by Edith Lerner
Associate Editor, Vol. 25
It might seem odd for me to be writing a blog post about family separation in February 2020. For many Americans, the “family separation crisis” defined the summer of 2018. It was more than just one of the many outrage provoking moments of the Trump Administration. The sheer cruelty of the policy animated Americans to protest and make enormous financial contributions to civil rights and legal aid organizations. The crisis faded from public consciousness in June 2018 when in response to public outcry, President Trump caved to political pressure and issued an executive order requiring DHS to stop separating families. However, the crisis is far from over, and there have been important developments within the last month. This blog post seeks to summarize the litigation that followed the implementation of the Zero-Tolerance Policy, and the state of family separation today.
On May 7, 2018, the Department of Justice (DOJ) implemented the Zero-Tolerance Policy, separating children as young as 4 months old from their parents and resulting in the “creation” of thousands of unaccompanied minors.  The policy was designed to discourage people from seeking asylum at the southern border through the infliction of emotional distress. Under the policy, DOJ prosecuted all adults who were apprehended after crossing the border without inspection based on an existing provision of the INA that had previously been rarely enforced. Because criminally prosecuting adults involves detaining them in federal prisons where children are not permitted and there are various guidelines that regulate the detention of children, the children were removed from their parents and transferred to the Department of Health and Human Services’ Office of Refugee Resettlement (“ORR”).
After the Executive Order put an end to the policy, Judge Dana Sabraw of the Ninth Circuit ordered all children to be promptly reunited with their parents in Ms. L v. ICE. Advocates sought further relief in order to address the disabling trauma of family separation, which made parents unable to focus on anything other than the whereabouts and well-being of their children, and therefore unable to adequately articulate their experiences during credible fear interviews with asylum officers. In September 2018, the same judge held in Dora v. Sessions that asylum seekers who failed credible fear interviews after being separated from their parents or children were allowed to request a second credible fear interview. In the public eye, the crisis was over.
However, two years later, the families affected by the family separation continue to face serious legal, logistical, and psychological challenges.
The aggressive and haphazard way that the government carried out the family separation policy resulted in enormous difficulties with the enforcement of the two Ninth Circuit remedies. The sheer quantity of children who were scattered throughout the country in ORR care made the reunification process a daunting task. But it was made all the more complicated by the administration’s inability to track the numbers of children separated from their parents.  Due to reporting and IT deficiencies, the exact number of children affected is unknown. However, as of October 2019, the ACLU estimates that over 5,400 children were separated from their parents, including 1,500 who were separated prior to the announcement of the policy, and many more since the executive order purportedly put an end to the policy. Many of the parents whose children were put into ORR care were deported.
Following the decision in Ms. L, some of those parents filed applications for humanitarian parole to be reunited with their children, but individually their petitions were denied. In response, the ACLU, the Asylum Seeker Advocacy Project (ASAP), and the law firm Paul Weiss worked together to file a motion to return deported parents to the United States in order to be reunited with their children under the Ms. L litigation. In September 2019, Judge Sabraw “found that many of the parents had been given false information by officials and were, in some cases, coerced into waiving their rights and signing off on their deportations,” and deemed the deportations unlawful. 
On January 23, 2020, nine parents landed in the United States to be reunited with their children after nearly two years apart. The long-awaited reunification was emotional but bittersweet. There are still unknown numbers of parents who were deported to their home countries who may be eligible for relief under Ms. L and Dora. The problem is that they are spread across Central America, some in extremely remote villages. Locating them often requires on-the-ground efforts. Justice in Motion, a group that aims to protect the rights of migrants across our borders, is in touch with over 100 deported parents whose children remain in the United States following their separation.
As previously mentioned, although the zero-tolerance policy is no longer in effect, the government has continued separating great numbers of migrant parents from their children. Parents are no longer being prosecuted for entry without inspection, but the government has continued its policy of removing children from immigrants under other circumstances. According to Efren Olivares with the Texas Civil Rights Project, there are three circumstances where the government never stopped separating children from their parents: first, when the parent has any sort of criminal history, including traffic infractions; second, when the government believes that a parent is a gang member, which happens often to parents who have no convictions at all; and third, when the government believes that the adult is not the child’s real biological parent.
In response to the continuing separation of families, The ACLU filed a motion in the ongoing family-separation litigation in front of Judge Dana Sabraw, seeking to limit the number of separations still occurring. The ACLU claimed that in the last year, the Trump administration separated over 900 children from their parents under the guise of protecting children from dangerous or unfit parents, thereby circumventing Judge Sabraw’s previous order to stop separating families. Earlier this month, Judge Sabraw ruled that the continued separation of children from their parents at the border was within the administration’s executive authority. He found no evidence that the administration was abusing its discretion or returning to the systemic separation of the Zero-Tolerance Policy. In litigation where the court has repeatedly come down on the side of the arriving noncitizens and admonished the Administration, this development reflects the outer bounds of the court’s willingness to intervene in executive authority. One positive outcome is that the Court required the government to use DNA testing to confirm that parents are not the biological parents of children before removing them for that reason. Previously, it was unclear what factors the government agents were considering when they removed people’s children on the theory that there was no biological parent-child relationship.
