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Family Separation Continuation: Violating Federal Court Orders to Reunify Families

A federal judge in the ACLU's Ms. L. v. ICE case ordered the government to reunify all separated families within 30 days. The administration missed the deadline, admitted it lacked a tracking system, and was repeatedly held in contempt. Parents were deported without their children; children were 'lost' in the system; in some cases children remained in U.S. custody for years after their parents had been removed to their home countries. The ACLU's family tracking project located hundreds of deported parents who didn't know where their children were.

Record summary

Grade

Grade 5 of 5: War Crime / Crime Against Humanity

Conduct that satisfies the legal elements of a war crime under the Rome Statute (Article 8), a crime against humanity (Article 7), or genocide (Article 6). Scale and definitions

Status
Concluded
Incident date
Record updated
Location
U.S.-Mexico border; immigration detention facilities nationwide
Category
Deportation to Torture
Legal posture
Judicial finding
War-crime classification
Confirmed
Verification
Independently verified
ICC relevance
Yes
Civilian casualties
0
Sources
5 cited
Stable ID
first-term-family-separation-court-order-violation
Victims
628+ children whose parents remained unlocated at the end of Trump's first term; thousands of children who experienced traumatic separation; parents deported without their children
Alleged responsible parties
  • Donald Trump, President of the United States— White House
  • Kirstjen Nielsen, Secretary of Homeland Security— DHS
  • Stephen Miller, Senior Advisor; architect of family separation policy— White House

Key points

  • A federal district court in the ACLU's Ms. L. v. ICE case issued an injunction in June 2018 ordering the government to stop separating families and reunify all separated children within 30 days for children under five and 45 days for all others
  • The government admitted in court it had no tracking system that could identify all separated children — 'There is no government or HHS database that lists all of the separated children'
  • The Congressional Oversight report found more than 5,500 children were separated from 2017 through 2021 — far more than the administration had publicly acknowledged
  • Separations continued after the official end of Zero Tolerance under new justifications — including separating children from parents deemed to be unfit or with criminal records, a policy with an extremely broad definition
  • The Biden family reunification task force, created in February 2021, reported that as of October 2021, the parents of 628 children had still not been located; some had been deported and severed contact
  • A federal judge held the administration in contempt multiple times for failing to comply with reunification orders; the government was repeatedly unable to demonstrate compliance

Overview

The official end of Zero Tolerance family separation in June 2018 did not reunify the families that had already been separated. It did not even stop new separations under different policy justifications. And the administration's repeated failure to comply with the federal court order to reunify families — its inability to even provide the court with a complete accounting of who had been separated — represented a profound failure of government accountability.

The court didn't ask for a policy change. It issued an injunction. The government's response was to miss deadlines, claim it lacked the records, and continue separating families under different names.

The Tracking Failure

Perhaps the most damning admission in the Ms. L. v. ICE litigation was the government's concession that it had no tracking system. When a federal court asked how many children had been separated and where their parents were, the government could not answer. Information was scattered across HHS's Office of Refugee Resettlement, ICE, and CBP — and nobody had built a system to connect them.

The Congressional Oversight Committee's investigation later found that the administration had separated more than 5,500 children between 2017 and 2021 — a number significantly higher than the 2,800 the administration had cited when defending or explaining the policy.

Deported Without Children

The gravest dimension of the tracking failure was what it meant for deported parents. Some parents were removed from the United States before their children's cases were resolved. Some did not know which facility their child was in. Some lost contact with children in U.S. government custody entirely.

The Biden family reunification task force — created as one of the first actions of the new administration — reported in October 2021 that the parents of 628 children had still not been located. These were not cases where families had been separated and lost track of each other by choice. They were cases where the U.S. government's inadequate records had made it impossible to know where to look.

International law engaged

InstrumentProvisionWhat it protects or prohibits
Convention on the Rights of the ChildArticles 3, 9Best interests of the child must be a primary consideration; children shall not be separated from parents against their will except when necessary for the child's best interests — separation as a deterrent violates this standard
Convention Against TortureArticle 16Prohibition on cruel, inhuman, or degrading treatment — forcible family separation and prolonged separation constitutes cruel and degrading treatment of both children and parents
Geneva Convention IVArticle 27Family unity — protected persons must be permitted to maintain contact with their families

Update log

  1. Updated with Biden task force findings on remaining unlocated parents.

Sequence of events

  1. Trump executive order ends official Zero Tolerance separation

    Facing bipartisan political backlash and a growing crisis, Trump signs an executive order purportedly ending family separation. The order does not mandate reunification of already-separated families.

  2. Federal court orders reunification

    Judge Dana Sabraw of the Southern District of California issues an injunction ordering the government to stop all family separations and reunify separated children — children under 5 within 30 days, all others within 45 days. The ACLU's lawsuit (Ms. L. v. ICE) is the vehicle.

  3. Government misses reunification deadline — 711 children remain separated

    The 45-day deadline passes with 711 children still separated. The government informs the court it has successfully reunified 1,442 children but asks to exclude hundreds of cases it says are ineligible for various reasons. The court rejects many of the exclusions.

  4. Government admits no tracking system

    In court filings, government lawyers confirm what advocates had suspected: there is no comprehensive database linking separated children to their parents. The information is spread across multiple agencies (HHS/ORR, DHS/ICE, CBP) with no unified tracking.

  5. IG: More separations than reported; separations continued

    The DHS Inspector General confirms that family separations under various policies continued after the official end of Zero Tolerance. The IG cannot determine the total number of children affected because of the tracking failures.

  6. 545 children's parents still unlocated

    The ACLU informs the court that the parents of 545 separated children remain unlocated; many were believed to have been deported to their home countries. The news generates widespread coverage in the final weeks of the 2020 election.

  7. Biden creates family reunification task force

    One of Biden's first executive orders creates a task force to reunify families separated under Trump. The task force ultimately reports that the parents of 628 children had still not been located as of October 2021.

Sources

  1. Ms. L. v. ICE — Case Documents — ACLU
  2. 545 Migrant Children Still Separated From Their Parents, ACLU Says — The New York Times
  3. Government admits it lacks a system to reunify separated families — The Washington Post
  4. Biden task force finds 628 children's parents still not located — The Associated Press
  5. Report: Trump Administration Separated More Than 5,500 Children — House Committee on Oversight and Reform

How this record was published

Manually curated This entry was added directly and does not carry an automated audit trail.

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