Lately every week seems to raise at least one hot-button issue involving immigration law and policy in the US.  These last weeks were no exception as the country and social media have been in an uproar regarding family separations at the country’s southern border.  At Toikka Law Group, we want to provide you with a short review of the law and history with regard to detention and family separation and explain what effect the President’s Executive Order signed on June 21, 2018 has on the current situation.

A few distinctions should be made as an initial point of understanding: first, since January, over 20,000 unaccompanied children have crossed the US southern border between ports of entry, and another several thousand children have come as part of family units, but the current social and political debate regards only about 2,000 children who traveled with adults claiming to be a family unit.[1]  The “unaccompanied children” (UAC for short) are processed upon arrival in conjunction with the Office of Refugee and Resettlement.  If a guardian can be found in the US for these children, the general procedure is that they will be released into the physical custody of that guardian pending removal proceedings against them before an Executive Office for Immigration Review (EOIR) court.  Second, with regard to asylum law, there are two avenues for processing claims for asylum – affirmative and defensive proceedings.  Affirmative applications are made to the “local” Asylum Office.  The process is not an adversarial proceeding against the applicant, and it provides for the option of a work permit being granted to the applicant while the claim is pending, which could be several years.  The defensive application is adjudicated in an adversarial proceeding of removal against the applicant before an EOIR court.  It is used when an applicant has already broken immigration and/or other criminal laws and is subject to removal.  A defensive asylum applicant may be detained or may be freed on bond; in the latter case, such applicant may also apply for a work permit pending the processing of his case.

The burning question for everyone is “why are the accompanied children being separated from the adults – presumably parents or relatives – who brought them to the border?” …And, if they are seeking asylum, why are the adults being detained?

The second question has multiple answers, potentially.  When an alien is criminally prosecuted for border law violation, he is subject to detention pending the prosecution of claims against him and for subsequent removal from the US.  Merely asserting credible fear of return to your home country and applying for asylum relief does not provide a waiver from detention for violation of law.  Of course, one could request a bond hearing in order to post bond and be released pending the outcome of one’s case.  However, if the alien has a criminal history in the US rendering him inadmissible or deportable, then detention is mandatory and bond is not available, regardless of a claim for asylum protections.[2]

The answer to the first question – why children are being separated – is more complicated.  Since 1952, unlawful entry for first-time offenders has been a misdemeanor, and subsequent unlawful entries a felony.[3]  No amendments to the Immigration and Naturalization Act have changed those criminal designations.  Moreover, it is also felony “alien smuggling” to bring children (or other adults) across the US border unlawfully.[4]  As of April 6, the Trump Administration instituted a “zero-tolerance” policy, which means the Department of Homeland Security intends to prosecute criminally all criminal border violations.[5]  While such “faithful execution of the law” may be new since prior administrations deigned not to prosecute criminally all violations, the basis for such prosecution has existed for more than six decades.  For decades, the government detained unaccompanied minors attempting unlawful entry and followed regulatory requirements that such minors, if released, be released only to parents, close relatives, or legal guardians (unless “unusual and compelling circumstances” applied).  Then, upon a legal challenge to the detention of juveniles, the Supreme Court upheld the regulation regarding unaccompanied minors and the Executive authority over alien detention in Reno, et al. vs. Flores, et al., 507 U.S. 292 (1993).[6]  Notwithstanding the Court’s decision, the Clinton Administration entered into a settlement with plaintiffs regarding standards and procedures for detention and release of UAC juveniles.[7]  The Settlement Agreement’s terms of release of juveniles “without unnecessary delay” and “as expeditiously as possible” (if more than 5 days) was subsequently quantified and judicially “codified” - decades later in 2015 - as a 20-day period, based on DHS’s own statements regarding the fastest screening and processing possible for reasonable or credible fear claims of detained aliens.[8]

It was not until 2016, when advocates sued the Obama-era DHS for detention of accompanied juveniles, that the Ninth Circuit Court of Appeals issued an order interpreting the Flores settlement provisions to include both unaccompanied minors and minors who entered as a family unit.[9]  Thus, as a result of Ninth Circuit judicial fiat, the Executive’s only options for executing all applicable laws became a) release all individuals in a family unit within 20 days – “catch and release” policy, and 37% of individuals so released fail to show up for subsequent judicial hearings[10]; or b) retain adults in detention pending judicial proceedings and release children, thus separating children from family units.  With such a poor rate of attendance at subsequent hearings by released individuals and with a more than 400% increase in adults arriving at the border unlawfully with juveniles in the last year, it is clear there is abuse of the “catch and release” policy, and predatory adults like members of drug cartels and Latin American gang organizations like MS-13 can easily take advantage of such a policy.[11]

In light of the law, therefore, what is a constitutional way to avoid separation and allow for enforcement of border law?  President Trump’s Executive Order of June 21[12] indicates that DHS will “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members” and that in order to do so without running afoul of the Flores settlement or its interpretation by the Ninth Circuit, will request a specific modification of the settlement terms.  However, the Executive cannot, in fact, unilaterally maintain children in detention beyond 20 days according to current law – meaning the totality of statute, regulation, settlement agreement, and judicial interpretation thereof.[13]    Rather, the governmental authority that has the ability to rectify the current family separation outcome resulting from existing statutory and judicial requirements is Congress.  Congress can specify exactly how 8 USC § 1325 should be handled with regard to detention of accused aliens, including minors.  In fact, Senator Ted Cruz has proposed a bill addressing the precise issue of family separation.[14]  It remains to be seen whether Congress will act upon that offer, any other viable offers, or prefer the status quo ante.


© 2018 Rachel L.T. Rodriguez, Esq., All rights reserved.


[1] See https://www.cbp.gov/newsroom/stats/sw-border-migration for current Customs and Border Patrol (CBP)figures.

[2] See INA §236(c) (8. USC §1226) Not all crimes will result in mandatory detention, such as first-time misdemeanor offenders for crimes not “involving moral turpitude” or controlled substances.

[3] 8 USC § 1325; June 27, 1952, ch. 477, title II, ch. 8, § 275, 66 Stat. 229; Pub. L. 99–639, § 2(d).  For succinct summary of amendments to the code section, see https://www.law.cornell.edu/uscode/text/8/1325.

[4] 8 USC § 1324.

[5] See https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry for text of Press Release on the policy.

[6] For a free copy of the entire opinion, see https://www.aila.org/File/Related/14111359a.pdf.

[7] See text of Settlement at https://www.aila.org/File/Related/14111359b.pdf

[8] See Flores v Lynch, 212 F. Supp. 3d 907, 913-14 (C.D. Ca., 2015).

[9] Flores v. Lynch, 828 F.3d 898 (9th Cir., 2016); for a free copy of the opinion, see https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf.

[10] This statistic is based on a 20 year reporting period.  See https://cis.org/Report/Courting-Disaster and EOIR rates at ftnt 39.

[11] See ftnt 1, CBP figures generally, https://www.cbp.gov/newsroom/stats/sw-border-migration.

[12] See https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/ for full text of EO.

[13] Prior drafts of this blog before publication predicted litigation by advocates against the Executive Order in the coming days – and indeed, on June 25, Democrat Attorneys General of 17 states and DC filed a lawsuit against the Administration on the zero-tolerance policy and familial separation.

[14] For the full text of the proposed bill see: https://www.cruz.senate.gov/files/documents/Bills/20180619_Protect_Kids_and_Parents_Act.pdf