Former Prosecutor. Powerful Defense Advocate. Certified in the Area of Criminal Law

A Legal Analysis of Illegal Immigrant Family Separations at the Border

Many people are wondering what exactly happened, and is happening, and is likely to happen with the Border Situation of Illegal Immigrant children and adults being separated at the border and held in different places.

I have written this summary of the applicable laws so that people other than immigration lawyers can understand what laws apply here, and what the nature of the controversy is over how those laws are being interpreted and applied. This summary is ten typed pages long. That is about how long even a minimally complete discussion of this issue takes. I think I can promise that if you read the entire description here, you will know more about this issue than the vast majority of people talking/yelling about it.

I have attempted to make this summary as purely factual and fair-handed as possible. I have opinions on the subject, but have attempted to keep them out of this writing. This is a factual description.[1] This includes the use of such terms of “illegal immigrant.” This is a factual legal description, not a moral judgment call.

What is the “illegality” at issue?

18 U.S.C. § 3559 (That means Title 18 of the United States Code[2], Section 3559) makes it a crime to enter (or attempt to enter) into the United States without the permission of the United States Government. A first offense is a misdemeanor with a maximum penalty of six months in jail. A second offense is a felony, and carries a maximum penalty of up to two years in most cases. In certain cases that penalty goes way up. For instance if a person:

  • Has a conviction for a regular felony or 3 or more “moral turpitude” misdemeanors, the maximum penalty goes up to ten years.
  • Has been previously removed from the United States for “security reasons” the maximum penalty goes up to ten years.
  • Has a conviction for an “aggravated felony[3]” the maximum sentence goes up to 20 years.

What happens when a person is caught illegally entering into the United States?

Actually two separate things happen. A criminal case may be brought against the person for violating the above statute, and at the same time a Deportation Proceeding may begin.

It is important to understand that the United States Border Patrol does not simply find people that they decide are illegal immigrants, round them up, and make its own decision to drive them back across the border. There is a whole set of non-criminal laws (found in 8 U.S.C. § 1158) that define the procedures that must be taken before a person suspected of being an illegal immigrant can be arrested, go through an immigration trial, be deemed to be unlawfully in the United States, and then finally be deported.

It is important to understand that these proceedings (Deportation Proceedings and Criminal Proceedings) are separate proceedings often handled in separate places.

What happens on the Deportation Side when a person is caught being illegally within the United States?

The Federal Government is authorized by law to detain people suspected of being illegally within the United States. In accordance with 8 U.S.C. Section 1158, Deportation Proceedings then determine whether the person is actually illegally within the United States, and if so, they are deported.

Are these people detained in jail facilities?

NO. And this is going to be important later. Suspected illegal immigrants are held at one of several Immigration and Custom’s Enforcement Detention Facility. More information is available at https://www.ice.gov/detention-facilities.

A person who is subject to being held in one these facilities is said to have an “ICE Hold” or “ICE Warrant.” In limited circumstances they can be released on their own promise to appear, or they can be released to a program where they wear a “house arrest” ankle monitor, or they can be released on a “bail bond.” For the most part, however, they will be held until the deportation proceeding is over.

How long does this take?

That varies a great deal. If the person admits to illegal entry into the United States, and waives a formal proceeding, they can be deported within a few days. If the person has active warrants for other criminal activity in the United States, or there are other complications, it will take longer.

If the person does not refuse their right to a hearing it can take weeks or months depending on the current caseload of the Immigration Judge.

Why would anyone drag things out like that? – There several reasons. Most important among these is the fact that a person found to qualify for asylum is immune from deportation.

What is Asylum? - Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

That last reason (political opinion) is the one that the vast majority of asylum seekers base their claim on, because they claim that their opposition to the current “government” (whether that be the legitimate government or criminal organizations who control an area etc.) they will be killed if they return home. If we find this to be true, we can’t deport.

How often is that coming up? Quite often. The United States grants only a limited number of foreign asylum seekers legal entry into the United States. This has created a rather large incentive for asylum seekers to illegally enter the United States, knowing that if their claims of persecution are believed, that they will be allowed to stay here. In the last several years our Immigration Courts have seen a larger and larger number of asylum claims coming from people from Central and South America who claim that corrupt government, and/or criminal warlord groups will kill them if they return home.

Understandably Asylum cases can take a long time to litigate, and are clogging up an underfunded Immigration Court system that was never designed to handle the kind of volume of these cases that it is now receiving. This will be important later.

What happens if an “Unaccompanied Minor” is found to have illegally entered the United States?

A whole separate problem exists where “unaccompanied minors” (children by themselves) are found illegally entering the United States.

The practice of the Federal Government for many years was to hold these children along with adults and families awaiting deportation in “Immigrant Detention Centers.” In 1985, however, the Federal Government was sued by the American Civil Liberties Union (ACLU) who argued that this practice was unconstitutional[4].

