Immigration: Protecting Children of Asylum-Seeking Parents

In implementing the Trump Administration’s so-called “zero tolerance” policy mandating the criminal prosecution of all adults who illegally enter the U.S., federal authorities have been separating children from their parents or guardians and placing them in government shelters. In June 2018, an executive order signed by Trump and an injunction issued by U.S. District Court Judge Dana Sabraw both directed authorities to stop separating children from their families, but separations have reportedly continued to take place into 2019.

Judge Sabraw’s June 2018 ruling also ordered federal authorities to reunite all separated children with their families within thirty days. Effectuation of that order has been problematic given that the Trump Administration had not formulated a procedure for reuniting the families it had separated.

CAI's work in this area includes the following:

  • In March 2019, CAI and pro bono co-counsel Sheppard, Mullin, Richter & Hampton LLP filed Children's Advocacy Institute v. Office of Refugee Resettlement, et al. in the U.S. District Court, Southern District of California, seeking a court order declaring that several federal agencies failed to comply with the Freedom of Information Act (FOIA), and requiring them to promptly release the requested records; the lawsuit alleges that the agencies failed to comply with FOIA's statutory deadlines, produced limited and/or nonresponsive documents in response to CAI’s requests, and/or failed to respond or produce any documents at all. 
    As way of background, in June 2018 CAI submitted separate but substantively identical FOIA requests to the Office of Refugee Resettlement, the Administration for Children and Families, the United States Immigration and Customs Enforcement, the U.S. Department of Homeland Security, and the U.S. Customs and Border Protection, seeking records related to individuals detained or arrested for suspected immigration violation upon their entry into the U.S. from January 1, 2018–June 20, 2018. Among other things, the FOIA requests sought documents or databases sufficient to demonstrate the number of children under the age of 18 detained upon detected entry into the U.S. for immigration-related causes (“minor detainees”), by month since January 1, 2018, as available, and the following information for each minor detainee: whether the minor detainee was accompanied by an adult at the time of detention; if the minor detainee was accompanied by an adult at the time of his/her detention, whether the adult was identified or believed to be the parent of the minor detainee; all locations in which the minor detainee has been held in custody; languages spoken by the minor detainee; country of origin of the minor detainee; age at the time of the minor detainee's initial detention; medical condition(s) of the minor detainee requiring treatment at the time of detention or while during detention; for minor detainees with medical condition(s) requiring treatment at the time of detention or while during detention, whether such treatment has been rendered; and whether the minor detainee has been appointed or retained legal counsel.
    Further, for each minor detainee, CAI’s FOIA requests asked for documents or databases sufficient to demonstrate whether he/she was left in the custody of his/her accompanying adult(s); whether he/she was tendered to a relative (other than the accompanying adult); whether he/she was tendered to a non-relative adult sponsor; whether he/she was physically barred from entry and is assumed to have left the U.S.; whether he/she was put in the custody of any federal agency, and if so, which such agency has custody; whether he/she was physically separated from his/her accompanying adult(s) for any period following his/her detention; for each minor detainee who was separated from his/her accompanying adult(s) for any period following his/her detention, the total length of time such separation has taken place, the number of times he/she has had any physical contact with his/her accompanying adult(s) while in detention, and the total length of time of such contacts.
    CAI also requested documents sufficient to demonstrate policies and procedures, formal or informal for determining the facilities or individuals who will have custody over minor detainees who are separated from their parents or accompanying adults; setting forth how minor detainees who have been separated from their parents or accompanying adults are to be treated, and assistance and services they are to receive, while in federal custody (addressing concerns such as, but not limited to, ensuring safe and appropriate housing and bedding, clothing, meals, medical services, mental health treatment or counseling, supervision, education, and assistance with routine needs such as feeding, bathing and diapering); for tracking the custody locations for minor detainees who were separated from their parents or accompanying adults; documenting requests by detainees to be reunited with their minor detainee children being detained separately, and the outcome of each such request; and for permitting detainees to communicate with their minor detainee children, if they are being detained separately.
  • In March 2018, CAI joined an amicus curiae brief in support of the plaintiffs in Ms. L. v. ICE, an ACLU class action filed in the U.S. District Court, Southern District of California, challenging the Trump Administration’s practice of separating asylum-seeking parents from their children. Among other things, the amicus brief argued that family separation within immigration detention is unconscionable, needlessly traumatizes children and families, and must be avoided; government action involuntarily separating children from parents who pose no risk of harm to them is unconscionable and contradicts accepted nationwide child welfare practices and international law; and government action involuntarily separating children from the parents who pose no risk of harm to them is unconscionable and unconstitutional.
    As noted above, in June 2018 Judge Dana Sabraw of the U.S. District Court ordered the federal government to stop separating children and families, and to reunify, within thirty days, all children and families who had been separated by the Trump Administration. The government failed to comply with both directives. On September 20, 2018, the federal government reported to the court that it had reunified or otherwise released 2,167 of the 2,551 children over five years of age, and 84 of the 103 children under five years of age, who had been separated by a parent and were “deemed eligible” for reunification by the government. In November, the court approved a settlement agreement that, among other things, allows most of the migrant children, and many of their parents, to have another chance to apply for asylum.
    In anticipation of further litigation to effectuate the settlement or address other related issues—including the discovery of undisclosed removals prior to 2018—CAI has drafted a new amicus curiae brief on behalf of child advocacy organizations addressing the illegality of the removals under American statutory and constitutional law. The brief has been written in conjunction with a separate amicus brief detailing the violations by the Trump Administration of international law that properly applies. The latter amicus brief was drafted by Professor Aaron X. Fellmeth (Robert’s son and an international law professor at Arizona State) on behalf of Amnesty International and other international human rights organizations. These two briefs await the appeal of Ms. L. v. ICE to the Ninth Circuit, which is currently delayed by a stipulated extension.