Trump’s Zero-Tolerance Immigration Policy and Family Separation: A Deterrence Policy Gone Wrong

During the summer of 2017 rumors started spreading among the legal community saying that immigrant children who crossed the U.S. border with their parents were being separated from them, considered “unaccompanied children,”[1] and turned over to the Office of Refugee Resettlement (“ORR”).[2] Then on April 6, 2018 Jeff Sessions announced a “zero-tolerance” immigration policy with the goal of deterring immigration. [3] Sessions warned the public:

If you don’t want your child to be separated, then don’t bring them across the border illegally. . . . If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you probably, as required by law. If you don’t want your child to be separated, then don’t bring them across the border illegally. It’s not our fault that somebody does that.[4]

Amidst public outrage, Kirstjen Nielsen, the head of the Department of Homeland Security, initially tried to deny that there was a family separation policy taking place at the borders.[5] However, the sheer number of family separations told a different story. Generally, families crossing the border seeking asylum[6] would be kept together in family detention.[7] However, the number of children being separated from their parents increased dramatically after the announcement of the zero-tolerance policy.[8] Under the zero-tolerance policy 2,654 children were separated from their parents in likely violation of international law, statutory law[9], and constitutional law.[10]

As a result, the American Civil Liberties Union filed a class action lawsuit (“Ms. L.”) challenging the Trump administration’s family separation policy, alleging violations of the plaintiffs’ Fifth Amendment Due Process rights, the Administrative Procedure Act, and the right to seek protection under the Asylum statute, the Withholding of Removal Statute, and the Convention Against Torture.[11] Similarly, seventeen states[12] (“State of Washington”) sued the Trump administration alleging violations of asylum law, substantive due process rights, procedural due process rights, and equal protection under the Fifth Amendment.[13] These allegations appear to be well founded.

Asylum is a type of humanitarian relief for certain non-citizens who are physically present or arrive in the United States regardless of whether they entered at a designated port of entry or not.[14] Yet, in accordance with the zero-tolerance policy, Secretary Nielsen announced that asylum seekers would be criminally prosecuted if they did not enter through a port of entry.[15] This practice is likely in violation of international law. The 1951 Refugee Convention states that any contracting States, such as the United States, shall not impose any penalties on refugees due to their illegal entry.[16] Nonetheless, asylum seekers are being held criminally liable for improper entry and reentry under 8 U.S.C. §§1325-1326 and are taking away their children.[17] Thus, it could be argued that the federal government is violating international law because it is imposing a penalty on asylum seekers by criminally prosecuting them.[18]

Further, there are serious concerns that the family separation policy violated immigrants’ Fifth Amendment rights. In many of these cases parents were separated from their children even when they were not unfit and did not present a danger to their children. So, the plaintiffs in both of these lawsuits assert that these practices were in violation of their substantive due process rights under the Fifth Amendment.[19]

First, the plaintiffs argue that the family separation policy is in violation of the asylum seekers’ substantive due process rights to family integrity.[20] The parents who had their children taken away “have a fundamental liberty interest in the care, custody, and control of their children,” and the children who were separated from their parents have a “reciprocal liberty interest in their parents’ care.”[21] Immigration authorities took children away from their parents without any evidence that these parents were either unfit or were endangering their children.[22] In addition, the children separated from their parents have the right to be “free from unreasonable risk of harm” and trauma caused by being separated from their families and housed in unlicensed facilities.[23] Also, plaintiffs assert that the federal government’s policy does not further a legitimate purpose, is not narrowly tailored, and is merely meant to deter the influx of immigrants.[24]

Second, the State of Washington plaintiffs argue that the family separation policy violated their liberty interests without affording them due process of law pursuant to the Fifth Amendment.[25] There was a procedural due process violation because children were separated from their parents without a hearing to determine whether their separation was justified.[26] According to the plaintiffs, the immigrants who are being deprived of their liberty without due process are residents and future residents of the states, who will arrive there following the separation of their families.[27] Similarly, Ms. L. plaintiffs assert that they are protected under the Fifth Amendment because they are in United States soil.[28]

Third, the State of Washington plaintiffs contend that asylum seekers’ equal protection rights were violated because the family separation policy placed a burden on their fundamental right to family integrity, harming Latin American immigrants who arrive at the Southwestern border and treating them in a discriminatory way based on their nationality and/or ethnicity.[29] It can also be argued that the government’s actions are not narrowly tailored to achieve a compelling government interest because the policy is over inclusive. The government’s actions are over inclusive because the family separation policy has also affected asylum seekers who are lawfully entering our borders through designated ports of entry seeking protection from prosecution.

