According to a BBC article about the recent family separation scandal:

Mr Trump said he wanted to "end the border crisis" by giving border officials the resources to "detain and remove illegal immigrant families altogether".

US immigration officials say 2,342 children have been separated from 2,206 parents from 5 May to 9 June amid a "zero-tolerance" crackdown on illegal immigration brought in by US Attorney General Jeff Sessions

Why would the Trump administration choose to separate families rather than simply deporting the border violators as a whole family? Is there a law in the US which prevents such an approach? I do understand that Trump agrees it's an issue, but what prevented his administration from acting correctly in the first place?

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    BTW, it should be pointed out that the parents are accused of a crime, they become guilty of a offense only after proper adjudication.
    – BobE
    Jun 20, 2018 at 2:29
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    Your last question ("correctly") might be better stated as, 'what caused his administration to act in a manner that Trump himself says he hates.' That question can be answered from public sources and administration statements.
    – BobE
    Jun 20, 2018 at 3:41
  • Actually the article says that the policy was already in effect and then Trump just adopted it. Jun 20, 2018 at 4:24

4 Answers 4


The issue is not about deporting them together, the issue is about what you do before you deport them (or not deport them). Especially if a family is requesting asylum, it can take a while to consider the asylum request and then either grant them asylum or deport them. So what do you do with them until then? Here's a few things you can potentially do:

  1. Criminally prosecute the parent. This separates children from parents, because if you criminally prosecute the parent then they have to stay in federal prison awaiting trial, and kids can't be in federal prison. See this article.
  2. Detain the parent in a detention center until they go through civil deportation proceedings. This also separates children from parents, because under the Flores settlement (as interpreted by a Ninth Circuit decision) children cannot be held in detention centers for more than 20 days. So if the asylum request takes long than 20 days to consider, you have to release the child and thus separate the child from the parent.
  3. Release the parent and child together (either immediately or after 20 days) until they go through civil deportation proceedings.

Out of the three available options, the Trump administration has chosen option 1 (in a new policy announced a few months ago). But the Trump administration has also been demanding that legislation be passed repealing the Flores settlement and allowing the government to detain parents and children together for longer than 20 days (and demanding various border security measures in return).

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    It is worth mentioning that option #3 is what prior administrations have done, which has (misleadingly in my opinion) been derided by Trump as "catch and release". There are ways to ensure their appearance, including ankle monitors.
    – BradC
    Jun 20, 2018 at 18:51
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    @BradC Prior administrations, and the Trump administration before this, had done a combination of all three. The difference is that the Trump administration is now exclusively doing option 1, i.e. they’re criminally prosecuting everyone rather than just some people. Jun 20, 2018 at 19:35
  • I trust that you understand that the Flores agreement is actually a consent decree in a civil case. Congress is unable to undo or repeal Flores. The unwinding of Flores is entirely up to the judge that approved that settlement. That judge is probably not going to look kindly on the government request to allow child detention in unlicensed facilities.
    – BobE
    Jun 21, 2018 at 2:39

Three things:

  1. In order to deport them, the easiest way is to convict them of a crime. The particular crime that is most common is crossing the border without a visa. Processing alleged criminals separates the parents from each other and from the children during the processing. Source. In another twist, in some instances they can only deport the child if the parent consents. If the parent does not consent to the deportation of the child, the parent is deported without the child. Source.

  2. The longer way is to review and then deny the asylum request. If it takes more than twenty days, they have to release the children from detainment. This is part of the Flores consent decree, which arose from the case Reno v. Flores during the Clinton administration.

  3. In some cases, they suspect that the "parent" is really a human trafficker. In those cases, they separate the child from the alleged parent to protect the child. Source:

    We also separate a parent and child if the adult is suspected of human trafficking. There have been cases where minors have been used and trafficked by unrelated adults in an effort to avoid detention. And I’d stop here to say, in the last five months, we have a 314 percent increase in adults and children arriving at the border, fraudulently claiming to be a family unit.

It is worth noting that it is not required to be in the United States to make an asylum claim. Someone who is in Mexico can go to a US port of entry and make that claim while still in Mexico. In that case, they won't be detained by the US at all. So the biggest thing preventing the system from operating "correctly" is that people try to bypass it. Source.

  • Not sure why you're being downvoted. Jun 20, 2018 at 5:55
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    @JonathanReez The last paragraph is largely irrelevant, debatable and from a less-than-stellar source, certainly on this topic. It feels more like a partisan talking point than a factual answer. Other answers (especially Keshav's) are much better.
    – Relaxed
    Jun 20, 2018 at 6:00
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    Agreed. The three main points are fairly straightforward, but the bit about asylum is tricky, considering recent reports of asylum seekers being turned away from official ports of entry.
    – Geobits
    Jun 20, 2018 at 10:13
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    I +1'd this answer because I think it is indeed the academic argument being used. I suspect the reason for downvotes is that there's a disconnect between the content of the argument and what people believe is the actual answer to the question "why". Another answer does make a passing reference to now having created leverage over legislators as a negotiation tactic. Whether that's the real "why" or not is supposition, but is pretty consistent with previous actions and statements of the administration. This answer does feel a little incomplete without at least mentioning it.
    – user5155
    Jun 20, 2018 at 12:21
  • 1) Convicting someone of illegal entry doesn't make it easier to deport them. 2) Criminal prosecution doesn't prevent review of the asylum request. The asylum request must be considered first, because if it is granted, the person is immune from prosecution for immigration violations committed in order to reach the US. The criminal prosecution can proceed only if the asylum request is denied.
    – phoog
    Jun 25, 2018 at 17:29

Why would the Trump administration choose to separate families rather than simply deporting the border violators as a whole family?

