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Zero Tolerance Policy at the Border and the Family Separation Crisis

08/24/18
By: James Pittman 

Fulfilling promises made during the presidential campaign to get tough on illegal border crossers, the Trump administration acting through Attorney General Jeff Sessions announced in early Spring 2018 that it would implement a zero tolerance policy for those who cross the Southern US border illegally. As such each and every adult who illegally entered would be criminally prosecuted for violating 8 USC §1325(a), a violation of which is a federal misdemeanor. 

8 USC §1325(a)  Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
 
Such adults were held in federal custody, prosecuted and then subjected to removal proceedings.  However, owing to the existence of a federal court order which outlined the conditions under which juveniles may be held in immigration detention, the administration had to separate the children of these aliens and detain them separately. 

The Flores Settlement 
In 1997, a settlement was signed in the Flores v INS case which had reached SCOTUS. The terms of the settlement have governed treatment of migrant children in detention ever since. The Flores settlement has been revisited multiple times, most recently in 2015 when the Obama administration sought to carve out an exception for minors who had arrived in the U.S. with their parents. It came amid a surge in migrant families from Central America, and the administration wanted to detain some of them for as long as it took to process their cases. A federal judge in California said no, which brings us to the present when the Trump administration submitted a very similar request on June 20, 2018. And the same federal judge, Dolly Gee, just issued a ruling rejecting the government’s attempt to modify the settlement 33 years after Carlos Holguin first brought suit on behalf of Jenny Flores.

The Trump administration said in a court filing on July 19, 2018 that it has reunified 364 of more than 2,500 migrant children separated from their parents at the U.S. southern border, just one week before a court-ordered deadline. Of 1,607 parents eligible to be reunited with their children, the filing said, 719 have final orders of deportation, meaning they could be removed from the country as soon as they are reunited. Those parents may have to choose between bringing their child back to a violent country or leaving them behind in the care of the government, nonprofits, foster families or relatives in order to seek asylum in the United States.
And the crisis continues….

James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.