This post is part of a series on the Trump administration's policy of separating families at the border.  You can read a prior post in the series here.

Yesterday, 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.

DOJ’s view is, apparently, that the law mandates only one answer: DHS and ICE must transfer the child into the custody of ORR, who can then release the child to a sponsor. But the law doesn’t compel that answer, for some somewhat technical reasons I’ll describe below. The harder question, as I suggested yesterday, is whether the law might permit separating children from their families when ICE takes a child’s parents into custody and places the parent or parents in a non-family centric detention facility.

I should note, first, that this is a problem entirely of DHS and ICE’s own creation: If ICE did not detain a child’s parents, there would be no question about whether ICE had to separate a child from his or her parents. And if ICE detained a child’s parents in a family detention facility (and DOJ has not argued that it lacks the capacity to do so), that would also obviate the question of what to do when ICE detains a child’s parents in a non-family centric detention facility.

But back to the administration’s legal position. Two weeks ago, the President tweeted:

Put pressure on the Democrats to end the horrible law that separates children from there parents once they cross the Border into the U.S. Catch and Release, Lottery and Chain must also go with it and we MUST continue building the WALL! DEMOCRATS ARE PROTECTING MS-13 THUGS.

Two weekends ago, two of the President’s persistent enablers, Marco Rubio and Mark Meadows, repeated the same claim on Face The Nation, that some law purportedly required the separation of families.

The President’s DOJ is also making this argument in its briefs. But DOJ’s brief fails to mount a convincing argument that the law requires it to separate families. DOJ’s brief contains some version of the following sentences as to all of the plaintiffs:

“When ICE detained [the parent], there was no parent or guardian available to provide care or physical custody for [the child], and [the child] therefore became a UAC [unaccompanied alien child] and subject to the provisions of the TVPRA that required ICE to transfer her into the custody of ORR. See 6 U.S.C. 279(g)(2); 8 USC 1232(b)(3).”

Here is the full text of the two statutes DOJ cites.

Section 279(g)(2) defines “unaccompanied alien child.” It reads, in full:

(2) the term “unaccompanied alien child” means a child who

(A) has no lawful immigration status in the United States;

(B) has not attained 18 years of age; and

(C) with respect to whom--

(i) there is no parent or guardian in the United States; or

(ii) no parent or legal guardian in the United States is available to provide care and physical custody.

Section 1232(b)(3), enacted several years after 279(g), reads as follows:

(b)(3) Transfers of Unaccompanied Alien Children

Except in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.

In Ms. L, DOJ’s argument is that children in DHS’s custody are “unaccompanied” once ICE detains their parents. If the children in DHS’s custody are indeed unaccompanied once ICE detains their parents, then, DOJ argues, section 1232(b)(3) requires ICE to transfer the children to the custody of DHHS (which houses ORR). ORR can then proceed to place the children in accordance with the statutory directives in section 279. ORR also has the option to release children in its custody to the custody of private sponsors.

But DOJ says little to defend its assertion that children who cross the border with their parents become unaccompanied the moment that their parents are in ICE’s custody. There are several decisions suggesting they are not, including Bunikyte v. Chertoff, which was cited approvingly in this FAS report for the proposition that “if a child and parent without lawful immigration status are apprehended by immigration authorities and detained together while awaiting removal, the child is not considered a UAC.” A Fifth Circuit case (Cortez-Vasquez v. Holder) reasoned further that a child was not even “unaccompanied” where “[h]e was accompanied by his adult sister.” In that case, however, the child did not meet other conditions for being unaccompanied in 279(g)(2). In another case, DHS apparently argued that a minor who had crossed the border with his mother was an unaccompanied minor, but the Fifth Circuit upheld that designation on the ground that the child’s mother, who was not in ICE’s custody, was unable to provide care or physical custody of him, based on a home study documenting substance abuse and domestic violence, among other things.

As I mentioned, DOJ does not flesh out its assertion that children who cross the border with their parents become unaccompanied the moment their parents are in ICE’s custody, so constructing its argument is somewhat speculative. Its argument probably rests on section 279(g)(2)(C), the provision stating that a child is unaccompanied if “there is no parent or legal guardian in the United States” or if “no parent or legal guardian in the United States is available to provide care and physical custody.” DOJ’s argument is probably (either) that persons in ICE’s custody are not “in the United States,” or are not able to “provide care and physical custody.”

