June 20, 2018

The American Zero Tolerance Immigration Policy Equals Maximum Consequences

Posted by Mario Bellissimo - Bellissimo Law Group PC

There can be no keener revelation of a society’s soul than the way in which it treats its children.

Nelson Mandela

In April of 2018, the immigration authorities in the USA have instituted a “zero-tolerance policy” against those who attempt to enter the country unlawfully.[1] The most striking facet of this new policy is the forcible separation of children from their parents.  It is beyond debate, the consequences on the children will be long lasting and likely devastating for many.  This is yet another stark turn in American immigration policy since President Donald Trump’s election.  How this results in a positive path forward for the development of new immigration legislation in the USA is difficult to see.   So what lead to this development?


As far as I understand it, the Obama administration focused on deporting serious criminals. The Immigration and Nationality Act of 1952[2] states that an individuals first unlawful entry into the country is classified as a misdemeanour. As such, under the Obama administration, more serious criminals were deported than those who entered the country unlawfully.

In 2014 however, the USA saw a sharp increase of families attempting to cross the border, generally trying to escape the dangers of their home country. Many of these foreign nationals came from Guatemala, Honduras and El Salvador. In response, they attempted to put the families in immigration detention pending a decision on their matter.[3] This did not work out.

The American Courts ordered that they could not justify detaining without any determination of their guilt and so they were released while their cases were processed. Many of the families integrated into the USA and did not appear for their court cases. This process was termed “catch and release.”

The Trump administration decided to take action in April of 2018 with the prosecution of adults attempting to enter the country. The Washington Post reported that during the six weeks spanning from April to May, nearly 2000 children have been separated from their parents by the Department of Homeland Security.[4]  When families approach the border now the parents are sent to criminal court pending a decision on their entry and the children are held for an average of 51 days before being sent to a sponsor or other family member in the USA.[5] If the proceedings result in a conviction on the misdemeanour charge (which is likely, given that they are attempting to enter without authority), the parents will be jailed and/or deported but the children remain in the country.

President Trump has claimed that the separation of families derives from a law passed by the Democrats.[6] According to a number of sources this is not the case.[7]  The Republicans refer to the case of Flores v. Reno[8] in which the court ruled that minors should not be held in detention, they should be released to the most appropriate environment. The case does not speak to the separation of minors from their parents.

Clearly, the Republicans mandate to prosecute more individuals charged with unlawful entry results in more adults held in detention. As children are not lawfully allowed to be held in detention and the release of minors is always favoured, the separation of families is inevitable.

It is important to note that it appears the administration can end this policy without any action from Congress.[9] In terms of the legality of separation of families, there is no law that explicitly states that the families must be separated, nor is there any law that states that they must remain together. So, the US administration is determined to use this path as a means for deterrence and to potentially spur new immigration legislation.  But at what price?

Amnesty International highlighted on 18 June their view of how the new US policy violates children’s rights which includes arbitrary detention, separation from their parents or guardians, and that they are exposed to unnecessary trauma that might affect their development. [10] This cannot end well. This should not continue.  The consequences of this policy are immeasurable and any to what end?  In my next blog I will pick up on my discussion today with Anne-Marie Mediwake on CTV’s Your Morning; does Canada detain minors and what should Canada’s response be to this policy in particular as it relates to the suspension of the Safe Third Country Agreement?

Click here to watch Mario D. Bellissimo’s interview with Anne-Marie Mediwake on CTV’s Your Morning.