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What Law Requires Separation of Immigrant Families? 

People have been asking: what federal law requires immigrant parents to be separated from their children?

Here’s the answer: there is no such law.  What you see on the news happening at our borders right now is not required by any current law; it is the result of a zero tolerance immigration policy of our current administration meant to deter future immigrants from coming into the United States seeking asylum or otherwise.  The policy is to immediately put parents into criminal proceedings for crossing our borders without prior approval.  In the past, border crossers may also have been put into criminal proceedings but they – especially if they were first-time crossers or accompanied by minor children – were held in immigration detention facilities and/or released into the United States while they awaited their court dates.  This allowed families to stay together.

Now, as part of the current administration’s plan to deter future immigrants from coming here, all foreigners caught illegally crossing the border – and in many cases also those that legally present themselves at a U.S. port of entry seeking asylum – are to be placed in criminal proceedings and put in jail while they wait for their cases to be processed.  Children cannot accompany criminal defendants to jail, thus the separation of families.

The children, who by law cannot be kept in immigration detention centers for very long, are treated as abandoned, unaccompanied minors and get sent to another federal agency called Office of Refugee Resettlement (“ORR”) where they are put into government orphanage-type facilities or put in foster care while they wait for the government to find a relative or family friend to take the children in.

At the present time, there is no organized plan as to how to reunite these children with their parents when their criminal cases are resolved and they either get sent to immigration detention centers to await their asylum applications or get removed (i.e., deported) from the country.  This results in some children and parents being separated for very long periods of time and has caused some minors to be “lost” in the system, unable to reunite with their mothers and fathers.

In addition to deterring future immigration, the current administration is attempting to use this policy as leverage in their negotiations to amend the current immigration laws to close “loopholes” that allow immigrants to come here claiming asylum and then to be released into the United States while their asylum cases are being processed.  The administration is also demanding that Congress authorize funds to be allocated to building the wall between the United States and Mexico, among other expenses meant to ramp-up and expand the Department of Homeland Security.

If you are attempting to locate your lost children, the Department of Homeland Security advises that you call the ORR at 1-800-203-7001.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.

Immigrant Family Separation: An Update


Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law including U-Visas and wage violations.  She is bilingual in Spanish and can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.

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