Alternatively, the plaintiffs argue that the terms and application of the family separation policy are arbitrary and are not rationally related to a legitimate interest.[30] This just leaves the federal government with a bare desire to harm a politically unpopular group.[31] Therefore, the family separation policy denies equal protection of the law to immigrants who were, and possibly are still, seeking asylum at the Southwestern border.[32]

Although the public backlash against the family separation policy pushed President Trump to issue an Executive Order terminating the family separation policy, 2,654 families have been permanently harmed by this policy. More importantly, as of August 27, 2018, 497 children (including 22 children under 5 years old) have yet to be reunited with their parents.[33] Now it is up to the courts to decide whether the family separation policy violated immigrants’ constitutional rights.[34] One can only hope that a ruling for the plaintiffs might dissuade the current administration from advancing similar inhumane practices in the future.

[1] An “unaccompanied alien child” is defined as a child who: “has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom– there is no parent or legal guardian in the United States; or no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C.S. § 279(g)(2) (2012).

[2] Jonathan Blitzer, How the Trump Administration Got Comfortable Separating Immigrant Kids from Their Parents, The New Yorker, (May 30, 2018), https://www.newyorker.com/news/news-desk/how-the-trump-administration-got-comfortable-separating-immigrant-kids-from-their-parents.

[3] Memorandum from Attorney Gen. Jeff Sessions to federal prosecutors along the Southwest Border (Apr. 6, 2018),  https://www.justice.gov/opa/press-release/file/1049751/download (ordering that “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).”); see also 8 U.S.C.S. §1325(a) (2012) (providing that “[a]ny alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”).

[4] John Haltiwanger, This is the Trump Administration’s Reasoning for Separating Families at the Border, Business Insider, (June 19, 2018, 3:15 PM),  https://www.businessinsider.com/zero-tolerance-why-trump-separating-families-at-border-2018-6.

[5] DHS Sec. Kirstjen Nielsen Denies Family Separation Policy Exists, Blames Media, CBS News, (June 18, 2018, 10:44 AM), https://www.cbsnews.com/news/dhs-sec-kirstjen-nielsen-denies-family-separation-policy-exists-blames-media/ (quoting Secretary Nielsen, “We do not have a policy of separating families at the border. Period.”).

[6] A person is considered a “refugee” if she can establish that she cannot or will not go back to her country because she is in credible fear of persecution or has been persecuted due to her race, religion, political opinion, nationality or membership in a particular social group. 8 U.S.C.S. § 1101(a)(42) (2012); see also Katherine Shattuck, Preventing Erroneous Expedited Removals: Immigration Judge Review and Requests for Reconsideration of Negative Credible Fear Determinations, 93 Wash. L. Rev. 459, 471 (2018) (discussing asylum seekers’ credible fear of prosecution determinations).

[7] Zero-Tolerance Criminal Prosecutions: Punishing Asylum Seekers and Separating Families, Hum. Rts. First 1 (July 18, 2018), https://www.humanrightsfirst.org/sites/default/files/Zero_Tolerance_Border_Report.pdf.

[8] Id.

[9] For purposes of length, possible statutory law violations will not be discussed here.

[10] Joshua Barajas, Nearly 500 Migrant Children Remain Separated From Their Parents. Here’s What We Know, PBS, (Aug. 31, 2018, 6:06 PM), https://www.pbs.org/newshour/nation/nearly-500-migrant-children-remain-separated-from-their-parents-heres-what-we-know.

[11] Second Amended Complaint at 13-14, L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1133 (S.D. Cal. June 6, 2018) 3:18-cv-00428 (July 3, 2018); see also Foreign Affairs Reform and Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G., tit. XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C.§ 1231) (stating that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”).

[12] The plaintiffs are Washington, Massachusetts, California, Maryland, Oregon, New Mexico, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, Virginia, New York, Vermont, North Carolina, Delaware, and the District of Columbia.

[13] Complaint for Declaratory and Injunctive Relief, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001; see also Josh Gerstein, 17 States Sue Over Trump Family Separations, Politico (June 26, 2018, 4:22 PM), https://www.politico.com/story/2018/06/26/states-sue-donald-trump-family-separations-676377.

[14] 8 U.S.C.S. §1158(a)(1) (2012) (“Any 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 and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b)”); see also Hum. Rts. First, supra note 6.

