The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy
Congressional Research Service
Summary
For the last decade, Central American migrant families have arrived at the U.S.-Mexico border in
relatively large numbers, many seeking asylum. While some request asylum at U.S. ports of entry,
others do so after entering the United States “without inspection” (i.e., illegally) between U.S.
ports of entry. On May 7, 2018, the Department of Justice (DOJ) implemented a “zero tolerance”
policy toward illegal border crossing both to discourage illegal migration into the United States
and to reduce the burden of processing asylum claims that Trump Administration officials
contended are often fraudulent.
Under the zero tolerance policy, DOJ prosecuted all adult aliens apprehended crossing the border
illegally, with no exception for asylum seekers or those with minor children. DOJ’s policy
represented a change in the enforcement of an existing statute rather than a change in statute or
regulation. Prior administrations had prosecuted illegal border crossings relatively infrequently.
Data are not available on the rate and/or absolute number of family separations resulting from
illegal border crossing prosecutions under prior administrations, limiting the degree to which
comparisons can be made with the Trump Administration’s zero tolerance policy
Criminally prosecuting adults for illegal border crossing requires detaining them in federal
criminal facilities where children are not permitted. While DOJ and the Department of Homeland
Security (DHS) have broad statutory authority to detain adult aliens, children must be detained
according to guidelines established in the Flores Settlement Agreement (FSA), the Homeland
Security Act of 2002, and the Trafficking Victims Protection Reauthorization Act of 2008. A 2015
judicial ruling held that children can remain in family immigration detention for no more than 20
days. If parents cannot be released with them, children must be treated as unaccompanied alien
children and transferred to the Department of Health and Human Services’ (HHS’s) Office of
Refugee Resettlement (ORR) for care and custody.
The widely publicized family separations were a consequence of the Trump Administration’s zero
tolerance policy, not the result of an explicit family separation policy. Following mostly critical
public reaction, President Trump issued an executive order on June 20, 2018, mandating that
DHS maintain custody of alien families during the pendency of any criminal trial or immigration
proceedings. DHS Customs and Border Protection (CBP) subsequently stopped referring most
illegal border crossers to DOJ for criminal prosecution. A federal judge then mandated that all
separated children be promptly reunited with their families. Another rejected DOJ’s request to
modify the FSA to extend the 20-day child detention guideline. DHS has since reverted to some
prior immigration enforcement policies, and family separations continue to occur based upon
DHS enforcement protocols in place prior to the 2018 zero tolerance policy. On January 26, 2021,
during the first month of the Biden Administration, the Department of Justice formally rescinded
the zero tolerance policy.
During the six weeks the policy was active, DHS separated 2,816 children—subsequently
included in a class action lawsuit—from their parents or guardians. Almost all have since been
reunited with their parents or placed in alternative custodial arrangements. In 2019, DOJ
disclosed the separations of an additional 1,556 children prior to the zero tolerance policy but also
during the Trump Administration who were included in the lawsuit class. As of December 2020, a
steering committee assembled to locate separated children in this second group had not yet
established contact with the parents of 628 children. In the period since the zero tolerance policy
was effectively paused in June 2018, at least 1,000 additional children were separated, bringing
the total reported number of separated children to between 5,300 and 5,500.