On April 6, President Trump and then-Attorney General Jeff Sessions initiated a “zero tolerance” policy: they directed federal agents to end the practice of allowing people to remain free while their immigration cases—a civil matter—were resolved.The White House, Presidential Memorandum for the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Health and Human Services, and the Secretary of Homeland Security re: Ending “Catch and Release” at the Border of the United States and Directing Other Enhancements to Immigration Enforcement (Washington, DC: The White House, April 6, 2018); and U.S. Department of Justice (DOJ), Memorandum from Attorney General Jeff Sessions to Federal Prosecutors along the Southwest Border re: “Zero-Tolerance for Offenses Under 8 U.S.C. § 1325(a),” April 6, 2018
Under the new policy, agents were required to detain everyone who does not enter the country at a port of entry and refer all improper entry offenses for criminal prosecution.The White House, Presidential Memorandum re: Ending “Catch and Release,” 2018; and DOJ, Memorandum from Jeff Sessions to Prosecutors re: “Zero-Tolerance,” 2018.
Zero tolerance closely resembles a Bush-era policy of incarceration and prosecution of immigrants entering the country without prior authorization called “Operation Streamline.”Michael Corradini, Jonathan Allen Kringen, Laura Simich, Karen Berberich, and Meredith Emigh, Operation Streamline: No Evidence that Criminal Prosecution Deters Migration (New York: Vera Institute of Justice, 2018), 1.
There is no evidence that over Operation Streamline’s nine years it was a deterrent against entering the country without authorization.Michael Corradini, Jonathan Allen Kringen, Laura Simich, Karen Berberich, and Meredith Emigh, Operation Streamline: No Evidence that Criminal Prosecution Deters Migration (New York: Vera Institute of Justice, 2018), 1.,6
The zero tolerance policy quickly became known as “family separation,” as Border Patrol agents began separating children from their parents and placing them in youth detention facilities managed by the Office of Refugee Resettlement (ORR) as though they had arrived as “unaccompanied children.” Early estimates stated approximately 2,300 children were separated from their parents—an average of 65 children per day—between May 5 and June 9. A later report released by the Department of Homeland Security’s Office of the Inspector General (DHS OIG) suggests the number was closer to 2,700—perhaps as high as 3,600—and that the administration may have begun separating children from their parents well before the announcement of the policy. U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), Separated Children Placed in Office of Refugee Resettlement Care (Washington, DC: HHS OIG, 2019). The administration’s position was that it was just enforcing the law against unlawful entry and that, in the case of families, the Flores settlement, a 1997 agreement governing the treatment of unaccompanied minor immigrants, forbade children from being detained with their parents—a position that analysts have described as an overly broad and misleading interpretation of the Flores protections.Salvador Rizzo, “The Facts About Trump’s Policy of Separating Families at the Border,” Washington Post, June 19, 2018. But despite the administration’s stated intention to detain and refer for prosecution every person who crossed the border, fewer than one in three adults was actually referred for prosecution—disproportionately those accompanied by children.TRAC Immigration, "‘Zero Tolerance’ at the Border: Rhetoric vs. Reality,” The policy was met with widespread public outcry, especially after Senator Jeff Merkley (D-OR) livestreamed guards in Brownsville, Texas, denying him access to inspect an improvised child detention facility located in an abandoned Walmart.Emily Tillett, “Sen. Jeff Merkley Denied Entry Into One Migrant Detention Facility, Claims He Saw Kids Caged In Another,” CBS News, June 4, 2018. On the same trip, Merkley was able to visit a processing center at McAllen Border Station and described “hundreds of children locked up in cages.”Emily Tillett, “Sen. Jeff Merkley Denied Entry Into One Migrant Detention Facility, Claims He Saw Kids Caged In Another,” CBS News, June 4, 2018.
Soon, pictures surfaced in the media showing children in chain link cages, children being marched in a line between tents in the scorching sun, children sleeping on mats with no more than a Mylar emergency blanket for cover, and children wailing as they were separated from their handcuffed parents.“US Family Separation Crisis – In Pictures,” Guardian, June 22, 2018. Midyear saw hundreds of thousands of people on the march in more than 750 cities to protest the family separation policy.Dana R. Fisher, “Who Came Out In the Brutal Heat to the ‘Families Belong Together’ March? Here’s Our Data,” Washington Post, July 3, 2018. On June 20, President Trump signed an executive order “Affording Congress an Opportunity to Address Family Separation.”Executive Office of the President (EOP), Executive Order No. 13841, “Affording Congress an Opportunity to Address Family Separation,” 83 Fed. Reg. 29435, June 25, 2018. The hastily drafted order purported to end family separation and pressed Congress to pass immigration legislation; Congress, which had been in the process of reviewing a handful of immigration bills, responded by failing to pass any of them.EOP, Executive Order No. 13841; and Ballotpedia, “115th Congress on Immigration,” And ending family separation turned out to be harder than anyone could have anticipated, a problem compounded by Immigration and Customs Enforcement’s (ICE’s) and DHS’s apparent failure to track children to ensure that families could be reunited.HHS OIG, Separated Children Placed in Office of Refugee Resettlement Care (Washington, DC: HHS OIG, 2019).
On June 26, in response to a lawsuit challenging the practice of incarcerating children separately, Judge Dana Sabraw of the Southern District of California ordered that “absent a determination that the parent is unfit or presents a danger to the child,” all children in custody must be reunited with their parents within 14 days (for children under five) or 30 days (for all other children).Ms. L v. ICE, 3:18-cv-00428-DMS-MDD (S.D. Cal., June 26, 2018) (order), 22-23. By the deadline, 1,442 children had been reunited with their parents in ICE custody, but more than 700 separated children still remained in ORR custody, some thousands of miles from their parents.Dara Lind, “At Court Deadline, More Than Half of Separated Migrant Families Have Been Reunited,” Vox, July 26, 2018. The administration continued to miss deadlines, earning scathing reports from the DHS OIG and the Government Accountability Office (GAO) in October.DHS OIG, Special Review - Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy (Washington, DC: DHS OIG, 2018); and U.S. Government Accountability Office (GAO), Unaccompanied Children: Agency Efforts to Reunify Children Separated from Parents at the Border (Washington, DC: GAO, 2018). Among other concerns, the DHS OIG report found that “Border Patrol agents do not appear to take measures to ensure that pre-verbal children separated from their parents can be correctly identified.”DHS OIG, Family Separation Issues, 2018, 15. The GAO report found that ICE and DHS “did not take specific steps . . . to plan for the separation of parents and children or potential increase in the number of children who would be [taken into custody].”GAO, Unaccompanied Children, 2018, 13. Ultimately, many reunions were facilitated by private projects like ICON (Immigrant Connection Project), a collaboration between the Vera Institute of Justice and other legal services and immigration organizations. During its operation, ICON received nearly 300 inquiries and made connections for more than 95 percent of those seeking assistance.Vera Institute of Justice, 2018 Annual Report: Embracing Human Dignity (New York: Vera Institute of Justice, 2018).
Even though zero tolerance is officially on hold, almost 120 more children are known to have been separated from the adults who accompanied them to the border since June.DHS OIG, Separated Children, 2019.