Family Separation at the Border and the Ms. L. Litigation

Family Separation at the Border and the Ms. L. Litigation

Legal Sidebari

Family Separation at the Border and the Ms. L.
Litigation
July 31, 2018
The separation of families of non-U.S. nationals (aliens) apprehended by immigration authorities near the
border has prompted contentious debate among policymakers as well as legal challenge to immigration
detention policies. Trump Administration officials have called for legislation addressing family
separation, while some lawmakers have urged the executive branch to modify current separation policies
to ensure that families detained by immigration authorities are held or released from custody together. On
June 20, 2018, President Trump issued an executive order announcing that it is “the policy of this
Administration to maintain family unity, including by detaining families together where appropriate and
consistent with law and available resources.”
At the time the executive order was issued, there was a pending lawsuit, Ms. L. v. U.S. Immigration and
Customs Enforcement, challenging on substantive due process grounds the practice of separating alien
families at the border. And notwithstanding the June 20 executive order, on June 26, 2018, the presiding
district judge considering the challenge ordered the Trump Administration, subject to exception, to
(1) stop the practice of separately detaining alien parents and minor children who had lacked
authorization for admission to the United States and who were apprehended by immigration authorities at
or between designated ports of entry along the border, and (2) reunite within weeks all separated alien
parents and their minor children. Additionally, the court later issued a temporary restraining order
blocking the government from deporting alien parents until they have been reunified with their children
for at least one week so that parents can make “an informed, non-coerced decision if they are going to
leave their children behind” pending the child’s separate immigration proceedings. Though at least some
policies that resulted in family separation reportedly have been modified or ended, litigation relating to
these policies remains ongoing. This Legal Sidebar explores the underlying policies resulting in family
separation, the due process issues arguably implicated by these policies, and the political and judicial
processes invoked to tackle the issue of family separation.
Executive Action: The separation of families in immigration authorities’ custody is often (though not
always) the result of the interplay of immigration enforcement policies of two agencies – the Department
of Homeland Security (DHS) and the Department of Justice (DOJ). Under the Immigration and
Nationality Act (INA), aliens who attempt to enter the United States without valid entry documents are
generally subject to removal, and DHS is primarily responsible for the apprehension and detention of
those aliens pending removal proceedings. DOJ, in turn, is the lead agency responsible for pursuing
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criminal violations of the INA that may subject an alien to criminal prosecution and punishment. The
initiation of removal proceedings against an alien by DHS and the pursuit of criminal charges by DOJ are
not mutually exclusive; in some instances, the government may charge an alien with a crime and,
following the conclusion of criminal proceedings, seek to remove the alien from the United States.
Earlier this year the Trump administration initiated a “zero-tolerance” policy for illegal entry into the
United States, instructing federal prosecutors to bring criminal charges for unlawful entry against adult
aliens caught attempting to enter the United States illegally between official ports of entry. The criminal
prosecution of an alien parent, and the resulting transfer of that parent from DHS to criminal law
enforcement custody, appears to have consequences for the status of the alien child. When an alien parent
is arrested and placed in criminal detention, immigration authorities have considered an accompanying
child younger than eighteen to be an “unaccompanied alien child” (UAC)—likely because a parent is no
longer “available to provide care and physical custody” of the child. Federal statute generally requires that
a UAC (other than a national of a contiguous country who consents to voluntary return) is transferred
from DHS custody into the custody of the Department of Health and Human Services’ Office of Refugee
Resettlement (ORR), and may, in turn, be transferred to the custody of a sponsor in the United States.
Accordingly, when an alien parent is transferred to DOJ custody for criminal prosecution, the parent’s
children in DHS custody may be transferred to ORR.
Separation may also occur in situations other than because of criminal prosecution. Reportedly, in some
instances DHS has questioned whether an apprehended alien adult and child are actually related. In such
situations, if DHS believes the adult is not the “parent or legal guardian” of the child, the child may be
deemed a UAC and transferred to ORR. In still other cases, alien children reportedly have been separated
from their parents because of medical concerns or because the parents’ criminal history led authorities to
believe they posed a danger to their children.
Reportedly, some alien parents—after being released from criminal custody and placed in civil
immigration detention—have had trouble locating and reuniting with their children. There have been
additional reports that some alien families have also been separated when lawfully seeking asylum at
official U.S. ports of entry, although the Attorney General has stated that the zero-tolerance policy does
not apply in those circumstances. (Unlike with criminal detention, families generally may, but are not
required to, be detained together in immigration detention facilities.) And in some cases, parents have
been removed from the United States before they have been reunited with a child in ORR custody.
The executive order targets, but does not definitely end, family separation at the border. The order
declares that it is “the policy of this Administration to maintain family unity, including by detaining
families together where appropriate and consistent with law and available resources.” It also directs the
DHS Secretary to detain alien families together throughout the duration of criminal or immigration
proceedings “to the extent permitted by law and subject to the availability of appropriations.” Also, the
order does not specifically mention the zero-tolerance policy, but it does state that the Administration
would “initiate proceedings to enforce [the unlawful entry statute] and other criminal provisions of the
INA until and unless Congress directs otherwise,” raising questions about whether the order maintains or
in any way alters the Justice Department’s zero-tolerance policy. Finally, reuniting alien families that
have already been separated is not mentioned. Taken together, these qualifications in the executive order
do not clearly guarantee an end to family separation.
In practice, the government appeared unable to pursue simultaneously zero tolerance policies and ensure
that alien families in DHS custody were not separated. The day after President Trump issued the
executive order, DHS’s Customs and Border Protection (the lead component responsible for immigration
enforcement at the border) announced that it planned to implement the order by transferring to
Immigration and Customs Enforcement (the DHS component primarily responsible for detaining aliens
pending removal proceedings), together, families apprehended while unlawfully crossing into the United
States, but would still refer the adult parents for prosecution. However, within days of that announcement,

