CBP Family Unity Policy
A. Background and Purpose
U.S. Customs and Border Protection (CBP) is committed to protecting family unity when it
encounters a parent or legal guardian with their noncitizen minor child. Generally, CBP should notseparate a minor child from their accompanying noncitizen parent(s) or legal guardian(s), except incertain limited circumstances as outlined below.
This policy provides guidance for CBP agents and officers in deciding whether to separate aminor child from a parent(s) or legal guardian(s), with the goal of ensuring consistent,transparent, and well-documented decision-making. This policy is issued consistent with thestipulated settlement in Ms. L v. ICE, 3:18-cv-00428 (December 11, 2023). It supersedes andreplaces all previous CBP policies governing the separation of family units, including Interim
Guidance on Preliminary Injunction in Ms. L v. ICE (June 27, 2018); Clarifying Guidance on
Separation of Units Due to 8 U.S.C. § 1326(a) Convictions and Prosecutions (May 28, 2021);
and all U.S. Border Patrol (USBP) and Office of Field Operations (OFO) guidance implementing
these policies.
B. Scope•••

This policy applies to all CBP agents and officers. It describes the circumstances in which
CBP may separate a noncitizen minor child from their his/her accompanying noncitizen
parent(s) or legal guardian(s).
Except in the limited circumstances outlined in Section G, this policy does not apply to theprocessing of families consisting of a noncitizen parent or legal guardian and a U.S. citizen(USC) minor child.
This policy does not apply to the processing of family groups consisting of related
individuals other than a parent or legal guardian and their noncitizen minor child (e.g.,children accompanied by their grandparent, or adult siblings traveling together).

C. Definitions•

For purposes of this guidance, the following definitions apply:o Separation: A situation in which a parent or legal guardian and their child(ren), who are
known to have been encountered by CBP together at or between ports of entry, and aretransferred out of CBP custody separately. Holding a parent or legal guardian separatelyfrom their child in the same facility does not result in a separation as defined in thispolicy.
o Parent(s): Noncitizen(s) who are 18 years of age or older, and who are accompanied by
his/her/their child(ren). This includes biological parents, legal guardians, and adoptive
parents with appropriate supporting documentation. 1
o Legal guardian: A person vested with legal custody of the child or vested with legal
authority to act on or make decisions on the child’s behalf. This does not include a
person with a “Power of Attorney” document for the child.

If there is a question regarding whether the documentation presented is sufficient to show that a person is either alegal guardian or an adoptive parent, agents/officers should consult with the Office of Chief Counsel (OCC).
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o Child: An individual under the age of 18, who is accompanied by their parent or legal
guardian.
o Family member: A parent, legal guardian, or child.
o Conviction: A criminal conviction that is either foreign or domestic.
D. Processing Separation Requests
All separation requests by CBP officers and agents must be approved using the following
procedure prior to separation of the child from the parent or legal guardian. Both USBP and
Office of Field Operations (OFO) must maintain records of separation decisions.
• A separation request must contain a clear and concise narrative providing sufficient facts
for an independent decision-maker to understand the basis for the proposed separation.
• The separation must be denied or approved by component-designated field leadership at
the GS-14 level or above. The decision must be captured and recorded in the separation
request, along with the name of the approver.
• If OCC review is sought, such review should be noted in the separation request, and any
legal advice provided should be recorded.
• Any pre-separation communication with U.S. Immigration and Customs Enforcement(ICE) should also be documented in a separation request.
• Where the basis for a separation would be a criminal conviction or applicable ground of
mandatory detention, such as Sections 236(c) or 241(a)(2) of the Immigration andNationality Act (INA), the request will not be approved without OCC review for legal
sufficiency on the question of whether the relevant offense falls within the applicablelaws or categories of criminal history sufficient to justify a separation, as outlined
below. The deciding official(s) may, at their discretion, seek legal advice regarding any
aspect of a proposed separation at any time.
• If a situation arises in which the reason for the separation would be based on the actionsof a child (rather than a parent), the deciding official(s) must request that the OCC
conduct a legal sufficiency review.
• All separations must be reported as significant incidents in accordance with current
operational guidance.
E. Documentation and Reporting•••

