Government Report on “Zero Tolerance” at Southern Border

UPDATE:   On October 25, 2018, in the the lawsuit challenging the administration’s family separations policy, the government filed an update indicating that 264 children remain separated from their parents, including 14 newly identified children.  The court filing underscores the chaos that the report below found, in terms of how the government handled tracking children that it forcibly took from their parents.

The Trump administration is also reportedly considering piloting a new “binary choice” proposal for families with children who arrive seeking asylum. Since under the Flores settlement agreement the government cannot legally detain children beyond 20 days, the program would force parents to choose between staying with their children in detention centers, or being separated from their children so their children are not detained.   But as noted in a September 2018 Congressional Research Service report to Congress, the legality of a “binary choice” proposal is doubtful.

The Office of the Inspector General (OIG) of the Department of Homeland Security (DHS) has published a report about DHS’s implementation of the “Zero Tolerance” policy.   Begun in May 2018 per order of the Attorney General, that policy resulted in over 2600 children being taken away from their parents at the southern border, some of whom are still waiting to be reunited with their parents.

The report concludes that DHS was not adequately prepared to carry out the Zero Tolerance policy.

Problems included:

– Encouraging people to apply for entry at border posts, but then making people wait for days or turning them away, likely prompting unauthorized border crossings;

– Separating children who were too young (pre-verbal) to provide information about their parents and not photographing them or identifying them with ID bracelets or other identifiers so that they could be later matched with their parent(s).

– Having inadequate database integration to accurately track the number of separated children in custody, to catalogue and match parents and children, or to know where children were sent after being taken from their parents, so that parents would be able to find their children and government officials would be able to reunite them.  OIG could find no evidence of the “central database” that the government claimed existed.

– Holding children in short term facilities inadequate for children, for longer than the 72-hour maximum allowed.

– Providing parents with inaccurate or inconsistent information so that parents often did not understand that their children were being taken from them, or where their children were and how to contact them or get them back.

Following public outcry, in June 2018, President Trump issued an executive order forcing DHS to stop separating families, leading DHS to resume releasing them.  Typically they would be required to wear electronic ankle bracelets, pay a bond, or comply with other detention alternatives.  (Under the terms of the 1997 Flores settlement, minors cannot by detained by DHS for than 20 days, and when held should be in non-secure, state-licensed settings for minors.)

Unfortunately, the administration is now planning to eviscerate the Flores settlement in a proposed rule that would allow indefinite detention of minors, together with their parents.   The public comment period on the proposed rule closes on November 6, 2018.