This lawsuit went on for more than ten years (including appeals from both sides), when the ACLU and the Federal Government finally came to an out-of-court agreement in 1997 known as the “Flores Settlement.”

A copy of this settlement can be read in its entirety here:

https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf

In summary, the Flores Settlement forced the Federal Government to agree that:

  1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  2. If a suitable placement is not available within 20 days, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
  3. These “least restrictive” settings must comply with the legal requirements for other licensed Child Care Facilities, and must be non-locked facilities.

Are all unaccompanied minors put into non-locked facilities then? Why am I seeing pictures of children in cages covered in space blankets?

Initially all unaccompanied minors are taken to the aforementioned ICE Detention Centers along with everyone else. They are kept in separate unaccompanied minor sections of the facilities[5].

Most of these cases can be dealt with in under 20 days. Just like adults, unaccompanied minors are able to consent to being deported. Many do so, and are removed from the United States within a few days. Just like their adult counterparts those who are left are often arguing that they cannot be deported because they are seeking asylum.

NOTE: The kids are asking for asylum? We have attorneys representing these people right?

No we don’t. Neither children nor adults are afforded public defenders in deportation proceedings.[6] They are allowed to hire and be represented by private counsel however, and increasingly private charitable organizations are providing free attorney services to minors in deportation proceedings.

What does that have to do with children who came across the border with their parents?

In 2016 The United States Ninth Circuit Court of Appeals ruled in Flores v. Lynch (found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf) that the Flores settlement, which has the force of law, applied to accompanied minors as well as unaccompanied minors.

What this means is that when an adult is caught illegally entering the United States with their child that the adult can be held as long as it takes to resolve their deportation proceedings (and any criminal proceedings, which we will discuss below) but the minor can only be held for 20 days in a locked facility like the aforementioned ICE Detention Facilities. After 20 days the minor would need to be released.

To whom do they need to be released?

Ideally to a family member who is a legal resident of the United States. If no such person can be found, then the child becomes a ward of the state and is treated like an unaccompanied minor and taken away from the parent to be put in the care of the Department of Health and Human Services.

That’s terrible. Why didn’t I hear about this until now?

Because the Federal Government didn’t do it. What resulted from all the litigation above was a general practice to release parents who were accompanying minors from custody with nothing but their promise to appear later for their Deportation Proceedings, and to generally not charge them criminally at all. This, of course, allowed those parents a perfect opportunity to abscond and never show up to be deported.

Among its critics this practice became known as “catch and release.” Critics of “catch and release” also pointed out that by giving illegal immigrant adults accompanying children preferential treatment, that the United States was giving an incentive to illegal immigrants to take their children (or perhaps someone else’s children) on an extremely dangerous path through drug-lord controlled territories, and through open desert where many people are robbed, raped, killed, or simply die of illness, accident, or exposure, where finally, if they are lucky enough to survive and not be caught, many of those children will later be exploited by sex and labor traffickers in the United States.

Critics of those critics point to a former Federal Program called the Family Case Management Program. That program put families seeking asylum (the overwhelming majority of the cases that will take more than 20 days to decide) into apartment-like conditions. Other programs utilized ankle monitors and probation type check-in calls and the like. Supporters of those programs claimed anywhere from a 95% to a 99% show-up rate to court. Recent budgets massively cut funding to those programs, however.

Ok… Unaccompanied minors bla bla, 20 days bla bla, Why am I hearing about kids being ripped from their parents arms at the border?

That has to do, not with Deportation Proceedings, but with Criminal Proceedings.

What happens when a person is caught AND CHARGED CRIMINALLY with illegally entering the United States?

This gets more complicated.

  1. What happens when a person is charged with a crime?

When a person is charged with a criminal offense the authorities need to decide what to do in order to make sure that they appear in court to answer those charges. Sometimes the person will simply be given a paper ordering them to appear in court (this is called being “cited out” as the circumstances usually involve the person being given a written order by a police officer known as a “citation to appear.” Other times the defendant will be initially arrested, but released upon their promise to appear later (this is referred to as O.R. release, because the defendant is said to be released upon their “Own Recognizance” meaning on their own good word that they will appear. The rest of the time the defendant will be taken into custody and must either post a bail bond, or remain in custody waiting for trial.

  1. If a parent is taken into criminal custody, what happens to their children?

Unlike the Immigration and Custom’s Enforcement Detention Facilities (run, as the name suggests, by ICE, which is a subdivision of Homeland Security) Federal Criminal Jails are run by the Department of Justice, headed by the United States Attorney General (currently Jeff Sessions). These facilities house people arrested for a whole range of federal criminal offenses, are mostly of much higher security than Immigration Detention Facilities, and are generally much scarier places.