All separations must be documented in the relevant electronic system of record. This
documentation must include the reason for the separation, including facts specific to theseparated individual which support the decision to separate, known biographic informationof the separated parent or legal guardian and child(ren), and any known location
information of the separated parent or legal guardian and child (e.g., the location to which
a separated parent or legal guardian or child is transferred).
Unless a document contains national security or sensitive information prohibited fromdisclosure by law, documents supporting the decision to separate must be included in the
A-files of both the parent or legal guardian and the child(ren).
Upon separation, CBP shall provide the parent or legal guardian with a tear sheet
documenting the separation; providing the reason for the separation, including facts
specific to the individual parent or legal guardian at a level of detail that does not disclose
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national security or other sensitive information; and providing additional information
about how a parent or legal guardian may provide additional information to ICE and U.S.
Department of Health and Human Services’ (HHS) Office of Refugee Resettlement(ORR) for purposes of reunification. This tear sheet shall be either provided to, or read to,the parent or legal guardian in a language they understand. The fact that the tear sheet wasprovided to the parent shall be documented on the parent or legal guardian’s I-213.
In addition to the tear sheet described above, upon separation, CBP shall provide an ORRcreated tear sheet to the parent or legal guardian and child.
All separations, including the reason for the separation, must be reported to ICE after theyoccur. This reporting should include known biographical information for the separated
parent or legal guardian and child, including names, A-numbers, and dates of birth, andany supporting documentation. This reporting should also include the location of theseparated child’s ORR placement, if known at the time of referral.
When referring a child to ORR, CBP shall share the following information with ORR, tothe extent legally permissible: the fact that the child was separated from their parent orlegal guardian; the parent’s location and contact information, if known; the reason for the
separation, including facts specific to the individual parent or legal guardian at a level ofdetail that does not disclose national security or other sensitive information; any known orreported information regarding special needs of the child; and any information regarding
the parent or legal guardian that might assist with reunification.
If a U.S. citizen child is referred to the custody of a state or local child welfare agency,
CBP shall inform the noncitizen parent of the state and local entity where the child went
and any known contact information for the agency. CBP shall take steps to inform thestate or local agency, at the time that the child is referred, that the child was separated
from their parent or legal guardian.
When transferring a parent or legal guardian to the custody of the U.S. Marshals Service(USMS), CBP shall share the following information with the USMS, to the extent legallypermissible: the fact that the child was separated from their parent or legal guardian; thereason for the separation; and location of the separated child’s ORR placement, if knownat the time of referral.
When transferring a parent or legal guardian to the custody of a state or local agency, CBP
shall inform the state or local entity that the parent or legal guardian was separated fromtheir child and, if the child has been referred to ORR and the information is known at thetime of referral, information on how the parent or legal guardian may contact their child.

F. Bases for Separation
The bases for separation described below apply equally to one-parent or legal guardian families
and two-parent or legal guardian families. In a two-parent/legal guardian family, CBP will notseparate a child from either of his/her/their parents or legal guardians unless one or more bases
for separation are present for each parent or legal guardian from whom the child is separated.
A parent or legal guardian may not be separated from his/her/their child based solely on theparent or legal guardian’s immigration history, including prior removals.

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Basis for Separation 1 - National Security Threats
A parent or legal guardian who is determined to have engaged in or is suspected of terrorism,
espionage, or terrorism-related or espionage-related activities, such that detention of the parent orlegal guardian is warranted, may be separated from his/her/their child(ren) for the purpose ofdetaining the parent or legal guardian. Whether a parent or legal guardian poses a national
security threat shall be determined in relation to the specific circumstances of the parent or legal
guardian.
Basis for Separation 2 - Public Safety Threats
A parent or legal guardian who is determined to pose a threat to public safety such that detentionof the parent or legal guardian is warranted, may be separated from his/her/their child(ren) forthe purpose of detaining the parent or legal guardian.
Subsections I-III below provide a list of the categories of public safety threats that may,depending on the circumstance, justify a separation.
I.

