Non-zero tolerance: DHS is still separating families at the border

by Caitlin Dickson   on January 18, 2019   publication:

In the five months since President Trump issued an executive order indefinitely suspending his administration’s zero-tolerance family separation policy, immigration officials have continued to separate immigrant children and parents — at steadily increasing rates.

According to a report released Thursday by the Office of the Inspector General (OIG) for the Department of Health and Human Services (HHS), between July 1 and Nov. 7 last year, at least 118 immigrant children were separated from parents or adult guardians by officials at the border and referred to the Office of Refugee Resettlement (ORR), the department in HHS that is responsible for the care of unaccompanied immigrant children in U.S. custody.

The key takeaway of the report, which prompted immediate calls for accountability from immigration advocates and some Democratic lawmakers, was that the total number of immigrant families separated by border officials under the Trump administration is unknown and likely significantly larger than what had previously been announced.

In a statement, U.S. Rep. Zoe Lofgren, D-Calif., chair of the House Judiciary Subcommittee on Immigration and Border Security, called the report’s revelations “wholly unacceptable” and vowed to “fully investigate the actions leading to this disastrous decision and will hold the Trump administration to account for their cruel and incompetent actions.”

Zero tolerance was a policy intended to discourage illegal migration by automatically detaining immigrants who cross the border illegally and taking away minors who may have been traveling with them. Ending zero tolerance did not end the long-standing Department of Homeland Security (DHS) policy of removing children from adults who are considered to pose a potential threat to them — e.g., suspected child traffickers or abusive parents. The figures in the new report suggest that after zero tolerance was ended, DHS began enforcing this separation policy more strictly than in the past — unnecessarily strictly, in the view of some immigration advocates.

“In the summer of 2017, prior to the formal announcement of the zero-tolerance policy, ORR staff and officials observed a steep increase in the number of children who had been separated from a parent or guardian by [the Department of Homeland Security] and subsequently referred to ORR for care,” the report’s authors wrote. ORR officials estimated that the agency received and released thousands of separated children before June 26 when, in response to a lawsuit by the ACLU, a federal judge issued a court order requiring the administration to reunify all families who had been separated as a result of zero tolerance up to that point.

According to numbers recorded by ORR staff in lieu of an official tracking system, the proportion of separated children referred to ORR by DHS rose from 0.3 percent of the total unaccompanied minor population in late 2016 to 3.6 percent by August 2017 — still several months before the zero-tolerance policy was even made public.

Although the incidence of family separations at the border has dropped significantly from its peak, the practice has hardly stopped. According to the same tracking by ORR, the proportion of separated children referred to ORR care by DHS has increased steadily each month, from 0.47 percent in July to 0.91 percent during the first week of November 2018 alone. Overall, separated children made up 0.69 percent of all ORR intakes during this period— more than twice the rate observed by ORR officials in 2016.

As the report notes, these figures are based on information provided to ORR by DHS which means they may not represent the entire picture.

“There are definitely cases I’ve heard about where HHS didn’t realize there had been a separation, so I’m not 100 percent confident that’s the total number,” Jennifer Podkul, policy director at Kids in Need of Defense, which provides pro bono legal services to immigrant children.

For Podkul and others, the newest separations raise serious questions about the criteria for determining when a child should be separated from an accompanying adult.

“We have concerns about DHS’s capricious and arbitrary way of making decisions,” said Podkul. She strongly endorsed the underlying policy of removing children from adults who may be traffickers posing as parents, have a serious criminal history or are otherwise a danger to the child. But she raises questions about how it is being interpreted and implemented. “Who is making that determination? What is their experience? What guidelines are they using? What information are they relying on? Who reviews the decision and who approves it?”

According to the report, “DHS provided ORR with limited information about the reasons for these separations, which may impede ORR’s ability to determine appropriate placements.”

The report says in many instances DHS provided vague or generic explanations, such as a parent’s  criminal history, gang affiliation, hospitalization or illness, without specific details.

“Separating a parent and child is a terrible thing and it should only happen if there is clearly a need to do that to protect the safety of a child,” said Mark Greenberg, a senior fellow at the Migration Policy Institute who previously served as acting assistant secretary for the Administration for Children and Families, which includes ORR. “It is entirely unclear whether that’s the criteria [DHS] is applying.”

Greenberg noted that ORR, which has the responsibility of ensuring that children in its custody are released to safe and appropriate guardians, “has very specific policies,” based on the safety and well-being of the child, for what kinds of criminal records should disqualify a parent from regaining custody.  For example, a shoplifting conviction would not be considered grounds to deny a parent reunification, whereas a history of child abuse, neglect, sexual abuse and various other violent crimes would.

“What seems odd is once the child is with [ORR,] they have to make the determination of who is the appropriate sponsor,” said Greenberg. “How can they be thoughtfully making that determination if they don’t know the reason why DHS separated the child from the parent?”

Asked for more information on the reasons behind the newest 118 separations, DHS spokeswoman Katie Waldman offered no details about these specific cases, saying instead that “the report vindicates what DHS has long been saying: For more than a decade, it was and continues to be standard for apprehended minors to be separated when the adult is not the parent or legal guardian, the child’s safety is at risk or serious criminal activity by the adult.”

She also disputed the report’s claim that DHS is not adequately reporting the reasons behind separations, saying that the agency has been “actively enforcing this policy in the same manner for more than a decade” and that the claim “casts doubt on the HHS OIG’s credibility on this topic.”

Greenberg responded: “I think one would be hard-pressed to read this report and conclude that it vindicates DHS in any way.”

“This report reaffirms that the government never had a clear picture of how many children it ripped from their parents,” said the ACLU’s Lee Gelernt in a statement. Gelernt was the lead attorney on the lawsuit that led to the reunification of families separated under zero tolerance. “We will be back in court over this latest revelation,” he said.

Back to media