness, food insecurity, and other challenges.” DHS did not authorize funding to pay for support services for families requesting parole until after March 2022.
The settlement agreement in the Ms. L case, approved on December 11, 2023, should address some of these limitations. It includes six months of housing support, immigration legal assistance, medical services, and other benefits.
But the parole and work authorization that families receive under the settlement agreement are still temporary, limited to 36 months, although families whose asylum claims are reopened and still pending after that period would be eligible for work authorization under other regulatory provisions.
Reunited families have no options other than asylum for long-term status in the United States. When DHS Secretary Alejandro Mayorkas met with a group of reunified families in August 2021, “all seven of the families who spoke to the Secretary raised the importance and urgency for some kind of permanent immigration status in order for them to feel safe and continue on a path to healing from the trauma they suffered.”
The Ms. L settlement limits—but does not wholly prohibit—the separation of children from their parents or legal guardians at the border: families may still be separated for reasons of public safety or national security, concerns for a child’s safety, medical care, or the prosecution of a parent for a felony. “Where no other permissible circumstances for separation are present,” US Customs and Border Protection (CBP) will not refer an adult traveling with their children for prosecution on first-time improper entry charges “if the adult . . . is the only parent or Legal Guardian traveling with the child.” These limits on future family separation are in effect until October 2031, eight years from the settlement’s effective date.
Independent of the Ms. L litigation, about 940 families sued the government under the Federal Tort Claims Act (FTCA) for the harms they experienced during family separation. Some of these cases have been successful, including a lawsuit that concluded in November 2024.
Despite the success of the case concluded in November, such litigation faces significant limitations. First, pursuing these claims is a lengthy process that requires legal counsel willing and able to take on a multiyear commitment with an uncertain outcome. Second, these claims cannot easily be filed as class-action suits, meaning that each family must find its own attorney and file its own claim. Third, the statute of limitations for these claims is two years, a deadline that thousands of families missed in 2020 and 2021 because they were unaware of their rights. Finally, the only remedy for successful FTCA claims is monetary compensation, and FTCA claims are subject to restrictions on the types and amount of compensation that can be awarded. The government entered into but ultimately withdrew from negotiations in 2021 that would have settled all pending FTCA family separation cases.
VI. The Road to Family Separation
We need to take away children.
—Attorney General Jeff Sessions, May 11, 2018
Officials began to discuss family separation at least by February 14, 2017, less than a month after President Donald J. Trump’s inauguration. One government official later described many of the attendees at that February meeting as “shell-shocked”; another attendee reportedly said of the senior officials promoting the policy, “They’re going to the Hague and I’m not going to testify for them,” referring to the city in the Netherlands where individuals accused of international crimes are put on trial.
Over the course of 2017, the Office of the Attorney General, under the direction of Attorney General Jeff Sessions, discussed “within DOJ and with DHS, potential policy changes” that “explicitly included” the prosecution of adults travelling with their children and “the separation of the children from adults,” the Justice Department’s Office of the Inspector General found. As they developed what became the forcible family separation policy, Sessions and other senior DOJ officials drew on two earlier experiences, including a 2017 initiative in the Border Patrol’s El Paso Sector that was effectively a blueprint for the border-wide policy that Sessions announced in April 2018.
Sessions was candid about his aim in a call with five federal prosecutors in May 2018. “We need to take away children,” one of the prosecutors’ handwritten notes records Sessions saying. Gene Hamilton, who by then had left DHS to take on the role of counselor to the attorney general, told the prosecutors in a follow-up call that “the Attorney General’s message was that ‘no one was exempt’ from prosecution, including parents traveling with children.” Deputy Attorney General Rod Rosenstein told prosecutors on another call in late May 2018 that it did not matter how young the children were.
Sessions and the other senior officials who settled on forcible family separation as the policy of the United States justified it as a deterrent. The logic was that inflicting tremendous harm on families who had already crossed the US-Mexico border would dissuade others from doing so in the future. “A big name of the game is deterrence,” John Kelly, by then the White House chief of staff, told NPR in response to specific questions about family separation in a May 2018 interview. “The children will be taken care of—put into foster care or whatever—but the big point is they elected to come illegally into the United States, and this is a technique that no one hopes will be used extensively or for very long.”
Over time, through leaks, litigation, congressional hearings, internal investigations, and Freedom of Information Act disclosures, a picture emerged of “a design that was both deliberately cruel and callously incompetent,” in the words of New Yorker staff writer Jonathan Blitzer.
As it moved to start implementing the policy, DHS estimated that it would separate more than 26,000 children in the four months from May to September 2018. But the department gave its agents very little notice when it rolled out the policy across the US-Mexico border—some sectors had less than 12 hours of warning; others heard about the policy between one and three days before they were expected to implement it.
The sharp increase in the number of children it was responsible for took ORR by surprise. As described earlier in this report, DHS had no effective means of tracking the families it separated. And after the fact, some senior DOJ officials claimed they had not realized that families would not be immediately reunited after parents were convicted and sentenced on improper entry charges.
Nonetheless, government memos, internal correspondence, internal investigators’ interviews with officials, and the public statements of senior government officials establish that family separation was intentional, that officials knew that forcible separation was likely to inflict severe and long-lasting harms, and that they developed and implemented forcible family separation as a deterrent even though the likely harms of the policy were wholly disproportionate to the aim of border management.The Policy Drew on Earlier Initiatives
DHS and DOJ drew on two earlier initiatives to roll out forced family separation along the US-Mexico border in 2018. First, under a program known as Operation Streamline in effect at some points along the US-Mexico border between 2004 and 2014, Border Patrol agents referred many adults—but not parents travelling with their children—for prosecution on improper entry charges. Second, beginning in mid-2017, the El Paso Border Patrol sector, which includes New Mexico as well as western Texas, piloted forcible family separation—and provided ample warning that the government was unprepared to track and eventually reunite the children and parents it separated.
CBP minimized such concerns. Instead, it described each of these initiatives as successful, attributing decreases in irregular arrivals to the improper entry prosecutions, though the evidence for a deterrent effect was limited.
Family separation was also fleetingly discussed by officials in the administration of President Barack Obama (2009-2017) after a federal appeals court ruled in 2016 that children held with their parents in immigration detention should be released quickly. At the time, officials rejected family separation as too detrimental to children’s safety. Cecilia Muñoz, director of the White House Domestic Policy Council in the Obama administration, recalled in a 2018 interview that the possibility came up during discussions in which “the agencies were surfacing every possible idea.” She continued, “I do remember looking at each other like, ‘We’re not going to do this, are we?’ We spent five minutes thinking it through and concluded that it was a bad idea.”Operation Streamline
Improper entry was rarely prosecuted before 2004. Instead, US Border Patrol returned most Mexican nationals to Mexico under a process known as “voluntary return” or placed people in administrative removal proceedings; it generally only referred for prosecution those people who had a criminal record or whom agents suspected of smuggling.
But starting that year, federal prosecutors agreed at Border Patrol’s request to prosecute most adults who arrived irregularly in a “target enforcement zone” in the Del Rio sector, which includes the stretch of the border between Comstock and Eagle Pass, Texas. Under the program, which became known as Operation Streamline and then simply Streamline:
Border Patrol apprehended illegal aliens, processed them, and decided whether to refer them to DOJ for prosecution . . . . CBP attorneys, deputized as Special Assistant U.S. Attorneys (SAUSAs), assisted with criminal immigration proceedings. prosecuted illegal immigration cases in U.S. courts. The U.S. Marshals Service (USMS) transported and took custody of aliens during their sentences. After aliens had served their sentences, or the Border Patrol took custody of the aliens from USMS and processed them for removal.
“Streamline” was a euphemism—this policy resulted in mass trials in which “ach of the accused had 25 seconds, give or take, to hear the charges against him, enter a plea and receive a sentence,” a New York Times investigation found. The initiative functioned in up to six Border Patrol sectors in Texas and Arizona at least through the end of December 2014. CBP noted that the program was “not a zero-tolerance initiative”; in the Tucson sector, for example, one criterion for referral for prosecution was that the person apprehended by Border Patrol agents had a prior order of removal.
CBP officials described Streamline as an effective means of deterring irregular entry, but the DHS Inspector General found that the Border Patrol did not track people’s entry history over multiple years, meaning that it was “not fully and accurately measuring Streamline’s effect on deterring aliens from entering and reentering the country illegally.”The El Paso Initiative
While Operation Streamline differed in significant respects from the 2018 forcible family separation policy, the 2017 El Paso pilot project was virtually a blueprint for the more recent border-wide policy.
The pilot program was not publicly acknowledged—in fact, it is not clear how widely its existence was known at DHS and DOJ headquarters until late 2017. But Sessions used the El Paso initiative as a model for the 2018 policy, Deputy Attorney General Rod Rosenstein told the Justice Department’s Office of the Inspector General.
Once the initiative was underway, federal judges in El Paso began to observe a “voluminous” number of improper entry prosecutions of parents who did not know where their children were, causing parents tremendous anxiety. In August 2017, the Western District’s deputy criminal chief emailed the acting US attorney:
We have now heard of us taking breast feeding defendant moms away from their infants, I did not believe this until I looked at the duty log and saw the fact we had accepted prosecution on moms with one and two year olds.
In November 2017, the Houston Chronicle reported that at least 22 parents with no history of immigration violations had been prosecuted for improper entry and separated from their children. In fact, 99 parents with children were prosecuted under the pilot program, a prosecutor’s office memorandum reported without specifying the total number of children affected.
The acting US attorney, Richard Durbin, said in an email message to assistant US attorneys, “History would not judge kindly.”
Although the pilot program was for the El Paso sector, there was a similar number of family separations in the Yuma sector in Arizona in the second half of 2017.
Although Sessions and the Office of the Attorney General used this pilot as a model, they did so selectively: a review by the Justice Department’s Office of the Inspector General found “no evidence that the sought information about the challenges encountered during the El Paso Initiative, including the government’s inability to reunify separated families . . . .”Family Separation Was Intentional
Attorney General Jeff Sessions, other senior Justice Department officials, and senior DHS officials were aware that the “zero tolerance” policy would result in family separation. More than that, there is abundant evidence that family separation was a deliberate policy choice.Forcible Family Separation Explicitly Discussed by Officials
Forcible family separation was a step the Office of the Attorney General and senior DHS officials explicitly discussed over the course of 2017 and 2018. For instance:
2017
Family separation was discussed at a CBP meeting on February 14, attended by other officials from DHS, DOJ, and ORR. In a February 16 email, Maggie Wynne, the HHS counselor for human services policy, wrote, “DHS proposes separating children in family units from their parents and referring them to ORR as Unaccompanied Alien Children (UACs).” Following the meeting, DHS staff prepared a document titled “White Paper—Separating Family Units and Detaining Parents.”
Senior DHS officials discussed the proposed family separation policy after Reuters reported on it on March 4. Nielsen, then the DHS chief of staff, emailed the article to other DHS officials the following day with a request for talking points and the “inside story.” The Reuters story also prompted the House Committee on Appropriations to advise Kevin McAleenan, then the acting CBP commissioner, that a family separation policy would have “serious ramifications” and that the committee chairman “expects to be informed prior to adopting it.”
Asked in a CNN interview on March 6 if DHS was considering family separation, Homeland Security secretary John Kelly said, “n order to deter more movement along this terribly dangerous network I am considering exactly that.”
On March 7, the acting DHS assistant secretary for international affairs wrote to Gene Hamilton, a senior counselor to Kelly, “We should also discuss the ‘separating families’ issues raised at the morning huddle.”
On April 18, DHS staff sent drafts of the “Separating Family Units and Detaining Parents” white paper to Thomas Homan, Matthew Albence, and other officials.
Senior DHS officials were again actively discussing family separation in August. Homan wrote to McAleenan, Wolf, Hamilton, and Jonathan Hoffmann on August 8, “we need to discuss my proposal for separation.” Later that afternoon, forwarding a chain that included Homan’s email, another official said, “Tom has been advocating that we need to separate family units and send the adults to adult detention and the children to HHS. If we announced that, how bad do you think it would get??” On August 14, the same official reported to Homan that he had left a meeting with “o authorization to separate families” and “orried about loss of momentum.”
On September 6, Homan wrote in an email to Hamilton and McAleenan, “I just saw a draft of a DHS Policy memo pushing back on my proposed family response.” (“DHS Policy” is a short name for DHS Office of Strategy, Policy and Plans.) The same day, Hamilton emailed Chad Wolf to say, “I am happy to write out some memos . . . and cut off Policy from the process, because what was sent up is not acceptable.” The content of Homan’s proposed “family response” and the comments from the Office of Strategy, Policy and Plans do not appear to have been fully disclosed publicly; one internal memo, fully redacted apart from the sender and subject lines, was titled “Limiting Reliance on Family Detention.” Other internal emails sent in early September refer to a “Family Separation/Detention” memo under review by DHS Policy. An official who emailed the DHS Policy memo to Homan described it as “a strong statement of opposition to what ICE wants to do in terms of separating families.”
An ORR staffer wrote to Jonathan White on September 27: “DHS Policy is working on a family separation policy again, to send all children to ORR.”
These discussions were ongoing in late October, as illustrated by an exchange between Homan and two ICE legal advisers: in response to Homan’s request for “the paper did on FAMU separation,” they replied, “Attached is an email chain to familiarize you with the prior discussion on separating families.”
In November, under the heading “Limiting Reliance on Family Detention,” an internal ICE email recommended “separating detained parents from their children during removal proceedings.” The email explained: “he parent will generally be detained for proceedings. When this occurs the child(ren) will be referred to ORR for placement . . . .”
In mid-December, DHS chief of staff Chad Wolf and other DHS officials circulated bullet points for an “options paper” for Nielsen that included “separating family units, placing the adults in adult detention and placing the minors under the age of 18 in the custody of HHS as unaccompanied children.”
Wolf emailed Hamilton, by then counselor to the attorney general, a document proposing 16 policy options, the first two of which were “increase prosecution of family unit parents” and “separate family units.” Hamilton replied the following day “expressing his support for the proposals.”
Matthew Whitaker, chief of staff in the Office of the Attorney General, also reviewed this policy options memo, later reporting “that Sessions and Hamilton were primarily responsible for immigration policy at the time and ‘were on the same page’ about the options to increase the number of immigration prosecutions at the border, including by signaling to DHS the Department’s support for prosecuting family unit adults.”
“Separate family units,” the second of the 16 policy options discussed in the DHS memo, was an administrative measure that the journalist Caitlin Dickerson reported “would have allowed the agency to separate not only families that crossed the border illegally but also those who presented themselves at legal ports of entry, requesting asylum.” McAleenan and Homan presented these options to Homeland Security secretary Kirstjen Nielsen and other DHS officials. They also described the El Paso pilot program to them.
The US attorney for the Western District of Texas briefed DOJ headquarter officials in late December about the El Paso initiative, for which the US attorney’s office had “developed guidelines to prosecute family unit adults in certain circumstances even if this resulted in the separation of children from those prosecuted adults.”
2018
Talking points updated in January 2018 at the request of Nielsen’s office explained effect of “ignificantly increas the prosecution of family unit parents when encountered between the points of entry”: “DHS would refer parents to DOJ for criminal prosecution and for placement in the custody of the U.S. Marshals Service to await trial. Due to the parents’ unavailability, minors would be referred to HHS care and custody as unaccompanied alien children (UACs).”
Nielsen’s office scheduled a “Family Separation Issue Meeting” on March 19 at which the expected attendees included Albence, Homan, McAleenan, and Wolf, in addition to Nielsen herself.
In late March, amid reports that a large “caravan” of people from Central America was heading through Mexico toward the United States, a US Citizenship and Immigration Services (USCIS) adviser assessed potential responses in an email to the director of USCIS, L. Francis Cissna. In addition to family detention, she wrote, “The other option, which I know is the subject of discussion, is that DHS may detain only the parents throughout the removal process, placing the child with HHS for placement as a now unaccompanied child under TVPRA .”
On April 19, McAleenan sent Homan, along with Cissna and James McCament, a DHS deputy undersecretary, “a draft decision memorandum proposing increased prosecution (toward 100%) of all adults who cross illegally, whether they present as single adults or in family units.”
Homan and Cissna added their signatures to McAleenan’s in the final version of the memo. They recommended the third of three options presented in the memo, the “initiative that would pursue prosecution of all amenable adults cross our border illegally, including those presenting with a family unit.” Homan understood that families would be separated under this option, as he confirmed in a 2022 federal court deposition.