Criminal Convictions

The INA allows for, and in specific circumstances mandates, the detention of certain noncitizens
because of terrorism grounds or a criminal offense pending their removal proceedings before the
Executive Office for Immigration Review or their removal from the United States, for reasons ofpublic safety. If the noncitizen being detained is a parent or legal guardian, this may lead to a
separation.
Such separations, done for reasons of public safety, are permissible when the parent or legal
guardian has a felony criminal conviction for the following crimes or an analogous crime abroad,and is determined to pose an ongoing threat to public safety:
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Homicide (including Manslaughter)
Terrorism
Arson
Kidnapping
Rape or sexual assault
Sexual abuse or sexual exploitation

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Domestic violence/child abuse
Drug trafficking/distribution
Human trafficking
Firearms
Robbery/carjacking
Assault/battery

OR
Where the parent or legal guardian has been convicted of two or more misdemeanors thatinvolve the above categories and is determined to pose an ongoing threat to public safety.
OR
Where a determination has been made that the parent or legal guardian is subject to a mandatory
detention statute, such as INA §§ 236(c) or 241(a)(2).
Whether a parent or legal guardian poses a public safety risk shall be determined in relation to
the specific circumstances of the parent or legal guardian. If the convictions are more than ten
years old, 2 and a determination has not been made that a mandatory detention statute applies,2

The ten years is calculated from date of conviction.

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separation may not be appropriate. The length of time since an arrest or conviction does not
apply to national security concerns.
When CBP determines separation may be appropriate on the basis of a criminal conviction, it
shall coordinate with ICE prior to effectuating the separation to ascertain whether the parent orlegal guardian will be detained. If the parent or legal guardian will not be detained, CBP shallnot separate the parent/legal guardian from his/her/their child(ren) and will process theparent/legal guardian and child(ren) together as a family.
When a separation is contemplated as a result of a parent’s or legal guardian’s criminal
conviction(s), documentation indicating the conviction, such as a printout or electronic record
from the relevant law enforcement database documenting the conviction(s), must be included in
or attached to the separation request.
II.

Gang Affiliation/Transnational Criminal Organization (TCO) MembershipA family may not be separated solely because a parent or legal guardian is determined to have agang affiliation or to be a member of a TCO.
However, a family may be separated if the parent or legal guardian is determined to have a gangaffiliation/TCO membership, there is evidence the parent or legal guardian has engaged in violent
criminal activity, and it is determined that the parent or legal guardian poses an ongoing public
safety threat, such that detention is warranted.
If the basis for the separation is gang affiliation/TCO membership, the separation request must
document either that a government database contains a parent or legal guardian’s gangaffiliation/TCO membership or, alternatively, the criteria used to determine that the parent or legal
guardian had such an affiliation/ membership. The request must also include evidence that
supports the parent having engaged in violent criminal activity.
III.

