Advocates Call for New Standards on Family Separations

Even though “Zero Tolerance” has officially ended, immigration advocates say officials are still separating families with little to no guidance—and Congress needs to fix it.

House Judiciary Committee Chairman Jerrold Nadler, and ranking member Doug Collins
AP Photo/J. Scott Applewhite
Feb. 13, 2019, 8 p.m.

Kids are being taken from their parents at the border by U.S. officials without any formal standards in place to guide their decisions, according to legal experts who are calling on Congress to take immediate action to protect vulnerable children.

Immigration-policy advocates and a key administration official have told lawmakers that more guidance is needed at the border to determine when it is appropriate to separate children from their parents.

House Democratic lawmakers are bringing renewed focus to the White House’s “Zero Tolerance” policy, which called for prosecuting all immigration offenses related to illegal entry. Due to restrictions on holding children in detention, they were removed from their parents or guardians under “Zero Tolerance” and placed in less restrictive settings, which involved sending them to the Health and Human Services Department's Office of Refugee Resettlement shelters.

But even though this policy has officially ended, an HHS official told Energy and Commerce Committee members last week that guidance would be helpful for both the Homeland Security Department and HHS to help officials determine when separation is appropriate or needed.

“In terms of what Congress can do, it is reasonable to believe that if there was clear legislative guidance about when a child may be separated from a parent, that would ease the work of both departments,” said U.S. Public Health Service Commissioned Corps Commander Jonathan White, who previously served as the deputy director of the Office of Refugee Resettlement.

Advocates and experts echoed his plea, saying that DHS officials are making these decisions without formal procedures right now. “By law, DHS can separate when there’s a real cause of concern for the safety of the child. That’s very important; it’s a very important role,” said Jennifer Podkul, senior director for policy and advocacy at Kids in Need of Defense, which works to ensure that immigrant children have legal representation in court proceedings.

“We don’t ever want children to be in harm’s way,” Podkul told National Journal. “However, they’re making these decisions with no standards, no trained professionals. So if there are individual separations, having trained professionals, having standards—all of that is going to be really helpful.”

Podkul also testified in front of the Energy and Commerce Committee Oversight and Investigations Subcommittee last week, telling lawmakers that there are still incidences of separations without a reason provided. She recommended that the government hire child-welfare professionals to supervise family separations.

“In one case, a father was separated from his teenage daughter and no information was given for the reasons for the separation,” she said in written testimony. “Moreover, KIND only found out this child had been separated from her father through interviews with the child. The separation was not noted in her file and no one from ORR flagged the separation for the attorney of record.”

Although lawmakers on both sides of the aisle have brought forward proposals to limit when families can be separated upon entering the United States, none of these proposals has received bipartisan support.

Democratic senators reintroduced a bill last week that would largely limit government officials’ ability to separate families except when necessary in cases of trafficking or potential abuse, and require training for Border Patrol officials to help make determinations about when separation is necessary. House Judiciary Committee Chairman Jerrold Nadler introduced a companion bill in January that goes even further by levying financial penalties on officials who violate these family-separation restrictions.

No Republicans have signed onto these bills, which carry the support of KIND, the American Academy of Pediatrics, and First Focus, a children’s advocacy group.

Judiciary Committee ranking member Doug Collins said Nadler's legislation would encourage illegal immigration. “This bill would codify a get-out-of-jail free card that incentivizes adults to endanger and exploit children in order to gain entry into the United States,” Collins said in a statement to National Journal.

Collins, along with Rep. Mike Johnson, introduced a bill last month that would keep children with their parents while in DHS custody.

Republican Sen. Thom Tillis took a similar approach in his proposal introduced last session, which called for families to be kept together in DHS family residential centers. Tillis told National Journal he thinks there should be more guidance at the border to determine when families should be kept together and when they should be separated.

“I wished that reasonable-minded people would get into a room and recognize some of the complexities of the Flores [Settlement Agreement], and we really come up with a reasonable, respectful way to keep the family together,” he said. The Flores Settlement was a 1997 court agreement that established standards for the detention and care of immigrant children.

Tillis said that he will push his provision, but he hasn’t determined whether to file it separately or negotiate it as part of a larger package. His proposal sets mandatory standards of care for family residential centers and outlines when separation would be necessary due to abuse or trafficking, or in cases when the parent has a violent criminal background or cannot prove that they are the parent. It also calls for authorizing 225 new immigration judges so that family cases would be more quickly adjudicated.

But advocates said this proposal still would not adequately protect children. “There’s been a lot of efforts to advertise detention as a solution to family separation. ... There’s no evidence that any amount of time in detention is safe for children,” said Julie Linton, the cochair of the American Academy of Pediatrics’ Immigrant Health Special Interest Group. “In fact, the opposite is true. Studies show that children in detention, such as the [Immigration and Customs Enforcement] detention centers, show signs of physical and emotional distress.”

Kristen Torres, policy director of child welfare and immigration at First Focus, called the proposed use of family detention “an exchange of one horrific policy for another.” She said that the Tillis legislation would not deter separation of children from family members such as aunts, uncles, grandparents, or older siblings.

“[W]e have seen that the care received under the umbrella of DHS is woefully inadequate,” Torres wrote in an email to National Journal. “Two children have died in their custody ... and there have been alarming reports of abuse to immigrants from border patrol agents.”

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