I am trying to understand the precise (objective) history of either the Department of Homeland Security (DHS) or Immigration and Customs Enforcement (ICE) practice of separating children (minors) of illegal immigrants from their parents when the parents are arrested for deportation. Meaning: John and Jane Doe and their (say) 5-year old son Jake are found living here in the United States illegally; ICE comes and arrests them and intends to deport them back to their country of origin, and John/Jane are separated from Jake for some duration of time.

From what I can tell, the present administration was made aware of this practice several years ago, and in 2018, signed something (executive order perhaps?) that put an end to this practice altogether.

However I have also heard claims that this practice has been going on for decades and was not something that the present administration began doing; merely something it inherited.

So I am trying to determine: what this practice/policy is or was (is there a name for it?), what the policy actually was and how it worked, when it began/formed and what was signed in 2018 to "end" it?


1 Answer 1


This practice has been going on for decades - if a child's parents are criminally prosecuted and held in federal prison awaiting trial, then family separation must occur as a consequence as children may not be held in federal prison. In addition, due to the 1997 Flores Settlement, children may not be held in an immigration detention center for longer than 20 days. As a result, if a child's parents are held in a detention center for longer than this period, the child is required to be separated from their parents.

The reason this became a particular issue in 2018 is thanks to the implementation of the Attorney General's 'zero tolerance' policy, announced in April of that year:

Accordingly, I direct each United States Attorney's Office along the Southwest Border to the extent practicable, and in consultation with DHS- to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a). This zero-tolerance policy shall supersede any existing policies. If adopting such a policy requires additional resources, each office shall identify and request such additional resources.

This had been a Trump campaign promise on immigration - from a rally in August 2016:

Number two, we are going to end catch and release. We catch them, oh go ahead. We catch them, go ahead.

Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came.


Number three. Number three, this is the one, I think it's so great. It's hard to believe, people don't even talk about it. Zero tolerance for criminal aliens. Zero. Zero.

Zero. They don't come in here. They don't come in here.

Before this policy, suspected illegal immigrants and asylum seekers were allowed into the US while waiting for their cases to be processed. This was due to cases predominantly being handled with civil proceedings in special immigration courts which doesn't require incarceration before trial. According to the NYT, "the majority of those taken to federal court for criminal prosecution either had been apprehended at least twice before, or had committed a serious crime."

There could be a significant amount of time before a case is heard in one of these immigration courts. According to NOLO:

The scheduling of your first hearing will depend on how busy the court is. In recent years, most immigration courts have been extremely busy—there are a lot of people in removal proceedings and not enough judges to hear their cases. Depending on what court you will go to and how busy that court is, you might wait a few months or a few years.

Consequently, children could stay with their parents during this time. As a result of the implementation of the Attorney General's policy, instead of being handled in an immigration court, all suspected illegal border crossings were meant to be criminally prosecuted. This lead to more suspected illegal immigrants being imprisoned awaiting trial, or subject to detention, and as a result, an increase in family separations occurred.

In response to building public pressure, for example from former First Lady Laura Bush, President Trump issued an executive order entitled Affording Congress an Opportunity to Address Family Separation on June 20th. According to NYT:

The order states that it is now the policy of the Trump administration to keep families together. It appears to envision a system in which families will be housed together in ad hoc detention centers, including on military bases, that the administration hopes a court will approve. It calls for many agencies — including the Pentagon — to make available “existing facilities,” or to construct them, for the Department of Homeland Security to use “for the housing and care of alien families.”

On June 26th, U.S. Customs and Border Protection Commissioner Kevin McAleenan told reporters that, as a result of Trump's executive order, migrant parents crossing in from Mexico illegally would no longer be referred for prosecution. On the same day, a federal judge issued a nationwide injunction which halted the process.

Judge Dana M. Sabraw of the Federal District Court in San Diego said children under 5 must be reunited with their parents within 14 days, and he ordered that all children must be allowed to talk to their parents within 10 days.

“The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property,” the judge wrote.


In his order, Judge Sabraw said that children may be separated at the border only if the adults with them present an immediate danger to the children. He also said that adults may not be deported from the United States without their children.

In later cases over the next two months, Judge Sabraw suspended family deportations for a week to allow reunifications to take place, and then ruled that the burden of reuniting separated families fell on the government.

In October 2018, the ACLU reported on the efforts undertaken to reunite children with their parents - 2,654 children were initially determined to have been possibly separated from their parents, and of these, there remained 120 children who were separated from their parents, were in ORR care as of Oct. 15, and who have not decided to waive reunification.

Although the court orders, combined with Trump's executive order, ended the majority of family separation, they did not end it completely. The same federal judge, Judge Sabraw, sided with the administration in January 2020, stating that the government "acted within its authority when it separated more than 900 children from their parents at the border after determining the parents to be unfit or dangerous."

In conclusion then, yes, the practice of separating children from their parents when they enter federal prison or detention centers has been going on for decades, but before the Trump administration's zero-tolerance policy on illegal immigration led to a vast increase in migrant detention, this was not so much of an issue at the border.

The zero-tolerance policy on pursuing criminal prosecutions took place predominantly from April 2018 to June 2018, when it was mostly ended as a result of a nationwide injunction and an executive order signed by the President. However, family separation still occurs when parents are 'considered unfit or dangerous, or in other limited circumstances like criminal history, communicable diseases and doubts about parentage'. This practice has been tested in court, where it was found that there was 'no evidence to conclude the government was abusing its power'.

  • 2
    @hotmeatballsoup I've updated my answer which hopefully provides the clarification required. With regard to your third point - that was sloppy wording on my part, the implementation was carried out by the immigration agencies, but the directive came from the AG, who is, of course, part of the executive branch, the cabinet and the Trump administration.
    – CDJB
    Commented Aug 5, 2020 at 12:30
  • 5
    Ok, I think I'm starting to understand. So it sounds like the big differentiator with the ZTP is that before the ZTP, most of the immigration cases were heard in special civil/immigration courts, which didn't require imprisonment before/during the trial, and those courts were usually backlogged with other cases for months if not years. Special exceptions were made for repeat offenders or in cases where another crime (other than illegal immigration) had been committed, in which case the defendent was tried in criminal court. And after the ZTP, ALL cases were now criminal? Commented Aug 5, 2020 at 12:42
  • 4
    @hotmeatballsoup That's the crux of it yes. Although it's more the case that post ZTP, all cases were pursued criminally, rather than any change in the law. Wrt to point (4), you might have better luck asking on Law.SE for the specific regulation which stops children being held with their parents in federal jail - the Flores settlement is what implemented the 20 day limit for children in detention centers though.
    – CDJB
    Commented Aug 5, 2020 at 12:45
  • 3
    If the info is available a nice addition to this answer would be to cite the # of separations over time (per year, perhaps). This would help qualify how significant the increase since 2016 was. If the increase was enormous, one could argue that the shift under Trump was more a difference in kind than in degree. Or not. Commented Aug 5, 2020 at 19:35
  • 7
    The separation is not just in Federal prisons, it is AFAIK standard procedure in ANY arrest, Federal, state, or local, where the parents can't make bail.
    – jamesqf
    Commented Aug 6, 2020 at 3:57

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