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CBP stated that it would no longer refer those alien parents for prosecution and, because ICE has
insufficient space in family detention centers, would release the families during the pendency of
immigration proceedings. For its part, HHS reportedly communicated in early July that it was no longer
“receiving anymore referrals as a result of the zero tolerance policy.”
Ms. L. Litigation: Before the executive order, asylum seekers identified as “Ms. L.” and “Ms. C.” filed a
class action lawsuit against the government, claiming, among other things, that their substantive due
process rights have been violated by the government’s practice of separating families entering the United
States at the border—both when seeking admission at a port of entry and when illegally crossing into the
United States between ports of entry. Ms. L., a citizen of the Democratic Republic of the Congo, alleges
that she and her seven-year-old daughter sought asylum at the San Ysidro Port of Entry at the border of
Tijuana, Mexico and San Diego, California. They were initially detained in civil immigration custody by
DHS, but, Ms. L. says, within a few days, the child was transferred to an ORR facility in Chicago, Illinois
because immigration officials averred that Ms. L. may not actually be the mother “despite Ms. L’s
protestations to the contrary and [the daughter’s] behavior.” Ms. C., a citizen of Brazil, fled with her
fourteen-year-old son to the United States, entered between official entry points, and was apprehended by
immigration authorities. She was arrested and taken into custody for unlawfully entering the United
States, and her son was sent to an ORR facility in Chicago. Ms. C. was convicted and was incarcerated
for twenty-five days. Afterwards, she was transferred to an immigration detention center for removal
proceedings and later released on bail. She had been detained for a total of five months, but the separation
from her son lasted eight.
The plaintiffs have principally asserted that the government has no legitimate interest in separating them,
and those similarly situated, from their children and that doing so violates their substantive due process
rights to family integrity. (Claims brought under the Administrative Procedure Act and the Immigration
and Nationality Act were dismissed.) While the procedural due process rights of aliens who have not been
admitted to the United States may be limited in the context of immigration matters, the substantive
component of the Due Process Clause, has generally been interpreted to protect the rights—at least to
some extent—of all persons physically present in the United States, including aliens who have entered
unlawfully. The Supreme Court also has recognized “the interest of parents in the care, custody, and
control of their children” as a constitutionally recognized liberty interest. For its part, the government did
not contest that the substantive component of the Due Process Clause protects the plaintiffs, but argued
that there is no constitutional right for aliens in immigration authorities custody to be detained together,
and even if such a right exists, family separations have resulted from the existing legal framework
governing the “lawful immigration enforcement and detention decisions made by the Government,” and
thus the government has not acted in a manner that shocks the conscience.
The district court certified the class in the Ms. L. litigation and granted a preliminary injunction against
the government on June 26, 2018. The class is defined as:
[a]ll adult parents who enter the United States at or between designated ports of entry who (1) have
been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who
is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS
custody, absent a determination that the parent is unfit or presents a danger to the child.
The class excludes alien parents with criminal history or a contagious disease, those apprehended within
the interior of the United States, and those who have been detained with their minor child as a result of
the executive order. The preliminary injunction orders the government to take the following actions with
respect to class members who have neither been deemed unfit or a danger to the child, nor have
affirmatively, knowingly, and voluntarily declined to be reunited with a child in DHS custody:
1. refrain from detaining in DHS custody class members without their minor children;

