Recommendations to End Separation of Asylum-Seeking and Migrant Families

In December 2021, the Department of Homeland Security (DHS) sought public comment on ways to minimize the separation of migrant parents or legal guardians and their children entering the United States, consistent with law. The comments below by Human Rights First are informed by its extensive research and monitoring of the treatment of individuals and families seeking protection in the United States. Our research has repeatedly documented U.S. officials, including those from DHS and the Department of Justice (DOJ), using criminal prosecutions to inflict family separation and other penalties on families and other people seeking refugee protection in the United States. In addition, the Trump and Biden administrations have used other policies, intended to deter people from seeking refuge or migrating to the United States, that result in the separation of children from their parents and caregivers.

From its extensive research and reporting over the last six years – some of which is replicated for the Task Force’s convenience in the Appendix below – Human Rights First found that:

• Under the Trump administration, Customs and Border Protection (CBP) used stepped up criminal prosecutions and the “zero tolerance” policy to separate thousands of children from their parents and caretakers as it referred the adults in nearly all cases for criminal prosecution under the unauthorized entry/re-entry statutes (8 U.S.C § 1325/1326).
• The Trump administration’s third-country transit asylum ban and other rules that purposefully leave refugees with the inadequate protection of withholding of removal, as well as the one-year filing deadline ban, deny protection to accompanying children and deprive refugees of the ability to reunite with family members stranded abroad.
• Policies that block, return, or expel asylum-seeking and other migrant families to danger in Mexico – including Remain in Mexico (RMX) (officially termed the Migrant Protection Protocols), Title 42 expulsions, and metering (the policy of reducing or limiting the number of asylum seekers processed) at U.S. ports of entry – drive many family separations. In some cases, CBP separates families, forcing some family members to remain in danger in Mexico while other are permitted to seek asylum in the United States. Family separations also occur as parents or children are kidnapped or disappeared in Mexico and other desperate parents and caretakers are forced to choose between keeping their children with them in a place where their lives are in danger, or sending them across the border to U.S. safety on their own.
• Years-long asylum adjudication backlogs and delays in the immigration courts and the U.S. Citizenship and Immigration Services (USCIS) Asylum Office are also precipitating family separation, leaving refugee parents unable to reunite with their children who may be stranded abroad in danger.
• The unnecessary and punitive jailing of asylum seekers in immigration detention centers cruelly separates parents and caregivers from their children, including the practice of detaining of some adult family members while releasing other family members to continue their cases in the community.
• DHS’s discretionary use of reinstatement of removal prevents refugees with prior removal orders from seeking asylum, leaving them with only the inadequate relief of withholding of removal and often permanently separated from family.

The Human Rights First reports excerpted in the Annex below provide numerous examples of family separations that have resulted from these U.S. border, detention, and asylum policies.

Key Recommendations

As Human Rights First has previously recommended, and outlined below, the Biden administration should:

• End the criminalization of migration, which separates families, violates due process, and breaches the Refugee Convention, including:
• -issue public guidance that directs DHS to end referrals of parents and other adult caregivers accompanied by children for prosecutions for unauthorized entry/re-entry to limit family separations;
• -issue public guidance that directs DHS to end referrals of asylum seekers – including parents, guardians, and other adults – for prosecutions for unauthorized entry/re-entry, which generally violate Article 31 of the Refugee Convention;issue public guidance that instructs DOJ attorneys not to bring or continue prosecutions for unauthorized entry/re-entry against asylum seekers as well as parents or caregivers who have been separated from their children; and
• -work with Congress to repeal and revise the unauthorized entry/re-entry statutes so that these matters are handled through civil laws, and asylum seekers are not subjected to such prosecutions.
• End the use of Remain in Mexico, Title 42, metering, and other policies that improperly turn away people seeking life-saving protection in the United States. Family members returned to these dangers have been kidnapped, disappeared, and in some cases killed in Mexico. The threat of this acute violence often pushes migrant and asylum-seeking families to send children alone to safety in the United States.
• Formally rescind the Trump-era third-country asylum transit, asylum entry, and public health bans which can result in family members, including children, being denied protection and prevent asylum seekers from reuniting with family members who may be stranded abroad in danger. In addition, work with Congress to eliminate similar provisions in law, including the one-year filing deadline ban.
• End DHS policy and practice of detaining parents and caregivers who have been separated from children and other adult family members, in addition to other steps to end detention that violates human rights law.
• Do not separate children from accompanying non-parental caregivers – generally a family member such as a grandparent, aunt, or older sibling. These caretakers may be the person best suited to care for the child during immigration proceedings, or the only person able to provide critical information regarding the child, including past trauma, past mental or physical health needs, or other circumstances, and family contacts.
• Address backlogs and delays in asylum adjudication in immigration courts and the Asylum Office, which frequently leave refugees separated from family members for years awaiting a decision on their requests for U.S. protection.
• Exercise DHS’s discretion to not reinstate prior removal orders in order to avoid limiting refugees from receiving asylum and being able to reunite with family members stranded abroad, particularly in the wake of the Supreme Court’s harmful decision in Guzman-Chavez.

Take steps to ensure that the reception and processing of families and other people seeking refuge in the United States is managed, directed, and overseen by officials, agencies and non-profits with humanitarian, child welfare, and refugee protection expertise, rather than by CBP.