Don't Despair: Litigate! The Legal Community’s Response to the Family Separation Crisis & How You Can Take Action.

Amy Daniewicz, Grant Program Administrator - The Impact Fund

Amy Daniewicz, Grant Program Administrator - The Impact Fund

The moral arc of the universe bends toward justice, not cruelty. We strive to love our neighbors, not injure them. We espouse liberty, not captivity. Acts of barbarism in the United States should remain as chapters in the books of history, not the headlines of today. 

Children are being kept in large cages with chain link walls and concrete floors.

Children are being kept in large cages with chain link walls and concrete floors.

One month ago, I wrote about how wrong it is to separate children from their parents at the U.S./Mexico border. At that point the United States had taken several hundred children from their parents. Now that number has risen to more than two thousand. In the short time that has passed, we’ve seen the creation of detention camps and the separation of thousands of families. Children have been placed on buses and sent across the country with no paperwork while their parents are being deported. We’ve seen multiple government agencies scrambling and failing to track and care for the children. We’ve heard some of our leaders call entire groups of people—categorized by their racial, ethnic, and religious backgrounds—vermin and insects, echoing the rhetoric that set Nazi Germany on the path to the Holocaust.

Jeff Sessions' zero tolerance policy has separated over 2,000 children from their parents

Jeff Sessions' zero tolerance policy has separated over 2,000 children from their parents


  • More than 10,000 immigrant children are currently detained in shelters. Nearly 2,000 of those were taken from their parents since the beginning of the “zero tolerance” policy (1).
  • One lawmaker estimated that there are more than 100 children under 6 at one facility in Texas (2).
  • Government officials have now opened a tent city in Tornillo, Texas, to detain children (3)
  • An interview with the executive director of the Children’s Border Project, which works directly with detained families, reported instances of breastfeeding infants being detained, and parents being told that their children were being taken to be bathed, when in fact they were being taken from them (4).
  • The children often don’t know their parents’ full legal names or any other identifying information (4).
  • None of the parents or children have the legal right to an attorney (4).
  • After separation, children and parents are often held in facilities in separate states. In some instances, the government has deported the parent or child, while the other remains in U.S. custody (4).
  • In one of the largest facilities, the children are being kept in large cages with chain link walls and concrete floors (5).
  • The children are given foil-like blankets for warmth (6).
  • In at least one instance, teenage children were caring for a younger, unattended child in their cell, including changing the child’s diapers (7).
  • Siblings are prevented from hugging each other for comfort (8).
  • Workers are prevented from consoling small children who are crying (8).
  • At least one worker has quit in protest of the conditions (8).
  • The President of the American Academy of Pediatrics said the separation is causing long-term damage to the children with a condition called “toxic stress,” which does “irreparable harm” (8).
  • This work is big business: The nonprofit that runs the Texas facility reported income of more than $242 million in 2016, and it paid its CEO a salary of more than $770,000 (9).
Just over a year ago, then Homeland Security Secretary, John Kelly, said parents and children caught crossing the Mexican border illegally wouldn’t be separated unless the “situation at the time requires it.”

Just over a year ago, then Homeland Security Secretary, John Kelly, said parents and children caught crossing the Mexican border illegally wouldn’t be separated unless the “situation at the time requires it.”


The response of civil and human rights advocates has been strategic litigation to remind those in power that they cannot do that, that there is a rule of law, and that it will be enforced. Here is what our allies and grantees are doing:

  • For the separated families, the ACLU Immigrants’ Rights Project has filed a lawsuit (10) challenging the practice of separating children from their parents at the U.S./Mexico border. The judge in Southern California recently issued a preliminary injunction ordering reunification of families. The case is not over yet, however, and still may be appealed. 
  • To reunite families, 17 states (Massachusetts, California, Delaware, Iowa, Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington) have sued the federal government in an effort to reunite migrant families who have been separated. 
  • In support of the above cases, Children’s Rights is coordinating amicus work on the ACLU case and the seventeen-state lawsuit.
  • For asylum seekers, Al Otro Lado, a nonprofit organization based in San Ysidro, California, has filed a lawsuit challenging the government’s practice of turning away people seeking asylum at the U.S. border. “The unlawful rejection of asylum seekers at our borders, family separation, and Sessions' 'zero tolerance' policies are all part of a concerted effort by this administration to abrogate the U.S.' obligations toward asylum seekers under domestic and international law,” said Erika Pinheiro, Policy Director at Al Otro Lado. The Impact Fund has approved a grant to support this case, but Al Otro Lado needs additional funds, both for this case and for their work coordinating legal support for the refugee caravan at the San Ysidro Port of Entry.
  • For violating the Flores Settlement: The Center for Human Rights & Constitutional Law, the National Center for Youth Law, and the Immigration Clinic of the University of California at Davis sued the Office of Refugee Resettlement for violating the Flores settlement. Here is a timeline of that important case.
  • To hold government accountable, in December 2017 the American Immigration Council (AIC) documented cases of family separation in a complaint to the Office for Civil Rights and Civil Liberties and Office of the Inspector General. In April, AIC filed Freedom of Information Act requests asking multiple agencies to produce documents related to family separation policies. Yesterday AIC filed a lawsuit to compel the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE) to release documents including:
    • Agency records detailing methods for separating family members and tracking individual family members after they have been separated.
    • Protocols for detaining separated children and their parents and methods for facilitating communication among separated family members.
    • Data that will help the public understand the impact of this practice.
  • The Texas Civil Rights Project has filed an emergency request (11) with the Inter-American Commission on Human Rights on behalf of five parents separated from their children at the border. They have also interviewed hundreds of parents and are coordinating volunteers in Texas’s Rio Grande Valley.
  • In Los Angeles, the Center for Human Rights and Constitutional Law is coordinating groups of legal volunteers, law professors, and law students to visit the detention facilities and provide representation to families.
  • Other nonprofits working on immigrant rights or children’s rights are Children’s RightsNational Immigration Law CenterMALDEFCapital Area Immigrants’ Rights CoalitionLawyers’ Committee for Civil Rights of San Francisco, and Social Justice Collaborative.
The children are given foil-like blankets for warmth

