For nearly two years, NIJC has been tracking the irreversible harms caused by a 2018 memorandum of agreement between Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Office of Refugee Resettlement (ORR). The agreement on its face is only an information-sharing scheme, but in practice it has inserted immigration enforcement into the process of reunifying refugee children with family members and loved ones. The result? Children who previously would have been allowed to live with family members or other sponsors while their immigration cases moved through the courts are now being kept in government custody indefinitely, often in fear that their loved ones may be deported if they step forward to claim them.

This policy is one part of the Trump administration’s well-orchestrated plan to inflict severe cruelties on asylum seeking families and deter them from seeking safety in the United States. Although subsequent policy changes have dulled the agreement’s impact since its original implementation, two newly- exposed documents—a report from the Department of Health and Human Service’s (HHS) Inspector General and a letter received through litigation—reveal its enduring capacity to cause grave harm to immigrant children and their loved ones.  

Following is a brief overview of the agreement and why it continues to be so dangerous. Congress must act to end this harmful policy.

What is in the agreement and what harms has it caused?

The stated goal behind the Memorandum of Agreement was for ICE, CBP, and ORR to share information about parents and family members coming forward to sponsor refugee children who arrive alone at the southern border.

When first implemented in 2018, the agreement made the reunification process for unaccompanied children and their loved ones significantly more complicated and longer. First, the memo required a broad background check process for sponsors, including a requirement that all adults living with a potential sponsor be subjected to fingerprinting. Not only were these background checks shared with ICE, but DHS issued a publication in the Federal Register announcing its plans to store this information permanently in its enforcement database and allow ICE and CBP to access that information for enforcement purposes.

Rather than providing protections to ensure children were safe, the agreement generated a series of negative consequences, including a profound chilling effect among parents and relatives who became afraid to step forward as sponsors. With sponsors afraid—and for good reason—children endured prolonged stays in ORR custody.

Increased ICE enforcement against potential sponsors legitimized these fears. In July 2019, Acting ICE Director Matt Albence testified before Congress that ICE had arrested more than 300 people using information obtained through the agreement. Targeting potential sponsors and their families is not new for DHS. Leading up to the creation and implementation of the information-sharing agreement, in the summer of 2017, the agency used the immigration status of sponsors and relatives to locate, arrest, and detain individuals, sometimes even luring them to ICE offices under the guise of the reunification process. The grave harms and family separations caused by this operation are memorialized in a civil rights complaint filed by NIJC and other organizations on behalf of approximately 400 affected individuals.

The impact of these policies is now known: Earlier this month, HHS’s Office of the Inspector General (OIG) found that many ORR facilities “reported that it became more difficult to identify sponsors willing to accept children…” and that these difficulties resulted in “delay[s] placing children with sponsors.” These delays caused the average length of stay for children to skyrocket from an average stay of 58 days prior to the agreement’s implementation to 93 days in November 2018.

The Memorandum of Agreement signaled a shift in ORR’s role, making it an accomplice to and complicit in ICE and CBP’s enforcement actions. Historically, as the designated child welfare agency, ORR had sole oversight of the reunification process, a role long recognized by Congress. Neither ICE nor CBP have a legitimate role to play in the family reunification process.

Is the agreement still operational?

Yes, although not in its entirety.

Since the Memorandum of Agreement was signed, ORR has unilaterally made several roll backs in its the implementation, including eliminating the requirement for all adults living with the potential sponsor to succumb to fingerprinting. According to the recent HHS OIG report, the average length of stay for children in ORR custody fell to 48 days in April 2019 after ORR made these changes. ORR also limited the use of the agreement with respect to parents and legal guardians except for, among other things, when there is a risk to the child.

The agreement’s impact has been most markedly limited by critical language included in the FY19 DHS Appropriations Act, which precludes ICE from taking enforcement actions against a potential sponsor based on information obtained from an unaccompanied child. The provision, however, includes broad exceptions to its application, allowing DHS to take enforcement action against individuals with certain convictions or even pending criminal charges. This broad exception is harmful and unnecessary, as ORR has its own processes in place should there be a well-founded concern for a child’s safety.

Despite this limitation, however, these operational directives have mitigated some harm connected to the original agreement, resulting in children being released and reunified with their families more quickly than they would be otherwise. But this critical stop-gap remains vulnerable as long as it is tied to the appropriations cycle, which requires renewal each and every fiscal year.

What new information are we learning that sheds light on the continuing dangers posed by the agreement?

In addition to revealing how the information-sharing agreement prolonged children’s stays in ORR custody, the report connects the Trump administration’s “zero-tolerance” family separation policy and the information-sharing agreement as the underlying reasons for children remaining in ORR custody much longer, increasing the number of children in ORR custody and placing a strain on ORR resources.

In an August 30, 2019, letter responsive to a subpoena as part of the Legal Aid Justice Center’s lawsuit challenging the Memorandum of Agreement, ICE made additional revelations. The letter revealed that ORR continues to provide ICE monthly spreadsheets containing sponsors’ address information. Given ICE’s affinity for large-scale raids, it is chilling to consider that ICE is currently in possession of addresses for who knows how many sponsors, with looming questions as to when they might decide to use that information. For now, the prohibitions on enforcement in the fiscal year (FY) 2019 DHS spending bill may be the only thing holding ICE back from launching large-scale raids on potential sponsors and relatives. Additionally, the subpoena letter also discloses that ICE was slow to implement the congressionally mandated restrictions on enforcement action. Despite the FY 2019 appropriations bill being signed into law in February 2019, ICE did not implement the prohibitions until April 2019.

Taken together, the HHS OIG’s findings and ICE’s subpoena response, reveal the ongoing danger the information-sharing agreement poses to immigrant youth and their families.

What actions can be taken to stop the MOA and its harmful consequences?

1. DHS and HHS must terminate the Memorandum of Agreement.
2. Congress must continue to preclude DHS from engaging in enforcement actions using information shared by children, by ensuring that the language included in Sec. 223 of the House’s draft FY20 DHS Appropriations Act becomes law. To truly prioritize the safety and welfare of children, the exceptions found at section 223(b) and discussed above must be removed.

The safest place for children is at home with their families and in their communities. The U.S. government should work toward that goal, not to undermine it.

Heidi Altman is director of policy at NIJC.
Joann Bautista is a policy associate with NIJC.