Legal Considerations for Separating Families at the Border

Reports spilling out of detention centers and immigration proceedings in McAllen, Tex. and elsewhere along the southern border include new details about the measures government officials are taking to separate children from their parents. The families are being separated while in government custody as a result of the agreement by the Departments of Justice and Homeland Security to achieve a goal of 100 percent prosecution for cases of illegal entry into the United States.

Last week, I shared some thoughts—based on my experience working on sensitive counterterrorism cases at the Justice Department in the post-9/11 era—regarding the ethical dilemma that federal agents, lawyers and other professionals face each day they are directed to implement the new policy of separating children from their parents. This post raises issues regarding the rights of the affected children and potential legal exposure faced by the workforce implementing this policy. None of the legal issues discussed below should be read in isolation; the ethical arguments for immediately ceasing this practice remain.

After Homeland Security Secretary Kirstjen Nielsen returned from her working and sightseeing trip to Israel, she tweeted this on Sunday:

For purposes of this post, let’s take Nielsen at her word and interpret her tweet—and her statements Monday at the White House podium—to mean that there is no written policy issued by DHS detailing the program of family separation and providing guidance to the workforce for how to implement it. While DHS issued a myth vs. fact document on Monday intended to correct what Nielsen alleges is misreporting, this is a public relations document, not a policy.

If this analysis is correct—that DHS does not have a written policy authorizing the separation of family members in the course of referring migrants for prosecution—it goes a long way toward explaining the chaos at the border in the past month. An interpretation along these lines both recognizes the semantic game the secretary is playing (“there is no policy”) with the apparent practical reality that DHS has not produced a policy document explaining how the goal of 100 percent prosecution should be met or how agents should implement it. That lack of policy guidance—in addition to the secretary’s statement that a policy does not even exist—should give government agents working on the border, as well as their unions, pause.

As I noted in my prior post, three agencies are involved in implementing the family-separation policy: the Justice Department, DHS, and the Department of Health and Human Services (HHS). The Justice Department is involved because the separations appear to take place in the course of implementing the attorney general’s policy of prosecuting all illegal-entry cases. U.S. attorneys in each respective federal district are responsible for carrying out this new prosecutive guideline. DHS is involved because it is the home agency for Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), the agencies involved in apprehending migrants and adjudicating their immigration status, respectively. Once children are separated from the parent who is being prosecuted, they are apparently transferred to HHS, which administers the program for temporary shelter and foster care.

Most of the examples of alleged harsh treatment of detained migrants and their children appear to involve interaction with DHS agents or officials, or possibly HHS officials or contractors. These include stories of a child being forcibly separated from a parent and relocated to a foster family; a report of a mother separated from her child while breastfeeding (which CBP denies); and reports of children left alone in a federal housing facility and despondent for lack of a parent or familiar caregiver. At least one worker at a detention center for children quit over the conditions.

Based on the information publicly available so far, and given the lack of written guidance for agents on the front lines to follow, agents separating families in order to achieve the goal of 100 percent prosecution may be operating in a legal gray zone. As far as can be discerned from public reports, Attorney General Jeff Sessions and the homeland security secretary have not provided the workforce with official guidance explaining the legal basis on which they are removing children from their parents for sustained periods of time. While attention has been given to how parents can locate their children, the equally if not more compelling argument against the policy is the right of the child to be reunited with the parent.

The executive has strong legal authorities at the border to regulate who may enter the country. But once allowed entry into the United States, migrant children have rights under the Constitution. Public reporting indicates that children are being detained for in-processing; held in confinement for days, weeks or months; and relocated to foster care—all the while unaware of when or if they will be reunited with a parent. It is not known whether the Justice Department's Office of Legal Counsel has issued an opinion outlining the parameters of when children may be separated from their parents. So the first issue is whether there actually is a constitutional theory for lawfully detaining these children for sustained periods.

Generally, in a law enforcement context, families are separated when an adult is arrested or convicted of a crime, if the penalties involve jail time. (With the revocation of Paul Manafort’s bond on Friday, the country has also re-familiarized itself this week with pre-trial detention.) But in these circumstances, due process has been provided: a complaint has been filed, a grand jury has indicted, or a judge has issued a warrant or heard evidence supporting the argument for detention. Moreover, when a parent is arrested for a crime, the government does not place the child in a government facility or in foster care unless the child has no other parent or family member, or is in danger, or removal is otherwise deemed to be in the child's best interests. The key determining factor is that the treatment should be in the best interests of the child.

Greater attention should be given to whether there are even any legitimate constitutional grounds for removing a child from a parent—for days to weeks to months without end—in the context of enforcing a misdemeanor illegal-entry law. On even less firm ground is the ability of the government to place a child in foster care absent a best-interest-of-the-child analysis, which is most appropriately conducted by a neutral magistrate. And, to be clear, there is no statutory requirement to separate children from their parents. The separations are flowing directly from the policy decision of the Trump administration to refer additional illegal-entry cases for prosecution without adequately developing a sufficient legal framework and an accompanying policy for addressing the practical realities of what would happen to the children as a result of the new prosecutive guideline.

