Over the last few weeks, more news has broken about the inhumane conditions detained children face at different border facilities, reverting our national attention back to the true humanitarian crisis at the border—one easily forgotten, while the situation only gets worse. Many people have lost track of what’s going on, are grossly unaware about the severity of the problem, or never paid attention to the crisis in the first place. If you fall under any of these categories or just want to know more about what’s going on, this post is for you, answering common questions and drawing attention to the Administration’s key mistakes.
What was the Trump Administration’s Family Separation Policy?
In 2018, The Trump Administration briefly enacted a policy of “zero tolerance” immigration enforcement. Unlike previous administrations, which treated illegal crossings as civil offenses, the Trump Administration began treating illegal crossings as criminal offenses. The key difference being that children are not allowed to be detained with parents who are in the custody of criminal court.
In that situation, the government cannot release a child to anyone but a legal guardian like a relative. Usually, children apprehended at the border who are separated from their parents are sent to either a federal facility operated by the Health and Human Services Department or a temporary foster family until the parent is released from the criminal justice system. Under current rules, this separation should not last for longer than four months.
How was this policy different from prior administrations?
According to the Flores settlement, a court case decided in 1997, immigration officials are required to “place each detained minor in the least restrictive setting appropriate” — which must include, at least, basic human needs, providing food, water and access to bathroom facilities.
But it is important to note, the separation and child detention policy was completely unnecessary, because other methods used by previous administrations in these situations remain available. At first, the Obama Administration enacted a similar policy of detaining adults and children together, but specifically sought to reduce family separation. Eventually, the Obama Administration chose to release them together to await court, as this graphic from the New York Times illustrates:
The Trump administration chose to separate families.
The Trump Administration was willfully negligent and cruel:
The Administration’s mistakes can be understood in four parts, two of them legal and two of them moral. The legal mistakes are a matter of breaking the law, the moral mistakes are a matter of bad policy.
Legal Mistake: Asylum Seekers
The Trump Administration violated
the rights of asylum seekers. The administration’s
zero tolerance policy was meant for people crossing the border illegally, but it is not illegal to enter a port of entry and request asylum.
Border officials had long had a policy of separating children when their safety might be in question, but that changed under the Trump Administration. According to the Los Angeles Times:
“lawyers and advocates say they began seeing a significant increase…in officials separating children from their parents who asked for asylum at ports of entry, without clear reasons…Separations at ports of entry have happened “even when families have presented sufficient evidence of parentage, even where they do not have signs of neglect or abuse … even when the child is able to speak for themselves and say” this is my parent”
Though the abuse of asylum seekers is a separate and equally important issue, in the context of family separation, the Administration went out of its way to harm families. In order to separate families, the Administration is willfully violating the rights of asylum seekers, breaking the law.
Legal Mistake: Abuse of Minors
A more substantial case can be made that the administration is systemically violating the Flores agreement, which says that each detained minor must be placed in the least restrictive setting.
As if young children being separated from their parents weren’t traumatizing and harmful enough, the conditions that some of these children have endured is chilling. Last year, hundreds of children were put into fenced-in cages. What’s more, many migrants (including children) are having their medication confiscated by border officials and there are reported instances of children being left in vans for up to 39 hours.
But it gets worse. Over 4500 complaints about sexual abuse of immigrant children held at government funded facilities have been filed since 2015. From March 2018 to July 2018, the five-month period that the family separation policy took place, the government received 859 complaints, the largest number of reports during any five-month span in the previous four years. There’s an obvious sexual abuse problem in these facilities, but they increased during the time of the child-separation policy.
And then perhaps the most concerning fact. No children died while in custody during the Obama Administration. Indeed, no children died in US Customs and Border Protection custody in over a decade. But that trend changed between December 2018 and May 2019, as four children died in Border protection custody.
Even if you support the family separation policy, what’s happening to detained children, between sexual abuse, neglect, the confiscation of medication, caging, and death, it’s clear that border enforcement agencies are breaking the law, failing to provide even the most minimally required care for these already traumatized young children.
