Mr. Nabil El-Ghoroury
Executive Director
California Association of Marriage and Family Therapists 7901 Raytheon Road
San Diego, CA 92111-1606

Dear Dr. EI-Ghoroury:

Thank you for your August 2, 2019 letter regarding the treatment of children and families in the custody of the U.S. Department of Homeland Security (DHS) at the U.S. border. Acting Secretary Kevin K. McAleenan asked that I respond on his behalf. The entire Department is committed to carrying out our critical border security mission while safeguarding the health and well-being of those in our care.

The security and humanitarian crisis along our Southwest Border is unprecedented. Historically, the vast majority of aliens apprehended or encountered along the Southwest Border were single-adult males from Mexico who could be detained and quickly removed. Today, the majority of those encountered by U.S. Customs and Border Protection (CBP) are family units and unaccompanied alien children. In July alone, approximately 77 percent of all CBP Southwest Border enforcement actions involved unaccompanied alien children and family units.

Despite these challenging circumstances, DHS and CBP never lose sight of the responsibility to protect the well-being of those in our care, particularly children and other vulnerable populations. In recent months, CBP has rapidly expanded contract medical support to provide health intake interviews, medical assessments, basic medical services, hospital referrals, and follow-up care at high-volume locations. If at any time in CBP custody there is an observed or reported medical or emergency mental health need, CBP refers the person for higher-level medical treatment. For example, Border Patrol agents are taking approximately 80 people to the hospital every day-over 19,000 people so far this year.

In addition, the Homeland Security Advisory Council, which provides independent advice and recommendations to the DHS Secretary, specifically created a CBP Family and Child Custody Panel as a subcommittee in October 2018. The panel conducted numerous visits to CBP facilities, interviews with CBP personnel, and meetings with outside experts to identify best practices for the processing and care of children in custody and recommend any needed changes to CBP policies, procedures, or training. Among a diverse array of homeland security and immigration policy experts, the panel includes a nationally renowned practicing pediatrician with expertise on the maltreatment of children, as well as the CEO of the National Center for Missing and Exploited Children. The panel issued an Emergency Interim Report in April 2019, and CBP continues to review the report and use its findings and recommendations to inform actions to safeguard those in our custody.

I appreciate your concerns about the impact of separating children from their parents in DHS custody. As you may be aware, on April 6, 2018, the U.S. Department of Justice (DOJ) instituted Zero Tolerance, a policy to prosecute all aliens referred for violations of8 U.S.C. § 1325(a), which prohibits both improper entry and attempted improper entry by an alien, to the extent practicable. The Zero Tolerance policy applied to all amenable adults, including parents or legal guardians traveling with their minor children. Consequently, when a parent or legal guardian traveling with a child was accepted for prosecution by DOJ under Zero Tolerance, and was transferred to DOJ custody for the duration of their criminal proceedings, the child could not remain with the parent or legal guardian in criminal custody during criminal proceedings or subsequent incarceration. As there was not a parent or legal guardian available to provide care and physical custody for that child, the child was refe1Ted to the custody and care of the U.S. Department of Health and Human Services.

On June 20, 2018, President Trump issued Executive Order 13841, Affording Congress the Opportunity to Address Family Separation, which directed DHS to detain families together for the pendency of any criminal improper entry or immigration proceedings, to the extent permitted by law and subject to the availability of resources. Within hours of issuance of the Executive Order, CBP leadership issued guidance to the field directing that parents or legal guardians who entered with children were no longer to be referred for prosecution under 8 U.S.C. § 1325(a). On June 26, 2018, the U.S. District Court for the Southern District of California issued a preliminary injunction in Ms. Lv. ICE.

In compliance with that Executive Order, the preliminary injunction in Ms. L v. ICE, and all other appropriate legal authorities, CBP may still separate an alien child from his or her parent or legal guardian under ce1iain circumstances. These include when that parent or legal guardian poses a danger to the child, is otherwise unfit to care for the child, has a criminal history, has a communicable disease, or is transferred to a criminal detention setting for prosecution for a crime other than improper entry (8 U.S.C. § 13 25). CBP may also separate an alien child from an individual purporting to be a parent or legal guardian in ce1iain circumstances, such as where CBP is unable to confirm that the adult is actually the parent or legal guardian, or if the child's safety is at risk. However, outside of these circumstances, CBP keeps family units together in its short-term holding facilities.

Should you need additional assistance, please do not hesitate to contact me or have a member of your staff contact Bradley F. Hayes, Acting Assistant Commissioner, Office of Congressional Affairs, at 202-344 -1760.

Sincerely,

Mark A. Morgan
Acting Commissioner