Neither conclusion, however, is compelled by the statute, because nothing about the fact of a parent’s detention renders either condition unsatisfied. Immigration detention centers are in the United States, and in decent and safe facilities, parents would be able to provide care and physical custody of their children. Physical custody, in the context of family law, refers to the idea that a child lives with his or her parents.

DOJ’s argument is also belied by the last decade and more of its conduct, when DHS and ICE have detained children with their parents in family-centric detention centers, rather than transferring them to the custody of ORR.

Some legislative context to both section 279 and section 1232 further helps to highlight the understanding that those sections, particularly section 279, do not make a child “unaccompanied” if ICE detains the child’s parents. Rather, parents who were in immigration detention facilities were considered parents or guardians in the United States who were able to provide for care and physical custody. Both 279(g) and 1232 were enacted on the heels of a settlement in Reno v. Flores, a case that challenged the then Immigration and Nationality Service’s policy of detaining minors for immigration-related reasons. The case has a long and complicated procedural history; the important part for this argument is that the case ultimately resulted in a settlement agreement that applied to “minor[s],” which the settlement agreement defined as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” In some litigation, the government attempted to argue that the settlement agreement did not apply to accompanied minors, which it understood to mean minors who traveled with (i.e., were accompanied by) their parents, even though their parents might be detained. Courts rejected that argument because, by its terms, the settlement agreement (which became a consent decree) applied to “[a]ll minors who are detained,” and because the agreement contained specific rules for “unaccompanied minors,” such as “The INS will segregate unaccompanied minors from unrelated adults.”

The language of the Flores settlement, in other words, was understood in this way: “[U]naccompanied minors” did not include minors who arrived with their parents or guardians, even though their parents and guardians did not have lawful immigration status and would be, or were being, detained. The settlement and judicial decisions interpreting it make this clear; they repeatedly refer to parent arrivals who may be in detention, or in immigration proceedings themselves. Some of the opinions explicitly say “accompanied minors” mean minors who arrive with their parents. Flores v. Lynch, for example, refers to the argument that the settlement agreement “only applies to unaccompanied minors … not .. minors accompanied by parents or other adult family members … placed in these centers.” Section 279(g), which was enacted on the heels of the settlement decree, should be understood in this light. As the courts interpreting the settlement agreement noted, the settlement agreement did not address issues related to the detention of accompanied minors, and whether the consent decree or any law required juveniles to be detained with their families. But no one thought the law required the juveniles to be separated from, and not detained with their families.

There are other indications that “unaccompanied alien child” does not include a child who arrives with a parent, even if that parent does not have a lawful immigration status and will be detained. The U.S. Sentencing Commission, for example, has promulgated guidelines that are trained at implementing Congress’s imposition of penalties for child trafficking under the TVPRA (which include section 1232(b)). Among those guidelines is 2L1.1, which provides for additional penalties:

If the offense involved the smuggling, transporting, or harboring of a minor who was unaccompanied by the minor's parent, adult relative, or legal guardian.

This, too, is some evidence about what unaccompanied means in the context of immigration law; “unaccompanied minors” refers to minors who are not in the company of guardians when they arrived in the United States.

The Office of Refugee Resettlement has also promulgated regulations to define “unaccompanied” minors. Its definition does not align with DOJ’s current asserted one. 45 C.F.R. 400.111 provides:

Unaccompanied minor means a person who has not yet attained 18 years of age….who entered the United States unaccompanied by and not destined to (a) a parent or (b) a close nonparental adult relative who is willing and able to care for the child or (c) an adult with a clear and court verifiable claim to custody of the minor; and who has no parent(s) in the United States.

Here too, a child was not considered unaccompanied if the child was accompanied by a parent on the way to, and when they entered, the United States.

A few other pieces of evidence about the usage of “unaccompanied” minor or alien child. From an HHS factsheet (HHS houses ORR):

The Division of Children’s Services provides care and placement for children who come into the United States from other countries without an adult guardian. These children are referred to as unaccompanied alien children (UAC) in statutes.

