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How and Why ‘Zero Tolerance’ Is Splitting Up Immigrant Families

Migrants waiting for asylum hearings in Tijuana, Mexico, on Tuesday. More than 2,000 children have been separated from their parents since the Trump administration’s “zero tolerance” immigration policy went into effect, according to government officials.Credit...Sandy Huffaker for The New York Times

Updated June 19, 2018.

President Trump and his aides at the White House have defended separating children from parents in detention near the southwest border, despite a growing public outcry over the practice, fueled by images and accounts of crying children held in cage-like facilities.

The number of families making the journey over land to the United States has soared in recent months, infuriating the president, who had cited a decline in 2017 as evidence that his stance on immigration was succeeding.

A new “zero tolerance” policy, calling for criminal prosecution of everyone who enters the country illegally, became official in May, when Attorney General Jeff Sessions visited Arizona and California.

“If you cross the southwest border unlawfully, then we will prosecute you — it’s that simple,” Mr. Sessions said. “If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you. If you don’t want your child separated, then don’t bring them across the border illegally.”

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Where Trump’s ‘Zero Tolerance’ Immigration Policy Began

Presidents George W. Bush and Barack Obama both increased enforcement on the U.S.-Mexico border. Here is how their approaches differed from the Trump administration.

This image has become a powerful representation of the Trump administration’s crackdown on immigration: a 2-year old girl sobbing, as U.S. border patrol agents searched her mother. “If you cross the border unlawfully, then we will prosecute you. If you are smuggling a child, then we will prosecute you. And that child may be separated from you as required by law.” The Trump White House’s tactic of systematically separating migrant families is a dramatic shift. There have been cases of families being separated under the previous two administrations. But it’s always been the exception, not the rule. That said, Trump’s crackdowns are happening against the backdrop of more than a decade of stepped-up enforcement at the Southern border. In 2005, President George W. Bush launched “Operation Streamline” along the Texas border. He was responding to a spike in apprehensions there. The program called for criminally prosecuting all migrants. “We’re going to get control of our borders. We’re making this country safer for all our citizens.” The idea of zero tolerance took root under Bush, and it’s what Trump has used to model his policy after. The Bush-era program meant that migrants who were caught in certain border states were put through the criminal system, not civil immigration courts. It made exceptions for adults traveling with children, but others were ushered through mass trials aimed at deporting them quickly. It’s a practice that’s still around today. “One of the things we committed to do was end ‘catch and release’ by the end of fiscal year 2006.” Under this policy, migrants were held until their deportation hearing. And that meant an increase in beds at private detention centers. In 2014, President Barack Obama declared a crisis at the Southwest border after a surge of unaccompanied minors, mostly from Central America. “We now have an actual humanitarian crisis on the border that only underscores the need to drop the politics and fix our immigration system once and for all.” During that child migrant crisis, the Obama administration also focused on deporting people quickly and put some through criminal proceedings. But it chose to hold families together in administrative, not criminal detention. The Obama administration also set up makeshift overflow facilities. And we saw similar images back then, of adults and children behind chain-link fences draped in thermal blankets. Now, Trump is reportedly taking it a step further and considering makeshift tent cities to detain minors caught at the border. The Trump administration says it’s now merely enforcing the letter of the law. But images of children in detention have made it hard to sell it in political terms, and humanitarian ones, too.

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Presidents George W. Bush and Barack Obama both increased enforcement on the U.S.-Mexico border. Here is how their approaches differed from the Trump administration.CreditCredit...Mike Blake/Reuters

With few exceptions, the United States has historically treated immigration violations as civil, rather than criminal, offenses, and parents have not typically been separated from their children when they entered the legal system.

“This is an additional punitive measure the administration is imposing on parents in an effort to frighten Central Americans, to discourage them from seeking asylum,” said Reuben Cahn, executive director of the Federal Defenders of San Diego, who is representing several of the caravan migrants.

Religious leaders and prominent figures from both political parties have spoken out against the family separation practice.

Here’s a look at what is happening to migrant families on the border, and what’s behind it.

The administration did not announce a blanket policy to separate families, but its prosecution policy is having that effect. Mr. Sessions said his department would criminally prosecute everyone who is found to have illegally entered the United States. Children are not allowed to remain with parents who are in custody in the criminal court system, so if a mother or father is apprehended with a child, the administration says, the minor must be taken from the parent.

