The Family Circle of Separation: What are the laws on minors and human trafficking at the border?

U.S. immigration policy is a swirling sea of contention. It rouses ire with every viral photo of an immigrant child in a detention center or escaping a cloud of tear gas. Children separated from their families at the U.S.-Mexico border is another apple of discord on the American conscience. President Trump seeks to mitigate the controversy. But how?

The Trump administration has pointed to a 20-year-old court agreement known as the Flores Settlement and a 10-year-old human trafficking law to explain the current climate.

What is the Flores Settlement?

Though reached in 1997, the circumstances surrounding the Flores Settlement date back to 1985. It was named for a young El Salvadoran girl, Jenny Lisette Flores, who crossed the border illegally. She was taken into custody, strip-searched daily and held with adults of both sexes. Under policy of the day, Flores could also only be released to her parents. Two organizations filed suit on behalf of immigrant children held by the now-defunct Immigration and Naturalization Service. By 1997, an agreement was reached known as the Flores Settlement. Under the agreement, the government is required to:

a.       Limit the time it detains unaccompanied minors to 20 days

b.       Keep minors in the least restrictive setting possible

c.       Release children to a parent, legal guardian, adult relative or other designated individual or entity

What about the human trafficking law?

President George W. Bush signed the William Wilberforce Trafficking Victims Protection Reauthorization Act, or simply the TVPRA, into law in 2008. It seeks to combat child trafficking at the border. The law says that unaccompanied minors who are not from Mexico or Canada are “exempt from prompt return to their home country.” Under this legislation, minors from Central American countries are covered. The Trump administration has tried to amend TVPRA on the grounds that not all unaccompanied minors are victims of human trafficking. The Department of Homeland Security (DHS) calls the law a “loophole” that “invites more illegal immigration” and “creates recruiting opportunities for gangs.” The administration believes TVPRA should be amended so that children who are not victims of trafficking can be returned home regardless of national origin.

What does this have to do with family separation?

In April, former Attorney General Jeff Sessions announced a “zero-tolerance” policy that criminalized anyone who illegally crossed the border. This policy put a family sneaking into the United States at risk for separation. Parents were detained by US Marshals and sent to a federal jail to await trial. Children were separated since they weren’t charged with a crime. They were handled in the same way as unaccompanied minors and referred to the Office of Refugee Resettlement under the Department of Health and Human Services.

What did Trump do?

In June, President Trump signed an executive order that would allow immigrant families to be held together “throughout the pendency of criminal proceedings…or other immigration proceedings.” This could potentially violate the Flores Settlement which says children cannot be held beyond 20 days. The Trump administration filed a request to modify the agreement with U.S. District Judge Dolly Gee who handles the Flores Settlement.

What happened?

Judge Gee rejected the request. The Trump administration proposed a new set of rules which could replace the Flores Settlement. The proposed rules are listed under Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children.

How did immigrant families fare before the Trump administration?

Prior to the Trump administration, immigrant families were rarely held. They were subject to a type of “catch and release” where they were processed and discharged with a notice to appear in court. This was especially likely if they sought asylum.

Did the Trump administration’s “zero-tolerance” policy have a precedent?

President George W. Bush actually set the standard for the current “zero-tolerance” concept. President Bush launched Operation Streamline which criminalized those crossing the border illegally. Immigrants were locked up and given trials that sped up the deportation process. Exceptions were made for adults with children.

President Barack Obama then picked up Operation Streamline though his approach differed slightly from President Bush. The Obama administration did not criminalize first-time border crossers. It mostly held families together or released them with a notice to appear in court. A swell in immigrants prompted the Obama White House to jail families together in detention centers to expedite deportations. This violated the Flores Settlement since under the agreement children cannot be held more than 20 days—even with their parents. The Obama administration could have separated families, but resolved against doing so.

President Trump’s executive order would essentially return immigration policy to the Obama-era standard of detaining families together. However, this order does not cancel out the “zero-tolerance” policy that criminalizes adults illegally crossing into the United States. Under this order, parents will be held with children pending “criminal improper entry or immigration proceedings.”

The new rules proposed by the DHS to replace the Flores Settlement seek to have the government develop a network of licensed facilities that can house families beyond the 20 day limit of the current agreement. The facilities would be able to keep the families for as long it takes for their cases to be heard.

Is there a law on the books that mandates family separation?

The Immigration and Nationality Act makes a person’s first illegal entry into the U.S. a misdemeanor, but it does not mention separating families.