A legal analysis of the final April memo, prepared for Nielsen and signed by John M. Mitnick, DHS’s general counsel, left no room for doubt that the result of the third option would be family separation. A contemporaneous Washington Post account of the memo described it as “a stark change in policy that would result in the separation of families that until now have mostly been kept together” and warned that “f approved, the zero-tolerance measure could split up thousands of families.” Nielsen approved the third option on May 4.
On May 12, Hamilton told the five US attorneys for the districts on the US-Mexico border that “prosecution makes separation a reality.”
An undated ICE Enforcement and Removal Operations memo issued in late April or early May stated that the “new Attorney General guidelines” would mean that “amily units will be separated.”Effect of “Zero Tolerance” Policy on Parents and Children Clear to Officials
The April 2018 “zero tolerance” memo was intended to remove discretion from federal prosecutors on prosecuting cross-border migrants. This outcome was not apparent from the wording of the memo itself, which only directed prosecutions “to the extent practicable.” But Sessions and other senior Justice Department officials made clear that the expectation was that all or nearly all adults would be prosecuted, including parents travelling with their children:
Deputy Attorney General Rod Rosenstein told US attorneys that the April 2018 memo was “a significant policy change,” the Justice Department’s Office of the Inspector General found: “Rosenstein said that the April 2017 memorandum had made illegal reentry cases a priority ‘but didn’t tell to stop declining cases, 2018 message was, “don’t decline these cases.”’”
Rosenstein said “that he initiated several calls with the U.S. Attorneys and that the focus of these calls was to ensure that the U.S. Attorneys were fully engaged on immigration prosecutions.” Rosenstein also stated that he wanted the US attorneys to understand “how significant the zero tolerance policy was to the Attorney General and that the Department was monitoring the volume of prosecutions at the Attorney General’s direction.”
When assistant US attorneys in Arizona declined prosecution of six parents on May 9, Hamilton emailed an official in the Office of the Deputy Attorney General asking, “Why would they be declining these cases?” The official forwarded the message to the acting US attorney for the District of Arizona.
After Sessions held a conference call with the five southwest border US attorneys on May 11—the meeting in which he said, “We need to take away children”—the US attorney for the Southern District of Texas emailed his staff saying of Sessions, “he doesn’t want excuses” for failing to prosecute parents.
On May 12, Hamilton told the five US attorneys that “the Attorney General’s message was that ‘no one was exempt’ from prosecution, including parents traveling with children.”
On May 22, in the first of a series of conference calls with the five US attorneys, Rosenstein “instructed that, per the policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.” John Bash, the US attorney for the Western District of Texas, wrote to supervisory assistant US attorneys in the district: “I had understood that itself had a policy of not referring parents to us when doing so would separate children under 5 from the parents. But apparently did so yesterday in El Paso in two cases, and we declined per our understanding of the policy. Under the directive I just received from the DAG , however, those two cases should not have been declined.”
Bash summarized the messages from Rosenstein and Hamilton to mean that “it was a categorical, ‘We’re prosecuting all.’ . . . o one in this office, including me, had any discretion . . . .”
Reviewing these and other exchanges, the Justice Department’s Office of the Inspector General concluded, “We found that the Attorney General expected Southwest border USAOs to prosecute as many illegal entry cases as possible, including cases involving family unit adults, until all available resources were exhausted.”
Senior government officials, including Sessions and Nielsen, were aware that a “zero tolerance” policy administered with little room for prosecutorial discretion would result in family separation. As the DOJ Office of the Inspector General observed in a 2021 review of the policy, one of the reasons for the DHS practice “since at least 1992” of not referring parents travelling with their children for prosecution was “to avoid the separation of the family during the pendency of the adult’s prosecution.”
Moreover, well before the rollout of the “zero tolerance” policy across the US-Mexico border, the El Paso initiative had made it obvious that family separation was the outcome of such an approach.
It is not clear how widely the El Paso initiative was known, but even accepting at face value officials’ claims that the El Paso sector carried out the initiative without the approval or knowledge of more senior officials, McAleenan and other senior CBP officials certainly knew about it by mid-November 2017, including that it “include family members, thus separating them from children.”
As the DOJ Office of the Inspector General review noted:
When the asked Rosenstein whether he knew that strict implementation of the zero tolerance policy would result in the separation of families, Rosenstein stated: “I think the answer is yes. I think everybody understood that what it meant was we are going to prosecute without—everybody who committed a crime without regard whether they brought a child.”
Other statements by Rosenstein and Hamilton to the Office of the Inspector General repeated in more categorical terms that Sessions was aware that his policy would separate families:
According to Rosenstein and Hamilton, Sessions was aware at the time he announced the zero tolerance policy that its full implementation would require the prosecution of family unit adults and result in the separation of families. Rosenstein stated that he thought Sessions “understood what the consequences were” . . . .
Hamilton stated that prosecuting adults entering the country as part of a family unit was a “difficult” choice for Sessions but that Sessions “thought it was the right thing to do.”
Similarly, with regard to Nielsen:
Whitaker told that he recalled speaking with then DHS Secretary Nielsen in “a couple conversations leading up to where the discussion was that if we had a zero tolerance policy and we prosecuted all illegal entry and re-entry cases that would lead to unexpected consequences, including what is known as family separation.”
Despite Whitaker’s gloss on family separation as one of the zero tolerance policy’s “unexpected consequences,” families were not merely collaterally affected by zero tolerance: Sessions and Hamilton intended them to be among its targets.
Sessions was candid about this purpose in a call with five federal prosecutors in May 2018. “We need to take away children,” one of the prosecutors’ handwritten notes records Sessions saying. Gene Hamilton, then counselor to the attorney general, told the prosecutors in a follow-up call that “the Attorney General’s message was that ‘no one was exempt’ from prosecution, including parents traveling with children.” And Rosenstein told prosecutors on another call in late May that it did not matter how young the children were.
In addition:
Hamilton told the DOJ Office of the Inspector General that among Sessions’ concerns was that there were “no consequences for unlawful entry, especially if people were coming over with children and there needed to be consequences.”
Hamilton also told the Office of the Inspector General that part of the context for Sessions’ adoption of the zero tolerance policy was the arrival of “undreds of thousands of family units . . . .These matters of which the Attorney General was well aware and that were discussed among relevant agencies at the highest levels, including DHS and HHS.”
For his part, when Hamilton distributed a memo of proposed immigration policies in late 2017, journalist Caitlin Dickerson found:
At the top were two proposed methods of achieving family separations: either administratively—by placing children and parents in separate detention centers—or via criminal prosecutions, which would place parents in the Department of Justice’s custody instead of the Department of Homeland Security’s.
The Office of the Inspector General report suggests that Sessions and other senior Justice Department officials assumed that parents could be quickly prosecuted and families reunited prior to their deportation. But Sessions’ own statements belie this interpretation. On May 7, 2018, for instance, Sessions said:
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.
The Office of the Inspector General concluded:
e determined that Sessions intended that the zero tolerance policy would be strictly implemented by the U.S. Attorneys, that it would result in DHS changing its longstanding policy and referring for criminal prosecution adult family unit members who entered the country illegally with children, and that the U.S. Attorneys’ discretion to decline such cases would be limited.
Hamilton followed up with US attorneys and other DOJ and DHS officials to convey the expectation that referrals and prosecutions, including of parents travelling with their children, would increase. On April 22, 2018, he emailed the Executive Office for US Attorneys a detailed statistical breakdown by sector on Border Patrol apprehensions, including of families, and specifically raised the prosecution of parents. On April 24, he emailed the DHS chief of staff and the CBP commissioner, saying, “We simply need more cases referred for prosecution across the board,” including of parents. Indeed, the Justice Department’s Office of the Inspector General concluded that the Office of the Attorney General (OAG) “was a driving force behind the decision to refer family unit adults for prosecution, as evidenced by Sessions’s and the OAG’s urging and support for this change to DHS policy between December 2017 and May 2018.”
From DHS’s side, “during April and into May, as the OAG was pushing DHS for more referrals, DHS leadership was also flagging cases that had been referred for prosecution but declined by .” For instance, Deputy Attorney General Rod Rosenstein told the Justice Department’s Office of the Inspector General that Nielsen requested a meeting with him on May 14 to discuss the “need to work together to ensure all are prosecuted” under the “zero tolerance” policy.
Emails to and from Matthew Albence, then the executive associate director for enforcement and removal operations at ICE, to other DHS colleagues in May 2018 show that he and at least some other DHS officials were concerned primarily with family separation rather than criminal convictions. On May 10, after Albence heard that in Arizona, parents might be “back in the exact same facility as their children—possibly in a matter of hours,” he asked Homan and other DHS officials to “confirm that the expectation is that we are NOT to reunite the families.” On May 25, another DHS official advised Albence, “CBP is Reuniting adults with kids after prosecution in McAllen. . . . What a fiasco.” On May 26, he wrote to McAleenan, Homan, and Ronald Vitello, the acting CBP deputy commissioner:
Not sure if you are aware. It sounds like ORR is refusing to take the children as UAC if the parent arrives back the processing site and the child is still there. . . . This obviously undermines the entire effort . . . .Senior Officials Knew Family Separation Would Be Harmful
The senior officials who developed the policy were repeatedly warned by ORR officials of the likelihood that it would inflict serious, potentially irreparable harm on children. For their part, by the time Sessions and Nielsen approved the policy in the first half of 2018, they knew or should have known of these likely harms.
DHS senior staff were aware that some HHS officials, notably Jonathan White, an ORR deputy director, were concerned that family separation was inconsistent with children’s best interests and presented capacity and other operational challenges.
White attempted to alert McAleenan, Homan, and other senior DHS staff with increasing urgency that ORR would struggle to provide appropriate care to the children separated from their parents under the policy. In addition to repeatedly asking senior HHS officials to convey those points to their DHS counterparts, he “also raised these concerns in interagency discussions with DHS staff and leadership,” White said. He identified at least 26 specific instances, including in-person meetings, telephone meetings, written briefings, and emails, in which he communicated these concerns to either HHS or DHS officials. These instances included a meeting with “senior officials from ICE and CBP” on February 14, 2017; a meeting with HHS Secretary Tom Price on August 1, 2017; a telephone conversation with Homan and McAleenan on November 16, 2017; an email with an attached spreadsheet sent to McAleenan and copied to Homan on November 17, 2017; and a follow-up email and spreadsheet sent to Homan and copied to McAleenan on December 4, 2017.
Separately, when the DHS Office for Civil Rights and Civil Liberties (CRCL) began to receive calls from parents who had been forcibly separated from their children during the El Paso pilot program, Scott Shuchart, a CRCL senior adviser, and others in the office urged the head of the office, Cameron Quinn, to oppose the policy. One CRCL manager printed out photographs of separated children to show Quinn. On May 12, 2018, Shuchart and other senior CRCL staff sent Quinn a memo that warned, in italics, that “harm to children is being deliberately used for its deterrent effect.” On May 21, Shuchart and others raised these concerns with the DHS general counsel, John Mitnick.
Although senior DOJ officials claimed after the fact that they had understood that children would be reunited with their parents in days or even hours, documents they exchanged indicate otherwise. For example, Hamilton told the Justice Department’s Office of the Inspector General, “We didn’t ever imagine DHS would lose track of the kids and their location. Like sending children off to a shelter in New Jersey. That was not our understanding at all.” But talking points Hamilton drafted for Sessions in May 2018 observed that children separated under the policy would “likely eventually transferred to the Office of Refugee Resettlement.” And Rosenstein was certainly aware that DHS ordinarily transferred unaccompanied children to ORR within 72 hours. In June 2018, he asked the DHS deputy secretary if it was possible to extend the 72-hour period for such transfers; Hamilton advised him that 72 hours was the limit set by statute.
Moreover, Hamilton and other senior DOJ officials knew or should have known, based on the information they had before or immediately after the policy was implemented, that “immediate reunification of the family while the child remained in DHS custody was a practical impossibility,” as the Justice Department’s Office of the Inspector General concluded.The Dubious Justification of Deterrence
When reports emerged in early 2017 and again at the end of the year that the US government was actively considering forcible family separation, official sources for those news accounts cited deterrence as one of the reasons for considering the policy change.
Nonetheless, after Sessions announced “zero tolerance” in April 2018 and DHS began to implement forcible family separations along the US-Mexico border, Nielsen denied that the policy was meant as a deterrent. A June 18 press conference included the following exchange with reporters:
Q: “Are you intending for this to play out as it is playing out? Are you intending for parents to be separated from their children? Are you intending to send a message?”
Nielsen: “I find that offensive. No. Because why would I ever create a policy that purposely does that?”
Q: “Perhaps as a deterrent.”
Nielsen: “No.”
But public and internal government documents, official statements, and internal reviews indicate otherwise:
· Internal HHS email summarizing conversations with DHS in early 2017 reported that “DHS would . . . as a deterrent to families who have not yet entered the U.S.” and that “the overall intent” of separation was “to serve as a deterrent in the longer term.”
· In Session’s April 2017 memorandum directing US attorneys to develop guidelines for prosecuting irregular entry, he stated, “These guidelines should aim to accomplish the goal of deterring first-time improper entrants.”
· At an August 2017 DHS meeting, “Hamilton told us that over the next few days we’d need to generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” according to an official who attended the meeting. The memos produced in response included forcible family separation among other possible policies.
· A November 2017 ICE proposal to “separat detained parents from their children” explained, “This change would be intended to deter families from illegally entering the United States.”
· A December 2017 memorandum from DHS to Gene Hamilton stated that “the increase in prosecutions would be reported by the media and it would have substantial deterrent effect.”
· DHS talking points circulated in January 2018 included the statement: “the significant increase in prosecutions” of parents arriving with their children “would have a substantial deterrent effect.” (Commenting on these talking points, a DHS staffer wrote, “I thought we were supposed to stay away from any mention of separating families as a deterrence tool?”)
· Talking points prepared by Hamilton and circulated within the Office of the Attorney General and elsewhere in the Justice Department noted, without explicitly addressing family separation, “Increasing prosecutions—and communicating that we will not tolerate illegality along our southern border—should help to produce a deterrent effect.”
· An HHS acting assistant secretary, Steven Wagner, told CNBC in June 2018, “We expect that the new policy will result in a deterrence effect, we certainly hope that parents stop bringing their kids on this dangerous journey and entering the country illegally.”
· Sessions acknowledged in June 2018 that the policy was intended at least in part as a deterrent. Interviewed by a Fox News host who asked four variations of the question, “But is it a deterrent, sir?,” Sessions eventually replied, “So, yes, hopefully people will get the message and come through the border at the port of entry and not break across the border unlawfully.”
· Rosenstein told the Office of the Inspector General that the “’s goal . . . was to create a more effective deterrent so that everybody would believe that they had a risk of being prosecuted if they were to violate the law.”
· Hamilton, in turn, told the Office of the Inspector General, “Sessions was concerned that . . . ‘there was no deterrent, no consequences for unlawful entry, especially if people were coming over with children . . . and there needed to be consequences.’”
· DHS documents prepared in April 2018 and obtained by CNN in June 2018 indicate that officials thought the policy would have a deterrent effect.
In late 2018, President Trump repeated the deterrence rationale for forcible family separation several times, saying:
· “If they feel there will be separation, they won’t come.”
· “And frankly, when you don't do separa— when you allow the parents to stay together, okay, when you allow that, then what happens is people are gonna pour into our country.”
· “f you don’t separate, FAR more people will come.”
The evidence for deterrence was always shaky. The April 2018 memo urging Nielsen to sign off on family separation included the claim that during the El Paso pilot program, apprehensions of families decreased in the sector by 64 percent. DHS repeated the claim in May 2018, telling Vox that during the pilot “he number of illegal crossings between ports of entry of family units dropped by 64 percent.” In fact, when Vox analyzed Border Patrol data, it found that apprehensions of families increased, rather than decreased, by 64 percent. That is, the administration’s “argument that prosecuting parents actually works to deter future border crossings relies on a ‘statistic’ that their own data shows to be fake.” And an internal DHS document prepared in late May 2018 noted that the policy had not had a deterrent effect.
Moreover, it is difficult to follow the logic of adopting a policy as a deterrent while disavowing the policy publicly.
But the real problem with the deterrence rationale was that forcing families apart inflicted serious and potentially irreparable harm. It was improper and abusive, and wholly disproportionate to the objective of border management. Far from justifying the policy, the fact that senior officials were motivated in significant part by deterrence is a further indication that forcible family separations constituted serious human rights violations.The Architects of the Policy
The Office of the Attorney General—specifically, Jeff Sessions along with Gene Hamilton, his counselor—“was a driving force in the DHS decision to begin referring family unit adults for prosecution,” the Department of Justice’s Office of the Inspector General found. Kevin McAleenan, the acting CBP commissioner, and Thomas Homan, acting ICE director, were instrumental in pushing the policy through DHS. (Homan defended the policy in a 60 Minutes interview in October 2024 and said that resuming forcible family separations “needs to be considered, absolutely.”) L. Francis Cissna, US Citizenship and Immigration Services (USCIS) director, also urged the policy’s adoption.