A second issue is whether, in the course of carrying out what agents believe is a lawful implementation of the immigration laws, the civil rights of the adult or the child may be violated. With respect to children in particular, this could include separating a young child from a mother or parent, thereby causing mental trauma; placing a young child in the care of strangers or government officials against the child’s will or best interests; or more commonly recognized forms of physical abuse that could occur while the child is in the custody of non-parents.

The risk of civil rights violations—particularly in the absence of policy guidance to the agents, officers and other government officials involved in the separation and supervision of these children—raises the possibility of potential color-of-law violations. According to long-standing civil rights practice, the Justice Department investigates and prosecutes civil rights violations that take place “under color of law.”

Section 242 of Title 18 of the U.S. Code provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Known as deprivation of rights under color of law, this section usually deals with cases in which a suspect or other person involved in an altercation with law enforcement is injured or shot in an aggressive police action. Think of a police shooting of an African American man who ran away after being stopped for a broken tail light. Color-of-law cases investigated by the FBI and prosecuted by the Justice Department usually involve an act of violence: an assault resulting in death; a shooting; a beating. The cases that are generally brought for prosecution involve excessive use of force, which aggravating circumstances raise the charge to a felony. However, the statute provides for misdemeanor violations as well.

The current border situation seems ripe for potential violations, particularly if the agents are not receiving guidance about the appropriate length of detention, ages of children that may be separated, or the combined detention of young children and teenagers. This is not at all to suggest that border patrol agents, or government or contract workers in HHS-supervised facilities are ill-intentioned or lawless. On the contrary, my concern stems from the lack of policy, guidance and oversight they appear to have been given in carrying out a very difficult job.

Although the color-of-law statute is not, as far as I know, regularly applied beyond the context of use of inappropriate force, there may be room for it to be interpreted more broadly if it is determined that ancillary laws are being broken in the course of implementing the non-policy separation policy. For example, the president of the American Academy of Pediatrics, Colleen Kraft, issued a statement that reads in part:

Separating children from their parents contradicts everything we stand for as pediatricians — protecting and promoting children’s health. We know that family separation causes irreparable harm to children. This type of highly stressful experience can disrupt the building of children's brain architecture. Prolonged exposure to serious stress — known as toxic stress — can lead to lifelong health consequences.

Kraft has described what the children are experiencing as “toxic stress,” which can have long-term developmental consequences for the child. She went further in television interviews, saying that the circumstances of the children’s detention could amount to child abuse.

All 50 states have statutes criminalizing child abuse; in Texas, where many of these children are being held, state law prohibits inflicting or failing to reasonably prevent “mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning.” As a result, there may be a legal theory available that color-of-law violations could be brought based on the current activity, under the reasoning that child abuse is being committed “under color of” enforcing the immigration laws. This potential color-of-law exposure would be an expansion of how this provision has been used in the past. But separating a young child from a parent in a strange country, alone in government detention, with no information about when the child will ever see her parent or family again, is a severe penalty that may cause lasting physiological and/or psychological damage. And the government seems to be inflicting this not merely as an accidental byproduct of law enforcement but, instead, for the purpose of deterring migrant populations from seeking entry into the United States—or, in the most craven interpretation, to achieve a legislative goal.

A third legal issue, which I will touch on only briefly, involves the potential human rights implications of the practice. The United States has not ratified but is a signatory to the United Nations Convention on the Rights of Children. Article 9 of the convention contains provisions requiring judicial review of separation of children and parents and a best-interest-of-the-child analysis. As a signatory, the United States is not bound specifically by the treaty but does have obligations not to subvert it. I note this treaty here to highlight that a more considered analysis of whether this policy comports with existing legal frameworks would also take into account obligations under international law.

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The chaos at the border over the last month reminds me of the implementation of the first travel ban in the early weeks of the Trump presidency. The travel ban was a campaign promise transformed into a sloppily drafted executive order from the White House, the implementation of which caused chaos at the borders. The initial document failed to adequately consider, for example, the rights of permanent resident aliens. The policy was implemented without appropriate interagency coordination. The initial days of the ban, until the courts intervened, unnecessarily affected individuals trying to enter this country.

But this is worse. The Cabinet secretary whose agents are implementing the policy denies its existence, even though we can see with our own eyes and hear with our own ears that it does. The individuals affected by this new policy are inside the United States, which means they unambiguously have constitutional rights. And the government has implemented the policy without adequately and humanely addressing the rights and needs of children—who cannot advocate for themselves—not to be detained, placed in custody without a parent, or sent to foster care without an understanding of when they will be relocated with their families.

What’s more, the travel ban was easily challenged in court. And as a result of the sloppiness, federal judges ruled against the ban aggressively. In this case, the lack of a written executive order or agency directive will make challenging the practice at a systematic level more difficult—despite the fact that the policy raises serious legal, not to mention moral, questions.