Former president Donald Trump’s Zero Tolerance Policy is one of the most controversial executive orders ever signed and one of the harshest immigration policies ever enacted. 

The zero tolerance policy had chilling consequences that caused virtually unsolvable problems for immigration agencies and affected families. Here’s what you need to know about the policy, its provisions, and its effects. 

What Is the Zero Tolerance Policy?

The Zero Tolerance policy was an executive order signed by then-president Donald Trump in April 2018. This order required border patrol officers and law enforcement officials in southern border states like Arizona, New Mexico, and Texas to treat crossing migrants like criminals. (This Zero Tolerance Policy is not to be confused with the Department of Education’s elementary, middle, and high school discipline policies as part of 1994’s Gun-Free Schools Act, which has its own controversies surrounding the School to Prison Pipeline in recent years.)

A trial of the program was quietly used at a few border sites in 2017 by order of the Department of Homeland Security and the Department of Justice. Still, the policy wasn’t widely reported at the time. Zero tolerance policies were used as a pilot program in the Yuma Border Patrol Sector and the El Paso Border Patrol Sector before the widespread executive order went into effect. 

Everyone attempting to cross the border at any point that wasn’t an official border crossing port of entry was to be arrested. It didn’t matter if the people attempting to cross were asylum seekers or if it was their first attempt to cross the border and they needed immediate assistance. The Department of Justice criminally prosecuted everyone who crossed the border. 

What Were the Consequences of the Zero Tolerance Policy?

Many zero tolerance policies have unintended consequences, and the effectiveness of zero tolerance policies as a whole has often been called into question by professionals. 

Many people who were following the law, including innocent children, were victimized by the rigidity of the zero tolerance policy. The policy did not recognize gray areas or leave room for people attempting to seek asylum at the border, and we’re still dealing with the consequences today. 

Victims Were Traumatized

Although the Trump administration claimed that the zero tolerance policy’s goal was to prevent criminals from crossing into the United States from Mexico without documentation, that’s not how the policy was enacted. 

Nearly 200 asylum seekers from countries like El Salvador, Honduras, and Guatemala, who were mostly women who claimed to be escaping sex traffickers, threats of rape, and political persecution, showed up at the border. It was completely legal for these women to present themselves at the border and request asylum, and many of them would have qualified for asylum status. 

Instead, the women were arrested, and their children were taken from them. They were not allowed to say goodbye or comfort their children, though they could reportedly hear their children crying from an adjacent room at the detention center. 

Even though these asylum seekers acted according to United States immigration law by presenting themselves, their children were taken and they were criminally charged. 

Family Separation

Former president Trump and his Attorney General, Jeff Sessions, enacted an official policy to separate migrant parents from their children. This policy was commonly referred to as the family separation policy and had devastating effects. 

Nearly 5,000 families were separated. Parents were detained, and children were sent to different detention centers. The family separation policy only lasted a few months due to public outcry about the ethics, legality, and morality of separating children from their parents.

This policy was not well thought-out, and there was never a legitimate or functional plan to reunite families that had been separated.

Five years have passed, and nearly 1,000 immigrant children separated from their parents at the border have still not been reunited with their families. Children who were infants or toddlers at the time of separation may not remember their birth parents. They may not be easily identifiable without DNA testing to verify their parentage if their parents can be located. 

These parentless children may never be reunited with their families. It’s almost impossible to track down their deported parents, and many parents may not attempt to retrieve their children in hopes that their children will have a better life in the United States. 

Significant Budgetary Strain

Housing detained immigrants and children is expensive. The influx of immigrant children with no parents and detained adults put extreme strain on a system that already had limited funding initially. 

Holding one adult immigrant in a detention center costs the federal government over $200 daily. Running facilities for children separated from their families cost the government more than $90 million for the two months the separation policy lasted. 

More than $200 million in funding for the zero tolerance policy was diverted from necessary health and human services programs that Americans relied upon for their healthcare, which created significant budgetary concerns that were never fully resolved. 

The Program Never Served Its Purpose

This expensive and inhumane zero tolerance policy was designed to act as a deterrent against undocumented immigration. 

Reports from governments of other countries and reports generated by border patrol show that the policy had almost no effect on discouraging people from attempting to enter the United States. There were no significant results to demonstrate the effectiveness of the zero tolerance policy regarding immigration enforcement.

Is the Zero Tolerance Policy Still in Effect?

Despite significant pushback and the resounding failure of the family separation policy, the Trump administration did not end the zero tolerance policy. They only ended the family separation policy when its consequences grew too overwhelmingly large for the administration to maintain. 

The policy ended in January of 2021 when the Biden administration began dismantling the previous administration’s immigration policy. The current policy eliminated zero tolerance, but it’s still possible for people to be criminally charged for attempting to cross the border.

