By The American Immigration Council


In the spring and summer of 2018, the first Trump administration sought to deter migrants from coming to the United States through the cruel practice of separating children from their parents. To do this, they implemented the zero-tolerance policy, which aimed to prosecute all adults who crossed the southern border without inspection. If a family was apprehended, the parents were taken into custody by the Department of Homeland Security, while their children were taken into custody by the U.S. Department of Health and Human Services.

In many cases, these kids were sent to shelters thousands of miles away from their parents, without a way to contact them. Later, the government struggled to reunite families, in part because there was no centralized database of where the children had been sent or who their parents were. Years later, some of the nearly 3,000 children taken by the government during the zero-tolerance period had still not been reunited with their parents.

The American Immigration Council and partners filed a request under the Freedom of Information Act for records to better understand how the government implemented these separations. After the Council sued to obtain these records, the government began producing them on a monthly basis. In 2020, the Council published a tranche of documents highlighting the harms and trauma to children caused by the separations. After years of continuing litigation, the Council received tens of thousands of additional pages from government documents about this policy.

This site showcases a new subset of the records obtained. It reveals how journalists, attorneys and members of Congress fought to expose this horrific policy and hold the government accountable for the pain and havoc it created. Visitors to this site can review never-before-published government records, read analysis by the Council, and hear celebrated actors read first-person accounts by the journalists, attorneys and Congressmen who fought family separations on the front lines.

By Carrie F. Cordero, Heidi Li Feldman, Chimène I. Keitner

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to
enter the United States. As early as March 6, 2017, then Secretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border. Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration’s use of family separation and ensuring that it is halted now and not used again, by Trump or any other U.S. President. In the Article, we start with a factual chronology of the Trump Administration’s family separation policy. We then argue for our positions regarding the illegality of the policy and its implementation.

In Part II, we describe the federal government’s recognized authority to enforce immigration laws and ensure border security, on the one hand, and the domestic constitutional framework for protecting the basic rights of migrant parents and children, on the other. In Part III we examine the reach of domestic law, including the common law of torts, for dealing with wrongful family separation in the immigration setting. Part IV reviews international law that protects against this harm. In the Conclusion we propose a range of steps that the U.S. Congress could take to repair at least some of the harm caused by the family separation policy, and to ensure that no future administration contemplates similar action.