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.

By American Civil Liberties Union

This ACLU research report, Agents of Chaos and Cruelty, documents widespread civil rights violations carried out by immigration agents during the first year of President Trump’s second term. The report examines immigration enforcement incidents in eight states – representing a cross-section of the country and reflecting varying degrees of federal law enforcement presence and personnel surges – and found that over 400 of the more than 1,200 immigration enforcement incidents examined involved misconduct by immigration agents. The report ends with detailed recommendations urging policymakers to call for transformative change to our immigration system, in recognition that it is broken and dangerous to human rights.

BY JASON JOHNSON AND SEAN KENNEDY

LELDF RESEARCH BRIEF | AUGUST 2023

Consent decrees are a blunt instrument for enacting police reform. The approach has proven ill-suited at enacting effective change in law enforcement agencies. These coercive reforms face institutional resistance from departments and their personnel and fall victim to mission creep from the unaccountable lawyers, judges, and bureaucrats who oversee the design and later the implementation of the reforms. The situation worsened significantly as the Obama Administration increased the use of consent decrees, a policy resumed under the Biden Department of Justice. Often built on limited and flimsy evidence, the Justice Department’s allegations against police agencies put local jurisdictions in a near impossible position to contest civil rights violations findings. Additionally, the Justice Department frequently injects its policy preferences into the required remedies that do not reflect urgent or even necessary changes, but policy agenda of the Civil Rights Division and the White House. Subject jurisdictions are often compelled to accept settlements with unachievable compliance goals and required to spend vast sums to remedy problems outside the scope of the statutory requirements.

Consent decrees are not a quick, easy, or inexpensive fix. And this type of settlement can have consequences – higher crime, lower police morale, ballooning costs, drifting timelines, and dissatisfied residents. In many cases, consent decrees prove to be damaging boondoggles rather than bolstering effective and constitutional policing. Federal intervention for some agencies may still be necessary but less onerous and more effective tools exist for enacting necessary reforms. Those alternatives should be preferred where possible. The Justice Department’s interventions in law enforcement agencies should be precise in their
methods and practicable in their goals.

By Rashad James

For community advocates, policymakers, and law enforcement agencies (LEAs) interested in exploring alternatives, this document outlines how federal immigration authorities can—and cannot—compel state and local LEAs to cooperate. It also proposes four strategies that state and local jurisdictions can adopt to resist the growing push for a uniform law enforcement system under executive authority. Specifically, jurisdictions can 1) name the actions currently underway; 2) claim their moral vision through proactive legislation; 3) restrain the use of local funding for immigration enforcement; and 4) reframe these initiatives as measures that strengthen public safety. Community members and elected leaders are encouraged to share this document as a pathway toward a more just and equitable future.