If a parent is put into a Federal Jail and the other parent or another family member can be located (and they appear to be willing and able to take the child) the child will be given to them. If no family member is available then the child becomes a ward of the state and the government takes over “in loco parentis” (a legal term meaning “In place of parents.”) When this happens at the border the child is declared… an unaccompanied minor. They are immediately separated from their parent and placed into an ICE Detention Center, while their parent is shipped off to a Federal Jail. It is unlikely that either will know what is happening to the other.

But why does the government need to arrest the adult rather than citing them to appear and allowing them to be sent to the ICE Detention center with their child?

They don’t.

A good question to ask here is “Up till now, how often have people been criminally prosecuted for unlawfully entering into the United States?” The answer is, “Almost never.” The next question might be “How long has this been our practice?” the answer is, “Always.” Pretty much the only people that have ever been prosecuted for illegally crossing the border are those people who have criminal records in the United States, allowing for longer Felony Federal Prison Sentences for illegal entry. These cases represent a small fraction of the total number of people arrested for illegal entry into the United States.

When Attorney General Jeff Sessions decided to institute his “Zero Tolerance” approach to border enforcement, requiring every adult caught illegally entering the United States to be criminally prosecuted, he put into place a massive shift in policy to engage in those prosecutions at all.

Supporters of this policy shift say that it was long overdue, and that some kind of deterrent needs to be put into place beyond simply sending illegal immigrants home. Universal Prosecutions, they hope, will deter illegal immigrants.

Critics of the Policy point out a few things: 1. Actual Prosecutions of illegal immigrants typically end in a quick plea deal and a sentence of no more than a few days. This is exactly the same amount of time they would spend in custody waiting for deportation. We could assume, theoretically, that the Jeff Sessions Department of Justice could stop plea-bargaining the cases and instead start seeking convictions at trial, which could lead to greater sentences, but we then must ask: “How many people are we talking about?” “How many people are caught illegally crossing into the United States?”

The staggering answer, averaged out over the last several years… is about A THOUSAND PEOPLE EACH DAY.

ARE YOU SERIOUS!?!

Totally. And we don’t catch most people illegally entering the United States. Not even half. It is conservatively estimated that about a million illegal immigrants make it past border security each year. That staggering fact is why many people are seeking extreme solutions to illegal immigration in the first place.

Whether you believe that we should be building a giant wall, or not, and whether you believe that we should be criminally prosecuting every person caught illegally entering the United States, or not, illegal immigration must be understood and respected as a legitimate problem. It is a problem not only because of its effect on the United States, but also because of the extreme peril of abuse and death that it imposes on those people making the arduous journey to make the attempt at sneaking in (and of course any children they drag with them).

Ok those number are Crazy, but why does it matter?

Because the Department of Justice cannot possibly take every illegal border crossing case to trial, which means that they need to plea-bargain, which means that sentences of “time served” will continue, which means that the promise of a “criminal deterrent” is an illusion.

71,003 criminal cases were handled by the Department of Justice in 2015 (the most recent year where statics are available). 90 Percent of those cases plea-bargained.

It is difficult to IMAGINE what would happen to the federal criminal courts if a few HUNDRED THOUSAND new criminal trials were added. The size of the agency (and the Federal Court System) would need to grow by several orders of magnitude just to handle those criminal immigration cases, which, incidentally, really aren’t the kind of work that prosecutors being recruited by the United States Department of Justice want to sign up for.

::Sigh:: If we are just going to plea bargain all of these criminal cases out, and we are just going to deport all of these back without adding any meaningful criminal deterrent why are we arresting and charging them rather than putting them straight into Immigrant Detention Centers to be deported?

That is an excellent question. The “zero tolerance” policy doesn’t seem well thought out. Certainly there are individual cases where prosecution makes sense (people with criminal records, people who have been caught and deported multiple times in the past, people who are suspected of being smugglers or otherwise abusing other migrants), but that kind of very selective prosecution is EXACTLY WHAT WAS ALREADY BEING DONE. Deciding to prosecute everyone else, and then spitting them out of jail to be deported almost immediately, doesn’t accomplish anything. The only people it really negatively effects are… parents and children who illegally cross the border. And even this isn’t really a result of the decision to charge those adults criminally, but the completely separate decision (also made by Attorney General Jess Sessions) that the people being charged be arrested and held in criminal custody rather than being cited out and held in ICE Detention.

How could this mess of children being torn apart from their parents be fixed?

Quite Easily. With a stroke of a pen we could go back to what we were doing. It isn’t even the President of the United States who needs to act, but rather his underling the Attorney General. At any time the Attorney General could decide to stop criminally charging people on a “zero tolerance” basis. He could even keep up the criminally charging, but issue citations that would allow illegal immigrants (including those with children) to stay in ICE Detention Centers.