Matthew G. Whitaker, Session’s chief of staff (and later acting attorney general), reviewed the DHS policy options memo circulated in December 2017 that included proposals to “increase prosecution of family unit parents” and “separate family units,” among other proposals, and, according to Hamilton, expressed support for these proposals. He told the Justice Department’s Office of the Inspector General he had “more than one discussion with Nielson, in advance of the zero tolerance policy, about the referral and prosecution of family unit adults.” He was also in at least the first of a series of coordination meetings that commenced in late May 2018 to discuss family separations. Nonetheless, he told the Office of the Inspector General that he “didn’t have a full understanding certainly as to what the implementation would cause at the HHS and DHS level and the fact that HHS and DHS would consider the children to be unaccompanied minors.”
Nielsen, the DHS secretary from December 2017 to April 2019, signed off on the policy, likely in late April and almost certainly prior to June 2018, when, as detailed above, she was still publicly claiming that the US government did not have a forced family separation policy.
It is not clear to what extent John Kelly was involved in discussions on family separation after July 2017, when he became the White House chief of staff. But he had forthrightly stated, when asked in March 2017 if DHS was planning to separate children from their parents at the border, that he was “considering exactly that” as a deterrent measure. In May 2018, he defended forcible family separations as a deterrent—“a big name of the game is deterrence”—that would mean “a much faster turnaround on asylum seekers.” Asked to respond to those who considered family separation heartless, he replied that “the big point is they elected to come illegally into the United States.”
It is also not clear what role Stephen Miller, the White House senior advisor on immigration, played in developing the policy. Investigations by American Oversight, the journalist Jonathan Blitzer, and others have linked Miller to many of the Trump administration’s most abusive immigration policies, and he reportedly pushed DHS to back the forcible family separation policy in early 2017 and again at the end of that year. Blitzer quotes a senior DHS official as saying, “Miller made clear to us that if you start to treat children badly enough, you’ll be able to convince other parents to stop trying to come with theirs.” He routinely called DHS officials, including Nielsen, to pitch “a barrage of immigration-policy proposals.” But the publicly available government documents and the reports of DHS, DOJ, and HHS internal investigations do not show the content of his contributions, if any, to the policy as it was developed.
Other senior officials, notably leading officials at HHS, knew or should have known that changes in DHS policy or practice had begun to threaten the health and well-being of children in ORR care. Scott Lloyd, the ORR director; Steven Wagner, the acting assistant secretary of ACF; and Maggie Wynne, counselor to the secretary for human services, had each received repeated, detailed warnings from Jonathan White. These officials failed to act upon these warnings. In fact, after ORR officials began in November 2017 to consider what steps it could take to plan for further increases in the number of separated children,
“HHS leadership”—Lloyd and Wynne—“advised ORR not to engage in such planning since DHS officials told them that DHS did not have an official policy of separating parents and children.”
VII. Violations of International Law
The US government’s forcible separation of families during the Trump administration inflicted immense harm on children, their parents, and other relatives. The senior officials who developed the policy intentionally crafted it to split families, deliberately choosing to set aside longstanding practice, the evidence shows. They did so in the knowledge that forcible family separations would cause serious and long-lasting trauma. And in many cases, they attempted to hide what they were doing.
Through treaties it has ratified, the United States has undertaken to afford special protection to children, respect the right to seek asylum, and refrain from directly or indirectly returning people to serious harm. Forcible family separations were serious violations of these obligations.
Many forcible separations involved the government’s refusal, for days or even weeks, to disclose the fate and whereabouts of children to their parents and vice versa. As such, they amounted to enforced disappearances. Forcible family separations may also have resulted in torture, defined as the intentional infliction of severe pain or suffering for an improper purpose by a state agent.
Enforced disappearance and torture are particularly serious human rights violations that require comprehensive redress. In addition, as discussed more fully in the next chapter, they are also crimes under international law for which the architects of the policy potentially bear individual responsibility.Children’s Right to Protection, Including Family Unity
Children have the right to specific protections by virtue of their status as children, as provided by the International Covenant on Civil and Political Rights. The protection to which children are entitled includes measures to safeguard them from cruel and inhuman treatment. Families are also “entitled to protection by society and the State,” and in line with this right, everyone, of any age, has the right to freedom from arbitrary interference with their family.
Children’s right to protection and assistance should be informed by the foundational principles of the Convention on the Rights of the Child, a treaty the United States has not ratified but which it actively helped shape. These include the principle that all state action affecting children should treat their best interests as a primary consideration and the right of children to life, survival, and development.
Family unity is another principle reflected throughout the Convention on the Rights of the Child. The convention sets forth the right of children to know and be cared for by their parents and provides that governments “shall respect the responsibilities, rights and duties of parents” to care for their children. It includes “family relations” as a core element of the right of children to preserve their identity—and in fact, the right to preservation of identity was a direct response to the forcible separation and enforced disappearance of children in Argentina, Chile, Guatemala, and Peru. The convention also provides that children should not be separated from their parents against their will unless separation is in the child’s best interests.
The right to freedom from arbitrary interference with family does not, as a general rule, prevent governments from implementing their immigration policies. The UN Human Rights Committee has observed, however, that the government’s discretion to enforce immigration policies is “not unlimited and may come to be exercised arbitrarily in certain circumstances.” For instance, the removal of both parents from the country where their 13-year-old son was born and had grown up required a showing of “additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law.” The use of individual rather than collective assessment, compliance with the principle of proportionality, and use of the least-intrusive option are among several additional elements identified by the UN Committee on the Rights of the Child, which issues authoritative interpretations of the Convention on the Rights of the Child, that can usefully inform whether a migration control measure is an appropriate exercise of state discretion.
In particular, the Committee on the Rights of the Child has confirmed that the principles of the best interests of the child and of family unity apply in the context of migration enforcement, including in “decisions regarding migration enforcement,” requiring careful balance and attaching “larger weight . . . to what serves the child best.” Applying these principles in practice, governments can choose not to pursue minor criminal charges in order to keep families together, as the US government did before mid-2017 and has done after the court-ordered end to forcible family separation. Automatically separating families is inconsistent with these principles. Moreover, as discussed in subsequent sections, deliberately separating families implicates other rights.
Furthermore, the US government’s reliance on immigration detention of children, initially in Border Patrol holding cells and then in ORR facilities, is inconsistent with these principles. The detention of children because of their or their parents’ migration status “constitutes a child rights violation and contravenes the principle of the best interests of the child,” the Committee on the Rights of the Child has determined. Its analysis is supported by the conclusions of the UN Working Group on Arbitrary Detention, the UN Secretary General, the independent expert for the UN Global Study on Children Deprived of Liberty, the UN special rapporteur on the human rights of migrants, the Parliamentary Assembly of the Council of Europe, the European Court of Human Rights, and the Inter-American Court of Human Rights. The UN special rapporteur on torture has noted that immigration detention of children puts them at risk of cruel, inhuman, or degrading treatment or punishment, with implications for their rights to health and to life, survival, and development.
In short, forcible family separation violated the core rights of children to protection, to family life, and to have their best interests taken into account in all matters that affect them, with potential adverse consequences for other rights.The Right to Seek Asylum
The United States government also has obligations under the Protocol relating to the Status of Refugees (the Refugee Protocol), a treaty which incorporated the substantive protections of the Convention relating to the Status of Refugees (the Refugee Convention). The United States Congress enacted the Refugee Act in 1980 “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.” As the US Supreme Court observed, a principal motivation for the enactment of the Refugee Act was to make “U.S. statutory law clearly reflect our legal obligations under international agreements.”
The DHS Office of Inspector General warned in 2015 that the prosecution of asylum seekers, or more generally those “who express fear of persecution or return to their home countries . . . . may violate U.S. treaty obligations.”The Principle of Nonrefoulement
The principle of nonrefoulement prohibits governments from transferring anyone, directly or indirectly, to a place where they would have a well-founded fear of persecution or would face a risk of torture or other cruel, inhuman, or degrading treatment or punishment. The United States is obligated to respect the principle of nonrefoulement through its obligations under the Refugee Convention and Protocol, the Convention against Torture, and the International Covenant on Civil and Political Rights (ICCPR). The prohibition of refoulement is also a norm of customary international law and, in the case of returns to risk of torture, a peremptory norm of international law. There are no exceptions to the prohibition of expulsions or returns that expose people to risk of torture.
More generally, under the ICCPR, states are obligated not to extradite, deport, expel, or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm.
The prohibition on refoulement bars constructive as well as direct state action that results in an individual’s return to risk. Telling a person or leading them to believe that reunification with their children is contingent on accepting an order of deportation or agreeing to “voluntary return” to risk of harm, as in the many cases documented by Human Rights Watch and other groups, is a form of constructive refoulement.The Prohibition of Enforced Disappearance
Enforced disappearance—the deprivation of a person’s liberty, followed by a refusal to disclose the person’s fate or whereabouts—violates the ICCPR. The UN Working Group on Enforced or Involuntary Disappearances has concluded that there is no required length of time for the deprivation of liberty or the failure to disclose information. Similarly, the UN Committee on Enforced Disappearances, which monitors compliance with and issues authoritative interpretations of the International Convention for the Protection of All Persons from Enforced Disappearance, has concluded that all cases of deprivation of liberty followed by refusal to acknowledge deprivation of liberty or concealment of a person’s fate or whereabouts are enforced disappearances “regardless of the duration of the said deprivation of liberty or concealment.”
These circumstances—deprivation of liberty followed by the refusal to disclose information—have the consequence of placing such a person outside the protection of the law.
In the context of migration, the Committee on Enforced Disappearances has observed:
To prevent migrants from becoming victims of enforced disappearance in the context of immigration detention, they must always be able, from the outset of their detention and regardless of its duration, to communicate with their relatives, consular authorities, legal representatives or any other person whom they could inform about their fate or whereabouts.
Criminal charges for irregular migration increase the risk of enforced disappearance. The committee has also specifically noted that “he separation of children from their families increases the risk of enforced disappearance and should be avoided, unless it is determined to be in the best interests of the child in compliance with international standards.”
The Working Group on Enforced or Involuntary Disappearances has found that children who are victims of enforced disappearances “suffer particularly severe harm.” The working group explains:
he enforced disappearance of children and their separation from their parents or relatives harms in particularly grave ways the mental, physical and moral integrity of children. In all circumstances, as child victims of enforced disappearances or as relatives of a person who disappeared, they experience feelings of loss, abandonment, intense fear, uncertainty, anguish, and pain, all of which could vary or intensify depending on the age and the specific circumstances of the child.
Family members of people subject to enforced disappearance are also victims of these serious human rights violations. In an early resolution, the UN General Assembly noted “the anguish and sorrow which such circumstances cause to the relatives of disappeared persons, especially to spouses, children and parents.” The Human Rights Committee, the Working Group on Enforced or Involuntary Disappearances, and the Inter-American Court on Human Rights, among other authorities, regularly consider a disappeared person’s family members as survivors of human rights violations who are entitled to remedies. The working group has emphasized, for example, that children are victims of enforced disappearance when “their mother, father, legal guardian or other relative is subjected to enforced disappearance.”
The relatives of people subject to enforced disappearance have a right to the truth, including the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, the circumstances of the disappearances, and the identity of the perpetrators.
Many forcible family separations carried out by the United States meet the elements of enforced disappearance. They commenced with apprehension and a transfer of custody—in parents’ cases, from DHS to that of the US Marshals Service, and for children, from DHS to ORR. The officials who carried out these separations often lied about what was happening. Once DHS separated parents and children, it did not tell them where their loved ones were for days and in some cases for weeks, no matter who they asked or how many times. The lack of any tracking of the families made it difficult for relatives or others to locate many of the children once they were transferred to ORR and subsequently placed with foster families. Both parents and children endured intense anguish and distress as a result.The Prohibition of Torture
The prohibition of torture and other cruel, inhuman, or degrading treatment or punishment is absolute under international law. The prohibition is contained in multiple treaties and international standards, and it is the subject matter of specialized treaties. There are no exceptions nor justifications permitted for resort to prohibited ill-treatment, as the Human Rights Committee and other authorities have reaffirmed. In fact, the prohibition of torture is a peremptory norm of international law.
As defined in the Convention against Torture, ratified by the United States in 1994, torture is any act of public officials that intentionally inflicts severe physical or mental pain or suffering to fulfil an improper purpose. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions.
Intent and purpose can be inferred from actions and the circumstances in which they are made, including, for example, the preparation required to carry the actions out or the fact of ill-treatment at the hands of government agents. The element that severe pain or suffering be “intentionally inflicted” does not require a “subjective inquiry into the motivations of the perpetrators”; it is enough that the perpetrators knowingly inflicted such pain or suffering.
The Convention against Torture gives as examples of the improper purpose element “obtaining from or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind . . . .” The forcible family separation policy inflicted suffering for at least four of these improper purposes:
· Punishment. Attorney General Jeff Sessions wanted “consequences” for irregular entry, including for “people were coming over with children,” according to Gene Hamilton. Characterizing irregular entry of parents with their children as “smuggling,” Sessions stated, “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.” The conclusion that Sessions and other senior officials intended forcible family separation as a consequence for irregular entry is reinforced by emails from Matthew Albence, ICE executive associate director for enforcement and removal operations, telling Thomas Homan and other DHS officials that “we are NOT to reunite the families” even when parents returned from federal court before DHS had transferred their children to ORR. Reuniting the families in such circumstances “obviously undermines the entire effort,” he wrote.
Intimidation. Sessions and other senior officials intentionally chose forcible family separation as an extreme measure to dissuade other families from future irregular entries. Official communications and discussions couched this aim in the sanitized language of “deterrence,” describing forcible separations as “a deterrent to families who have not yet entered the U.S.” and “a deterrent in the longer term,” “deterring first-time improper entrants,” and similar terms. President Trump announced this motivation for forcible family separation in several of his public remarks, including one in which he said, “If they feel there will be separation, they won’t come.” These and other statements establish that their aim was not merely the deterrent effect resulting from conviction and sentencing on the minor charge of first-time improper entry. Rather, the deterrent was the threat of forcible separation of children from their parents: “We need to take away children,” Sessions reportedly said; “the expectation is that we are NOT to reunite the families,” in Albence’s words. These and other official statements indicate a purpose that went beyond the permissible aim of deterring violations of the law. Forcibly separating children from their parents was a means of intimidating other families from attempting to enter the United States irregularly, including those who did so to apply for asylum.
Coercion. Some CBP agents pressured parents to accept deportation, withdraw asylum claims, or sign other documents they did not understand, threatening that they would never see their children again if they did not do so. These agents carried out these coercive practices in a context in which Sessions described arriving families as having received “blanket immunity from our laws” and Nielsen misleadingly claimed that “illegal aliens fraudulently using children to pose as family units to gain entry into the country.” This was not the first time Human Rights Watch and other groups have documented CBP misconduct: Human Rights Watch heard similar accounts of CBP agents pressuring people to abandon their asylum claims and accept deportation in 2014, 2015, and 2017. Such coercion was a foreseeable consequence of the forcible family separation policy.
Discrimination. The senior government officials who developed the forcible family separation policy did so against the backdrop of racist and dehumanizing official rhetoric, notably President Donald J. Trump’s repeated descriptions of irregular migrants as “rapists,” “bringing drugs,” “animals,” “tough people,” “an invasion,” and an “infest.”
As indicated by the phrase “such as,” this list in the Convention against Torture is not exhaustive. Other purposes that have “something in common with the purposes expressly listed” meet this element. For example, the infliction of suffering “as a preventive measure,” explicitly included in the Inter-American Convention to Prevent and Punish Torture’s definition of torture, is an improper purpose akin to those explicitly listed in the Convention against Torture.
Officials’ characterization of the policy’s purpose as “deterrence” does not insulate it from scrutiny. While governments have legitimate interests in regulating migration and in deterring violations of the law, the means the architects of the policy chose—forcing families apart, in many cases for months, with little communication and often with no information at all for days or even weeks about parents’ and children’s whereabouts—was wholly disproportionate to any legitimate government objective.
As J. Herman Burgers and Hans Danelius, two of the diplomats actively involved in the drafting of the Convention against Torture, observed in a widely cited treatise:
This requirement does not necessarily mean that the purposes must be illegitimate. Several purposes of the list, in particular obtaining information or a confession, punishing or even intimidating and coercing, may be perfectly legitimate on condition that legitimate methods are used to achieve them. In principle, the common element of the purposes listed in the definition should rather be understood to be the existence of some—even remote—connection with the interests or policies of the State and its organs. It is important to note, in this context, that the primary objective of the Convention is to eliminate torture committed by or under the responsibility of public officials for purposes connected with their public functions.
