Betraying Family Values

This report demonstrates how the process of enforcement along the border subjects families to separation, how children, even when accompanied by a parent, can be rendered unaccompanied, and how such separation impacts the family’s well-being and access to due process. Finally, this report explains how family separation through the deportation process is dangerous and impedes safe repatriation and reintegration. Our findings of policies and practices in this report have been informed in part from our discussions and interviews with the Department of Homeland Security (DHS), DHS Policy, DHS Office for Civil Rights and Civil Liberties, DHS Office of Inspector General, Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Department of Health and Human Services Office of Refugee Resettlement (ORR).

Family unity is important not only to maintain the integrity of the family unit, but also because its destruction has a detrimental impact on liberty, access to justice, and protection. It also negatively impacts emotional and psychological development and well-being, creates security and economic difficulties, and strips the dignity of an individual and their family as a whole. In addition, it is a fundamental human right enshrined in international and U.S. child welfare law.

The federal government should prioritize liberty and family unity in its immigration policy, including enforcement actions. Government agencies with enforcement and custody responsibilities should have mechanisms to identify family members, and to prevent, mitigate, and track family separation in all cases. Instead of pursuing policies of deterrence and detention, family unity, the right to liberty, and reunification must become presumptive principles.

Ensuring family unity does not require legislation, but can be achieved with administrative changes. These changes include:

1. The Department of Homeland Security (DHS) should consider family unity as a primary factor in all charging and detention decisions. DHS agents should receive training and guidance on identification, documentation, processing, and placement decisions for families. A continuum of alternatives to detention should be utilized instead of traditional institutional detention to avoid separating families and unnecessary detention causing trauma and due process complications.
2. DHS and its component agencies should document and trace all family relationships. Family separation should be recorded and justified in writing. Such information should also be collected, analyzed, and reported regularly to Congress. Information should be accessible to ORR and to family members and their attorneys. This should also permit families to trace other family members, file complaints about family separation, and seek family reunification.
3. DHS should consider the best interests of the child in all processing, custody, and removal and repatriation decisions. DHS should avoid placing family members, whether a mother with a minor child or others arriving together, into expedited or reinstatement of removal. For decisions impacting a child, their best interests should always be of primary consideration and family relationships should be vetted whenever possible. DHS should consider ORR’s best interest recommendation as well as recommendations by the DHS Advisory Committee on Family Residential Centers in release decisions regarding detained family members. This should include decisions impacting the custody, release or removal of their family members. During removal and repatriation, children should be protected from family separation to ensure children are returned safely without causing undue trauma.
4. DHS should require the hiring of child welfare professionals at the border to supervise the protection of children and families and oversee instances of family separation.
5. DHS should coordinate among its components and with HHS to identify family separation and facilitate release and reunification. DHS and its components, including ICE, CBP, and the Citizenship and Immigration Services (USCIS), should work with HHS and ORR to ensure an inter-agency process to help separated family members be released and/or reunited. This should include mechanisms to help detained family members locate and connect with separated loved ones.
6. DHS and the Department of Justice’s Executive Office for Immigration Review (EOIR) should ensure separated children who have been designated as unaccompanied children retain their designation for the duration of their removal proceedings.
7. DHS Office of Civil Rights and Civil Liberties (CRCL) should investigate cases of family separation to identify trends, provide oversight and accountability, and report findings to Congress and the public. DHS agencies should also work with DHS CRCL to improve documentation, reporting, and policies on family separation.

While it is not yet clear how the Trump Administration will implement the border enforcement policies laid out in the President’s recent executive order, it is clear that the needless separation of families during immigration enforcement along the southern border will not only continue, but worsen. The Administration’s elimination of existing prosecutorial discretion and parole policies, and plans to prosecute parents, combined with its goal of universal detention will break even more families apart and leave even more parents to make the heart-wrenching choice between family separation and return to a country where their and their children’s lives are at risk.

The consequences of family separation are clear and the urgency for policy change cannot be dismissed. As families continue to seek protection at our borders, KIND, LIRS, and WRC hope that this report will inform policymakers, legislators, and the public of how border enforcement policies have long failed families, and of the increased risks and costs of indiscriminate enforcement and detention on family unity and child well-being.

For more information, please contact Katharina Obser, 202.750.8597 or katharinao@wrcommission.org.