Lastly, it is important to note the acute challenges facing families that have been reunited in the United States and are pursuing their asylum claims in immigration courts. One technical concern is that in order to know whether or not you are eligible for relief under Dora v. Sessions (i.e. whether you are eligible for a second credible fear interview), and to get the assistance of an attorney in the United States to pursue an asylum claim, migrants need access to their immigration records. In the chaos of summer 2018, many individuals were released from detention with no paperwork. Many did not know the results of their credible fear interviews. Lawyers from ASAP and CLINIC had to file a lawsuit under the Freedom of Information Act in order to facilitate the release of the documents.
Many reunited families are grappling with serious trauma resulting from the forced separation, the chaos at the border, and a lack of communication by the government. Thus, many families were never informed of their court dates. Families who miss court dates are ordered removed in absentia. Special resources must be dedicated to locating these families. Many of these families have settled in remote areas of the country where there are no large legal aid offices to provide support to prevent their deportations. Furthermore, these parents and children require specific psychological and medical support to manage trauma, separation anxiety, and the myriad of other direct consequences of family separation. It is important to remember the trauma inflicted on these families during their forced separation was compounded by what they had already suffered. These families carry with them the trauma from the persecution that forced them to leave their home countries. They endured a harsh, difficult journey, only to arrive to cruel detention conditions, where they had to grapple with the shock of acclimating to life in a new country under its government surveillance and threat of removal.
As we move forward into 2020, please don’t forget about these families, and please remember to vote. This country deserves an administration that would never contemplate such a cruel policy.
 Olga R. Rodriguez, People Donate Millions to Help Separated Families, Associated Press (June 20, 2018), https://apnews.com/a3dab1dc035e43e5b7031f4189fbd0a1/People-donate-millions-to-help-separated-families
 Michael D. Shear, Abby Goodnough and Maggie Haberman, Trump Retreats on Separating Families, but Thousands Remain Apart, New York Times (June 20, 2018), https://www.nytimes.com/2018/06/20/us/politics/trump-immigration-children-executive-order.html
 Caitlin Dickerson, The Youngest Child Separated From His Family at the Border Was 4 Months Old, New York Times, (June 16, 2019), https://www.nytimes.com/2019/06/16/us/baby-constantine-romania-migrants.html
 Sarah Stillman, How Families Separated at the Border Could Make the Government Pay, The New Yorker (June 15, 2019), https://www.newyorker.com/news/news-desk/how-families-separated-at-the-border-could-make-the-government-pay
 8 U.S.C. §1325 (1996)
 See, e.g. Stipulated Settlement Agreement at 3, 7–18, 20, Flores v. Reno, No. CV 85-4544- RJK(Px) (C.D. Cal. Jan. 17, 1997), available at https://www.aclu.org/legal-document/flores-v-meese-stipulated-settlement-agreement-plus-extension-settlement
 Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.)
 Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.)
 Hamed Aleaziz, The Trump Administration’s Numbers On Immigrant Family Separations Can’t Be Confirmed, Inspector General Says, Buzzfeed News, (Nov. 26, 2019), https://www.buzzfeednews.com/article/hamedaleaziz/trump-administration-immigrant-families-no-reunification
 Associated Press, More than 5,400 Children Split at Border, According to New Count, NBC News, (Oct. 25, 2019) https://www.nbcnews.com/news/us-news/more-5-400-children-split-border-according-new-count-n1071791
 Family Closer to Reunification, Asylum Seeker Advocacy Project, (Sept. 30, 2019) https://asylumadvocacy.org/2019/09/30/family-one-step-closer-to-reunification/
 Memorandum In Support Of Motion To Allow Parents Deported Without Their Children To Travel To The United States, Ms. L. v. ICE, Case No. 18-Cv-00428-DMS-MDD, available at https://www.aclu.org/legal-document/memorandum-support-motion-allow-parents-deported-without-their-children-travel-united
 Order Granting in Part and Denying in Part Plaintiffs’ Motion to Allow Parents Deported Without Their Children to travel to the United States, Id., available at https://www.aclu.org/sites/default/files/field_document/ms_l_v_ice_-_order_on_motion_to_allow_parents_deported_without_their_children_to_travel_to_us.pdf; Camilo Montoya-Galvez, Migrant Parents Deported Without Their Children Make Historic Return to the US., CBS News, (Jan. 23, 2020, https://www.cbsnews.com/news/migrant-parents-deported-without-their-children-make-historic-return-to-the-us/?fbclid=IwAR3uySf1R3RDe9HW54ODLSjFD27Uld8syHY7PH-kUidUN31PCFRQzXW_iQI
 Looking At Lasting Effects Of Trump’s Family Separation Policy At The Southern Border, NPR, All Things Considered, (Jan. 1, 2020) https://www.npr.org/2020/01/01/792916538/looking-at-lasting-effects-of-trumps-family-separation-policy-at-the-southern-bo
Miriam Jordan, No More Family Separations, Except These 900, The New York Times, (Jul. 30, 2019) https://www.nytimes.com/2019/07/30/us/migrant-family-separations.html
Justine Coleman, Judge Rules in Favor of Administration on Family Separations at Border, The Hill, (Jan. 13, 2020) https://thehill.com/regulation/court-battles/478105-judge-rules-in-favor-of-administration-on-family-separations-at
 Lawsuit for Reunited Families (June 10, 2019) https://asylumadvocacy.org/2019/06/10/update-lawsuit-for-reunited-families/