Separating families at the border: A bad idea that's probably legal

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Story highlights

  • When children are with their parents or guardians, it's hard to make an argument for any separation, Danny Cevallos says
  • Cevallos: But it has been done before, until Congress stopped it in 2006

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)The Department of Homeland Security is considering a proposal to separate parents and children at the border.

Before the criticism of this policy gets too loud, we should be aware: We've done this before.
Up until 2006, Immigration and Customs Enforcement routinely detained parents and children separately, placing children in shelters and parents in detention centers or state and county jails.
Disappointed? So was Congress, when it found out about this practice. The House Committee on Appropriations promptly directed DHS to stop separating migrant families, to release them or use alternatives to detention whenever possible. The committee also insisted, if detention was necessary of a family unit, that DHS use appropriate detention space to house them together.
DHS' response was to detain children together with their parents, with everyone in jail-like settings, flouting Congress' specific directions. While new facilities have come and gone since 2006, the practice of detaining families continues.
As recently as summer 2014, ICE commenced a blanket policy to detain all female-headed families and children in secure [unlicensed] facilities while proceedings determined whether they would be allowed to stay.
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As a country, we've separated families and detained children and their parents plenty of times before now. It's a no-win situation for any administration. Here's why: Children may enjoy special status under international and American law when it comes to immigration that adults do not.
If the child has special rights that adult parents do not, what good are those special rights if the result is isolating the child from those adults? The very status protecting the child becomes the same thing harming the child, and causing isolation.
It gets even more challenging for the government: What about the distinction between "unaccompanied" minors and accompanied minors? It's not always easy to tell which children are traveling with bona fide family members, and which are victims of human trafficking or being "rented" so an unscrupulous adult could benefit from the child's protected status.
If the government determines a minor is accompanied but "unaccompanied" because the person traveling with them is not a family member and is possibly their captor, then there are compelling reasons for separating the child from that adult. It won't always be easy to make that determination if a family is traveling without identification.
Trying to even come up with an official policy to determine how to handle the situation is similarly fraught with peril. We can't just look at a child and an adult to figure out if they are blood-related. Nor could there be a policy of separating a child from a "particularly seedy-looking" adult, as opposed to one who looks "parental."
Unquestionably, some separation of children from adults is required in specific instances.
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But in the case of children that are known to be accompanied by their parents or guardians, it's hard to make an argument for any separation. Despite the clamor of international law and domestic cases, sometimes accompanied children should probably be detained with their families. If the adult must be detained, then the best interests of the child must weigh in favor of detention with the parent, rather than giving an 11-year-old a bus token and releasing him in Dilley, Texas.
In the case of an almost-adult child, with plenty of family members in the United States, release to family members might be in that child's best interest. It would avoid detention and promote reunification.
It won't surprise lawyers, social workers, and those who work with children to hear that familiar, yet amorphous standard: the "best interests" of the child.
Along with family and juvenile law, human rights and international law take the "best interests" of the child as a primary consideration with regard to the duration and conditions of detention.
The problem is, the "best interests" standard by its nature is undefined. One law professor taught the "best interests" standard this way: If you have a bar exam question on this topic, just write "best interests of the child" in the first sentence ... and then write whatever the heck you want after that.
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But can the best interests of an immigrant child override national security concerns, if DHS insists that separating children is necessary for safety? Probably not. The executive branch likely enjoys the power to separate immigrant children from their families, or detain those families altogether. There are various consent decrees and congressional mandates supposedly preventing this, but to even try to enforce them has required extensive litigation by advocates and organizations.
Ultimately, the administration and DHS can probably separate children from their parents at the border. As much as the practice may be criticized, other administrations have done it before, and recently.