June 20, 2018


Legal Considerations for Separating Families at the Border (Carrie Cordero, June 19, 2018, LawFare)

Based on the information publicly available so far, and given the lack of written guidance for agents on the front lines to follow, agents separating families in order to achieve the goal of 100 percent prosecution may be operating in a legal gray zone. As far as can be discerned from public reports, Attorney General Jeff Sessions and the homeland security secretary have not provided the workforce with official guidance explaining the legal basis on which they are removing children from their parents for sustained periods of time. While attention has been given to how parents can locate their children, the equally if not more compelling argument against the policy is the right of the child to be reunited with the parent.

The executive has strong legal authorities at the border to regulate who may enter the country. But once allowed entry into the United States, migrant children have rights under the Constitution. Public reporting indicates that children are being detained for in-processing; held in confinement for days, weeks or months; and relocated to foster care--all the while unaware of when or if they will be reunited with a parent. It is not known whether the Justice Department's Office of Legal Counsel has issued an opinion outlining the parameters of when children may be separated from their parents. So the first issue is whether there actually is a constitutional theory for lawfully detaining these children for sustained periods.

Generally, in a law enforcement context, families are separated when an adult is arrested or convicted of a crime, if the penalties involve jail time. (With the revocation of Paul Manafort's bond on Friday, the country has also re-familiarized itself this week with pre-trial detention.) But in these circumstances, due process has been provided: a complaint has been filed, a grand jury has indicted, or a judge has issued a warrant or heard evidence supporting the argument for detention. Moreover, when a parent is arrested for a crime, the government does not place the child in a government facility or in foster care unless the child has no other parent or family member, or is in danger, or removal is otherwise deemed to be in the child's best interests. The key determining factor is that the treatment should be in the best interests of the child.

Greater attention should be given to whether there are even any legitimate constitutional grounds for removing a child from a parent--for days to weeks to months without end--in the context of enforcing a misdemeanor illegal-entry law. On even less firm ground is the ability of the government to place a child in foster care absent a best-interest-of-the-child analysis, which is most appropriately conducted by a neutral magistrate. And, to be clear, there is no statutory requirement to separate children from their parents. 

Posted by at June 20, 2018 4:18 AM