The Trump Administration's "Zero Tolerance" Immigration Enforcement Policy

For the last decade, Central American migrant families have arrived at the U. S.-Mexico border in relatively large numbers, many seeking asylum. While some request asylum at U. S. ports of entry, others do so after entering the United States "without inspection" (i.e., illegally) between U. S. ports of entry. On May 7, 2018, the Department of Justice (DOJ) implemented a "zero tolerance" policy toward illegal border crossing both to discourage illegal migration into the USA and to reduce the burden of processing asylum claims that Trump Administration officials contended are often fraudulent. Under the zero tolerance policy, DOJ prosecuted all adult aliens apprehended crossing the border illegally, with no exception for asylum seekers or those with minor children. DOJ's policy represented a change in the enforcement of an existing statute rather than a change in statute or regulation. Prior administrations had prosecuted illegal border crossings relatively infrequently. The widely publicized family separations were a consequence of the Trump Administration's zero tolerance policy, not the result of an explicit family separation policy. Following mostly critical public reaction, President Trump issued an executive order on June 20, 2018, mandating that DHS maintain custody of alien families during the pendency of any criminal trial or immigration proceedings. DHS Customs and Border Protection (CBP) subsequently stopped referring most illegal border crossers to DOJ for criminal prosecution. A federal judge then mandated that all separated children be promptly reunited with their families. Another rejected DOJ's request to modify the FSA to extend the 20-day child detention guideline. DHS has since reverted to some prior immigration enforcement policies, and family separations continue to occur based uponDHS enforcement protocols in place prior to the 2018 zero tolerance policy. On January 26, 2021, during the first month of the Biden Administration, the Department of Justice formally rescindedthe zero tolerance policy. During the six weeks the policy was active, DHS separated 2,816 children-subsequently included in a class action lawsuit-from their parents or guardians. Almost all have since been reunited with their parents or placed in alternative custodial arrangements. In 2019, DOJ disclosed the separations of an additional 1,556 children prior to the zero tolerance policy but also during the Trump Administration who were included in the lawsuit class. As of December 2020, asteering committee assembled to locate separated children in this second group had not yet established contact with the parents of 628 children. In the period since the zero tolerance policy was effectively paused in June 2018, at least 1,000 additional children were separated, bringing the total reported number of separated children to between 5,300 and 5,500. Trump Administration officials and immigration enforcement advocates argued that measures like the zero tolerance policy were necessary to discourage migrants from coming to the United States and submitting fraudulent asylum requests. They maintained that alien family separation resulting from the prosecution of illegal border crossers mirrored that which occurs regularly under the U. S. criminal justice system policy where adults with custody of minor children are charged witha crime and may be held in jail, effectively separating them from their children. Immigrant advocates contended that migrant families were fleeing legitimate threats from countries with exceptionally high rates of gang violence, and that family separations resulting from the zero tolerance policy were cruel, unconstitutional, and violated international law.