A Trial Chamber judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) adopted this analysis in a judgment that also noted that the prohibited purpose need not be the exclusive motivation; instead, the purpose “must simply be part of the motivation behind the conduct, and it need not be the predominant or sole purpose.”
As specified in the convention, pain or suffering need not be physical. This element is met by “acts that are not violent per se, but nevertheless inflict suffering.” Mental harm need not be “prolonged”; a single act such as a threat that causes serious suffering meets this element. Severity should be understood subjectively, taking into account factors such as age and context, and should not be taken as the factor that distinguishes torture from other cruel, inhuman, or degrading treatment or punishment.
Assessing the forcible family separation policy in August 2018 in the context of a request for precautionary measures, the Inter-American Commission on Human Rights found:
he prolonged separation of the children from their family is likely to have a serious impact on the affective ties with their relatives, resulting in emotional and psychological distress that could affect their personal integrity by placing the balanced development of their personality at risk.
Analyzing the ICCPR’s prohibition of torture, the Human Rights Committee has regularly cited the “anguish and distress” of relatives in cases of enforced disappearance as evidence of severe pain or suffering. As the Human Rights Committee does, the Committee against Torture has consistently regarded enforced disappearance as a form of torture.
Forcible family separation was carried out through the acts of public officials. The policy was developed by senior DHS and DOJ officials, and it was implemented by Border Patrol agents and other government employees. Moreover, senior officials deliberately chose to separate families—separations were not required by law, and the policy overturned longstanding practice that had been explicitly adopted to avoid family separation.
Separations often caused immediate anguish and distress and risked the infliction of further long-term trauma, as described earlier in this report. The senior officials who developed the policy and directed its implementation did so with knowledge of the risk that the policy would result in these serious harms. As discussed above, they did so for the improper purposes of punishment, intimidation, and coercion.
Finally, forcible family separations were not merely incident to lawful sanctions. Instead, the evidence shows that the separations themselves were the goal of the prosecutions for improper entry: that is, officials charged parents with improper entry so they could separate the families with the goal of deterring irregular migration.The Right to Effective Remedies and Full Reparation
Under the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the UN General Assembly in 2005, victims of human rights violations should have effective access to justice and effective remedies. In cases of gross violations of human rights—including ill-treatment, enforced disappearances, and systematic discrimination—states have a duty to investigate and, if warranted, prosecute and punish those responsible. Full and effective reparation for victims of gross violations of human rights includes:
Restitution, the aim of which is to restore people as fully as possible to the original situation. For children forcibly separated from their parents, restitution includes reunification.
Compensation, as appropriate and proportional to the gravity of the violation and the circumstances of each case, including for physical or mental harm, material and moral damage, lost opportunities, and the cost of medical, psychological, and social services.
Rehabilitation, including medical and psychological care as well as legal and social services.
Satisfaction, including full and public disclosure of the truth, public apology, and judicial and administrative sanctions against persons liable for the violations.
Guarantees of non-repetition, including legal and policy reforms to prevent similar violations from occurring again.
In the case of family separation, guarantees of non-repetition could include legislation prohibiting forcible family separation, regular public reporting on separations for cause, ongoing congressional oversight of any separation of families at the border, and regular internal review of such practices.
In line with the Basic Principles, the UN Human Rights Committee has called on the United States to “redouble its efforts to ensure the reunification of all separated children with their families, guarantee that such family separations are prohibited and that they do not occur and ensure that victims have access to effective remedies and receive full reparation, including adequate compensation and appropriate support services.”
VIII. Individual Criminal Responsibility
The human rights violations carried out under the forcible family separation policy may violate federal criminal law, notably statutes that prohibit conspiracy to deprive people of their rights and participation in serious human rights offenses. The US Department of Justice should investigate these and other potential violations of federal law.
Moreover, to the extent that forcible family separation involved acts of enforced disappearance and torture, these are crimes under international law for which the architects of the policy potentially bear individual responsibility on the basis of universal jurisdiction.
At the very least, those architects of the policy who are attorneys can be investigated by the Justice Department’s Office of Professional Responsibility and by the bars to which they are admitted for potential professional misconduct, including violations of their duty to exercise independent professional judgment and render candid advice and their duty of thoroughness and care.Conspiracy to Deprive People of Their Rights
Federal law criminalizes conspiracy to interfere with “a right or privilege secured . . . by the Constitution or laws of the United States.” The Criminal Section of the US Department of Justice’s Civil Rights Division enforces this statute and has used it to address misconduct by law enforcement officers. Exercising its authority to enforce this statute, the Criminal Section can examine whether the architects of the forcible family separation policy conspired to interfere with the right to seek asylum, the constitutionally protected right to family integrity, or other rights.
The statute that criminalizes conspiracy to deprive people of their rights, 18 U.S.C. § 241, differs from the general federal conspiracy statute. It does not require an underlying act that is itself a criminal offense; instead, the statute criminalizes conspiracy to infringe a right secured by the US Constitution or by federal law.
Charges under section 241 must ordinarily be brought within five years of the date of the commission of the offense, potentially meaning that the architects of the family separation policy would not face prosecution under this statute for acts committed in 2017 and 2018. But where evidence of a crime is located in another country, which may be the case to the extent that parents separated from their children were deported and have not returned to the United States, the limitations period may be extended for an additional three years. A longer statute of limitations applies to offenses involving physical abuse or kidnapping of a child.Deprivation of the Right to Seek Asylum
Federal law provides that “ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . . ), irrespective of such alien's status, may apply for asylum.” The provisos in the asylum statute that a person’s manner of entry or status do not affect the right to seek asylum are consistent with the international obligation not to impose penalties on refugees for irregular entry or presence and UNHCR’s recommendation that people who seek asylum should not be prosecuted for irregular entry or stay.
Nonetheless, Attorney General Jeff Sessions’ announcement of “zero tolerance,” the predicate of the forcible family separation policy, offered no exception for people seeking asylum: “I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border. . . . So if you’re going to come to this country, come here legally. Don’t come here illegally.” Under Sessions, the Justice Department had already sharply increased prosecutions of people seeking asylum on improper entry charges. As Human Rights First documented in 2017, criminal convictions almost always led to deportation before a person had the opportunity to seek asylum. In some cases, federal prosecutors required people to waive their right to seek asylum and withholding of removal (a form of relief that prevents deportation to persecution or torture) as a condition of receiving a reduced charge or sentence.
Sessions’ announcement and the forcible family separation policy that followed should also be viewed in the context of his and other senior officials’ frequent criticism of the lawful exercise of the right to seek asylum as enabling “fraud and abuse” and the improper hurdles the administration placed on access to asylum. In remarks in October 2017 that were indicative of the administration’s attitude toward asylum, for example, Sessions said of asylum claims, “Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing—if the alien shows for the hearing.”
Many, if not most, people forcibly separated under the policy intended to seek asylum, as indicated by the consistent statements of those Human Rights Watch and other groups interviewed and the explicit provision in the Ms. L settlement allowing for the reopening of parents’ and children’s asylum cases.Deprivation of the Right to Family Integrity
The right of parents and their children to family integrity is constitutionally protected. As the Ms. L court observed, “the right to family integrity still applies” at an international border. This right can be subject to appropriate limitations: the Ms. L court observed, for example, that a separation of a parent who presents a danger to the child is not inconsistent with the right.
Under “zero tolerance,” separation was not predicated on a finding that a parent presented a danger to the child or that it was otherwise in the child’s best interests.
In fact, the policy’s effect, if implemented fully, would have been to separate all families that arrived irregularly. And as illustrated by the statements of Sessions and other senior officials, the intent behind the policy was to separate all such families.
In short, the design of the forcible family separation policy was such that it fairly raises questions as to whether it was crafted to deprive parents and children of their constitutionally protected right to family integrity.Serious Human Rights Offenses
The Human Rights Enforcement Act of 2009 charged the Justice Department with “tak appropriate legal action against individuals suspected of participating in serious human rights offenses.” The act defined “serious human rights offenses” to include—but did not limit them to—specific federal criminal laws, including the federal anti-torture statute.
The statute’s use of nonexclusive wording means that the Justice Department can take appropriate action for serious human rights offenses other than those listed. Enforced disappearance, which US Secretary of State Antony J. Blinken has described as “an egregious human rights violation,” is one such offense. Acts of torture committed within the United States, which the federal anti-torture statute does not cover, are also serious human rights offenses that should fall within the remit of the Human Rights Enforcement Act of 2009.
Recommendations
To the US Congress
Repeal the statutory provisions criminalizing improper entry and improper reentry and state that it is the intent of Congress that irregular entry should be addressed administratively rather than through the criminal justice system.
Enact legislation, including as necessary through amendments to the Trafficking Victims Protection Reauthorization Act (TVPRA), that directs the Department of Homeland Security (DHS) and other federal authorities who apprehend migrant families at or near the border to presume that family unity is in the best interests of the child in the absence of substantial reason to believe otherwise. Determinations that separation from a parent is in a child’s best interests should employ standards that are substantially similar to those used in family court. A parent’s criminal record should not be treated as conclusive evidence that separation is in a child’s best interests. Family unity should extend to keeping children together with their siblings, grandparents, aunts and uncles, or cousins, except when separation is in an individual child’s best interests.
Use the Congressional Review Act to overturn federal agency actions, including regulations, guidance documents, and policy memoranda, that permit or support family separation other than in a child’s best interests.
Establish a special investigative committee to review the family separation policy, its development, and its implementation. The committee should use its full investigative authority, including by taking the following steps:
Subpoena federal contractors who implemented aspects of the family separation policy.
Produce a report that analyzes whether government actions under the family separation policy amounted to torture, refoulement, or other human rights violations.
Reenact legislation requiring DHS and the Department of Health and Human Services (HHS) to report, publicly and on a monthly basis, the number of children separated from their parents by DHS, with a breakdown of reasons for separation and disaggregated by age under 5 years and 5 years and above.
Provide effective remedies for the serious human rights violations caused by forcible separations of children from their parents. These could include permanent residence as partial reparation for the harms they endured. Remedies should also include long-term medical and psychological care along with legal and social services; proportional compensation for the parents and children who were separated; and a public apology, including acknowledgement of the facts and acceptance of the government’s responsibility.To the US Department of Homeland Security
The commissioner of US Customs and Border Protection (CBP) should direct immigration agents to keep families together unless an adult presents a clear threat to a child or separation is otherwise in a child’s best interests. A parent’s criminal history other than abuse of a child should not be automatically deemed to meet these conditions. The best interests determination should be made by a licensed child welfare professional, such as a social worker, psychologist, or psychiatrist with training and competence to work with children.
The inspector general’s office of the DHS should systematically review all instances of family separation, including of family members other than parents, to determine whether separation was in the child’s best interests.
The department should ensure that attorneys representing detained immigrants have access to CBP detention centers and all other facilities used for immigration detention, both to meet with their clients and to provide other critical legal services, including conducting know-your-rights presentations and participating in the preparation of detainees who are representing themselves in legal proceedings.To the US Department of Justice
The Criminal Section of the Civil Rights Division should investigate and, as appropriate, prosecute the architects of the forcible family separation policy for possible violations of 18 U.S.C. §§ 241, conspiracy to deprive persons of their rights, and 242, deprivation of rights under color of law.
The Human Rights and Special Prosecutions Section of the Criminal Division should investigate and, as appropriate, prosecute the architects of the forcible family separation policy for serious human rights offenses, including acts of torture and enforced disappearance as prohibited under customary international law, the International Covenant on Civil and Political Rights, and the Convention against Torture.
The Office of Professional Responsibility should investigate whether senior Justice Department attorneys committed professional misconduct in the course of developing the forcible family separation policy.To the Disciplinary Committees of the Alabama, California, District of Columbia, Georgia, Iowa, Texas, and Virginia Bars
Investigate and, as appropriate, discipline those architects of the forcible family separation policy who are attorneys, including former Attorney General Jeff Sessions (Alabama), Gene Hamilton, former senior counselor to the secretary of homeland security and former counselor to the attorney general (District of Columbia, Georgia, Virginia), Kevin K. McAleenan, former CBP commissioner and former acting secretary of homeland security (California), Kirstjen Nielsen, former secretary of homeland security (Texas), and Matthew Whitaker, former Department of Justice chief of staff (Iowa).
Acknowledgments
This report was written by Michael Garcia Bochenek, senior counsel in Human Rights Watch’s Children’s Rights Division. The report draws on research by 2018-2019 Allard K. Lowenstein International Human Rights Clinic students and Clinic fellow Ben Dearden. The team worked under the supervision of Professor James Silk, director of the Lowenstein Clinic, in partnership with Efrén Olivares, then the director of the Racial and Economic Justice Program at the Texas Civil Rights Project (TCRP). The report also incorporates interviews and observations during site visits by Bochenek; Warren Binford, then the director of the Clinical Law Program at Willamette University; and Clara Long, then senior researcher on immigration in the US Program at Human Rights Watch, in 2018 and 2019.
Bede Sheppard, deputy director of the Human Rights Watch Children’s Rights Division; Tom Porteous, Human Rights Watch deputy program director; Maria McFarland Sánchez-Moreno, Human Rights Watch senior legal adviser; Joya Fadel, Children’s Rights Division senior associate; James Silk; Efrén Olivares; Daniel Hatoum, senior supervising attorney in TCRP’s Beyond Borders team; and Danny Woodward, policy attorney in TCRP’s Beyond Borders team, edited the report. The following Human Rights Watch staff members also reviewed and commented on the report: Julia Bleckner, Global Health Initiative senior researcher; Elizabeth Evenson, International Justice Program director; Bill Frelick, Refugee and Migrant Rights director; Vicki Gaubeca, associate director for US immigration and border policy; Tanya Greene, US Program director; and Balkees Jarrah, International Justice Program associate director.
Joya Fadel; Travis Carr, publications officer; Fitzroy Hepkins, senior administrative manager, and José Martínez, administrative officer, produced the report. Gabriela Haymes translated the summary and recommendations into Spanish. Claudia Nunez, Spanish web editor, vetted the translation.
Human Rights Watch, TCRP, and the Lowenstein Clinic are grateful to the many groups that generously assisted us during this research. We would also like to thank the children and adults who were willing to share their firsthand experiences with us.
Opinion, p. 15 n.14, United States v. Dominguez-Portillo, No. EP-17-MJ-4409-MAT (W.D. Texas January 5, 2018), https://s3.documentcloud.org/documents/4546884/Dominguez-Portillo-Magistrate-Opinion.pdf (accessed September 30, 2024).
Office of the Inspector General, US Department of Justice, Review of the Department of Justice’s Planning and
Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services (January 2021, revised April 2022), p. 14, https://oig.justice.gov/sites/default/files/reports/21-028_0.pdf (accessed September 30, 2024).
Email to Allen Blume (sender’s name redacted), March 3, 2017, in Third Interim Release, DHS FOIA Litigation No. 2019-HQLI-00010, p. 64.
Letter to Sen. Charles E. Grassley, chair, Senate Whistleblowing Caucus, and Sen. Ron Wyden, vice chair, Senate Whistleblowing Caucus, from Dr. Scott Alan and Dr. Pamela McPherson, July 17, 2018, p. 2, https://www.wyden.senate.gov/imo/media/doc/Doctors%20Congressional%20Disclosure%20SWC.pdf (accessed September 30, 2024).
Patrice Taddonio, “‘The Most Horrible Thing I’ve Ever Done’: A Border Patrol Officer Who Separated Families Speaks Out,” Frontline, January 7, 2020, https://www.pbs.org/wgbh/frontline/article/the-most-horrible-thing-ive-ever-done-a-border-patrol-officer-who-separated-families-speaks-out/ (accessed September 30, 2024).
Laura Bush, “Laura Bush: Separating Children from Their Parents at the Border ‘Breaks My Heart,’” Washington Post, June 17, 2018, https://www.washingtonpost.com/opinions/laura-bush-separating-children-from-their-parents-at-the-border-breaks-my-heart/2018/06/17/f2df517a-7287-11e8-9780-b1dd6a09b549_story.html (accessed September 30, 2024).
David Nakamura, “‘Morally Repugnant’: Homeland Security Advisory Council Members Resign over Immigration Policies,” Washington Post, July 17, 2018, https://www.washingtonpost.com/news/post-politics/wp/2018/07/17/morally-repugnant-homeland-security-advisory-council-members-resign-over-immigration-policies/ (accessed September 30, 2024).
Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, pp. 14-15, Ms. L. v. ICE, No. 18-cv-0428 (S.D. Cal. June 26, 2018), ECF No. 83, https://www.aclu.org/cases/ms-l-v-ice?document=ms-l-v-ice-order-amending-briefing-schedule (accessed September 30, 2024).
Caitlin Dickerson, “The Secret History of the U.S. Government’s Family Separation Policy,” The Atlantic, August 7, 2022, p. 39, https://www.theatlantic.com/magazine/archive/2022/09/trump-administration-family-separation-policy-immigration/670604/ (accessed October 25, 2024).,
Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544 (C.D. Cal. January 17, 1997), https://www.aclu.org/legal-document/flores-v-meese-stipulated-settlement-agreement-plus-extension-settlement (accessed September 30, 2024).
This system, known as PACER (or Public Access to Court Electronic Records), is available at https://pacer.uscourts.gov/.
“Child Migrants Speak Truth to Power,” undated, Project Amplify, https://www.project-amplify.org/declarations (accessed September 30, 2024).
“Ms L. v. ICE,” ACLU, last updated September 26, 2024, https://www.aclu.org/cases/ms-l-v-ice#summary (accessed September 30, 2024).
For example, Criminal Prosecution of Aliens Who Entered Unlawfully: Legal Guidance on Potential Separation of Family Members, Memorandum for the Secretary from John M. Mitnick, general counsel, US Department of Homeland Security, April 24, 2018, in Plaintiffs' Administrative Motion for Leave to File Exhibit with Joint Discovery Letter, Exhibit A, P.G. v. United States, Case No. 4:21-cv-04457-KAW (N.D. Cal. filed September 15, 2023), ECF No. 100-2.
American Immigration Council, “Government Documents on Family Separation,” undated, https://www.americanimmigrationcouncil.org/foia/government-documents-family-separation-tracking-policys-evolution-implementation-and-harm (accessed September 30, 2024).
See American Oversight, “DHS Records Relating to Family Separation from 2017 to 2019,” March 15, 2023, https://americanoversight.org/featureddocument/dhs-records-relating-to-family-separation-from-2018-to-2019/ (accessed November 19, 2024).
Caitlin Dickerson, “The Family-Separation Files,” The Atlantic, December 31, 2022, https://www.theatlantic.com/politics/archive/2022/12/the-secret-history-of-family-separation-document-collection/672146/ (accessed September 30, 2024).
See, for example, Declaration of K.G. (June 15, 2018), in Redacted Exhibits in Support of Plaintiffs’ Response to Defendants’ First Juvenile Coordinator Reports, Ex. 99, Flores v. Sessions, No. 2:85-cv-04544-DMG-AGR (C.D. Cal. July 19, 2018), ECF No. 462-7, available at Project Amplify, “Child Migrants Speak Truth to Power,” July 2018 tabs, https://www.project-amplify.org/declarations (accessed September 30, 2024).
One official, former Deputy Attorney General Rod Rosenstein, replied to our letter but did not answer our questions or otherwise comment on our findings. Email from Rod Rosenstein to Michael Garcia Bochenek, November 25, 2024 (on file with Human Rights Watch).
Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3 (entered into force September 2, 1990), art. 1. The United States has signed the convention, obligating it to refrain from actions that would defeat the convention’s object and purpose, but has not ratified it.
United Nations Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, U.N. Doc. CRC/GC/2005/6 (September 1, 2005), para. 7; United Nations High Commissioner for Refugees (UNHCR), United Nations Children’s Fund (UNICEF), et al., Inter-Agency Guiding Principles on Unaccompanied and Separated Children (Geneva: International Committee of the Red Cross, 2004), p. 13, https://shop.icrc.org/inter-agency-guiding-principles-on-unaccompanied-and-separated-children-pdf-en.html (accessed October 25, 2024).
Committee on the Rights of the Child, General Comment No. 6, para. 8; Inter-Agency Guiding Principles on Unaccompanied and Separated Children, p. 13. See also Separated Children in Europe Programme: Statement of Good Practice (Copenhagen: Save the Children, UNHCR, and UNICEF, 4th rev. ed. 2009), https://resourcecentre.savethechildren.net/pdf/5034.pdf/ (accessed October 25, 2024).
Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (entered into force April 22, 1954), art. 1; Protocol relating to the Status of Refugees, January 31, 1967, 606 U.N.T.S. 267 (entered into force October 4, 1967), art. 1. The United States acceded to the Refugee Protocol on November 1, 1968.
UNHCR, “Who We Protect: Refugees,” undated, https://www.unhcr.org/us/refugees (accessed September 30, 2024).
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/IP/4/Eng/REV.3 (2011), para. 28, https://digitallibrary.un.org/record/752983?v=pdf (accessed October 25, 2024).
International Organization for Migration (IOM), Glossary on Migration (Geneva: IOM, 2019), p. 132, https://publications.iom.int/system/files/pdf/iml_34_glossary.pdf (accessed September 30, 2024).
Human Rights Watch interview with Rolando B., San Pedro Sula, Honduras, July 20, 2018. For a fuller account of Rolando and Johan’s case, see Clara Long, “Deported Parent Worries 1-Year-Old Will Have Lasting Trauma,” Human Rights Watch, July 20, 2018, https://www.hrw.org/news/2018/07/20/deported-parent-worries-1-year-old-will-have-lasting-trauma; Astrid Galvan, “1-Year-Old Separated from Dad Will Return to Honduras Soon,” U.S. News and World Report, July 13, 2018, https://www.usnews.com/news/us/articles/2018-07-13/1-year-old-separated-from-dad-will-return-to-honduras-soon (accessed September 30, 2024).
Daniella Diaz, “Kelly: DHS Is Considering Separating Undocumented Children from Their Parents at the Border,” CNN, March 7, 2017, www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from-parents-immigration-border/index.html (accessed September 30, 2024); Tal Kopan, “Kelly Says DHS Won’t Separate Families at the Border,” CNN, March 29, 2017, https://www.cnn.com/2017/03/29/politics/border-families-separation-kelly/index.html (accessed September 30, 2024).
See Joshua Barajas, “How Trump’s Family Separation Policy Became What It Is Today,” PBS News, June 14, 2018, updated June 21, 2018, https://www.pbs.org/newshour/nation/how-trumps-family-separation-policy-has-become-what-it-is-today (accessed September 30, 2024).
Lee Gelernt, “The Battle to Stop Family Separation,” New York Review of Books, December 19, 2018, https://www.nybooks.com/online/2018/12/19/the-battle-to-stop-family-separation/ (accessed September 30, 2024).
Motion for Preliminary Injunction for Classwide Relief, Ms. L. v. ICE, No. 3:18-cv-00428-DMS-AHG (S.D. Cal. March 19, 2018), ECF No. 48.
Office of Inspector General, Department of Homeland Security, CBP Separated More Asylum-Seeking Families at Ports of Entry Than Reported and for Reasons Other Than Those Outlined in Public Statements, OIG-20-35 (May 29, 2020), pp. 6-9, https://www.oig.dhs.gov/sites/default/files/assets/2020-06/OIG-20-35-May20.pdf (accessed September 30, 2024); Neena Satija and Anayansi Diaz-Cortez, “Why Did the Trump Administration Separate Asylum-Seekers from Their Kids?” Texas Tribune, October 2, 2018, https://www.texastribune.org/2018/10/02/why-did-trump-administration-separate-asylum-seekers-their-kids/ (accessed September 30, 2024); Neena Satija, “The Trump Administration Is Not Keeping Its Promises to Asylum Seekers Who Come to Ports of Entry,” Texas Tribune, July 5, 2018, https://www.texastribune.org/2018/07/05/migrants-seeking-asylum-legally-ports-entry-turned-away-separated-fami/ (accessed September 30, 2024); Paloma Esquivel and Brittny Mejia, “The Trump Administration Says It’s a ‘Myth’ That Families That Ask for Asylum at Ports of Entry Are Separated. It Happens Frequently, Records Show,” Los Angeles Times, July 1, 2018, https://www.latimes.com/local/lanow/la-me-ln-port-of-entry-separations-20180701-story.html (accessed September 30, 2024); Katie Shepherd, “Border Patrol Agents May Have Separated Families at Legal Ports of Entry Despite Promises Not To,” Willamette Week, June 19, 2018, https://www.wweek.com/news/courts/2018/06/19/border-patrol-agents-may-have-separated-families-at-legal-ports-of-entry-despite-promises-not-to/ (accessed September 30, 2024).
Declaration of R.M., June 29, 2018, para. 13 . June and July 2018 declarations cited by exhibit number in this chapter are from the 12-volume July 2018 filing by Flores class counsel and are available on Project Amplify’s website. See Exhibits in Support of Plaintiffs’ Response to Defendants’ First Juvenile Coordinator Report, Volumes 1-12, Flores v. Sessions, Case No. 85-cv-4544 DMG (C.D. Cal. filed July 19, 2018), ECF Nos. 462-1 to 462-12, available at Project Amplify, “Child Migrants Speak Truth to Power,” July 2018 tabs, last updated August 2019, https://www.project-amplify.org/declarations (accessed September 30, 2024).
Declaration of P.H., June 29, 2018, para. 7 . See also Declaration of A.A., June 29, 2018, para. 4 .
See Nicole Austin-Hillery, “Trump’s Racist Language Serves Abusive Immigration Policies,” Human Rights Watch, May 22, 2018, https://www.hrw.org/news/2018/05/22/trumps-racist-language-serves-abusive-immigration-policies.
See Chapter VII, “Prohibition of Enforced Disappearance” section.
See Chapter VII, “Prohibition of Torture” section.
Opinion, p. 15 n.14, United States v. Dominguez-Portillo, No. EP-17-MJ-4409-MAT (W.D. Texas January 5, 2018), https://s3.documentcloud.org/documents/4546884/Dominguez-Portillo-Magistrate-Opinion.pdf (accessed September 30, 2024).
Eleanor Acer, “Criminal Prosecutions and Illegal Entry: A Deeper Dive,” Just Security, July 18, 2019, https://www.justsecurity.org/64963/criminal-prosecutions-and-illegal-entry-a-deeper-dive/ (accessed September 30, 2024); Office of the Inspector General, US Department of Justice, Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services (January 2021, revised April 2022), p. 5, https://oig.justice.gov/sites/default/files/reports/21-028_0.pdf (accessed September 30, 2024).
See Human Rights Watch, Turning Migrants into Criminals: The Harmful Impact of US Border Prosecutions (New York: Human Rights Watch, 2013), https://www.hrw.org/report/2013/05/22/turning-migrants-criminals/harmful-impact-us-border-prosecutions.
See, for example, UN Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, U.N. Doc. CERD/C/USA/CO/10-12 (September 21, 2022), para. 52(c); UN Working Group on Arbitrary Detention, Revised Deliberation No. 5 on Deprivation of Liberty of Migrants, para. 10, in UN Human Rights Council, Report of the Working Group on Arbitrary Detention, U.N. Doc. A/HRC/39/45 (July 2, 2018), annex.
Office of the Attorney General, US Department of Justice (DOJ), Memorandum for All Federal Prosecutors: Renewed Commitment to Criminal Immigration Enforcement (April 11, 2017), https://www.justice.gov/d9/speeches/attachments/2017/04/11/memo_on_renewed_commitment_to_criminal_immigration_enforcement_0.pdf (accessed September 30, 2024).
Ron Nixon and Caitlin Dickerson, “Immigration Officials Taking New Steps to Discourage Smuggling of Children,” New York Times, September 24, 2017, https://www.nytimes.com/2017/09/24/us/politics/parents-illegal-immigrants-human-smuggling.html (accessed September 30, 2024); Lomi Kriel, “ICE Targeting Relatives Who Pay to Illegally Bring Children into U.S.,” Houston Chronicle, updated July 1, 2017, https://www.houstonchronicle.com/news/houston-texas/houston/article/ICE-targeting-relatives-who-pay-to-illegally-11260232.php (accessed September 30, 2024).
“I direct each United States Attorney's Office along the Southwest Border—to the extent practicable, and in consultation with DHS—to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).” Office of the Attorney General, Memorandum for Federal Prosecutors Along the Southwest Border: Zero Tolerance for Offenses Under 8 U.S.C. § 1325(a) (April 6, 2018), available at https://www.justice.gov/opa/press-release/file/1049751/dl (accessed October 25, 2024).
“The Department of Homeland Security is now referring 100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution. And the Department of Justice will take up those cases.” DOJ Office of Public Affairs, “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration,” May 7, 2018, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions (accessed September 30, 2024).
6 U.S.C. § 279(g); 8 C.F.R. § 236.3(a)(3).
Office of Inspector General, US Department of Health and Human Services (HHS), Separated Children Placed in Office of Refugee Resettlement Care (January 2019), p. 3, https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf (accessed April 23, 2014).
See Chapter VI, “Family Separation Was Intentional” section.
8 U.S.C. § 1232(b)(3).
For an overview of these and other longstanding problems with the detention of children in CBP holding cells, see Human Rights Watch, In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells (New York: Human Rights Watch, 2018), https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells.
Human Rights Watch interview, McAllen, Texas, June 17, 2018. See also Michael Garcia Bochenek, “‘Whatever’—What Happens to Kids Taken from Families at US Border,” Human Rights Watch, June 18, 2018, https://www.hrw.org/news/2018/06/18/whatever-what-happens-kids-taken-families-us-border.
Ursula closed for renovations in 2020 and reopened in 2022 without the chain-link cages. Miriam Jordan, “U.S. Shutters Warehouse Where Migrants Were Kept in ‘Cages,’” New York Times, November 25, 2020, https://www.nytimes.com/2020/11/25/us/border-migrant-children-cages-ursula-warehouse.html (accessed September 30, 2024); Valerie Gonzalez, “Renovated CBP Processing Center Reopens in McAllen,” myRGV.com, March 14, 2022, https://myrgv.com/local-news/2022/03/14/renovated-cbp-processing-center-reopens-in-mcallen/ (accessed September 30, 2024).
See Human Rights Watch, In the Freezer, pp. 1, 4-5.
Declaration of B.F., June 29, 2018, para. 4 .
See Angus C. Burns et al., “Day and Night Light Exposure Are Associated with Psychiatric Disorders: An Objective Light Study in >85,000 People,” Nature Mental Health, vol. 1 (2023), pp. 853-62, https://doi.org/10.1038/s44220-023-00135-8; Christine Bloom, Corrado Garbazza, and Manuel Spitschan, “Effects of Light on Human Circadian Rhythms, Sleep and Mood,” Somnologie (Berlin), vol. 23 (2019), pp. 147-56, https://doi.org/10.1007/s11818-019-00215-x.
Human Rights Watch interview with Byron L., McAllen, Texas, June 15, 2018.
See, for example, Daniella Silva, “‘Like I Am Trash’: Migrant Children Reveal Stories of Detention, Separation,” NBC News, July 29, 2018, https://www.nbcnews.com/news/latino/i-am-trash-migrant-children-reveal-stories-detention-separation-n895006 (accessed September 30, 2024).
Declaration of D.R., June 29, 2018, para. 3 .
Declaration of L.S., June 29, 2018, para. 5 ; Declaration of D.R., June 29, 2018, para. 6 . See also Declaration of L.X., June 28, 2018, para. 9 .
Declaration of D.R., June 29, 2018, para. 6 ; Declaration of K.M., June 29, 2018, para. 8 ; Declaration of I.E., June 28, 2018, para. 3 ; Declaration of D.S., June 29, 2018, para. 9 ; Declaration of A.V., June 29, 2018, para. 3 ; Declaration of R.M., June 29, 2018, para. 14 ; Declaration of D.M., June 29, 2018, para. 9 ; Declaration of S.S., June 28, 2018, para. 8 ; Declaration of S.P., June 29, 2018, para. 8 .
Declaration of F.O., June 28, 2018, para. 3 .
Brané served as the first executive director of the DHS Family Reunification Task Force, established by an executive order issued by President Joe Biden in February 2021. She became the DHS ombudsperson for immigration detention in April 2024. “WRC’s Michelle Brané Tapped for Biden Administration,” Women’s Refugee Commission, March 1, 2021, https://www.womensrefugeecommission.org/press-releases/michelle-brane-tapped-for-biden-administration/ (accessed September 30, 2024); “Michelle Brané, Ombudsman for Immigration Detention,” US Department of Homeland Security, last updated May 10, 2024, https://www.dhs.gov/person/michelle-brane (accessed September 30, 2024).
Michael Garcia Bochenek (Human Rights Watch), “Trump’s Cruel Separation Policy Has Not Ended,” Op-ed, The Progressive, June 25, 2018, https://www.hrw.org/news/2018/06/25/trumps-cruel-separation-policy-has-not-ended.