[15] Paul Crooston, DHS Secretary: ‘If You Are Seeking Asylum, Go to a Port of Entry,’ Wash. Free Beacon (June 18, 2018, 12:23 PM), https://freebeacon.com/issues/dhs-secretary-seeking-asylum-go-port-entry/ (quoting Secretary Nielsen, “You do not need to break the law of this country by entering illegally to claim asylum … If you are seeking asylum, go to a port of entry.”).

[16] See U.N. High Comm’n for Refugees, 1967 Protocol Relating to the Status of Refugees 29 (1967), http://www.unhcr.org/3b66c2aa10.html (“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”); See also
L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1149, 1164 (S.D. Cal. June 6, 2018) (“Arriving on United States soil with one’s minor child to pursue relief extended by U.S. law—as well as international law to which the United States has acceded—calls out for careful assessment of how governmental actors treat such people and whether constitutional protections should apply.”).

[17] See L. v. United States Immigration & Customs Enf’t (“ICE”), 310 F. Supp. 3d 1133, 1138 (S.D. Cal. June 26, 2018) (explaining that one of the plaintiffs, Ms. C, was separated from her son when she was convicted for violating 8 U.S.C. §1325 and held in custody for 25 days); see also Punishing Refugees and Migrants: The Trump Administration’s Misuse of Criminal Prosecutions, Hum. Rts. First  (Jan. 18, 2018), https://www.humanrightsfirst.org/resource/punishing-refugees-and-migrants-trump-administrations-misuse-criminal-prosecutions (discussing a rise in prosecution of asylum seekers for illegal entry and re-entry).

[18] USA: Policy of Separating Children From Parents Is Nothing Short of Torture, Amnesty Int’l (June 18, 2018, 5:53 PM), https://www.amnesty.org/en/latest/news/2018/06/usa-family-separation-torture/ (stating that “[t]he severe mental suffering that officials have intentionally inflicted on these families for coercive purposes, means that these acts meet the definitions of torture under both US and international law.”).

[19]L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1149, 1161 (S.D. Cal. June 6, 2018) ( explaining that “it has long been settled that the liberty interest identified in the Fifth Amendment provides a right to family integrity or to familial association. . . . Indeed, ‘[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by’ the Court.” (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)); See Mathews v. Diaz, 426 U.S. 67, 77 (1976) (emphasizing that “[t]here are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of  life, liberty, or property without due process of law.”).

[20] Complaint for Declaratory and Injunctive Relief at 115, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001; see also Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (asserting that the Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”).

[21] Complaint for Declaratory and Injunctive Relief at 115, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001;
see alsoTroxel v. Granville, 530 U.S. 57, 66 (2000) (indicating that the Supreme court has “recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”).

[22] Complaint for Declaratory and Injunctive Relief at 115, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001.

[23] Id.; see also
Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 862-63 (1977) (explaining that “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’”).

[24] Second Amended Complaint at 13, L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1133 (S.D. Cal. June 6, 2018) 3:18-cv-00428 (July 3, 2018).

[25] Complaint for Declaratory and Injunctive Relief at 115-16, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001.

[26] Second Amended Complaint at 13, L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1133 (S.D. Cal. June 6, 2018) 3:18-cv-00428 (July 3, 2018); see also Opp’n to Mot. to Dismiss at 23, L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1133 (S.D. Cal. June 6, 2018) 3:18-cv-00428 (Apr. 20, 2018) (asserting that “it is uncontested that the government is separating families without any process to determine whether the separation is justified by parental abuse, unfitness, or any other reason.”).

[27] Complaint for Declaratory and Injunctive Relief at 115, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001.

[28] Second Amended Complaint at 13, L. v. United State Immigration & Customs Enf’t, 302 F. Supp. 3d 1133 (S.D. Cal. June 6, 2018) 3:18-cv-00428 (July 3, 2018);
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (asserting that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful,  unlawful, temporary, or permanent”).

[29] Complaint for Declaratory and Injunctive Relief at 116, State of Washington et al v. United States of America et al, No. 3:18-cv-01979 (June 26, 2018), https://www.politico.com/f/?id=00000164-3da3-d8b4-aff7-fdef60c10001.

[30] Id.

[31] Id.

[32] Id.

[33] Barajas, supra note 7.

[34] Judge Dana Sabraw recently stated in his June 26, 2018 order that “[t]he Government’s treatment of Ms. L. and other similarly situated class members does not meet this standard [set by asylum laws], and it is unlikely to pass constitutional muster.” L. v. United States Immigration & Customs Enf’t (“ICE”), 310 F. Supp. 3d 1133, 1144 (S.D. Cal. 2018).