It’s become clear that the zero-tolerance policy of the current administration began with a memorandum issued by Attorney General Jefferson Sessions this past April 6th (to clarify the memorandum he issued on April 11th, 2017, about “the prioritization of the prosecution of certain criminal immigration offenses”) has a direct result of separating children from their parents. In fact, there’s no limit to the age of the children given the evidence that nursing mothers have had their infants taken from their arms, with no hope of seeing them again. The mental and physical health risks of such actions are enormous and long-lasting.

The United Nations has issued – and the US has signed – nine core treaties concerning human rights for human beings worldwide. One of those is the Convention on the Rights of the Child, which was adopted and ratified by the UN on November 20th, 1989. The Convention states as follows:

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity ….

Article 9 1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

The “process” currently utilized by the Customs and Border Protection (“CBP”) officers to separate children from parents at the US / Mexico border is a complete violation of Article 9 of the Convention. There is no judicial review prior to the separation of the children from their parents. There is no method of maintaining communication between parents and children after separation. The parents who have been deported after separation from their children by CBP have not been given any information concerning where their children are being housed, the children’s physical and emotional condition, or how to have their children returned to them. AG Sessions is not a “judicial review” entity and there is nothing to indicate that the parents and children appear before any kind of judge or court of law prior to separation. In fact, the parents themselves do not appear before even an immigration court but, rather, appear before an asylum officer who has been given instructions by an AG memorandum dated June 13th, 2018, that there is a very limited definition to “asylum” in spite of decades of case law to the contrary.

The impact on people who are working to enforce the administration’s policy by dealing with the results could lead to criminal prosecution for violation of various Federal laws. The Uniform Code of Military Justice (“UCMJ”) at Section 16c(1)(c) provides:

Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.

And in Section 14c(2)(a)(i):

Inference of lawfulness. A order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.

These provisions allow for the disobedience of illegal orders, but such orders may themselves constitute a crime, or be part of a criminal conspiracy, either under military or civilian law. Under 18 U.S.C. § 242,

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both;  and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;  and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. (Emphasis supplied)

Under 18 U.S.C. § 241 it is illegal to conspire to violate such rights. This could be applied to military personnel who abuse the rights of citizens, either military or civilian.

So far, eight state governors have recalled (or refused to send) their National Guard assets until the zero-tolerance policy is rescinded. Those states are Colorado, Delaware, Maryland, Massachusetts, New Hampshire, New York, North Carolina, and Virginia. The governors of Rhode Island and Vermont have both said they would refuse to obey any order from the White House demanding National Guard assets to support the policy. National Guard personnel are subject to the UCMJ, as well as to Federal law, and could refuse to obey orders given to them that resulted in the separation of minor children from their parents. Such orders, in their present usage by CBP, would constitute unlawful orders because they are in direct violation of the UN Convention of the Rights of the Child, as well as 18 U.S.C. §§ 241 and 242.

On May 13th, 2018, a Honduran father committed suicide in custody of the Starr County, Texas, sheriff because he was separated from his wife and child after entering the US. How many more deaths will it take before this illegal, immoral, inhumane and abusive policy is rescinded?

Finally, Mr. Trump signed an Executive Order on June 20th, 2018, that he claims will end the separation of families. However, that is another lie since it does not abolish the separation of children when the parents are prosecuted for illegal entry into the US. It also does not reunite the more than 2,500 children who have already been separated from parents under this policy. We, the citizens of the US, must protest against the use of military and civilian facilities as prisons and cages for the children of immigrants. We must use our First Amendment right to free speech to express our disagreement with the actions being taken in our name. It is unconscionable that the kidnapping and imprisonment of children who have committed no crime continue to be perpetrated in a country that claims to be “The land of the free, home of the brave.”

Author Profile

Linda Dominguez, Esquire
Linda A. Dominguez is the founder of L A Dominguez Law, which opened its doors in March 2006. The focus of the firm is on immigration law and LGBTQ issues. Linda has been practicing law since November 1989 and spent more than 16 years as a federal prosecutor. She is licensed in Maryland, Pennsylvania, as well as being admitted to the U.S. Supreme Court, U.S. Courts of Appeals for the 3rd, 4th, and 7th Circuits, and the U.S. District Court for the District of Maryland. Linda has one precedent decision issued by the Fourth Circuit Court of Appeals, Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014), on an asylum case from El Salvador.