By Leah Litman/Take Care

This post is the third in a series on the Trump administration’s policy of separating families at the border. Part 1. Part 2.
In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended – indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.
In Jennings v. Rodriguez, the U.S. Supreme Court held that immigration statutes did not provide for individualized bond hearings for persons who are detained for immigration reasons for longer than six months. The Court did not, however, address whether the statutes, by allowing indefinite detentions with no individualized bond hearings, are consistent with the due process clause. Although the Supreme Court requested briefing on that question and set the case for re-argument, it ultimately opted not to address it.

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Posted on June 8, 2018

By Leah Litman/Take Care

This post is the second part of a series on the Trump administration’s policy of separating families at the border. You can read part one here.
In part one, I gave some historical context to the Trump administration’s policy of separating children from families. Today I want to debunk the administration’s position that it is required, by law, to separate children from their families once ICE detains their parents.
To understand the issue in Ms. L v. ICE, it’s helpful to underscore that children might enter the United States under different circumstances. One circumstance is where a minor enters the United States alone, in which case the Office of Refugee Resettlement would assume custody of the minor. ORR was formally created in 1980, and its responsibilities, as its name suggests, include assisting refugees with settling into the United States.
The Homeland Security Act, which restructured the Immigration and Nationality Services, expanded ORR’s authority to encompass minors who enter the United States alone. That decision ensured that minors who entered the United States alone would not be left to the mercy of the Department of Homeland Security, and Immigration and Customs Enforcement in particular.
ORR offers a more humane and holistic means of dealing with minors who are alone, in part because ORR has a sponsor system, under which it can release minors to approved sponsors, including a child’s parents, who may already be in the United States. By way of comparison: ICE is the enforcement arm of DHS that polices violations of immigration laws, whereas ORR is designed to help certain vulnerable populations with their lives in the United States. Giving ORR custody over minors who entered the United States alone was a way of recognizing that children who enter the United States alone encounter even more difficulties and face even more challenges in the U.S. immigration system than adults do.
Alternatively, however, an entire family might enter the United States together, either claiming asylum or perhaps without any grounds for entry at all. The question in Ms. L. v. ICE is what should happen to children in those families, including when the government chooses to put the parents in a very unforgiving ICE detention facility that is not set up for “family” detention.

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Posted on June 7, 2018

By Leah Litman/Take Care

This post is the first in a series on the Trump administration’s policy of separating families at the border.
After more than a year of suggestions that it would do so, the Trump administration is forcibly separating children from their parents at the border.
Last fall, then-DHS Secretary John Kelly said that DHS was considering separating children from their parents at the border, only to walk back the idea after being pressed by some Senate Democrats.
By the end the year, however, the administration was again purportedly weighing a plan to separate children from their parents.
At the start of this month, Attorney General Jeff Sessions made the threat explicit: “If you don’t like that, then don’t smuggle children.”
Kelly, now Trump’s chief of staff, backed up Sessions, suggesting that family separation would deter unlawful border crossings.
There was also a story about the president personally insisting on separating children from their families, as well as reports that the administration considering a proposal to keep children on military bases after yanking them away from their families.
The news that the administration is actually pursuing a policy of taking children away from their parents nonetheless still took some people by surprise. Two weeks ago, MSNBC’s Chris Hayes documented the policy in a heart-wrenching, bone-chilling, and gut-punching segment.
In this post, I want to point out how immigration policies and laws that preceded the Trump administration made the separation of families possible, and previously resulted in the separation of families.

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Posted on June 5, 2018