It is not clear what you mean by "border violators". If you are referring to individuals who have children in their charge and who seek protection in the United States, those families are not "violators"; they are families fleeing one of several untenable conditions in their country of origin.

Is there a law in the US which prevents such an approach?

Yes, Amendment XIV of the Constitution of the United States guarantees due process of law (both procedurally and substantively) to all individuals in the United States. The individuals have the right to contest accusations against them by the state in a legal process, for example, before an immigration judge or in federal district court.

I do understand that Trump agrees its an issue, but what prevented his administration from acting correctly in the first place?

The premise that you present in your question is inherently flawed. "Correctly" is entirely subjective and has no basis in law.

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    Clarification please: Are you saying that the 14th would somehow prevent the administration from keeping a family together and deporting as a unit? I took the OP reference to "such an approach" as keeping the family units together.
    – BobE
    Jun 20, 2018 at 3:55
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    @BobE No. From perspective here, the question presumes that the executive has the power to simply deport individuals at their discretion, at once "rather than simply deporting the border violators as a whole family?". It could be that that interpretation of that part of the question is not accurate. The answer attempts to point out that individuals within the United States are protected under the 14th Amendment's Due Process Clause. They have a right to a legal process, to challenge any accusations or informations made against them; whether that be an administrative or judicial process. Jun 20, 2018 at 4:42

The Trump Administration did not separate families. The Immigration and Naturalization Service does, as part of prosecuting someone for criminal action. Nor did Trump specifically order this - INS was doing this during the Obama years, and Bush years, and Clinton years, and...

For that matter, children of US citizens who are arrested are put in some form of custody by the state or federal police that make the arrest, if both parents are under arrest (or if there is only one parent and they are arrested), and if no immediate relative can be found to take charge of the child. Since any parent or relative who is with a child at the time of an illegal border crossing will be arrested, that means that all children of arrested border crossers will be placed in some form of custody. The alternative would be to put the children in jail with the parents. Definitely Not Good.

What has changed recently is the Trump administration establishing a zero tolerance policy for illegal immigration... that all cases will be prosecuted. Previously, many people caught by INS were simply taken to the border and sent back across.

Trump's real error was in not considering all implications of the zero tolerance policy. That's one of the negative side effects of a president with very limited experience.

Then, there is the matter of why so many children are being brought along for an illegal border crossing, also a fairly recent change. That is the result of DACA, the 'dreamer act' put in place by the Obama administration, that promises more lenient action to illegal immigrants whose families are with them. Consequently, many people seeking to cross the border are now bringing their children with them in the hopes of getting that leniency, when previously children would almost never be subjected to the hazardous journey that people crossing the southern border experience... robbery, rape, and occasionally dying from being left in the desert, or suffocated while packed into a small space.

The combination of DACA, encouraging those people to bring their children along, with the new zero tolerance policy that requires arrest and prosecution of illegal border crossers (without considering all implications), is why so many children are being separated from their parents.

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    Could you please cite some facts or sources lest this answer be considered your opinion
    – BobE
    Jun 21, 2018 at 2:34
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    @tj1000 I also find your "if you don't like the laws change them" hilariously out of place. You do realize that there are people in congress who work very hard to change the laws. It's not easy with a gerrymandered house, a republican senate and president. I'd love to take this into chat with you and hear your Obama argument. A president can't actually do what you claim, he/she can only make recommendations. If you want to talk about bad precedents, I'll see your Obama and raise you 25 Trumps. How about not enforcing Russian sanctions because he didn't want to - that was veto proof.
    – userLTK
    Jun 22, 2018 at 6:23
  • @userLTK Congress doesn't make foreign policy, the Executive branch does.
    – RIanGillis
    Jun 25, 2018 at 13:12
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    The Immigration and Naturalization Service was disbanded in 2003. Its successor agencies Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcment (ICE), and Customs and Border Protection (CBP) are the ones apprehending, detaining, and processing these people. But these agencies are, as was INS, arms of the executive branch subordinate to the president and acting on his orders. It is not accurate to say that their actions are not actions of the current administration.
    – phoog
    Jun 25, 2018 at 17:25
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    This answer is wrong on a number of levels: 1) Child separation wasn't an unintended consequence, it was a deliberate result; see policy speeches by Sessions and others advocating child separation as a "deterrent". 2) DACA does not (and has never) applied to new arrivals, it only applied to those who arrived before 2007. 3) Illegal entry is a federal misdemeanor with a lower penalty than if a citizen were caught driving across state lines to buy fireworks illegal in their home state; the idea that permanently losing your children is an appropriate consequence is absolutely absurd.
    – BradC
    Jul 19, 2018 at 20:37

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