The administration says its hands are tied by a 1997 court settlement and later court rulings governing the settings in which detained children can be held. But separating parents from children is only one of several options the administration has for meeting the requirements, even while carrying out its prosecution policy. The White House has also said that longstanding laws require the separations, but experts say there are no such laws.

Administration officials say the aim is to protect the border and uphold the law through new measures to deter illegal immigration.

Other motivations: Mr. Sessions has said the asylum system is overwhelmed with people making frivolous claims, and Mr. Trump, according to administration officials, had been demanding that families be broken up to stanch the flow of Central Americans to the border. The majority of apprehended migrants come from Honduras or El Salvador, two countries wracked by violence. Children there are often targeted for recruitment by gangs, prompting their families to seek safe haven in the United States.

The “zero tolerance” policy is supposed to apply only to people who enter the country illegally. Presenting yourself at a port of entry and requesting asylum is not illegal. But these legal asylum seekers are generally taken into detention while their cases are processed, which can take months, and there are reports that those families are now being separated in the same way that illegal-entrant families are. Complicating the issue, many families that enter illegally request asylum once they are caught.

Immigration lawyers and advocates who work at the border say that family separations began in earnest after Mr. Trump took office pledging to crack down on illegal immigration, though a very small number had occurred during previous administrations. The practice has gained momentum in the last two months, particularly in Texas, where many families from Central America seek to cross, the lawyers and advocates say.

Politicians of both parties and other prominent people have spoken out against the practice, and the American Civil Liberties Union is suing to stop it. The organization argues that it is a violation of due process to separate parents and children simply as a means to deter illegal immigration. Only when parents are abusive or unfit to care for their children can the children legally be taken away from them, the group argues in its suit, which was filed before the administration announced the new practice.

There are logistical obstacles to doing that. The nation has two centers where families can remain together while awaiting disposition of their cases, but their combined capacity is just 2,700 people; the detention system is swamped with thousands more cases than that.

Another option is to release parents and their children from detention with orders to return to court for their immigration hearings. That has often been the practice in the past, but President Trump has criticized “catch and release” and has said he would end its use.

More than 2,000 migrant children have been separated from their parents, according to government officials. Field supervisors with the Border Patrol have the discretion to allow children younger than 5 to stay with their parents.

The government says that when it detains a parent, it cannot release a child except to a legal guardian like a relative, if one is available and can prove ties to the child. Typically, though, children are sent to a federally licensed facility operated by the Health and Human Services Department, or are placed with a temporary foster family, where they remain while the parent is in the criminal justice system.

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Children, many of them separated from their parents under the “zero tolerance” policy, at a border center in Tornillo, Tex.Credit...Mike Blake/Reuters

Immigration lawyers say the separations can last for four months or longer, while the parents’ and children’s cases proceed separately. Normally, a child is reunited with a parent once the parent has been released from detention, but there have been cases of parents being deported without their children.

Steven Wagner, a senior official at the Health and Human Services Department, said on Tuesday that he did not know how many separated children had been reunited with their parents.

“This policy is relatively new, and we are still working through the experience of reuniting kids with their parents after adjudication,” Mr. Wagner told reporters on a conference call.

Studies have shown that children who are separated from their parents can develop anxiety and post-traumatic stress disorder, and may exhibit behavioral problems and do poorly in school afterward.

In an affidavit attached to the A.C.L.U. lawsuit, the heads of the American Academy of Pediatrics and the Child Welfare League of America, among others, strongly urged the homeland security secretary, Kirstjen Nielsen, not to break up families.

“Separation from family leaves children more vulnerable to exploitation and abuse, no matter what the care setting,” the affidavit says. “In addition, traumatic separation from parents creates toxic stress in children and adolescents that can profoundly impact their development.”

Government officials say that there is a perception that migrants with children are more likely to be released into the United States than others who try to enter the country illegally. But it is unclear how often people try to pass off unrelated children as their own for this purpose.

Some abuses of migrant children have been documented. Beginning in 2013, minors were fraudulently plucked from shelters by men who posed as friends or family, promised to provide them shelter and transportation to their immigration hearings, and then made them work long hours on egg farms in Ohio. Six people were sentenced to federal prison for their participation in the scheme.

A version of this article appears in print on  , Section A, Page 15 of the New York edition with the headline: Families Pay A High Price For Crossing Illegally. Order Reprints | Today’s Paper | Subscribe

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