“Family Separation” Continues Under Biden

 The Texas Observer reported recently that the Biden administration is continuing a policy that he derided as a candidate and purportedly ended (at a huge cost to taxpayers) as president-"family separation" of migrant adults and children who entered as "family units" (FMUs). There is a lot of emotion in that article, but enough facts to get a sense of what's going on.

The Flores Settlement Agreement

• To govern the terms of detention and release of minors in immigration custody, DOJ and a class of plaintiffs entered into what is now known as the “Flores settlement agreement” in 1997
• The agreement was originally applicable only to unaccompanied children
• In August 2015, however, Judge Dolly Gee issued a decision finding that the Flores settlement agreement applied to accompanied children who had entered in “family units”
• This caused an increase in apprehensions of migrants in family units
• After the decision was issued, there were nearly 77,700 family unit apprehensions

"Zero-Tolerance" and "Family Separation"

• In April 2018, Attorney General Jeff Sessions announced a zero-tolerance policy for criminal illegal entry, under which all or most aliens who entered illegally were to be prosecuted under section 275 of the INA.
• Previously accompanied children in those FMUs became "unaccompanied children" and were sent to Department of Health and Human Services (HHS) shelters under a 2008 law limiting their detention in DHS custody.

The Fallout

• Due to public outcry over (and poor implementation of) the zero-tolerance policy, President Trump ended it by executive order (EO) in June 2018.
• The day after that EO was issued, DOJ filed an application for relief from the Flores settlement agreement. Judge Gee denied the application.

Bottom Line

• In 2019, Border Patrol apprehended almost 473,700 migrants in family units at the Southwest border, a more than 340 percent increase over the then-record number the year before
• Family separation quickly became a political issue following a Trump administration request for migrant detention funding in mid-2019

When children are locked away in overcrowded detention centers and the government seeks to keep them there indefinitely

• From the start of the new administration to August 2022-the latest month for which data has been published-U.S. authorities have reported at least 372 cases of family separation.
• There are likely other such instances.

CDC orders issued under Title 42 of the U.S. Code, which direct the expulsion of illegal entrants to stem the introduction and spread of COVID-19.

• As amended by the Biden administration, those Title 42 orders excluded children, but not adults
• Other grounds for separation cited by the outlet include prosecution of the accompanying adult for illegal entry or reentry, health problems, questions about maternity or paternity, or criminal allegations against the parents

Bottom Line

• Ending family separation at the Southwest border was a key priority for Joe Biden. Despite that, the practice apparently continues, albeit at a lower rate than under the Trump administration.
• That may be due in part to miscommunications between line agents and political decisionmakers, but it's also likely the result of reasonable concerns about the safety and welfare of migrant children.

https://cis.org/Arthur/Report-Family-Separation-Continues-Under-Biden