Declaration of K.Y., July 13, 2018, para. 4 .
Michael Garcia Bochenek, “‘Whatever’—What Happens to Kids Taken from Families at US Border,” Human Rights Watch, June 18, 2018, https://www.hrw.org/news/2018/06/18/whatever-what-happens-kids-taken-families-us-border. See also Declaration of K.B., June 15, 2018, pp. 5-6 ; Declaration of R.Y., June 15, 2018, paras. 3-7 .
Human Rights Watch interview with Evan C., McAllen, Texas, June 15, 2018.
Human Rights Watch interview with Pablo Z., Yoro, Honduras, July 19, 2018.
Declaration of S.G., June 14, 2018, p. 3 .
Michael Garcia Bochenek, “Watching as US Officials Take Children from Their Parents,” Human Rights Watch, June 16, 2018, https://www.hrw.org/news/2018/06/16/watching-us-officials-take-children-their-parents.
Declaration of Laila Arand, paras. 6-7, Ms. L. v. ICE, Case No. 18-cv-00428 (S.D. Cal. filed July 28, 2018), ECF No. 163-1, https://www.aclu.org/cases/ms-l-v-ice?document=ms-l-v-ice-exhibit-58 (accessed September 30, 2024).
Human Rights Watch interview with Jessyca N., Port Isabel, Texas, July 12, 2018.
Human Rights Watch interview with Edwin H., Port Isabel, Texas, July 16, 2018.
Human Rights Watch interview with Héctor G., Port Isabel, Texas, July 12, 2018.
Human Rights Watch interview with Eduardo M., Brownsville, Texas, July 13, 2018.
Ibid.
Ed Lavandera, Jason Morris, and Darran Simon, “She Says Federal Officials Took Her Daughter While She Breastfed the Child in a Detention Center,” CNN, June 14, 2018, https://www.cnn.com/2018/06/12/us/immigration-separated-children-southern-border/index.html (accessed June 24, 2024).
DOJ Office of the Inspector General, Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services (January 2021, revised April 2022), p. 49, https://oig.justice.gov/sites/default/files/reports/21-028_0.pdf (accessed September 30, 2024).
See, for example, Madeline Halpert, “‘Like a Kidnapping’: Migrant Family Separated Under Trump Reunited After Four Years,” BBC News, May 8, 2023, https://www.bbc.com/news/world-us-canada-64959802 (accessed September 30, 2024).
Email from Scott Lloyd to Thomas Homan and Matthew Albence, June 16, 2018, in Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment, Ex. 47, C.M. v. United States, No. 2:19-cv-05217-SRC (D. Ariz. March 9, 2023), ECF No. 379-18, available at American Immigration Council, “Government Documents Submitted as Summary Judgment Exhibits,” https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/separated_family_members_seek_monetary_damages_from_united_states_summary_judgment_exhibits.pdf (accessed September 30, 2024).
Human Rights Watch interview with Erick P., Brownsville, Texas, July 13, 2018.
See, for example, Daniella Silva, “‘Like I Am Trash’: Migrant Children Reveal Stories of Detention, Separation,” NBC News, July 29, 2018, https://www.nbcnews.com/news/latino/i-am-trash-migrant-children-reveal-stories-detention-separation-n895006 (accessed September 30, 2024); Kaelyn Forde, “10-Year-Old Girl Describes Life in Immigration Detention: ‘I Began Crying All the Time’,” ABC News, July 26, 2018, https://abcnews.go.com/US/10-year-girl-describes-life-immigration-detention-began/story?id=56757513 (accessed September 30, 2024).
Declaration of J.R.B., July 13, 2018 (on file with Human Rights Watch).
Declaration of J.S.B.L., July 13, 2018 (on file with Human Rights Watch).
Declaration of S.C., July 13, 2018, para. 4 .
Human Rights Watch interview with Jenri Q., Brownsville, Texas, July 13, 2018.
Human Rights Watch interview with Edwin H., Port Isabel, Texas, July 16, 2018.
Human Rights Watch interview with Aurelio L., Port Isabel, Texas, July 16, 2018.
Human Rights Watch interview with Jessyca N., Port Isabel, Texas, July 12, 2018.
Human Rights Watch interview with Héctor G., Port Isabel, Texas, July 12, 2018.
Human Rights Watch interview with Rolando B., San Pedro Sula, Honduras, July 20, 2018.
See, for example, Complaint, para. 46, Lyon v. ICE, No. 13-cv-05878 (N.D. Cal. filed Dec. 19, 2013), https://www.aclunc.org/sites/default/files/001%202013.12.19%20Complaint.pdf (accessed September 30, 2024).
Email from Sarah Viola, Administration for Children and Families, May 31, 2018 (authorizing collect calls from parents), and email from Jacqueline De Puy to Sarah Viola and James De la Cruz, June 4, 2018 (forwarding logistical questions about putting funds in children’s accounts to be able to receive collect calls), in American Immigration Council, Family Separation FOIA Response from HHS: Records of Reunification Efforts, pp. 24-25, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_hhs_production_records_of_reunification_efforts.pdf (accessed July 10, 2024).
Human Rights Watch interview with Eduardo M., Brownsville, Texas, July 13, 2018.
See Miriam Jordan, “Sponsors of Migrant Children Face Steep Transport Fees and Red Tape,” New York Times, July 1, 2018, https://www.nytimes.com/2018/07/01/us/migrant-children-families.html (accessed November 18, 2024).
Tom Hals, “Judge Tells U.S. to Pay Costs of Reuniting Immigrant Families,” Reuters, July 14, 2018, https://www.reuters.com/article/us-usa-immigration/judge-tells-u-s-to-pay-costs-of-reuniting-immigrant-families-idUSKBN1K31A7/ (accessed July 10, 2024).
See Chapter VII.
Human Rights Watch interview with Edwin H., Port Isabel, Texas, July 16, 2018.
Human Rights Watch interview with Pablo Z., Yoro, Honduras, July 19, 2018.
For example, Incident Report, KidsPeace, June 19, 2018 (account of mother coerced into signing deportation documents), in American Immigration Council, Family Separation FOIA Response from HHS: Records of Trauma, pp. 58-59, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_hhs_production_records_of_trauma.pdf (accessed September 30, 2024).
Human Rights Watch interview with Jessyca N., Port Isabel, Texas, July 12, 2018.
Human Rights Watch interview with Ariel P., Karnes City, Texas, July 17, 2018.
See, for example, Government Accountability Office (GAO), Unaccompanied Children: Agency Efforts to Reunify Children Separated from Parents at the Border (October 2018), pp. 14-15, https://www.gao.gov/assets/gao-19-163.pdf (accessed September 30, 2024); Scott Pelley, “The Chaos Behind Donald Trump’s Policy of Family Separation at the Border,” 60 Minutes, November 26, 2018, https://www.cbsnews.com/news/trump-family-separation-policy-mexican-border-60-minutes-investigation-greater-in-number-than-trump-administration-admits/ (accessed September 30, 2024).
GAO, Agency Efforts to Reunify Children, p. 14. See also Statement of Kathryn A. Larin, director, Education, Workforce and Income Security, Government Accountability Office, in Examining the Failures of the Trump Administration’s Inhumane Family Separation Policy, Hearing Before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, House of Representatives, 116th Congress, 1st sess., February 7, 2019, Serial No. 116-3, p. 16, https://www.govinfo.gov/content/pkg/CHRG-116hhrg35404/pdf/CHRG-116hhrg35404.pdf (accessed September 30, 2024); Caitlin Dickerson, “The Secret History of the U.S. Government's Family Separation Policy,” The Atlantic, August 7, 2022, p. 50, https://www.theatlantic.com/magazine/archive/2022/09/trump-administration-family-separation-policy-immigration/670604/ (accessed July 10, 2024).
GAO, Agency Efforts to Reunify Children, p. 15. For a fuller discussion of the El Paso initiative, see Chapter VI, “The Policy Drew on Earlier Initiatives” section, below.
Statement of Kathryn A. Larin, in Examining the Failures of the Trump Administration’s Inhumane Family Separation Policy, p. 16. See also GAO, Agency Efforts to Reunify Children, p. 16.
GAO, Agency Efforts to Reunify Children, p. 22.
US Department of Homeland Security, Office of Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, OIG-20-06 (November 25, 2019), p. 20, https://www.oig.dhs.gov/sites/default/files/assets/2019-11/OIG-20-06-Nov19.pdf (accessed September 30, 2024).
Email to Tae Johnson (sender’s name redacted), June 20, 2018, in Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment, Ex. 49, C.M. v. United States, No. 2:19-cv-05217-SRC (D. Ariz. March 9, 2023), ECF No. 379-18, https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/separated_family_members_seek_monetary_damages_from_united_states_summary_judgment_exhibits.pdf (accessed September 30, 2024).
HHS Office of Inspector General, Separated Children Placed in Office of Refugee Resettlement Care, HHS OIG Issue Brief OEI-BL-18-00511 (January 2019), p. 5, https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf (accessed September 30, 2014). Similarly, the Interagency Task Force on the Reunification of Families, established by President Joe Biden in February 2021, found that “o comprehensive, interagency system was in place at the time to track separated parents and their minor children to ensure that families could promptly and successfully be reunited once the parents were released from detention.” Interagency Task Force on the Reunification of Families, Initial Progress Report (June 2, 2021), p. 3, https://www.dhs.gov/sites/default/files/publications/21_0602_s1_family-reunification-task-force-120-day-progress-report.pdf (accessed September 30, 2024).
Status Conference Transcript (June 22, 2018), pp. 33-35, Ms. L. v. ICE, Case No. 18-cv-0428 (S.D. Cal.), https://www.aclu.org/cases/ms-l-v-ice?document=ms-l-v-ice-plaintiffs-reply-support-motion-classwide-preliminary-injunction (accessed September 30, 2024).
Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, pp. 2-3, Ms. L. v. ICE, Case No. 3:18-cv-0428 (S.D. Cal. June 26, 2018), ECF No. 83, https://www.aclu.org/cases/ms-l-v-ice?document=ms-l-v-ice-order-amending-briefing-schedule (accessed September 30, 2024).
DHS Office of Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, p. 24.
Women’s Refugee Commission, Lutheran Immigration and Refugee Service (LIRS), and Kids in Need of Defense (KIND), Betraying Family Values: How Immigration Policy at the United States Border Is Separating Families (Washington, D.C.: KIND, Women’s Refugee Commission, and LIRS, January 2017), p. 1, https://www.womensrefugeecommission.org/wp-content/uploads/2020/09/BetrayingFamilyValues-Feb2017.pdf (accessed October 28, 2024).
DHS Office of Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, p. 24.
HHS Office of Inspector General, Separated Children Placed in Office of Refugee Resettlement Care, HHS OIG Issue Brief OEI-BL-18-00511 (January 2019), pp. 6-7, https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf (accessed September 30, 2024).
Human Rights Watch interview with CBP official, McAllen, Texas, June 15, 2018.
DHS Office of Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, p. 10.
Ibid., p. 11.
HHS Office of Inspector General, Separated Children Placed in Office of Refugee Resettlement Care, p. 13.
DHS Office of Inspector General, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, p. 8.
“Here’s Donald Trump’s Presidential Announcement Speech,” Time, June 16, 2015, https://time.com/3923128/donald-trump-announcement-speech/ (accessed September 30, 2024).
Z. Byron Wolf, “Trump Basically Called Mexicans Rapists Again,” CNN, April 6, 2018, https://www.cnn.com/2018/04/06/politics/trump-mexico-rapists/index.html (accessed September 30, 2024).
Alan Fram and Jonathan Lemire, “Trump: Why Allow Immigrants from ‘Shithole Countries’?”, Associated Press, January 12, 2018, https://apnews.com/article/immigration-north-america-donald-trump-ap-top-news-international-news-fdda2ff0b877416c8ae1c1a77a3cc425 (accessed September 30, 2024).
Scott Neuman, “During Roundtable, Trump Calls Some Unauthorized Immigrants ‘Animals,’” NPR, May 17, 2018, https://www.npr.org/sections/thetwo-way/2018/05/17/611877563/during-roundtable-trump-calls-some-unauthorized-immigrants-animals (accessed September 30, 2024); Linda Qiu, “The Context Behind Trump’s ‘Animals’ Comment,” New York Times, May 18, 2018, https://www.nytimes.com/2018/05/18/us/politics/fact-check-trump-animals-immigration-ms13-sanctuary-cities.html (accessed September 30, 2024). President Trump has since repeated the characterization of irregular migrants as “animals” without indicating that he was only referring to members of gangs. Nathan Layne, Gram Slattery, and Tim Reid, “Trump Calls Migrants ‘Animals,’ Intensifying Focus on Illegal Migration,” Reuters, April 3, 2024, https://www.reuters.com/world/us/trump-expected-highlight-murder-michigan-woman-immigration-speech-2024-04-02/ (accessed September 30, 2024).
Donald J. Trump (@realDonaldTrump), Twitter, June 19, 2018, https://x.com/realDonaldTrump/status/1009071403918864385 (accessed September 30, 2024). See also Betsy Klein and Kevin Liptak, “Trump Ramps Up Rhetoric: Dems Want ‘Illegal Immigrants’ to ‘Infest Our Country,’” CNN, June 19, 2018, https://www.cnn.com/2018/06/19/politics/trump-illegal-immigrants-infest/index.html (accessed September 30, 2024).
“AP Fact Check: President Trump’s Rhetoric and the Truth About Migrant Caravans,” PBS, November 2, 2018, https://www.pbs.org/newshour/politics/ap-fact-check-president-trumps-rhetoric-and-the-truth-about-migrant-caravans (accessed September 30, 2024).
Lomi Kriel, “Trump Presses Border Crisis in McAllen, But Reality Is Different,” Houston Chronicle, January 10, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-presses-border-crisis-in-McAllen-but-13525102.php (accessed September 30, 2024).
Miriam Jordan, “‘It’s Horrendous’: The Heartache of a Migrant Boy Taken from His Father,” New York Times, June 7, 2018, https://www.nytimes.com/2018/06/07/us/children-immigration-borders-family-separation.html (accessed September 30, 2024).
Secretary Kirstjen M. Nielsen (@SecNielsen), Twitter, June 17, 2018, https://x.com/SecNielsen/status/1008467414235992069 (accessed September 30, 2024). See also “DHS Sec. Kirstjen Nielsen Denies Family Separation Policy Exists, Blames Media,” CBS News, June 18, 2018, https://www.cbsnews.com/news/dhs-sec-kirstjen-nielsen-denies-family-separation-policy-exists-blames-media/ (accessed September 30, 2024).
Email from Chad Wolf to Kirstjen Nielsen, March 4, 2018, https://s3.documentcloud.org/documents/23557142/dhs-official-to-reporters.pdf (accessed September 30, 2024).
Maria Sacchetti, “Top Homeland Security Officials Urge Criminal Prosecution of Parents Crossing Border with Children,” Washington Post, April 26, 2018, https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urge-criminal-prosecution-of-parents-who-cross-border-with-children/2018/04/26/a0bdcee0-4964-11e8-8b5a-3b1697adcc2a_story.html (accessed September 30, 2024).
Caitlin Dickerson, “Hundreds of Immigrant Children Have Been Taken from Parents at U.S. Border,” New York Times, April 20, 2018, https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html (accessed September 30, 2024).
Opposition to Motion for Preliminary Injunction, p. 2, Ms. L. v. ICE, Case No. 3:18-cv-0428 (S.D. Cal. May 16, 2018), ECF No. 46.
Internal email from DHS chief of staff, April 2018, https://www.documentcloud.org/documents/6785901-3-8-19-ICE-Prod1#document/p347/a553911 (accessed September 30, 2024).
Internal email from DHS Operations Chief-Ops North, April 23, 2018, in FOIA Disclosure 2018-ICLI-00046, in American Immigration Council, “Family Separation FOIA Response From ICE,” pp. 345-6, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_ice_production_03.08.19.pdf (accessed September 30, 2024).
Maria Sacchetti, “Top Homeland Security Officials Urge Criminal Prosecution of Parents Crossing Border with Children.”
Compare Internal DHS emails, April 2018, https://www.documentcloud.org/documents/6785901-3-8-19-ICE-Prod1#document/p347/a553911 (accessed September 30, 2024), with internal DHS emails, April 23, 2018, in American Immigration Council, “Family Separation FOIA Response from ICE,” pp. 346-49, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_ice_production_03.08.19.pdf (accessed September 30, 2024).
“Fiscal Year 2019 Homeland Security Budget Request,” C-SPAN, April 11, 2018 (video at 1:33:50), https://www.c-span.org/video/?443752-1/fiscal-year-2019-homeland-security-budget-request (accessed September 30, 2024).