The factsheet continues: “The age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied children especially vulnerable to human trafficking, exploitation and abuse.” ORR’s webpage repeats the same.

The statements refer to children who are or were already separated from parents or relatives when ORR took custody of them. The statements also make clear that the children’s separation from their family is what makes the children vulnerable. It would be odd if that separation arose from the actions of ORR and DHS when the fact sheets assume that ORR is attempting to remedy the risks that arise from family separation, and not creating them. The statements do not suggest that ORR and DHS are forcing that separation by law. Likewise, the guidelines interpreting the trafficking victims protection reauthorization act underscore the understanding that children who entered the United States alone were vulnerable to trafficking because they were separated from their families. It would similarly be quite odd if the TVPRA, which was designed to protect children who are vulnerable to trafficking, made an entire group of other children more vulnerable to trafficking by separating them from their parents.

Some legislative history from 2005 shows that Congress had a similar understanding of the phrase "unaccompanied":

Children who are apprehended by DHS while in the company of their parents are not in fact ‘unaccompanied’ and if their welfare is not at issue, they should not be placed in ORR custody. The committee expects DHS to release families or use alternatives to detention such as the Intensive Supervised Appearance Program whenever possible. When detention of family units is necessary, the Committee directs DHS to use appropriate detention space to house them together.

House Committee on Appropriations, Department of Homeland Security Appropriations Bill, 2006, 109th Cong., 1st Session, 2005, H. Rep. 109–79. (A committee report echoes the same.)

There are other problems with DOJ’s argument that the law requires DHS to separate children from their families once the parents are detained. For example, nothing in the statutes requires ORR to place unaccompanied minors in a detention facility without their parents. (This assumes the phrase “unaccompanied alien child” encompasses children who traveled and arrived with their parents). Other provisions in 6 U.S.C. 279 govern ORR’s responsibility over undocumented children, and include the following:

Section 279(b)(1)(A):

[T]he Director of the Office of Refugee Resettlement shall be responsible for coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status.

Section 279(g)(1) then defines placement as “the placement of an unaccompanied alien child in either a detention facility or an alternative to such a facility.”

Nothing in these provisions require ORR to place a child in a detention facility (or alternative to such a facility) where the child’s parent is not present. Indeed, in the cases cited above, which interpreted the Flores settlement agreement, even after section 279 was passed, children who entered the United States with their parents were placed in family detention centers with their parents. And section 279(b)(1)(A) refers to unaccompanied “alien children who are in Federal custody by reason for their immigration status,” not by reason of ICE’s detention of their parents.

Section 279(b)(1)(B) also directs ORR to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.” It is hard to see how any of these provisions require ORR to house children who arrive with their parents in facilities separate from their parents.

There are other reasons to be skeptical of DOJ’s argument that children become unaccompanied the moment that ICE detains the child’s parents. As I alluded to above, giving ORR custody over unaccompanied minor children was designed to address the unique vulnerabilities of children who are alone in the immigration system. It would be strange if the law created that very problem—children separated from their families—for children who entered the United States with their parents.

Another reason to doubt DOJ’s argument is the realities of ORR’s sponsorship program. As recent news has made clear, ORR’s sponsorship program is far from perfect: Some children are released into the custody of human traffickers. ORR has also been unable to follow up on the whereabouts of other children. Thus, releasing children who enter the United States with their parents into the custody of ORR risks family separations that are permanent, since ORR and DHS are not keeping track of, or able to keep track of, the location of children and their families. That problem is likely to be exacerbated, as more children are detained and ORR is increasingly overburdened.

Finally, it would odd if the government could use the fact that it maintains unsafe immigration detention centers as reason to justify separating families. If the detention centers are so unsafe and unfit for habitation, then perhaps they shouldn’t be detention centers at all, much less detention centers that ICE and DHS are able to use to force the separation of families.

The laws that DOJ cites do not require the forced separation of families, and DOJ has not offered a persuasive argument that they do. The harder question is whether the law permits separation of children who enter the United States with their families, at least in some circumstances where family-centric detention is not available. As I suggested yesterday, if the law permits that separation, it is because our immigration system has, for too long, allowed for detention facilities that are both unsafe and unequipped to handle the magnitude of persons that the executive branch shamefully forces into them.

@LeahLitman

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