The children are given foil-like blankets for warmth


Choose one (or more), but please take some action.

Legal advocates need your support; they need you to take action so that our elected leaders are left in no doubt as to how we feel. Here's what you can do:

  • Protest
    • More than 700 Families Belong Together events are happening across the country on June 30. Go here to find a Families Belong Together event near you. Organizers are asking that everyone wear white to the protests to make a strong visual statement of love, unity, and freedom.
    • Don’t forget to make a sign! Check this out for inspiration.
  • Share Your Opinion On Social Media
    • What your friends, family, and neighbors think matters greatly. Public opinion drives the actions of our elected officials. Share this post (and others) that move you, with a comment of your own. Share a photo of yourself with your children and include a comment about why you think separation is wrong.
    • Go here for free social graphics for download. 
    • Use these hashtags: #FamiliesBelongTogether #FamiliesTogetherAndFree #FreedomForFamilies #EndFamilyDetention #ReunifyFamiliesNow
  • Volunteer
  • Call Your Member Of Congress
    • Make a Call / Send an Email: Contact your elected officials (find them here) and tell them where you stand (talking points here). Are you feeling discouraged because your elected officials have taken an anti-immigrant stance? Your phone calls and emails are the MOST needed. Let your officials know that family separation is not a partisan issue—it’s a matter of human rights.
  • Stay Informed & Vote Your Conscience
    • Register to Vote: Make sure you register to vote. Go here to find out when and how.
    • Be an informed voter on the issues you care about. Your vote matters.

Yes, there is suffering, but there is advocacy and hope also. It is up to us to bend the arc of the moral universe—and that means taking a stand and taking action.


07.20.18 - The Trump administration failed to meet the July 10 court deadline to reunify children under age five with their parents. Thousands of children – including some under age five – remain in government custody after being separated from their parents. The government is reportedly requiring parents reunited with their children to wear GPS-equipped ankle monitors while their asylum cases proceed. Ankle monitors are highly restrictive and burdensome and should not be used unless absolutely necessary to ensure court appearance. The federal judge who ordered the Trump administration to reunite the nearly 3,000 children it separated from their parents has temporarily blocked the government from deporting any of the families it reunites until at least July 23.

07.26.18 - Today is the court-ordered deadline for the Trump administration to reunite all children cruelly separated from their parents at the border.

But out of more than 2500 separated children, only 1012 children had been reunited as of Tuesday. In a status hearing before Judge Dana Sabraw in San Diego, the government said that 1637 parents have been ruled “eligible” for reunification with their children, and claimed that these parents would be back with their children by today.

While acknowledging the government has made progress, Judge Sabraw notes that there remain many troubling details in the aftermath of the Trump administration’s family separation policy.

  • At least 914 children will not be reunited today because the government has ruled that their parents are ineligible, or has not determined their status.
  • 463 parents may no longer even be in country, according to government reports. These parents have most likely been deported, but the government was still verifying this number.
  • Perhaps most shockingly, many parents have unwittingly signed forms giving up their right to reunification. Some parents report being ushered into rooms and shown short group presentations with 30 to 50 other parents, then forced to sign documents they often cannot understand with only a few minutes to decide whether or not to leave their children behind in the United States.

While the Trump administration plans to immediately deport some families, on Wednesday the ACLU filed a motion in court asking for an extra seven days to consult with their clients before they could be deported. This is especially critical for families who may have been coerced into signing documents without legal advice.

Further Reading...