Caitlin Dickerson, "Hundreds of Immigrant Children Have Been Taken from Parents at U.S. Border," New York Times, April 20, 2018, https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html (accessed September 30, 2024).
Email from Victoria Palmer, HHS Administration for Children and Families, to Caitlin Dickerson, New York Times, April 19, 2018, in House Committee on the Judiciary, Majority Staff Report: The Trump Administration's Family Separation Policy: Trauma, Destruction, and Chaos (October 2020), App. E, p. A-355, https://democrats-judiciary.house.gov/uploadedfiles/the_trump_administration_family_separation_policy_trauma_destruction_and_chaos.pdf (accessed September 30, 2024).
House Committee on the Judiciary, Majority Staff Report: The Trump Administration's Family Separation Policy, App. E, pp. A-350 to A-355.
Email from Katie Waldman to Jonathan Hoffman and Chad Wolf, April 22, 2018 (including text of “the final response that was sent from HHS to the NYT”), https://s3.documentcloud.org/documents/23558322/in-internal-emails-dhs-officials-push-back-against-the-story-about-700-separated-children-claiming-inaccurately-that-the-actual-number-is-much-lower.pdf (accessed September 30, 2024). An earlier version of this reply was circulated within HHS in emails made public by the Senate Judiciary Committee’s Democratic Caucus. See email from Kenneth Wolfe, HHS Administration for Children and Families, to Scott Lloyd, Tricia Swartz, and Jallyn Sualog, HHS Administration for Children and Families, April 19, 2018 (“The Office of Refugee Resettlement (ORR) at HHS’ Administration for Children and Families is not informed by federal partners if a particular child referred to our care has been separated, or the whereabouts of the parents.”), in House Committee on the Judiciary, Majority Staff Report: The Trump Administration's Family Separation Policy, App. E, pp. A-350 and A-351.
Email from Katie Waldman to Jonathan Hoffman and Chad Wolf, April 22, 2018 (including text of “the final response that was sent from HHS to the NYT”).
The senior DHS officials who developed the forcible family separation policy were aware that it affected far more children and parents than earlier instances of family separation at the border. For instance, asked in a 2022 deposition, “It certainly never happened on the scale that it happened in May and June of 2018 before, correct?” Thomas Homan, acting ICE director from January 2017 to June 2018, answered, “Correct.” Deposition of Thomas B. Homan, September 9, 2022, pp. 49-50, in Plaintiffs’ Response to Defendant’s 56.1 Statement, Ex. 7, C.M. v. United States, No. 2:19-cv-05217-SRB (D. Ariz. April 24, 2023), ECF No. 404-2, in American Immigration Council, “Government Documents Submitted as Summary Judgment” , https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/separated_family_members_seek_monetary_damages_from_united_states_summary_judgment_exhibits.pdf (accessed September 30, 2024).
Email from Tyler Houlton to Jonathan Hoffman et al., March 3, 2018 (forwarding “the latest inquiry from WaPo” and advising, “Every major outlet asked about specifics on Wednesday.”), https://s3.documentcloud.org/documents/23557142/dhs-official-to-reporters.pdf (accessed July 10, 2024).
Message from Secretary Kirstjen M. Nielsen on Family Reunifications and Securing the Border, July 27, 2018, in FOIA Disclosure 2018-ICLI-00046, available in American Immigration Council, “Family Separation FOIA Response from ICE,” p. 274, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_ice_production_03.08.19.pdf (accessed July 10, 2024).
Office of Public Affairs, US Department of Justice, “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration,” May 7, 2018, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions (accessed July 10, 2024).
Email from Katie Waldman to Jonathan Hoffman, Chad Wolf, Gene Hamilton, et al., May 27, 2018, https://www.documentcloud.org/documents/20536840-doj-records-of-emails-between-stephen-miller-and-gene-hamilton-part-4#document/p310/a2160642 (accessed July 10, 2024).
US Department of Health and Human Services, “Fact Sheet: Border Security Loopholes Drive Massive Surge in Unaccompanied Alien Children,” undated, https://www.hhs.gov/sites/default/files/fact-sheet-border-security-loopholes.pdf (accessed July 8, 2024). HHS sent Waldman and other officials a draft of the fact sheet for comment, and she added the line that parents who did not wish to be separated from their children should not break the law. See Email from Judy Stecker to Stephen Miller et al., May 27, 2018, https://www.documentcloud.org/documents/20536840-doj-records-of-emails-between-stephen-miller-and-gene-hamilton-part-4#document/p310/a2160642 (accessed July 10, 2024); Email from Waldman to Hoffman, Wolf, Hamilton, et al., May 27, 2018.
“Remarks by President Trump at a California Sanctuary State Roundtable,” White House archives, May 16, 2018, https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-california-sanctuary-state-roundtable/ (accessed September 30, 2024).
Nick Miroff, “Facing Outcry over Family Separations, DHS Chief Says, ‘We Will Not Apologize,’” Washington Post, June 18, 2018, https://www.washingtonpost.com/world/national-security/facing-outcry-over-family-separations-dhs-chief-says-we-will-not-apologize/2018/06/18/d1e85466-7305-11e8-9780-b1dd6a09b549_story.html (accessed September 30, 2024).
Callum Borchers, “‘You’re a Parent!’ Things Got Personal in the White House Briefing Room,” Washington Post, June 14, 2018, https://www.washingtonpost.com/news/the-fix/wp/2018/06/14/youre-a-parent-things-got-personal-in-the-white-house-briefing-room/ (accessed September 30, 2024). See also Stephanie Murray, “Sarah Huckabee Sanders Gets in Heated Exchanges over Family Separation Policy,” Politico, June 14, 2024, https://www.politico.com/story/2018/06/14/sarah-huckabee-sanders-gets-in-heated-exchanges-over-family-separation-policy-646861 (accessed September 30, 2024).
Comment from Border Patrol, June 18, 2018, https://www.documentcloud.org/documents/4519977-June-18-2018-Comment-From-Border-Patrol.html (accessed September 30, 2024).
Office of Public Affairs, US Department of Justice, “Attorney General Sessions Addresses Recent Criticisms of Zero Tolerance by Church Leaders,” June 14, 2018, https://www.justice.gov/opa/speech/attorney-general-sessions-addresses-recent-criticisms-zero-tolerance-church-leaders (accessed September 30, 2024). Sessions’ reference to the verse was particularly notable because of its historical use as justification for slavery in the United States and apartheid in South Africa. See Julia Jacobs, “Sessions’ Use of Bible Passage to Defend Immigration Policy Draws Ire,” New York Times, June 15, 2018, https://www.nytimes.com/2018/06/15/us/sessions-bible-verse-romans.html (accessed September 30, 2024); Ruth Graham, “Jeff Sessions Cherry-Picked a Bible Passage to Defend Trump’s Immigration Policy,” Slate, June 15, 2018, https://slate.com/human-interest/2018/06/jeff-sessions-chose-romans-13-to-defend-trumps-immigration-policy-and-heres-why-hes-wrong.html (accessed September 30, 2024).
The White House 45 Archived (@WhiteHouse45), Twitter, June 19, 2018, https://x.com/WhiteHouse45/status/1008836005292474369 (accessed September 30, 2024).
Message from Secretary Nielsen on Affording Congress an Opportunity to Address Family Separation, June 22, 2018, https://www.documentcloud.org/documents/6785901-3-8-19-ICE-Prod1#document/p601 (accessed September 30, 2024).
See, for example, Salvador Rizzo, “Recidivism Watch: Trump Administration Again Blames Others for Its Own Family Separation Policy,” Washington Post, June 14, 2018, https://www.washingtonpost.com/news/fact-checker/wp/2018/06/14/recidivism-watch-trump-administration-again-blames-others-for-its-own-family-separation-policy/ (accessed September 30, 2024); David J. Bier, “Defenses of Separating Children from Parents—And Why They’re Wrong,” Cato Institute, June 28, 2018, https://www.cato.org/blog/defenses-separating-children-parents-why-theyre-wrong (accessed September 30, 2024).
Office of Public Affairs, US Department of Justice, “Attorney General Jeff Sessions Delivers Remarks to the 24th Annual Joint Conference of the Montana Association of Chiefs of Police and the 88th Annual Montana Police Protective Association,” June 7, 2018, https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-24th-annual-joint-conference-montana (accessed September 30, 2024).
Office of Public Affairs, US Department of Justice, “Attorney General Sessions Delivers Remarks to the National Sheriffs’ Association Annual Conference,” June 18, 2018, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-national-sheriffs-association-annual (accessed September 30, 2024).
DHS, “Secretary Kirstjen M. Nielsen Remarks at National Sheriffs’ Association Conference,” June 18, 2018, https://www.dhs.gov/news/2018/06/18/secretary-kirstjen-m-nielsen-remarks-national-sheriffs-association-conference (accessed September 30, 2024); Rebecca Morin, “Nielsen Defends Family Separations: ‘We Will Not Apologize for Doing Our Job,’” Politico, June 18, 2018, https://www.politico.com/story/2018/06/18/family-separations-kirstjen-nielsen-650876 (accessed September 30, 2024). This statistic was also included in a DHS news release posted the same day. DHS, “Myth vs. Fact: DHS Zero-Tolerance Policy,” June 18, 2018, https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy (accessed September 30, 2024).
The 315-percent increase was from 46 fraudulent cases in fiscal year 2017 to 191 cases in the first five months of fiscal year 2018. Linda Qiu, “Nielsen Justifies Family Separation by Pointing to Increase in Fraud. But the Data Is Very Limited,” New York Times, June 18, 2018, https://www.nytimes.com/2018/06/18/us/politics/nielsen-family-separation-factcheck.html (accessed September 30, 2024); Philip Bump, “How to Mislead with Statistics, DHS Secretary Nielsen Edition,” Washington Post, June 18, 2018, https://www.washingtonpost.com/news/politics/wp/2018/06/18/how-to-mislead-with-statistics-dhs-secretary-nielsen-edition/ (accessed September 30, 2024).
See Aaron Blake, “Kirstjen Nielsen’s Mighty Struggle to Explain Separating Families at the Border, Annotated,” Washington Post, June 19, 2018, https://www.washingtonpost.com/news/the-fix/wp/2018/06/19/kirstjen-nielsen-tries-to-explain-separating-families-at-the-border-annotated/ (accessed September 30, 2024).
In one indication of the public response—and the concern the outcry prompted within the administration—DHS tracked more than 600 family separation protests, at least one in every state as well as the District of Columbia and Puerto Rico, scheduled on a single day in June 2018. Email from Threat Researcher, DHS Reston Office (name withheld), with subject line “‘Family Separation Day’ Protests in U.S., on June 30th,” in FOIA Disclosure 2018-ICLI-00046, p. 333 (attaching 8-page spreadsheet), https://www.documentcloud.org/documents/5980360-LookingGlass.html (accessed September 30, 2024). See also Alexandra Yoon-Hendricks and Zoe Greenberg, “Protests Across U.S. Call for End to Migrant Family Separations,” New York Times, June 30, 2018, https://www.nytimes.com/2018/06/30/us/politics/trump-protests-family-separation.html (accessed September 30, 2024); Jesse Franzblau, “New Documents Expose Government Monitoring of Protests Against Family Separation,” National Immigrant Justice Center, April 29, 2019, https://immigrantjustice.org/staff/blog/new-documents-expose-government-monitoring-protests-against-family-separation (accessed September 30, 2024).
Affording Congress an Opportunity to Address Family Separation, Executive Order 13,841 of June 20, 2018, 83 Fed. Reg. 29,435 (June 25, 2018).
Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, Ms. L v. ICE, No. 3:18-cv-00428-DMS-MDD (S.D. Cal. June 26, 2018), ECF No. 83.
See Executive Order 13,841, sec. 1. In fact, CBP announced on June 25, 2018, that it had temporarily halted referrals of adults travelling with their children because ICE did not have family detention space available. See Ron Nixon, Erica L. Green, and Michael D. Shear, “Border Officials Suspend Handing Over Migrant Families to Prosecutors,” New York Times, June 25, 2018, https://www.nytimes.com/2018/06/25/us/politics/border-officials-suspend-handing-over-migrant-families-to-prosecutors.html (accessed September 30, 2024).
See, for example, Congressional Research Service, The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy (updated February 2, 2021), p. 20, https://crsreports.congress.gov/product/pdf/R/R45266 (accessed September 30, 2024); Office of Inspector General, US Department of Homeland Security, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families, OIG-20-06 (November 25, 2019), p. 5, https://www.oig.dhs.gov/sites/default/files/assets/2019-11/OIG-20-06-Nov19.pdf (accessed September 30, 2024).
Administration for Children and Families, US Department of Health and Human Services, Monthly Report to Congress on Separated Children, January 2024, pp. 5-6, https://www.hhs.gov/sites/default/files/january-2024-monthly-report-on-separated-children.pdf (accessed September 30, 2024). See also DHS Office for Civil Rights and Civil Liberties, Recommendations Memo: Family Separation (July 25, 2019), p. 2 (“CRCL has continued to receive allegations claiming wrongful family separation since family separations related to Zero Tolerance officially ended on June 21, 2018”), https://www.dhs.gov/publication/recommendations-memo-cbp-and-ice-concerning-family-separation (accessed September 30, 2024); Texas Civil Rights Project, The Real National Emergency: Zero Tolerance and the Continuing Horrors of Family Separation at the Border (Austin: Texas Civil Rights Project, 2019), p. 9, https://www.txcivilrights.org/_files/ugd/aab911_5b57ffa8b7e14389ac92f8955f0fdbf8.pdf (accessed September 30, 2024); John Washington, “The Government Has Taken at Least 1,100 Children from Their Parents Since Family Separations Officially Ended,” The Intercept, December 9, 2019, https://theintercept.com/2019/12/09/family-separation-policy-lawsuit/ (accessed September 30, 2024).
See Chapter VII, “Prohibition of Enforced Disappearance” and “Prohibition of Torture” sections.
See, for example, Tanvi Misra, “A Tent City in Tornillo, Texas, Housed Thousands of Migrant Children. Now It’s Almost Gone,” Pacific Standard, January 24, 2019, https://psmag.com/social-justice/a-tent-city-in-texas-is-seeing-its-final-days (accessed September 30, 2024); Michael E. Miller, Emma Brown, and Aaron C. Davis, “Inside Casa Padre, the Converted Walmart Where the U.S. Is Holding Nearly 1,500 Immigrant Children,” Washington Post, June 14, 2018, https://www.washingtonpost.com/local/inside-casa-padre-the-converted-walmart-where-the-us-is-holding-nearly-1500-immigrant-children/2018/06/14/0cd65ce4-6eba-11e8-bd50-b80389a4e569_story.html (accessed September 30, 2024); John Burnett, “Inside the Largest and Most Controversial Shelter for Migrant Children in the U.S.,” NPR, February 13, 2019, https://www.npr.org/2019/02/13/694138106/inside-the-largest-and-most-controversial-shelter-for-migrant-children-in-the-u- (accessed September 30, 2024).
For Human Rights Watch reporting on “Remain in Mexico” returns, summary expulsions, and an initiative known as the US-Guatemala Asylum Cooperative Agreement see, for example, Human Rights Watch, “US: Border Program’s Huge Toll on Children,” February 4, 2022, https://www.hrw.org/news/2022/02/04/us-border-programs-huge-toll-children; Michael Garcia Bochenek, “Trump Administration Uses Pandemic as Excuse to Expel Migrants,” Human Rights Watch, May 20, 2020, https://www.hrw.org/news/2020/05/20/trump-administration-uses-pandemic-excuse-expel-migrants; Human Rights Watch, “Like I’m Drowning”: Children and Families Sent to Harm by the US “Remain in Mexico” Program (New York: Human Rights Watch, 2021), https://www.hrw.org/report/2021/01/06/im-drowning/children-and-families-sent-harm-us-remain-mexico-program; Refugees International and Human Rights Watch, Deportation with a Layover: Failure of Protection Under the US-Guatemala Asylum Cooperative Agreement (New York: Human Rights Watch, 2020), https://www.hrw.org/report/2020/05/19/deportation-layover/failure-protection-under-us-guatemala-asylum-cooperative; Human Rights Watch, “We Can’t Help You Here”: US Returns of Asylum Seekers to Mexico (New York: Human Rights Watch, 2019), https://www.hrw.org/report/2019/07/02/we-cant-help-you-here/us-returns-asylum-seekers-mexico.