Guidance from former Acting Attorney General Monty Wilkinson encourages officers to use discretion before deciding to charge immigrants for attempting to cross the border. Officers are urged to consider individuals’ personal circumstances and criminal history before deciding to press charges.

Wilkinson seemed to be implying that people attempting to cross the border in an effort to escape danger shouldn’t be criminally prosecuted. He also seems to be implying that people without any criminal history or criminal affiliations shouldn’t be treated as threats to the safety of America if they’re found attempting to cross the border.

Representatives of many civil rights groups, immigration reform advocates, and immigrant rights groups claim that simply striking down the zero tolerance policy isn’t enough. While it prevents family separation and excessive criminal charges, it doesn’t address how asylum seekers or refugees are treated at the border.

How Is the Biden Administration Addressing Immigration Law Concerns?

The Biden administration has made painstakingly slow strides at addressing immigration law concerns. 

They’ve announced their intention to increase the maximum monthly amount of available asylum and refugee visas for people who present themselves at the border, and they’ve also changed the way they’d prefer for people to present themselves.

New Options for Asylum Seekers

Rather than approaching a port of entry and seeking asylum, the Biden administration wants immigrants to use a mobile phone app called CBP One to request an appointment at the border. Citizens of other countries seeking asylum in the United States should apply through the app, submitting all relevant documents describing their circumstances so that each application can be considered on a case-by-case basis.

Applications are virtually reviewed, and some may be approved. If approved, CBP one will notify applicants that they’ve been granted an interview at a border patrol checkpoint. They should only arrive at their scheduled time to further consider their case. 

This system is more organized than the previous system. Allowing applicants to apply remotely and wait for an appointment may make asylum seekers safer. The journey to the border can be dangerous, often resulting in being turned away. If people only present themselves at the border when they’re expected, they aren’t making the dangerous trek in vain. 

Family Reunification Efforts

Non-profit organizations and advocacy groups are volunteering their time to help find the parents of children who were never reunited with their families. 

Some children have been placed in the care of distant relatives inside or outside of the United States. The rest of the children are spread out across the United States in foster homes or child welfare centers. Many children presumed to be abandoned have been adopted.

When childrens’ family members are identified, their parents are encouraged to apply for reunification. Children won’t go directly from their current placement to their birth parents, as they’ve been separated for five years. 

Transferring the child immediately and sending them out of the country could be highly traumatic for a child who has already been traumatized. This is especially true for children who grew up in the United States speaking English and being educated in American public school districts. Sending them to a country they don’t remember with parents they don’t recollect where everyone speaks a language they don’t understand can be very overwhelming for these children. 

The United Nations’ International Organization for Migration (IOM) is taking charge of the family reunification process to ensure it causes the least amount of trauma and confusion. 

Can You Re-Enter the United States If You Were Deported Under Zero Tolerance?

If you’ve ever been deported from the United States or criminally charged for crossing the border, you’re automatically banned from returning to the United States. The length of the ban will vary depending on the circumstances. Some bans last five years. Other bans last forever. 

Some deported immigrants have the right to file an appeal with the Board of Immigration Appeals (BIA), but they need to file within 30 days of being ordered deported. This window has already passed for people impacted by the zero tolerance policy. They’re no longer eligible to file for appeals. 

The only remaining option is to attempt to immigrate to the United States after the ban has expired. People who received five-year bans will be eligible to apply for immigration soon. 

Asylum seekers and refugees are encouraged to file through the CBP One mobile app. There’s no guarantee that applicants will receive an interview date, and applicants with a history of deportation are less likely to be considered than applicants with a clean criminal record and no immigration infractions. 

What Should You Do If You Have Been Affected by the Zero Tolerance Policy?

You can apply to immigrate to the United States when your ban expires, but the process will be difficult. You’ll likely need the assistance of an experienced immigration attorney to immigrate to the United States. Your history will make your case more challenging because federal immigration offices prioritize individuals who have never been deported. 

If you were separated from your children during the zero tolerance policy, you can contact the International Organization for Migrants about possible reunification with your children. IOM wants to see families together again. They will walk you through the reunification process and explain what they need from you to help you locate your child in the United States.

In Conclusion: The Zero Tolerance Policy Had Devastating Effects

Although the zero tolerance policy is no longer in effect, numerous organizations and federal immigration agencies are still dealing with the consequences of the ill-conceived plan. The current administration’s policies make it safer and easier for people to apply for asylum in the United States, and guidance from the attorney general encourages officers to reconsider bringing criminal charges against people who attempt to enter the United States.

If you’re dealing with a complicated immigration situation and need an experienced attorney’s assistance, the Cohen, Tucker + Ades team is here to help. Contact us for a consultation.

Sources:

Officials blast Trump policy after visiting detained immigrants | Chicago Tribune

FAMILY REUNIFICATION | International Organization for Migration

CBP One™ Mobile Application | U.S. Customs and Border Protection (CBP.gov)