The conversation we should be having about child separation

Getty Images

The shameful treatment of children at the U.S.-Mexico border stirs up powerful emotions. Yet there is an important conversation that could be occurring, but is not. It is about the efforts that the courts have made to compensate for paralysis in Congress over comprehensive immigration reform and our corner of the global migration crisis. Another shame is that our politicians would prefer to score debating points, rather than to discuss what is really at stake. So here are a few things worth thinking about.

The current policy on family detention dates to a 1997 Ninth Circuit case, Flores v. Reno, which was settled with a consent decree that set limits on the detention of minors apprehended at the U.S. border.  In 2016, in Flores v. Lynch, the consent decree was clarified to indicate that the policy applied equally to accompanied and unaccompanied minors; neither group could be held for more than 20 days. The ruling meant that unless a suitable placement could be found for a minor who came across, either alone or with an adult seeking asylum, both adult and child had to be either released or returned to their country of origin.  

{mosads}The Obama administration at various times took both approaches. The Trump administration, with its articulated “zero tolerance policy,” is prosecuting the misdemeanor of a first offense for illegal entry (or the felony of a second offense) in every case. This means separating children from their parents while the latter await prosecution and removal. As of today, according to the Department of Homeland Security (DHS), more than 2,000 children have been separated from their parents at the border.


The pose that President Trump and his apologists have taken is that their hands are tied by policies allegedly enacted by prior administrations. Or, they blame the courts, as Attorney General Jeff Sessions did in a speech to Montana police officers on June 7. “Because of the Flores consent decree and a Ninth Circuit Court decision,” he claimed, “ICE can only keep families detained together for a very short period of time.”

There is an answer to this crisis, if the administration wants one. Sessions is the attorney general of the United States, as Reno and Lynch were before him, and it is his Justice Department that is a party to that consent decree. It could go back to the Ninth Circuit and request modification of the injunction, to allow families to be detained together pending processing. This would by no means be a happy situation, but far better than the horror of ripping children from their parents in the name of “deterrence,” or because the parents are going to be held in a detention facility pending disposition of the criminal charge and deportation.  

The same facilities housing these children could be utilized for family detention, much as the South Texas Family Residential Center (or “Dilley”) and other locations were used during the Obama years. Right now, the situation is so chaotic that it is unclear whether children separated from parents will be united with them in weeks, months, or longer. They could wind up in different countries.

And in many cases, the parental claims for asylum are far from frivolous. According to data from the Migration Policy Institute, the vast majority of recent border crossers are not coming from Mexico. They are fleeing El Salvador, Honduras and Guatemala, three of the most violent countries in the hemisphere, where gangs use rape and sex trafficking to intimidate and control.

When DHS officials blame these parents for asking their children to join them on a “dangerous smuggling route,” they disregard the wrenching choices faced — should a terrified young mother leave her children behind as she makes a risky journey to avoid sexual violence or death, knowing that the brutal thugs in her home community may avenge her departure on her young children? Or, should she risk bringing them with her, where at least she has the hope that she can protect the one thing more precious to her than her own life?

Some at DHS further argue that if children provide a “get out of jail free” card, the coyotes will simply kidnap kids to accompany the people they are trafficking. There is a simple answer to this supposed concern: if there is any doubt about whether a child is related to an asylum seeker, a maternity or paternity test, costing $99 or less, turns around in 24 hours. They are even available at Walmart and most large drug stores. Too bad the kids being separated by DHS today are held at empty big box stores. If that store were in business, we could settle with actual facts one of the many pretexts that masquerade as answers for these tiny victims of the brutal political battle over migration.

And one last recommendation for a real solution, focused on root causes: the president who prides himself as a builder and developer might give some thought to real development aid in the countries from which these victims are fleeing. Jobs, income and hope for a better future are better deterrents than cruelty.

As we see in Colombia, a country which successfully threw off the yoke of the drug cartels through Plan Colombia (with aid from the United States), there is a role for our nation in assisting other countries in our hemisphere, and by doing so, offering an alternative to the despair that envelops so many of our neighbors beyond Mexico’s southern border.  

Meryl Chertoff is executive director of the Aspen Institute Justice and Society Program. The Institute’s publication,“Pluralism in Peril,” explores how America can maintain its historical commitment to embracing people of all faith backgrounds against a backdrop of polarization.

Tags Asylum seeker Child custody Donald Trump Jeff Sessions Unaccompanied minor United States Department of Homeland Security

More Immigration News

See All

Most Popular

Load more


See all Video