There are two principal ways that arriving asylum-seeking family members are split apart:

Some families are split up during their journey to the United States. The family members may arrive in the country separately, be apprehended separately by CBP, and be subject to different Immigration and Customs Enforcement (ICE) custody determinations. Other families arrive in the United States together. They are apprehended together by CBP, and then are split through the process of ICE custody determinations.

This report focuses on the second way that families are divided. It should be noted that U.S. immigration policy and enforcement fractures families in a number of other ways that fall outside the scope of this report. The fear of separation hangs over an estimated nine million children in mixed-status families living in the United States. “Mixed-status” refers to families made up of a combination of citizens and noncitizens that are vulnerable to interior immigration enforcement, detention, and deportation. Further, many of the Central American families arriving today are already fragmented across borders—meaning that some family members have been living in the United States, often for many years, while others have remained in Central America. Depending on their own immigration status, those living in the United States may be ineligible to petition for their family members to join them, or they may face long waits—leading to prolonged separation or precluding reunification altogether.

CBP separates families in its holding cells

For asylum-seeking families who arrive in the United States together and who are apprehended together, the first point of separation is likely to be CBP’s temporary detention facilities near the U.S.-Mexico border. These holding cells—which are designed for short-term custody of 12 hours or less, yet regularly detain people for days at a time—are commonly referred to by guards and detainees alike as hieleras [iceboxes] or perreras [dog kennels] because of their frigid temperatures and harsh conditions. Detainees are first taken to the hielera, which they describe as extremely cold, overcrowded, and unsanitary. They are denied showers and supplies like soap, diapers, sanitary napkins, and sufficient toilet paper. At night, the lights stay on while detainees sleep on the floor or benches without bedding. They are denied medical care and given inadequate meals and drinking water. Detainees are isolated from their loved ones, their consulate, and legal counsel. They report abusive and coercive behavior from CBP officers, such as pressure to accept their deportation. Some detained families are subsequently taken to the perrera for an additional day, or even for several more days.

It is in this frigid and coercive climate that asylum-seeking families report being separated by gender and age. The women interviewed described the painful experience in the hielera as the beginning of a prolonged and indefinite separation from their husbands or partners, from other adult relatives, and from minor relatives who are not their biological children. Below, Wendy recounts her experience:

We were walking when the Border Patrol caught us. From there, they separated my son and I and put us in one place, and my partner in another, and from there I did not see [my partner] again…My son was sick in the hielera, and I asked for help from an official that was there. I said, “Listen, my son has a fever.” “Wait, the doctor will come,” [he said], but the doctor never came. The other people even complained that it was too cold, and what they did was put the [air-conditioning] on stronger. – Wendy

In the CBP holding cells, interviewees also reported being separated temporarily from their children around the age of 11 and older, whom CBP placed in a separate area with other children roughly their age. To date, CBP has not responded to a Freedom of Information Act (FOIA) request submitted by the author in March 2016 inquiring into the agency’s policy on separating family members in the holding cells. The interviewees separated from their minor children report being eventually reunited and transferred together to a long-term family detention center. Their adult relatives, on the other hand, were eventually transferred to separate adult facilities, as Mariana’s family experienced:

When we arrived [in the United States], I am not sure where because I am not familiar, but they took us to the hielera. There, they separated us—men on one side, and then my mom, my sister, my daughter, and I. Later, they took only my baby and me to another hielera. I am not sure where. They moved us there with my husband. Later, but that same day, my mom and sister arrived. We spent a whole day there, and a night. Then, that day if I am not mistaken, they sent me to a perrera…From that day on, I did not see my mom, or my husband, or anyone in my family—it was just my daughter and me. – Mariana

The CBP holding cells can also mark the beginning of a lengthy separation of children from their caretakers who are not their biological parents. Daniela traveled to the United States with her two daughters and her eight-year-old nephew. In the hielera, officers removed her nephew from her care, and eventually sent him into the custody of the Office of Refugee Resettlement (ORR):

When we got to the hielera, they took everything that we had brought with us, and recorded our information again. Then, they told me that “Your nephew cannot stay with you, because he is not your son.” So they took him off to one side, and my daughters and I stayed in the other. From there, I did not see him again. – Daniela

DHS follows a narrow interpretation of family unity

A family’s right to unity is a widely recognized principle under international humanitarian law and international human rights law. Being party to the International Covenant on Civil and Political Rights (ICCPR), the United States has committed to avoiding arbitrary detention and respecting family unity. The 1997 Flores settlement agreement also prioritized family unity—a standard that should guide current DHS custody decisions for arriving asylum-seeking families. Paragraph 14 of the agreement requires the prompt release of minors from detention following an individualized determination that they do not pose a flight risk, or a risk to others or themselves. The minor should be released with first preference to a (A) parent, (B) legal guardian, (C) adult relative, (D) other adult/entity designated by the parent or legal guardian, (E) licensed program, or (F) another adult/entity seeking custody. Paragraph 18 also requires that the former Immigration and Naturalization Service (INS—the predecessor agency of DHS) should make and track its expedient efforts to release and reunify minors with their family.

