June 20: This story was updated.
This post is part of our new community-driven reporting project, Ask Immigration Decoded. Submit your questions, and we’ll answer the most popular questions on our blog, Immigration Decoded.
In this post, we’re answering a question we received from Shari Best: Why do they take the children away from their parents at the border?
The decision to separate parents and children at the border stems in large part from the administration’s outspoken desire to block undocumented migration from Central American countries. Many who set out on the trek from the troubled region claim they face mortal threats because of extortion, rape, murder and forced recruitment into gangs that target vulnerable communities.
When they reach the border, many hope for asylum — a difficult process that the Center for Public Integrity explored in a story about teenage girls and boys fleeing killings and extortion.
Some Trump administration officials have claimed that a policy to separate families at the border is not new — or not even a policy. In fact, it is new and a near blanket policy in practice and intention.
In effect, the Trump administration created the family separation policy with another policy that Attorney General Jeff Sessions announced in May. Sessions’ “zero tolerance” policy requires the detention and prosecution of all people detained by U.S. Customs and Border Patrol officers after crossing the border without permission.
Update, June 20, 2018, 7;22 p.m.: President Donald Trump signed an executive order Wednesday to keep migrant families together in detention during court proceedings, depending on resources and law. The order opens a new struggle over legal restrictions that impose time limits on keeping children in detention.
A first-time border crossing is a misdemeanor, punishable by no more than six months in jail, a rare sentence.
What this hardline policy on prosecution means in practice — in lieu of an offer to just be deported — is that children will be separated from parents, who then can be jailed and face court. Children of jailed parents must be transferred to shelters under the responsibility of the Department of Health and Human Services.
In an interview, former U.S. Customs and Border Patrol (CBP) Commissioner Gil Kerlikowske called separating children from parents as a blanket policy “horrific.”
Kerlikowske ran CBP between 2014 and 2017, and he reflected on times he met with Central American migrants on the border, as waves of migrants grew who were asking for asylum during his tenure.
Some crossers are motivated by poverty or they seek refuge with family here. Hundreds of thousands of El Salvadorans and Hondurans, for example, have lived in the United States for nearly 20 years on Temporary Protected Status, a designation that President Donald Trump said he will soon terminate, throwing that population’s future into uncertainty.
But many migrants tell terrible stories of terror by gangs and smugglers, Kerlikowske said.
“You’ve got to have a heart of stone if you haven’t got some empathy,” he said.
Trump officials have suggested that migrants are coached to invent stories of gang-related threats, and that separating families could deter people from starting dangerous journeys to the U.S. border.
“If you don’t like that, then don’t smuggle children over our border,” Sessions said when he announced the plan.
“It could be a tough deterrent — would be a tough deterrent,” Trump Chief of Staff John Kelly told NPR during a May 11 interview shortly after Sessions’ announcement.
“The children will be taken care of — put into foster care or whatever,” Kelly said. “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.”
Kelly went on to say that most undocumented Central Americans are “not criminals. They’re not MS-13.” But he upset many in the Latino community when he said, “they’re also not people that would easily assimilate into the United States, into our modern society.”
As for prosecuting first-time crossers, some jurisdictions have tried this. But first-time crossers are often given an option of voluntary deportation back to countries — a flight to Central America, or for Mexicans, a bus to the border.
Children could be separated from adults in the past if CPB agents suspected an adult wasn’t really a child’s parent — a proven problem — or was perhaps a smuggler or someone using the child to get out of detention faster.
But mothers with children and unaccompanied older minors who’ve declared a desire to obtain asylum have often been released from custody in relatively short time pending court appearances.
Some adults have been outfitted with ankle tracking bracelets and warned to appear in court. If adults have been held in detention for longer periods, children typically have been released to a relative or sponsor — and they still can be, although fingerprinting is expected to deter relatives whose status is undocumented from coming forward because of heightened fear.
The new policy to separate families has sparked an avalanche of criticism and calls for it to end. Of about 2,000 children separated from parents in the past six weeks about 100 are under the age of 4 years.
A scathing denunciation by the American Academy of Pediatrics called on the departments of Homeland Security and Justice to “immediately end the policy of family separation. Separating children from their parents contradicts everything we stand for as pediatricians – protecting and promoting children’s health. We know that family separation causes irreparable harm to children.”
Dr. Colleen Kraft, AAP president, said she saw a toddler inside a facility who’d been separated from her mother the night before beating her fists on mat and sobbing. Workers at a shelter for very young children told Kraft that a policy doesn’t allow them to hold children to comfort and console them. They can only change diapers and provide distraction with toys and books.
Kraft called it “a form of child abuse.”
A recording that at Texas civil rights attorney provided to the media group ProPublica captured the sound of multiple children crying inside a CBP facility, according to the attorney. On it children cry out for moms and dads, including a 6-year-old begging to call her aunt — and a man who is presumably a CBP officer commenting in Spanish that the children sound like “an orchestra” without a conductor.
Homeland Security Secretary Kirstjen Nielsen responded to criticism bluntly at a National Sheriffs’ Association event: “These minors are very well taken care of. Don’t believe the press.”
Kerlikowske cast doubt that the policy will deter crossings to the degree that some hope.
During his tenure, the U.S. government tried “all sorts of campaigns” to send word out to Central America “about people begin robbed, raped and murdered” during dangerous treks to the U.S.-Mexico border. “We just didn’t find it particularly successful,” he said.
He also suggested that the United States shares a history with Central America that led to circumstances today.
The U.S. government invested heavily in propping up Cold War-era regimes in the 1980s impoverished Central America — where U.S. fruit companies reigned supreme — because they were fighting leftwing revolutionaries.
People fled ensuing civil war, with some settling in inner-city America, where kids faced pressure to join gangs for self-protection during the heyday of the Crips and Bloods.
The United States, Kirlikowske said, helped spread gangs in Central America by sending “planeloads” of deported youths back to a region where gangs flourished because of weak economies, and dysfunctional crime prevention and justice systems.
Last Sunday, Nielsen attempted to beat back criticism of family separation with a tweet claiming that “there’s no policy of separating children. Period.”
She also tweeted: “For those seeking asylum at ports of entry, we have continued the policy from previous Administrations and will only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken a law.”
In translation, this means that families will be let in and spared separation if they manage to present themselves at a U.S-Mexico port of entry and ask to apply for asylum — while those who cross illegally and turn themselves over to CBP officers won’t be spared prosecution and separation.
Lately, CBP officers have been telling people who approach a port of entry that there isn’t enough room to enter, suggesting that they wait.
On June 11, though, Sessions used his power in a way that could kill any possibility of asylum for most Central Americans.
A sweeping directive he issued overturned an immigration court ruling that helped establish a precedent that mortal threats from gang violence or domestic violence can be grounds for asylum.
Sessions, who has long sought to slash legal immigration, argued against the idea that women and kids targeted by gangs are a persecuted “social group” deserving refuge.
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances,” Sessions said. “Yet the asylum statute does not provide redress for all misfortune.”
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