Moral Mistake: Family Separation was intentionally clumsy
A government attorney admitted in court just days before the border-wide initiative was that there was never a plan for parents to be reunited with their kids. A year later, the consequences of the policy are even more chilling: it may take up to two years to identify and reunited all of the children separated from their families due to the policy.
Put another way, the government willfully chose to enact a policy that they knew would cause maximal harm without any way to mitigate that harm. They wanted to hurt families, to deter them from crossing the border illegally, so badly that they didn’t formulate any solution or due process to reunite families.
What does that say about our government? The only reasonable conclusion is that the intent was to divide and harm families, not fix a manufactured problem at the border.
Moral Mistake: Family Separation will do lasting harm
Beyond the child separation policy being executed clumsily to the point of being illegal, it’s a bad, harmful policy. Many studies show that the longer children remain in institutional settings, the greater their risk of depression, post-traumatic stress and other mental health problems. The policy has been opposed by countless child welfare agencies, from the American Academy of Pediatrics to the Child Welfare League of America to the United Nations human rights office.
Even if it the Separation policy was completely legal, it would still be bad, immoral policy. At South Carolina Appleseed, we advocate for the equal treatment of all people and advocate on behalf of children and families. There is no world, no country, no city, no community, no home where increasing the risk of mental illness in a child is a good thing. Never.
What’s the Policy Today?
If you’ve been following the news closely, you’ve probably noticed that this post is written predominately in the past tense, as if the worst offenses are known and have been dealt with. You may get the impression that family separation is no longer the official policy of the Trump Administration, as the president gave in to massive political pressure to reverse the policy in June 2018, signing an executive order saying that the administration would still prosecute those who crossed the border illegally but would seek or build facilities that could house detained families together.
You would think it’s all over, but it’s not. The reason why this blog post is written in the past tense is because we still don’t know the full abuse of detained migrant children continuing to this day because reports are still coming in and abuses are still being uncovered.
Though a judge ordered families to be reunited in June 2018 within 30 days, the policy was enacted so clumsily that many families are still not re-united. According to some sources, the number of children separated from their families may be thousands greater than the official report, stretching the process of reunification to up to two years.
What’s more, we’re still getting reports of children in cruel and inhumane conditions. Just last week, the Associated Press broke the story about a facility in El Paso detaining 250 kids lacking food, water and sanitation. Many of these children are sick and caring for detained infants, all while the Administration argues that soap and toothpaste aren’t essential to maintaining a safe and sanitary facility.
The fact is, there’s a lot that we don’t know, but what we do know shows clear violations of the law and the very fiber of our American values. Are we so blinded by partisanship to absurdly argue that soap isn’t necessary for a sanitary environment? Is the reality of children dying, rampant abuse and neglect, with toddlers being cared for by preteens sufficient evidence that these facilities are not safe?
Is denying children the ability to play soccer, learn English and access legal aid, a necessary punishment for being brought by their parents across the border? Do you think anyone’s children should be punished for obeying and staying with their parents? For those of you who are parents, what about your own children?
Because of the Administration’s clumsy, unethical and likely illegal activity revolving around family separation, there’s still many unanswered questions about its execution and consequences. The abuses and inhumanity march on with no end in sight.
We Need to Take Action
Thankfully, we are not powerless to take action against this cruel policy, as the Administration and all levels of government can hear our voice as we raise it against injustice, cruelty and inhumanity. You can contact your member of congress, your state and local representatives. You can also report and document raids and arrest through United We Dream and inform your community about the rights they have, using resources provided by the ACLU. At South Carolina Appleseed, we have our own Know Your Rights Pages (in English and Spanish) that you can also use, share and inform others with.
In South Carolina, thousands will gather in Columbia, Greer, York County and Charleston on July 12, as a part of a nationwide Lights for Liberty vigil, protesting the human rights abuses at the border.
We must hold the Administration accountable to the rule of law and the constitution. We need to protect children. We need to protect families. We need to stop this. Now.