Zero Tolerance Family Separation: 5,500+ Children Separated at the Border
The zero tolerance policy was the direct cause of mass family separations: parents were referred for criminal prosecution, children were taken to Office of Refugee Resettlement shelters, and the two systems — criminal justice and child welfare — did not have adequate mechanisms to track and reunite families. Senior administration officials including Chief of Staff John Kelly had discussed using family separation as a deterrent as early as 2017. Trump publicly and repeatedly denied a family separation policy existed while it was operating. A federal court ordered family reunification; the government struggled to comply, partly because adequate records had not been kept linking children to parents.
Record summary
Grade
Grade 4 of 5: Critical Rights and Rule-of-Law Concern
Systematic actions that undermine fundamental constitutional or international legal protections at the structural level. Scale and definitions
- Status
- Concluded
- Incident date
- Record updated
- Location
- U.S.-Mexico border
- Category
- Deportation to Torture
- Legal posture
- Judicial finding
- War-crime classification
- Probable
- Verification
- Independently verified
- ICC relevance
- No
- Sources
- 4 cited
- Stable ID
trump-first-term-family-separation-policy- Victims
- 5,500+ children separated from parents; parents subjected to criminal proceedings and deportation without their children; children held in facilities described in government inspections as overcrowded and inadequate; 500+ children still separated by October 2020, some with deported parents who could not be located
- Alleged responsible parties
- Donald Trump, President; approved the zero tolerance policy; publicly denied a policy existed while it was operating; reversed the policy by executive order after public pressure; administration then failed to comply with court-ordered reunifications— White House
- Jeff Sessions, Attorney General; formally announced the zero tolerance policy on April 6, 2018; cited Biblical scripture in defending it; directed U.S. Attorneys to prosecute all illegal border crossings— U.S. Department of Justice
- Kirstjen Nielsen, Secretary of Homeland Security; initially denied family separations were a policy; later acknowledged the policy while defending it; resigned April 2019— Department of Homeland Security
Key points
- The family separation policy was discussed internally as a deterrence strategy as early as March 2017 — more than a year before its formal announcement; DHS Secretary Kelly told reporters in March 2017 that separating families was 'a tough deterrent'; the policy was explicitly designed to inflict suffering on families as a mechanism to discourage future migration
- The zero tolerance policy prosecuted all adults apprehended crossing the border irregularly, including asylum seekers exercising legal rights under U.S. and international law to request protection; asylum seekers had their children taken from them when they presented at or between ports of entry, regardless of the validity of their asylum claims
- Administration officials including Nielsen publicly denied a family separation policy existed while the separations were actively occurring; Nielsen stated at a press briefing that she was 'not familiar with' reports of children being separated; contemporaneous records, court documents, and the OIG later confirmed systematic separations were occurring across border sectors
- A federal court (Ms. L. v. ICE) ordered the government in June 2018 to reunite all separated families within 30 days for children under 5 and within 45 days for older children; the government failed to comply on schedule because adequate records linking children to parents had not been maintained; some parents had been deported before reunification could occur
- By October 2020, more than 500 children from the zero tolerance period remained separated; the parents of at least 545 children could not be located by government lawyers; many parents had been deported to Guatemala, Honduras, or El Salvador — with their children remaining in the United States — and contact information had been lost or never collected
- Children held in Border Patrol facilities before transfer to ORR shelters were documented in government inspections as overcrowded, cold, without adequate food, sleep, or hygiene facilities; some children described not showering for weeks; a government report found children as young as infants were held in inadequate conditions while being processed
Overview
The administration designed a policy to take children away from their parents as a means of discouraging migration. Officials had discussed it as a deterrent for more than a year before announcing it. When it was operating, administration officials denied it existed. When it was reversed, records adequate to reunite the families had not been kept.
Five years later, more than 500 children were still separated. Some of their parents could not be found. They had been deported to Central America without their children, and the contact information had been lost.
The Design
The family separation policy was not an accidental consequence of the zero tolerance directive. Internal documents and public statements from 2017 confirm it was discussed as a deterrent. DHS Secretary Kelly said publicly in March 2017 that separating families was "a tough deterrent" being considered. The goal was to inflict enough suffering on families that others would not attempt to cross.
This is the stated purpose. The policy was designed to cause suffering to achieve a deterrent effect.
The Denial
When separation was operating at scale — thousands of children processed, transferred to ORR shelters, separated from their parents across the border — DHS Secretary Nielsen told a press conference she was "not familiar with" reports of children being separated. The statement was false. The separations were occurring in every border sector. The government's own records documented them.
Trump simultaneously told the press the separations were the Democrats' policy, not his. Sessions cited Romans 13 in defense of the directive he had signed.
The Records Failure
When a federal court ordered reunification, the government could not comply on schedule because adequate records linking children to parents had not been maintained. The criminal prosecution system and the child welfare system were not designed to work together and had not been integrated before the policy was implemented.
Parents were deported before reunification could happen. Some had their children's contact information, some did not. Government lawyers were eventually unable to locate the parents of more than 500 children.
No one was held accountable for the failure to maintain records. The children remained separated.
International law engaged
| Instrument | Provision | What it protects or prohibits |
|---|---|---|
| Convention on the Rights of the Child | Article 9 | Prohibits separation of children from parents except when determined by competent authority to be in the child's best interest; mass separation as immigration deterrent with no child welfare determination for each case violates this standard |
| International Covenant on Civil and Political Rights | Article 17 / Article 23 | Protection of family from arbitrary interference; using family separation as a policy deterrent constitutes arbitrary interference with family unity for persons asserting legal asylum claims |
Update log
-
Updated with 545-children finding and ongoing reunification failures.
Sequence of events
-
DHS Kelly publicly mentions family separation as deterrent
DHS Secretary Kelly tells reporters that separating children from parents at the border is 'a tough deterrent' being considered. Internal discussions about using family separation as immigration policy begin more than a year before formal announcement.
-
Sessions announces zero tolerance — separations begin at scale
AG Sessions formally announces zero tolerance policy directing prosecution of all illegal border crossings. Because children cannot be held in criminal detention, separations begin systematically. By June, more than 2,300 children have been separated.
-
DHS Nielsen denies separation policy exists
DHS Secretary Nielsen states at a press conference she is 'not familiar with' reports of family separations and denies a policy exists. Thousands of children are separated at this time. The statement is false.
-
Trump signs executive order reversing policy — acknowledges it existed
After sustained public pressure and bipartisan Congressional outrage, Trump signs an executive order directing families to be kept together. The order acknowledges the separation policy had been operating. A federal court had already ruled the separations unlawful in Ms. L. v. ICE.
-
Federal court orders reunification — 30 days for under-5, 45 for others
Federal Judge Dana Sabraw orders full reunification of all separated families, with 30-day deadline for children under 5 and 45 days for older children. The government misses the deadlines; records linking children to parents are inadequate.
-
Lawyers cannot find parents of 545 separated children
Court filings reveal that government lawyers cannot locate the parents of at least 545 separated children. Many parents were deported without their children. Contact information was not collected or was lost. The reunification process is still ongoing.
Sources
- Hundreds of Immigrant Children Have Been Taken From Parents at U.S. Border — The New York Times
- Trump officials talked of using family separation as deterrent in 2017 — The Washington Post
- Separated families: More than 500 children still not reunited years later — The Associated Press
- Separated Children Placed in Office of Refugee Resettlement Care — HHS Office of Inspector General