Lowenstein Clinic and Partners Publish Report on Family Separations at U.S. Border

As many as 1,360 children have never been reunited with their parents six years after the United States government forcibly separated them at the U.S. border, according to the Department of Homeland Security. Efforts by the U.S. to help separated families have not adequately reckoned with the severe harm inflicted on them, Human Rights Watch, the Texas Civil Rights Project (TCRP), and the Lowenstein International Human Rights Clinic at Yale Law School said in a report released today.

The 131-page report, “‘We Need to Take Away Children’: Zero Accountability Six Years After ‘Zero Tolerance,’” finds that the government refused, in many cases for days or weeks, to disclose the circumstances and whereabouts of separated children to their parents. This conduct meets the definition of an enforced disappearance, according to the authors. Forcible family separations may also have constituted torture, the intentional infliction of severe suffering for an improper purpose by a state agent. Even a single instance of enforced disappearance or torture is a crime under international law.

FULL REPORT: ‘We Need to Take Away Children’: Zero Accountability Six Years After ‘Zero Tolerance’  

“It’s chilling to see, in document after document, the calculated cruelty that went into the forcible family separation policy,” said Michael Garcia Bochenek, senior children’s rights counsel at Human Rights Watch and an author of the report. “A government should never target children to send a message to parents.”

Policy documents and government emails compiled by the nonpartisan nonprofit American Oversight establish that officials deliberately separated children from their parents as a deterrent to other families who might otherwise consider entering the United States without permission. When federal agencies began reuniting families quickly, senior administration officials intervened to keep children apart from their parents.

The U.S. government separated more than 4,600 children from their parents between 2017 and 2021, according to the Department of Homeland Security. The 1,360 children who remain unaccounted for amount to nearly 30 percent of children separated during the first administration of President Donald J. Trump.

Senior officials began discussing forcible family separation in February 2017, several weeks after President Trump took office, according to a Department of Justice report. U.S. Customs and Border Protection (CBP) and federal prosecutors piloted family separation in and around El Paso, Texas, between March and November 2017, and border-wide separations began in May 2018.

The government achieved family separation through an unorthodox application of two federal laws. First, it prosecuted parents for “improper entry,” a minor federal charge. Second, it used parents’ brief transfer from CBP to the U.S. Marshals Service, while the parents appeared in court, to treat their children as unaccompanied. CBP then applied a different law to transfer the children to the Office of Refugee Resettlement, the U.S. Department of Health and Human Services agency responsible for unaccompanied children.

A June 2018 court order halted the government’s effort to systematically separate every family that entered the United States without authorization. But the court order allowed separations on other grounds, and the government continued to separate hundreds of children through the end of 2019, according to a Department of Health and Human Services report.

Children and parents interviewed by Human Rights Watch and the Texas Civil Rights Project in 2018 and 2019 described suffering intense anguish, profound anxiety, and other effects of trauma. A 15-year-old boy from Guatemala said he was “really desperate and heartbroken and worried” after being separated from his father in October 2018.

Such serious traumatic effects were foreseeable, according to experts in psychiatry. In fact, Office of Refugee Resettlement officials had repeatedly warned that forcible separation risked significant harm to children.

Customs and Border Protection did not tell the Office of Refugee Resettlement which children it had separated at the border, and CBP systems did not link separated children’s records with those of their parents, according to a U.S. Department of Health and Human services brief. A federal judge observed, in fact, that the government kept better records of property than of the children in its care. As a result, the policy’s true scope has only become apparent after years of effort to identify, locate, and reunite separated children and parents, according to the report.

Behind the scenes, officials’ exchanges left no doubt that forcible family separation was the desired outcome of the policy rather than a byproduct of routine law-enforcement operations, the report shows. “We need to take away children,” Attorney General Jeff Sessions told federal prosecutors in May 2018. The same month, when a senior U.S. Immigration and Customs Enforcement official learned that parents were returning from court before U.S. Customs and Border Protection had transferred their children, emails show that he wrote to “confirm that the expectation is that we are NOT to reunite the families”; reunification “obviously undermines the entire effort.”

Senior officials who played a leading role in developing and implementing the policy include Thomas Homan, recently tapped to be President Trump’s incoming “border czar,” and Matthew Whitaker, whom Trump has stated he will nominate as U.S. ambassador to the North Atlantic Treaty Organization (NATO). Stephen Miller, the White House adviser who helped design the 2017 travel ban on citizens of predominantly Muslim countries and advocated for the closure of the border to asylum seekers on public health grounds, is expected to be the president’s deputy chief of staff for policy.

The administration of President Joe Biden has taken steps to address the harm families faced from their forced separation, including allowing parents to enter and temporarily remain in the United States, agreeing to reopen their asylum cases and allowing them to work, and providing some mental health services to reunited parents and children, the report notes. Many of these initiatives were in response to court orders; others were at the recommendation of the Family Reunification Task Force established by President Biden in 2021. However, the report’s authors find these measures inadequate.

Temporary status and short-term access to services are nowhere near adequate remedies for intentionally tearing apart families.” 

— Danny Woodward, Texas Civil Rights Project

“Temporary status and short-term access to services are nowhere near adequate remedies for intentionally tearing apart families,” said Danny Woodward, Texas Civil Rights Project staff attorney. “Acts of torture and other serious wrongs require comprehensive redress.”

Congress and the executive branch should put in place comprehensive measures to remedy the wrongs these families suffered and should consider extending them permanent residence, Human Rights Watch, TCRP, and the Lowenstein Clinic said. Supportive services, including mental health services, should be available on an ongoing basis to families who request it.

The U.S. Department of Homeland Security should adopt standards that presumptively keep families together, separating them only when ain a child’s best interest, as determined by a qualified and neutral professional, and Congress should enact these protections into law, the reports co-authors further recommend.

The federal government must take all necessary measures to ensure that these wrongs never recur, the report’s authors write. Fully reckoning with the serious human rights violations inherent in forcible family separations requires a public accounting, an apology, compensation, and other steps, including possible criminal prosecutions for enforced disappearance or torture, the co-authors go on to say.

The co-authors continue that the U.S. Senate should exercise its advice-and-consent authority to reject any nominees for the second Trump administration who were involved in planning or executing the family separation policy.

The Family Reunification Task Force should issue public recommendations, before the end of President Biden’s term in office, as a catalyst for future change, the report’s authors conclude.