Other Public Safety Separations

In the instance that CBP has significant, articulable concerns that a parent or legal guardian posesa current threat to public safety that are not covered in the previous subsections, it may separate aparent or legal guardian from their child(ren), if there is confirmation from ICE or another law
enforcement entity that the parent or legal guardian will be detained. The separation request
must include confirmation that the parent or legal guardian presents a current threat to public
safety, and confirmation that the parent will be detained.
Basis for Separation 3 - Material Witnesses
If a parent or legal guardian is taken into the custody of another law enforcement entity to serve
as a material witness, and it is impossible or unsafe for the child to remain with the parent orlegal guardian, CBP may effectuate a separation.
When this leaves one or more children with another parent or legal guardian in CBP custody,
CBP should provide the parent or legal guardian remaining in CBP custody with any known
contact information for the entity using the other parent or legal guardian as a material witness
and the case number for the case in which the parent or legal guardian is serving as witness, if
known.
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When a parent or legal guardian serving as a material witness leaves one or more children in
CBP custody without a parent or legal guardian, CBP shall refer the child(ren) to ORR for
placement, unless it is expected that the parent or legal guardian will return to CBP custody
within 24 hours. The referral to ORR should specify any known contact information for theentity handling the case in which the parent or legal guardian will serve as a material witness,the case number, if known, and any known contact information for the parent or legal guardian,and request that local placement be pursued for the purpose of expeditious reunification when
the parent or legal guardian is released from the law enforcement entity’s custody.
Basis for Separation 4 - Hospitalization
In some cases, it may be necessary to separate a family due to one or more family member’s
hospitalization. Whenever this occurs, CBP will seek to ensure that the family member(s)remaining in CBP custody are not removed during the period of the family member’s
hospitalization. Whenever possible, CBP will also seek to expeditiously process the family
member(s) remaining in CBP custody such that they can be reunited with the hospitalized family
member(s). To the maximum extent possible, this processing should occur prior to the releasefrom the hospital of the hospitalized family member. Where mobile processing is not available orappropriate, all processing documents should be prepared, to the extent operationally possible,
before the family member’s release from the hospital to expedite processing. To the extent
possible, and as appropriate, and consistent with the other provisions of this policy, all family
members in this scenario should be processed for the same disposition.
Additionally, while the family members are separated by hospitalization, CBP should allow adaily phone call between the hospitalized family member(s) and the family member(s) remaining
in CBP custody, as permitted by the hospital, and based on the family members’ health andcapacity to participate in a phone call. If CBP learns that the condition of a hospitalized family
member could be terminal, CBP should facilitate a visit of the non-hospitalized family
member(s) to the hospital, to the maximum extent operationally feasible and as permitted by thehospital, unless there is a concern that doing so would pose a safety risk to one or more family
members.
In all cases, the decision as to whether family members can remain with this hospitalized
individual will be made in consultation with the hospital or medical facility.
I. Where one parent or legal guardian in a two-parent or legal guardian family requires
hospitalization and the other parent or legal guardian and the child(ren) remain in CBP
custody
CBP should advise the parent or legal guardian remaining in custody of the name of the hospitalwhere the other parent or legal guardian is receiving treatment as soon as practicable, but nolonger than 12 hours after the parent or legal guardian is transported to the hospital, or before theparent or legal guardian remaining in CBP custody is released/transferred out of CBP custody,
whichever comes first.

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II. Where a child is hospitalized and one or more parents or legal guardians remain in CBP
custody
Unless CBP believes that it would pose a safety risk to the child, CBP will advise the parent(s) orlegal guardian(s) remaining in custody of the name of the hospital where the child is receiving
treatment as soon as practicable, but no later than 12 hours after the child is transported to thehospital. Unless a separation is otherwise justified pursuant to this policy, at least one parent orlegal guardian, and both parents or legal guardians if operationally feasible, should be allowed totravel with their child(ren) to the hospital, if permitted by the emergency medical services
provider and where CBP has no reason to believe doing so would pose a safety risk to thechild(ren).
III. Where one parent or legal guardian in a single-parent or legal guardian family or twoparents or legal guardians in a two-parent or legal guardian family are hospitalized andthe child(ren) remain in CBP custody
If the parent(s) or legal guardian(s) are treated at the hospital and CBP has reason to believe theparent(s) or legal guardian(s) will be admitted to the hospital and remain there for 24 hours or
longer, CBP will immediately refer the child(ren) to ORR. The referral to ORR should
specifically state where the parent(s) or legal guardian(s) are hospitalized, any known contact
information for the parent(s) or legal guardian(s) and/or the hospital, and request local placement
for the child, for the purpose of expeditious reunification when the parent(s) or legal guardian(s)are released from the hospital.
If the child(ren) are referred to ORR, CBP will process the parent(s) or legal guardian(s),including, as appropriate on a case-by-case basis, for release from custody. To the maximum
extent possible, this processing should occur before the parent(s) or legal guardian(s)’ releasefrom the hospital. Where mobile processing is not available or appropriate, all processing
documents should be prepared, to the extent operationally possible, before the parent(s) or legal
guardian(s)’ release from the hospital to expedite processing.
Basis for Separation 5 - Child Abuse or a Threat to the Safety of the Child
CBP may separate a parent or legal guardian from a child where it suspects that the parent orlegal guardian has or is abusing the child or presents an articulable threat to the safety of thechild. A threat to the safety of a child is defined as a threat to life or health to the extent thatinjury or harm may be likely if the child were returned to or left in the custody of his or her
parent or legal guardian. Any threat to the safety of a child must be evaluated on a case-by-casebasis and may not use a presumption of a threat to the safety of a child based on a parent or legal
guardian’s past criminal or immigration history.
Within 180 days of this policy being signed, CBP, in consultation with ORR, will develop
guidance for CBP personnel to use in assessing whether a separation is warranted due to a childhaving been or is being abused or if a parent or legal guardian presents an articulable threat to thesafety of the child. The guidance shall include procedures for consultation with the CMO or hisor her designee with a medical or social work background. CBP will also develop training foragents and officers at CBP short-term holding facilities/ports to recognize the signs of child
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abuse. The training shall include procedures for consultation with the CMO or his or her
designee with a medical or social work background. Such agents and officers shall receive
refresher training on an annual basis.
••