This would have the potential problem, however, of only delaying the separation of children and parents when the deportation proceedings take more than 20 days, as is often the case with asylum seekers.

But that problem existed already.

The first way to solve these pre-existing problems is by increasing border security so that fewer people are arrested in the first place (whether that means a wall or something else is a non-legal discussion I will not get into here). When the White House called up several state National Guard units to patrol our southern deserts, this is what they were trying to do.

The second way to solve this problem is by increasing funding to the Federal Courts which handle these types of cases, so that more judges can hear more cases, and the hearings can get done faster (hopefully within 20 days).

The third way to solve this problem is by prioritizing the deportation proceedings, including the judicial rulings on asylum defenses, of parents with children who are being held along with them. Will this create an incentive for adults to illegally cross into the United States with children in tow? Yes it will.

The most “messy” “solution” and the one most likely to be adopted, is for Congress to pass legislation effectively overturning the Flores Settlement, thus allowing children to be detained for extended periods of time while their parents are criminally charged, and then eventually deported. Whether this could stand up to a legal challenge is a discussion for another day.

*POST SCRIPT UPDATE

While waiting to publish, the White House has announced a change to the Attorney General’s “zero tolerance” policy that caused this mess. The text of the Executive Order can be found here: https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/

In short, the Executive Order ends the policy of criminal incarceration pre-trial for illegal alien adults who cross with children. It is unclear whether criminal detention will continue for all other adults or whether an across-the-board policy of citing out detainees and sending them to ICE Detention Centers will be implemented.

The Executive Order acknowledges that the Flores Settlement causes a potential problem for parents who would be held in ICE Detention for more than 20 days, because the Settlement would cause a separation at that point when the kids were taken to be placed in a non-locked facility. The White House does not want to release the parents as well, calling such practice an unacceptable “catch and release.” For this reason the Executive Order strangely directs Mike Pence to ask the Federal Courts to not enforce the Settlement. Whoever wrote this order either does not understand that the law doesn’t work that way, or is purposefully being obtuse with the hope that after the court denies their crazy request that the White House will get to blame the judiciary for keeping them from solving the immigration problem.

Exactly what force does the Flores Settlement Have?

It is important to understand that the Flores Settlement is not a court ruling. The settlement was reached between the United States Government and the ACLU. It is, in effect, just like a treaty. Which is a bit strange. In effect it means that the Flores Settlement has the force of law… even though the Executive Branch of Government cannot generally make law, and the Flores Agreement was “agreed” to by Janet Reno, then Attorney General under President Bill Clinton.[7]

One would think that such an agreement could be undone by Jeff Sessions, or at least the current President of the United States… but no. Once agreed to, the settlement has the same force as any law passed by Congress.

So, purely theoretically speaking, if we wanted to say… destroy the Flores Agreement? What would need to happen?

An act of Congress. Just like Congress can overturn a treaty, Congress can overturn an “agreement” settling a federal lawsuit. If Congress passes a law allowing a thing (say the detention of minors in Detention Centers for more than 20 days) that law will supersede the Flores Agreement making the agreement null and void.

What will happen then?

The ACLU will renew their lawsuit from 1985 that the Flores Settlement ended. A small part of that settlement was the provision that children could not be held in ICE Detention for more than 20 days.

Is the ACLU likely to win that lawsuit?

There is virtually zero chance of the ACLU winning that lawsuit. Faced with making a legal decision that will determine whether children will either spend a prolonged period in custody, or else be separated from their parents and placed into the care of federal orphanages, the Judiciary is overwhelmingly likely to decide that this is a political rather than a legal issue, and that holding a minor, with the minor’s parent’s consent, at an ICE Facility, does not violate any constitutional right of the minor.

And if, theoretically, a new White House Administration and Congressional Majority comes along two years from now?

They would likely re-institute the policies of Barack Obama, which expanded releasing those illegal immigrants who were applying for asylum. Sometimes these people would be placed on an electronic monitor, and sometimes in dorm-like housing that was unlocked, which would meet the terms of the original Flores settlement.


[1] Where the law gets muddy, I have attempted to explain what different people think without making overly obvious who is correct, IE, who agrees with me.

[2] This is our “Federal Law.”

[3] What qualifies as a “aggravated felony” under Federal Law is similar, though not completely identical to what California calls “Strike Offenses.”

[4] The lawsuit was largely based on the abuse suffered by unaccompanied minors without a family unit to look after them in what amounted to a jail facility with both adults and children of all ages inside of it.

[5] The existence of which is another term of the Flores Settlement.

[6] Everyone, including non-citizens is afforded a public defender in any criminal case. This will be important later.

[7] When the White House says that the current immigration problem is due to a bad “Democratic Law” this is, presumably what they mean.