By Michael Garcia Bochenek

In the last few months of 2017, public defenders working in United States communities along the US-Mexico border began noticing a pattern. Over several months, they had seen an increasing number of people facing criminal charges for irregularly crossing the border arriving in court with a new concern: When these people had a chance to speak in court, their primary worry was not that they were facing prosecution; instead, they were asking the judges where their children were. These public defenders were seeing the early days of the forcible family separation policy put in place by the administration of US President Donald J. Trump and developed in a larger context of overheated, dehumanizing, and at times racist official rhetoric toward migrants. The policy began in March 2017 as a pilot program in and around El Paso, Texas, and was then rolled out along the entire US-Mexico border in early 2018. The policy deployed a minor federal criminal charge—“improper entry”—to force children and parents apart. Its official name, “Zero Tolerance,” referred to Attorney General Jeff Sessions’ directive that every adult who entered the United States irregularly would face prosecution. Criminal charges for improper entry have long been misused as a means of immigration enforcement, raising serious human rights concerns. More than five years before Sessions’ “zero tolerance” directive, improper entry and improper reentry were the most prosecuted federal crimes in the United States. As misguided and abusive as this earlier use of such charges was, it had not deliberately targeted children and their parents. In fact, before mid-2017, the US Department of Homeland Security (DHS) generally did not request prosecution of parents arriving with their children and federal prosecutors had usually declined to pursue improper entry charges against parents traveling with their children precisely to avoid separating arriving families. The policy developed at Sessions’ directive did not appear primarily aimed at securing convictions. Although a criminal conviction would mean more serious consequences on a subsequent irregular entry, the offense is, as a federal magistrate judge observed, “quite literally one of the least serious federal offenses.”1 The real payoff, as far as the architects of the policy were concerned, was that a criminal charge could be used as a reason to transfer the immediate responsibility for protective care of the child. Parents who faced charges were in the custody of the US Marshals Service. Their children remained in US Customs and Border Protection (CBP) detention. The parents were rapidly convicted—some spent less than a minute in front of the judge once their case was called, and most received sentences of time already served in government custody, so they were back in CBP holding cells in short order. In the meantime, however, DHS, the federal government department that includes CBP, had deemed their children to be unaccompanied. DHS agents not only knew exactly where the parents were but also knew that the parents would quickly return to CBP detention. Even so, the department treated the brief change in custody as meaning that parents were not “available” to provide care. Unaccompanied migrant children are entitled to specific protections. In response to a court case settled in 1997, Flores v. Reno, care of unaccompanied children is the responsibility of the Office of Refugee Resettlement (ORR), an agency of the US Department of Health and Human Services (HHS). A 2008 anti-trafficking law requires DHS to transfer unaccompanied children to ORR expeditiously, usually within 72 hours. The forcible family separation policy weaponized these requirements. Keeping families together is, in the vast majority of these types of cases, in children's best interests. But instead of making every effort to keep families together, DHS transferred the children it had separated to ORR, without planning for or putting measures in place that would enable authorities to reunite them with their parents. Discussions about separating children from their parents at the border began less than a month after President Trump took office. One federal prosecutor commented in early 2017, “History would not judge that kindly.” 2 In March 2017, after Reuters broke the story that family separation was under consideration, a DHS staffer emailed Allen Blume, the department’s budget director, to say, “I would be truly grateful if you could tell me this isn’t being seriously considered.” 3 This report is based on a review of public and internal government documents, legal proceedings, and the findings of DHS, DOJ, and HHS internal investigations, drawing on Human Rights Watch’s extensive interviews with forcibly separated children and parents in 2018 and 2019. It finds that the forcible separation of children from their parents was a deliberate, targeted policy choice taken even though the architects of the policy knew or should have known that it would inflict anguish and suffering on families. Forcible separation of children from their families inflicted harms that were severe and foreseeable. Once parents realized they would not be immediately reunited with their children, they were distraught. Some children sobbed uncontrollably. Many felt abandoned. Nearly all were bewildered, not least because immigration officials would not tell them where their parents were or gave responses that proved to be lies. Children forcibly separated from their parents experienced anxiety, had nightmares, regressed to earlier developmental stages, or found it difficult to trust others and form attachments. Some lashed out. Others stopped speaking.

New York: Human Rights Watch, 2024, 145p.