Declaration of J.I.L.Z., June 18, 2019, paras. 3, 6 . June 2019 declarations cited by exhibit number in this chapter are from the June 2019 temporary restraining order filing by Flores class counsel and are available on Project Amplify’s website. Flores v. Sessions, No. 85-cv-4544 DMG (C.D. Cal. filed June 26, 2019), ECF Nos. 569-2 to 569-12, available at Project Amplify, “Child Migrants Speak Truth to Power,” June 2019 tabs, last updated August 2019, https://www.project-amplify.org/declarations (accessed September 30, 2024).
Declaration of M.J.R.R., June 7, 2019, para. 2 .
Administration for Children and Families, US Department of Health and Human Services, Monthly Report to Congress on Separated Children, January 2024, p. 5, https://www.hhs.gov/sites/default/files/january-2024-monthly-report-on-separated-children.pdf (accessed September 30, 2024). See also HHS, Instances of Family Separation, February 2018-March 2019 (63-page spreadsheet listing children separated from family members at the border), https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/family_separation_foia_request_hhs_production_instances_of_family_separation.pdf (accessed September 30, 2024).
Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, pp. 22-23, Ms. L. v. ICE, No. 18-cv-0428 (S.D. Cal. June 26, 2018), https://www.aclu.org/cases/ms-l-v-ice?document=ms-l-v-ice-order-amending-briefing-schedule (accessed September 30, 2024), ECF No. 83.
Administration for Children and Families, US Department of Health and Human Services, Monthly Report to Congress on Separated Children, last reviewed October 24, 2019, table 1, https://www.hhs.gov/programs/social-services/unaccompanied-children/report-to-congress-on-separated-children/index.html (accessed September 30, 2024).
Miriam Jordan and Caitlin Dickerson, “U.S. Continues to Separate Migrant Families Despite Rollback of Policy,” New York Times, March 9, 2019, https://www.nytimes.com/2019/03/09/us/migrant-family-separations-border.html (accessed July 10, 2024).
Testimony of Ann Maxwell, assistant inspector general, Office of Evaluation and Inspections, Office of Inspector General, US Department of Health and Human Services, in Examining the Failures of the Trump Administration’s Inhumane Family Separation Policy, p. 41, https://www.govinfo.gov/content/pkg/CHRG-116hhrg35404/pdf/CHRG-116hhrg35404.pdf (accessed September 30, 2024).
Declaration of M.Z.L., June 18, 2019, para. 3 .
Declaration of M.F.M.O., K.M.M.O, and S.N.M.O, June 18, 2019, para. 6 .
Declaration of L.L.D., June 17, 2019, para. 5 (on file with Human Rights Watch).
Declaration of C.V.L.G., June 20, 2019, para. 1 .
Declaration of C.A.H.H., June 18, 2019, para. 3 (on file with Human Rights Watch).
Declaration of K.A.R.L., June 17, 2019, para. 4 .
Declaration of A.M.O.R., June 19, 2019, para. 2 .
Declaration of A.J.E.M., June 19, 2019, para. 2 .
Ibid., para. 7.
See Cedar Attanasio, Garance Burke, and Martha Mendoza, “Attorneys: Texas Border Facility Is Neglecting Migrant Kids,” Associated Press, June 21, 2019, https://apnews.com/article/46da2dbe04f54adbb875cfbc06bbc615 (accessed September 30, 2024); Isaac Chotiner, “Inside a Texas Building Where the Government Is Holding Immigrant Children,” New Yorker, June 22, 2019, https://www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-government-is-holding-immigrant-children (accessed September 30, 2024).
Declaration of K.M.C.T., June 18, 2019, para. 11 .
See, for example, “Kids in Cages: Inhumane Treatment at the Border,” Testimony of Clara Long Before the U.S. House Committee on Oversight and Reform, Subcommittee on Civil Rights and Civil Liberties, July 11, 2019, https://www.hrw.org/news/2019/07/11/written-testimony-kids-cages-inhumane-treatment-border; Caitlin Dickerson, “‘There Is a Stench’: Soiled Clothes and No Baths for Migrant Children at a Texas Center,” New York Times, June 21, 2019, https://www.nytimes.com/2019/06/21/us/migrant-children-border-soap.html (accessed September 30, 2024); Dahlia Lithwick, “‘Some Did Not Have Socks. Their Hair Was Dirty’: An Interview with an Immigration Lawyer Who Visited the Detained Children in Clint, Texas,” Slate, July 1, 2019, https://slate.com/news-and-politics/2019/07/kids-at-clint-border-crisis-immigration-lawyer-weighs-in.html (accessed September 30, 2024).
Simon Romero, Zolan Kanno-Youngs, Manny Fernandez, Daniel Borunda, Aaron Montes, and Caitlin Dickerson, “Hungry, Scared and Sick: Inside the Migrant Detention Center in Clint, Tex.,” New York Times, July 9, 2019, https://www.nytimes.com/interactive/2019/07/06/us/migrants-border-patrol-clint.html (accessed September 30, 2024).
Declaration of L.G.L.L., June 18, 2019, para. 5 . See also, for example, Declaration of K.M.C.T., June 18, 2019, para. 14 .
Graham Kates, “‘I’m Hungry Here at Clint All the Time’: Lawyers Use Kids’ Testimonies to Seek Access to Border Patrol Facilities,” CBS News, June 27, 2019, https://www.cbsnews.com/news/clint-texas-border-patrol-facility-lawyers-use-kids-testimonies-to-seek-access/ (accessed September 30, 2024).
See, for example, Chantal Da Silva, “Lawyers Who Visited Detained Migrant Children Say Border Officials Barred Them from Seeing the Sickest Kids, Who Were Held Separately,” Newsweek, July 1, 2019, https://www.newsweek.com/lawyers-barred-seeing-sick-migrant-children-detained-border-1446774 (accessed September 30, 2024).
Declaration of U.E.P.F., June 18, 2019, para. 5 .
Declaration of A.F.L.P., June 17, 2019, paras. 3, 6 .
Declaration of W.A.S.G., June 18, 2019, para. 4 .
Declaration of K.P.T.M., R.A.T.P., and B.D.T.P., June 19, 2018, para. 8 .
Declaration of A.M.O.R., June 19, 2019, para. 6 .
For example, Declaration of G.M.C.B., June 2019 .
Oral Argument, 17-56297 Jenny Flores v. William Barr, June 18, 2019, https://www.youtube.com/watch?v=Z2GkDz9yEJA&t=6s (accessed September 30, 2024).
Caroline Kelly and Paul LeBlanc, “Pence: ‘Of Course’ Migrant Children Should Have Toothbrushes, Blankets, and Medicine,” CNN, June 23, 2019, https://www.cnn.com/2019/06/23/politics/mike-pence-border-conditions-congress/index.html (accessed July 10, 2024).
Simon Romero, Zolan Kanno-Youngs, Manny Fernandez, Daniel Borunda, Aaron Montes, and Caitlin Dickerson, “Hungry, Scared and Sick: Inside the Migrant Detention Center in Clint, Tex.,” New York Times, July 9, 2019, https://www.nytimes.com/interactive/2019/07/06/us/migrants-border-patrol-clint.html (accessed July 10, 2024).
Testimony of Hope Frye, executive director, Project Lifeline, House Subcommittee on Civil Rights and Civil Liberties, July 10, 2019, https://www.congress.gov/116/meeting/house/109763/witnesses/HHRG-116-GO02-Wstate-FryeH-20190710.pdf (accessed September 30, 2024).
Office of Inspector General, US Department of Homeland Security, Management Alert—DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley, OIG-19-51 (July 2, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-07/OIG-19-51-Jul19_.pdf (accessed September 30, 2024); DHS Office of Inspector General, Capping Report: CBP Struggled to Provide Adequate Detention Conditions During 2019 Migrant Surge, OIG-20-38 (June 12, 2020), https://www.oig.dhs.gov/sites/default/files/assets/2020-06/OIG-20-38-Jun20.pdf (accessed September 30, 2024); Hamed Aleaziz, “Investigators Found Immigrant Kids and Families Locked in Disgusting Conditions in Border Camps,” BuzzFeed News, June 26, 2019, https://www.buzzfeednews.com/article/hamedaleaziz/inspector-disgusting-conditions-border-migrants-children (accessed September 30, 2024).
Jacob Soboroff and Julia Ainsley, “Migrant Kids in Overcrowded Arizona Border Station Allege Sex Assault, Retaliation from U.S. Agents,” NBC News, July 10, 2019, https://www.nbcnews.com/politics/immigration/migrant-kids-overcrowded-arizona-border-station-allege-sex-assault-retaliation-n1027886 (accessed September 30, 2024).
Molly Hennessy-Fiske, “Six Migrant Children Have Died in U.S. Custody. Here’s What We Know About Them,” Los Angeles Times, May 24, 2019, https://www.latimes.com/nation/la-na-migrant-child-border-deaths-20190524-story.html (accessed September 30, 2024).
Testimony of Dr. Fiona S. Danaher, pediatrician, Chelsea Pediatrics, Child Protection Team, Massachusetts General Hospital, in Children in CBP Custody: Examining Deaths, Medical Care Procedures, and Improper Spending, Hearing Before the House Committee on Homeland Security, 116th Cong., 2d sess., Serial No. 116-77 (July 15, 2020), p. 12, https://www.congress.gov/116/chrg/CHRG-116hhrg43865/CHRG-116hhrg43865.pdf (accessed September 30, 2024).
See ibid., p. 16.
Human Rights Watch interview, Homestead, Florida, March 27, 2019.
Lee Gelernt, “The Battle to Stop Family Separation,” New York Review of Books, December 19, 2018, https://www.nybooks.com/online/2018/12/19/the-battle-to-stop-family-separation/ (accessed September 30, 2024).
Significant Incident Report, Cayuga Centers, New York, June 29, 2018, https://www.documentcloud.org/documents/6779444-2-19-19-HHS-ACF-Prod4-p85-86#document/p1/a551192 (accessed September 30, 2024).
Significant Incident Report, Cayuga Centers, April 30, 2018, https://www.documentcloud.org/documents/6780877-1-16-19-HHS-ACF-Prod3#document/p29/a553713 (accessed September 30, 2024). See also, for example, UC Clinician Progress Note, Cayuga Centers, May 22, 2018 (12-year-old Salvadoran boy), https://www.documentcloud.org/documents/6780877-1-16-19-HHS-ACF-Prod3#document/p11/a553710 (accessed September 30, 2024); Significant Incident Report, KidsPeace, June 7, 2018 (16-year-old Guatemalan girl), https://www.documentcloud.org/documents/6780877-1-16-19-HHS-ACF-Prod3#document/p32/a553701 (accessed September 30, 2024).
Significant Incident Report, Cayuga Centers, Bronx, New York, June 18, 2018, https://www.documentcloud.org/documents/6779475-3-22-19-HHS-ACF-Prod5-p1-9#document/p2/a551231 (accessed September 30, 2024).
Significant Incident Report, Bethany Christian Services TFC, June 15, 2018, https://www.documentcloud.org/documents/6681851-12-17-18-HHS-ACF-Prod2-Pt2#document/p1/a546766 (accessed September 30, 2024).
Martin H. Teicher, “Childhood Trauma and the Enduring Consequences of Forcibly Separating Children from Parents at the United States Border,” BMC Medicine, vol. 16 (2018), p. 146, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6103973/pdf/12916_2018_Article_1147.pdf (accessed September 30, 2024).
Ibid.; Anne Bentley Waddoups, Hirokazu Yoshikawa, and Kendra Strouf, “Developmental Effects of Parent-Child Separation,” Annual Review of Developmental Psychology, vol. 1 (2019), pp. 387-410, https://doi.org/10.1146/annurev-devpsych-121318-085142 (accessed September 30, 2024). Other studies have confirmed that parents and other caregivers can help children cope with stress and, in fact, that the mere presence of a parent is helpful to children in this regard. See, for example, Megan R. Gunnar, Camelia E. Hostinar, Mar M. Sanchez, Nim Tottenham, and Regina M. Sullivan, “Parental Buffering of Fear and Stress Neurobiology: Reviewing Parallels Across Rodent, Monkey, and Human Models,” Social Neuroscience, vol. 10 (2015), pp. 474-78, https://doi.org/10.1080/17470919.2015.1070198 (accessed September 30, 2024); Megan R. Gunnar and Bonny Donzella, “Social Regulation of the Cortisol Levels in Early Human Development,” Psychoneuroendocrinology, vol. 27 (2002), pp. 199-220, https://doi.org/10.1016/S0306-4530(01)00045-2 (accessed September 30, 2024).
American Academy of Pediatrics, AAP Statement Opposing Separation of Children and Parents at the Border, July 19, 2018, https://docs.house.gov/meetings/IF/IF14/20180719/108572/HHRG-115-IF14-20180719-SD004.pdf (accessed September 30, 2024).
Reshem Agarwal and Marsha Griffin, “Taking Immigrant Kids from Parents Shows Contempt for Families,” Houston Chronicle, June 3, 2018, https://www.houstonchronicle.com/opinion/outlook/article/Taking-immigrant-kids-from-parents-shows-contempt-12963039.php (accessed September 30, 2024).
Sarah A. MacLean, Priscilla O. Agyeman, Joshua Walther, Elizabeth K. Singer, Kim A. Baranowski, and Craig L. Katz, “Mental Health of Children Held at a United States Immigration Detention Center,” Social Science and Medicine, vol. 230 (2019), p. 305, https://doi.org/10.1016/j.socscimed.2019.04.013 (accessed October 30, 2024). See also Anne Elizabeth Sidamon-Eristoff, Emily M. Cohodes, Dyland G. Gee, and Catherine Jensen Peña, “Trauma Exposure and Mental Health Outcomes Among Central American and Mexican Children Held in Immigration Detention at the United States-Mexico Border,” Developmental Psychobiology, vol. 64 (2022), p. e22227, https://doi.org/10.1002/dev.22227 (accessed September 30, 2024).
Sarah A. MacLean, Priscilla O. Agyeman, Joshua Walther, Elizabeth K. Singer, Kim A. Baranowski, and Craig L. Katz, “Characterization of the Mental Health of Immigrant Children Separated from Their Mothers at the U.S.–Mexico Border,” Psychiatry Research, vol. 286 (2020), p. 112555, https://doi.org/10.1016/j.psychres.2019.112555 (accessed September 30, 2024). See also Declaration of Marsha R. Griffin, para. 9, Ms. L. v. ICE, No. 18-cv-00428 (S.D. Cal. March 3, 2018), ECF No. 21-1, Ex. 3, https://www.aclu.org/cases/ms-l-v-ice?document=Ms-L-v-ICE-Memo-ISO-Motion-for-Preliminary-Injunction-and-Updated-Exhibits-3-3 (accessed September 30, 2024); Declaration of Julie M. Linton, paras. 4(e), (f), Ms. L. v. ICE, No. 18-cv-00428 (S.D. Cal. filed March 3, 2018), ECF No. 21-1, Ex. 5, https://www.aclu.org/cases/ms-l-v-ice?document=Ms-L-v-ICE-Memo-ISO-Motion-for-Preliminary-Injunction-and-Updated-Exhibits-3-3 (accessed September 30, 2024).
Physicians for Human Rights, “Part of My Heart Was Torn Away”: What the U.S. Government Owes the Tortured Survivors of Family Separation (New York: Physicians for Human Rights, 2022), p. 2, https://phr.org/our-work/resources/part-of-my-heart-was-torn-away/ (accessed October 30, 2024).
Ibid., p. 3.
Nick Miroff, “A Family Was Separated at the Border, and This Distraught Father Took His Own Life,” Washington Post, June 9, 2018, https://www.washingtonpost.com/world/national-security/a-family-was-separated-at-the-border-and-this-distraught-father-took-his-own-life/2018/06/08/24e40b70-6b5d-11e8-9e38-24e693b38637_story.html (accessed July 10, 2024).
See, for example, Rachel Kronick, Cécile Rousseau, and Janet Cleveland, “Asylum-Seeking Children’s Experiences of Detention in Canada: A Qualitative Study,” American Journal of Orthopsychiatry, vol. 85 (2015), pp. 287-94, https://psycnet.apa.org/doi/10.1037/ort0000061 (accessed October 30, 2024).
Declaration of M.S., June 26, 2018, para. 15 , in Exhibits in Support of Plaintiffs’ Response to Defendants’ First Juvenile Coordinator Report, Volumes 1-12, Flores v. Sessions, Case No. 85-cv-4544 DMG (C.D. Cal. filed September 19, 2018), ECF Nos. 462-1 to 462-12, available at Project Amplify, “Child Migrants Speak Truth to Power,” July 2018 tabs, last updated August 2019, https://www.project-amplify.org/declarations (accessed September 30, 2024).
American Medical Association, “AMA Adopts New Policies to Improve Health of Immigrants and Refugees,” June 12, 2017, https://www.ama-assn.org/press-center/press-releases/ama-adopts-new... read full story