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2. release detained minor children to the custody of parent class members who have been
discharged from DHS custody;
3. reunite all class members with their minor children within fourteen days for children
under age five, and within thirty days for older children; and
4. take all necessary steps to facilitate regular communication between class members and
their children in ORR custody, ORR foster care, or DHS custody but, at a minimum,
arrange a telephone call within ten days.
In issuing the preliminary injunction, the district court first rejected the government’s argument that an
injunction is unnecessary given the recent executive order. The court recognized that the executive order
“attempts . . . to address some of the issues in this case,” but asserted that it does not “obviate[] the need
for injunctive relief.” The court reasoned that the executive order contains several subjective
qualifications that limit its ability to provide relief to separated families, such as whether there is a
“concern”—as opposed to an objective finding—“that detention of an alien child with the child’s alien
parent would pose a risk to the child’s welfare.” Next, the court concluded that the class was likely to
succeed on its substantive due process claims. First, the court opined that just because the government “is
acting within its powers to detain individuals lawfully entering the United States and to apprehend
individuals illegally entering the country,” the right to family integrity does not disappear, nor are the
government’s actions shielded from judicial review. Further, in the court’s view, the government’s
practice of separating families—allegedly without determining that any parent is unfit or presents a
danger to the child, without tracking the children after separation, without enabling communication
between the parents and their children, and without reuniting the families once the parents have been
released from criminal or immigration custody—is “so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscious,” and thus would not pass constitutional muster. Since the order, the
government has been working toward reunifying the separated families, substantially pursuant to the
timeline provided by the court. By the time the deadline expired for reuniting all separated families, on
July 26, 2018, the government reported that 711 children (of the 2,551 previously identified as separated)
remained in ORR custody because “the adult associated with the child is either not eligible for
reunification or not available for discharge at this time.” In response, the district judge ordered the
government to provide a list of (1) parents that were excluded from the class and the reasons for their
exclusion; (2) class parents that were removed from the country before the court issued the preliminary
injunction; (3) class parents that were released into the U.S. interior and not yet located; and (4) parents in
criminal custody.

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Considerations for Congress: Several Members have introduced measures purporting to address family
separation at the border. These proposals generally fall into two camps: one favoring keeping families
together without being detained, and one favoring keeping families together while in detention. For
example, in the Senate, the Keep Families Together Act (S. 3036) would create a “strong presumption in
favor of family unity” and “that detention is not in the best interests of families and children.”
Accordingly, the bill would prohibit the government from removing a child from a parent or legal
guardian at or near a port of entry or within 100 miles of the U.S. border unless designated authorities
have terminated the rights, or believe that it would be in the best interest of the child to be removed from,
a parent or legal guardian, or have found that the child is a victim of, or at risk of becoming a victim of,
human trafficking. The bill also would instruct the DHS Secretary to publish guidance describing the
process for a parent or legal guardian to locate a child who has been separated subject to the limitations
described above. To address families already separated, the House and Senate have introduced versions of
the REUNITE Act, which directs the Secretaries of DHS and HHS to promulgate a rule that would
provide aid to an alien parent or legal guardian trying to locate and reunite with a separated child.
Other introduced proposals tend to focus on family unity while in detention. For example, the House and
Senate versions of the Protect Kids and Parents Act would, among other things, require alien parents and
their children to be detained together during immigration proceedings if the family is seeking asylum. The
bills also set forth specific procedures for the removal of an alien child from the alien parent’s custody
without the parent’s consent.

Author Information

Sarah Herman Peck

Legislative Attorney

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