Criminal Justice & the Rule of Law

Legal Considerations for Separating Families at the Border

Carrie Cordero
Tuesday, June 19, 2018, 11:50 AM

Reports spilling out of detention centers and immigration proceedings in McAllen, Tex. and elsewhere along the southern border include new details about the measures government officials are taking to separate children from their parents.

The U.S.-Mexico border at Nogales, Ariz. and Nogales, Mexico. (Photo: Gordon Hyde/Wikimedia)

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Reports spilling out of detention centers and immigration proceedings in McAllen, Tex. and elsewhere along the southern border include new details about the measures government officials are taking to separate children from their parents. The families are being separated while in government custody as a result of the agreement by the Departments of Justice and Homeland Security to achieve a goal of 100 percent prosecution for cases of illegal entry into the United States.

Last week, I shared some thoughts—based on my experience working on sensitive counterterrorism cases at the Justice Department in the post-9/11 era—regarding the ethical dilemma that federal agents, lawyers and other professionals face each day they are directed to implement the new policy of separating children from their parents. This post raises issues regarding the rights of the affected children and potential legal exposure faced by the workforce implementing this policy. None of the legal issues discussed below should be read in isolation; the ethical arguments for immediately ceasing this practice remain.

After Homeland Security Secretary Kirstjen Nielsen returned from her working and sightseeing trip to Israel, she tweeted this on Sunday:


Carrie Cordero is a Senior Fellow at the Center for a New American Security. She is also an adjunct professor at Georgetown Law, where she previously served as Director of National Security Studies. She spent the first part of her career in public service, including as Counsel to the Assistant Attorney General for National Security; Senior Associate General Counsel at the Office of the Director of National Intelligence; Attorney Advisor at the Department of Justice, where she practiced before the Foreign Intelligence Surveillance Court; and Special Assistant United States Attorney.

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