The Attorney General's April 2018 "zero tolerance" memo on prosecuting immigration-related offenses prompted federal officials to increase the rate of family separations, placing considerably more children in Office of Refugee Resettlement custody. In June, a federal judge ordered reunifications.
In October 2018, we reported on what the Departments of Homeland Security and Health and Human Services were doing about these events. This testimony updates that report and provides new data from the government on the number of children subject to the reunification order and the number of children in custody as of December 11, 2018.
Number of children in Office of Refugee Resettlement custody who were potentially separated from a parent at the border, and the number released as of September 2018 and December 2018
Bar chart showing 437 in custody and 2,217 released as of September; 159 in custody and 2,657 released as of December
What GAO Found
Department of Homeland Security (DHS) and Department of Health and Human Services (HHS) officials GAO interviewed said the agencies did not plan for the potential increase in the number of children separated from their parent or legal guardian as a result of the Attorney General's April 2018 “zero tolerance” memo because they were unaware of the memo in advance of its public release. The memo directed Department of Justice prosecutors to accept for criminal prosecution all referrals from DHS of offenses related to improper entry into the United States, to the extent practicable. As a result, parents were placed in criminal detention, and their children were placed in the custody of HHS's Office of Refugee Resettlement (ORR). DHS and ORR treated separated children as unaccompanied alien children (UAC)—those under 18 years old with no lawful immigration status and no parent or legal guardian in the United States available to provide care and physical custody.
Prior to April 2018, DHS and HHS did not have a consistent way to indicate in their data systems children and parents separated at the border. In April and July 2018, U.S. Customs and Border Protection's Border Patrol and ORR updated their data systems to allow them to indicate whether a child was separated. However, it is too soon to know the extent to which these changes, if fully implemented, will consistently indicate when children have been separated from their parents, or will help reunify families, if appropriate.
In response to a June 26, 2018 court order to quickly reunify children separated from their parents, HHS determined how many children in its care were subject to the order and developed procedures for reunifying these families. As of September 2018, the government identified 2,654 children in ORR custody who potentially met reunification criteria, which does not include separated children released to sponsors prior to the June 2018 court order. On July 10, 2018, the court approved reunification procedures for the parents covered by the June 2018 court order. This July 10, 2018 order noted that ORR's standard procedures used to release UAC from its care to sponsors were not meant to apply in this circumstance, in which parents and children who were apprehended together were separated by government officials. Since GAO's October 2018 report, the government identified additional children separated from parents subject to the court's reunification order and released additional children from its custody (see figure).
Number of Possible Children of Potential Class Members Who Were Released from Office of Refugee Resettlement (ORR) Custody and Remaining in ORR Custody as of September 10, 2018 and December 11, 2018
Note: GAO did not independently verify the accuracy of these data.
Why GAO Did This Study
On April 6, 2018, the Attorney General issued a memorandum on criminal prosecutions of immigration offenses. According to HHS officials, this resulted in a considerable increase in the number of minor children whom DHS separated from their parents after attempting to cross the U.S. border illegally. On June 20, 2018, the President issued an executive order directing that alien families generally be detained together, and on June 26, 2018, a federal judge ordered the government to reunify separated families. DHS is responsible for the apprehension and transfer of UAC to HHS. HHS is responsible for coordinating UAC placement and care.
This testimony discusses DHS and HHS (1) planning efforts related to the Attorney General's April 2018 memo, (2) systems for indicating children were separated from parents, and (3) actions to reunify families in response to the June 2018 court order. It is based on a report GAO issued in October 2018. This testimony also includes updated data reported by the government on the number children separated from their parents subject to the court's reunification order and the number of those children in ORR custody as of December 11, 2018.
GAO recommended in 2015 that DHS and HHS improve their process for transferring UAC from DHS to HHS custody. DHS and HHS concurred and have taken action, but have not fully implemented the recommendation.