Although DHS has disputed whether the Flores agreement applies to accompanied minors, as opposed to unaccompanied minors, U.S. District Judge Dolly Gee argued in July 2015 that it does—a finding that the U.S. Court of Appeals for the Ninth Circuit affirmed in July 2016. Judge Gee also concluded that DHS compliance with Paragraph 14A of the agreement would require DHS to release minors to their parents whenever possible, including to a parent who is detained with the minor, which would favor the release of that parent. The Ninth Circuit disagreed with that interpretation. Nonetheless, this exchange demonstrates DHS’ tendency to push for a narrow interpretation of the agreement.

An April 2016 FOIA response received by the author states that ICE policy within its family detention centers is “to maintain family unity wherever possible.” However, ICE defines the “family unit” narrowly as “a group of detainees that includes one or more non-United States citizen juvenile(s) accompanied by his/her/their parent(s) or legal guardian(s).” As a result, ICE’s detention practices actually work to separate families in many instances, particularly with respect to spouses, older children, siblings, and grandparents who cannot be accommodated in family detention centers.

ICE splits families between long-term detention centers

In practice, the majority of family units that DHS detains together are mothers and their minor children. DHS currently houses family units in three detention centers: the South Texas Family Residential Center in Dilley, Texas; the Karnes County Residential Center in Karnes City, Texas; and the Berks County Residential Center in Leesport, Pennsylvania. Only Berks, which has roughly 88 family beds, accommodates fathers. The approximately 2,900 remaining family-bed capacity, then, is reserved for mothers and their children. The attorneys interviewed for this report identified this reservation of the majority of family bed space for mothers and children as one reason why DHS makes differential custody decisions across asylum-seeking family members. One attorney described her struggle to explain to her clients why the mother and baby in the family were subjected to prolonged detention, while the father and two oldest children were released:

Well, even if immigration had some sort of rationale, but they don't, so you can't explain it because there is no answer, the only way to explain it is to say, “You're right, it makes no sense, and there is no reason why you're here and they're not here.” Or “They had a bed open for you, and they didn't for him, and they needed to fill that bed space.” That's really what it comes down to. – Sara (attorney)

As Antonio Ginatta wrote for Human Rights Watch in a 2014 letter to DHS Secretary Jeh Johnson, “Arbitrariness pervades U.S. immigration detention policy,” contrary to its ICCPR commitments. Ginatta pinpoints two main sources of this arbitrariness: mandatory detention laws and the detention bed mandate. The former INS, and DHS as its successor agency, have maintained broad authority since the enactment of the 1996 immigration laws to detain noncitizens for prolonged periods, with little oversight. Ginatta notes that the decision to detain is often made without consideration of an individual’s flight risk or any risk they may pose to public safety. Through its appropriations decisions, Congress has established that ICE must “maintain a level of not less than 34,000 detention beds.” The bed quota, Ginatta argues, further calls into question whether custody decisions are actually tied to an individual’s specific circumstance. This arbitrariness is hard to miss when trying to make sense of differential DHS custody decisions across the same family, such as that of Rosa.

Rosa's Family

In June 2015, Rosa and her two youngest sons—ages 7 and 3—spent several days together in a packed hielera. At night, they found a patch of bare floor to sleep on. Like the cell where they were held, the sandwiches they were given to eat were frozen, according to Rosa. CBP apprehended Rosa’s family together, yet in the hielera they held Rosa’s husband and her 11-year-old son in two separate areas. This was the first time the family had been apart, and it was a reception to the United States that Rosa did not anticipate when the family fled gang-related threats in San Salvador:

I never imagined that all this would happen to us. It never crossed my mind. When you are in a difficult situation, all you want to do is get out, running for your life. But we never imagined that we would find ourselves with so many problems. It never crossed my mind that they would separate us.

In the hielera, what worried Rosa the most was the well-being of her three sons. “As an adult,” she explains, “you can tolerate anything, but when your children suffer, this hurts you a lot.” On top of the cold, hard floor that served as their bed, and the painful separation, Rosa reports abusive comments from the CBP officers. “You’ll probably be deported,” they said, and “You shouldn’t be here.” Finally, Rosa was reunited with her 11-year-old son, and without a word as to where they were headed, she was transferred with all three children to the South Texas Family Residential Center. There, Rosa reports slightly improved conditions, “But we were always prisoners. It was like we were in a golden cage. We were always detained, with the uncertainty of what would happen to us.”

By the end of July 2015, Rosa felt a fleeting sense of relief when the Asylum Office gave her a positive credible fear determination, and she was released with her three children and an electronic ankle monitor to pursue her case before the immigration court. Her husband, however, still faced an uphill battle from an adult detention center in Georgia. There, he felt a sense of desperation, bolstered by abusive comments from the officers and his perception that many of his fellow detainees were being deported. Nine months dragged by. Rosa was perplexed. Her entire family had fled El Salvador for the same reason. Ultimately, an immigration judge ordered her husband removed, and in March 2016, the Board of Immigration Appeals (BIA) denied his appeal.

With her husband’s safety upon his imminent return to El Salvador weighing heavily on her mind when she spoke to the author in March 2016, Rosa also worried about how the separation was impacting her sons psychologically. She reported that the younger two cry frequently, and that the oldest had become rebellious. While struggling with her own anxiety and difficulty sleeping, Rosa lamented that she did not yet have work authorization. With this constraint, along with the absence of her husband, she worried about how she will provide for her family.