One of the mainstays of President Donald Trump’s administration’s policies was a crackdown on immigration. This objective manifested in the “zero tolerance” policy, which encouraged attorneys to prosecute adults in federal court for crossing the border illegally.
Federal prosecutions then often required separation of the migrant from their families. Because entering the U.S. without proper documentation is a misdemeanor, it was not commonly prosecuted in federal court. Attorneys used to be given discretion to bring the case in federal court and would generally only federally prosecute more serious offenses, such as violent crimes and illegal reentry. When the zero tolerance policy was implemented, it was forcibly encouraged that all violators would face federal court. 1
Zero Tolerance and the Trump Administration
In many instances, parents and children face pending immigration actions contemporaneously. A parent could receive a deportation order while their child’s own asylum or visa application was still processing.2
For one family, who originated in Honduras, the mother, father, and daughter were deported and sent back, while their other daughter remained in New Orleans. After the deportation order was entered, the father asked if he could bring his daughter with him to Honduras. He was told that he could either relinquish custody to a relative in the United States or that his daughter would be put up for adoption. His daughter was moved to California as a second grader to live with her uncle and process the trauma of being forcibly separated from her family alone. Over the course of two years, this young girl – only 8-years-old at the time – had to explain to her teachers why she would burst out at teachers at seemingly erratic intervals.3
Research conducted by the Physicians for Human Rights group concluded that the zero tolerance policy
constituted ‘torture’ after evaluating families who were separated for 30 to 90 days. Victimized children suffer from severe PTSD, separation anxiety and other mental health conditions, and advocates say they need compensation and resources.4
The lasting effects of this treatment may not be known for years. Over the course of his term, the Trump administration announced that it had separated “at least 5,500 migrant children from their parents.”5
Finally, in 2018, Trump removed the zero tolerance policy, which ended the separations of children and families at the border.6 However, the practice of prosecuting all migrants who crossed the border illegally, even for misdemeanors, continued. It was not until the election of President Joe Biden and his more tolerant stance on immigration, that change was implemented.
Rozita Gerhardt, Marquette Class of 2022, is the student liaison to the Children and the Law Section Board.
Zero Tolerance and the Biden Administration
Since his inauguration, Biden has put the mission of reuniting families at the forefront of his agenda – a stark contrast to the policy of his predecessor.
Under the Biden Administration, acting Attorney General Robert Wilkinson officially rescinded the zero tolerance policy Jan. 26, 2021, with his memo “Rescinding the Zero-Tolerance Policy for Offenses Under 8 USC 1235.” Attorneys are now able to use their discretion in making decisions to prosecute, and are encouraged to consider the individual circumstances surrounding each case.
Just one month after he swore his oath, Biden also created a task force dedicated to reunification, and appointed the previous executive director of the Women’s Refugee Commission, Michelle Brané, to take the lead. Brané has a considerable task before her, as nearly two-thirds of parents in proceedings under the zero tolerance policy have already been deported. More than 600 of parents separated from children are missing and cannot be located.7
In order to facilitate this process, the Biden Administration, overseen by Homeland Security Secretary Alejandro Mayorkas, announced that parents of migrant children will be allowed back to the United States for reunification. The Biden Administration also aims to provide legal routes toward citizenship for these families. While reunifying in the U.S. is an option, parents also have the choice to bring their children to their home country. Brané’s task force will work with nongovernment organizations as well as El Salvador, Guatemala, and Honduras to implement these new policies.8
The task force will also restart the Central American Minors program that allows parents with legal status to apply for two-year visas for their children.9 The administration has also announced that they intend to provide “[o]ther benefits and protections for separated families includ[ing] transportation, health care and mental health services, as well as legal, career and education services, with no costs passed down to families.”10
An Ongoing Border Crisis
While ending the zero tolerance policy and appointing a task force to tackle mental health and other services progresses toward positive change, it is not enough to remedy the crisis at the border.
Reports indicate that separations of families have slowed but has not stopped. The American Civil Liberties Union (ACLU) reported that parents and children continue to be separated because of feeble excuses, such as a diaper not being changed and the HIV status of a father.11
The Biden Administration has also recently reopened a 700-person facility specifically to house migrant children, citing COVID-19 concerns.12
More Work to be Done
This administration has taken important steps toward improving the current migrant crisis at the border. However, until separation of migrant families is halted and children are no longer detained away from their parents, and until reunification of separated families are complete and services are provided to tackle the unexplored trauma inflicted due to the forced separation, there is work to be done.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
1 Julia Ainsley and Jacob Soboroff, “Biden Justice Department official rescinds Trump ‘zero tolerance’ policy migrant family separation policy,” NBC News (Jan. 26, 2021).
2 Kevin Sieff, “Separated at the border, reunited, then separated again: For migrant families, another trauma,” The Washington Post (Jan. 31, 2021).
4 Sam Levin, “‘We tortured families’: The lingering damage of Trump’s separation policy,” The Guardian (Jan. 4, 2021).
6 Ainsley and Soboroff, Jan. 26, 2021.
7 Julia Ainsley, Jacob Soboroff, and Geoff Bennett, “Biden admin to name refugee advocate director of task force to reunite separated families, say sources,” NBC News (Feb. 10, 2021).
8 Julia Ainsley, Jacob Soboroff, and Geoff Bennett, “Biden Administration will let migrant families separated under Trump reunite inside U.S.,” NBC News (March 1, 2021).
9 Hamad Aleaziz, “Some Central American Children will soon be able to apply to get into the US from their home countries,” Buzzfeed News (March 10, 2021).
10 Ainsley, Soboroff, and Bennett, March 1, 2021.
12 Silvia Foster-Frau, “First migrant facility for children opens under Biden,” The Washington Post (Feb. 22, 2021).