Following development of the training, only agents/officers who have received the training
should make separation decisions based on the finding of abuse.
While the guidance is being developed, if an agent/officer believes there is justification for aseparation based on child abuse or an articulable threat to the safety of the child, they should
consult the CMO or his/her designee for a recommendation as to separation. If theagent/officer determines after consulting the CMO or his/her designee that separation is
warranted, the date/time of the contact and the CMO’s recommendation should be noted in
the separation request process outlined in Section D.

Basis for Separation 6 - Warrants and Criminal Prosecution••

CBP shall honor Federal warrants, and may honor state criminal warrants, if the entity
charged with executing the warrant affirmatively indicates that it will seek extradition ortake a parent/legal guardian into custody and execute the warrant.
Where no other permissible circumstances for separation are present, CBP will not refer anparent/legal guardian for prosecution solely under 8 U.S.C. § 1325(a). However, CBP may
generally refer a parent/legal guardian for the prosecution of a felony offense. However, aparent/legal guardian may not be referred for prosecution under 8 U.S.C. § 1326(a) or 8
U.S.C. § 1326(b) if the parent or legal guardian’s only prior criminal conviction is a priorconviction for 8 U.S.C. § 1325 or 8 U.S.C. § 1326(a).

G. Other Circumstances
1. Family Consisting of a USC Child Referred to a State or Local Agency
In general, the provisions of this policy do not apply to the processing of families that include
USC minor children. However, if a USC minor child who, at encounter, was accompanied bytheir noncitizen parent or legal guardian is transferred to a state or local agency, CBP will
endeavor to inform the noncitizen parent of the state and local entity to which the child wastransferred, and any known contact information for the agency. CBP will endeavor to informthe state or local agency, at the time that the child is referred, that the child was separated fromtheir parent or legal guardian.
2. Family Consisting of an Adult Parent, a Minor Parent, and their Child(ren)If CBP encounters a family consisting of an adult parent or legal guardian, a minor parent (aparent under the age of 18), and their minor child, and the minor parent is not accompanied bytheir own parent or legal guardian, the minor parent must be processed as an unaccompanied
child. If there is an independent reason to separate the adult parent from their child(ren), thechild(ren) should be referred to ORR with the minor parent. If there is not an independent
reason to separate the adult parent from their child(ren), CBP personnel should first ask theadult parent and minor parent with whom the child(ren) should remain, and defer to thatoutcome, absent any evidence of abuse or an articulable threat to the safety of a childconcerns. The parents’ choice should be documented in the narratives of both parents’ I-213s.
If the parents cannot agree, CBP personnel shall make the determination with whom the childshould remain. This decision should take into account circumstances such as the child(ren)’s
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parent/legal guardian.
5. Reunification When Separation is No Longer Necessary
If a separation occurs that is not consistent with this guidance, CBP will act as expeditiously as
possible to reunify the parent(s)/legal guardian(s) and child(ren).
• CBP will coordinate with the U.S. Department of Justice, ICE, and HHS for reunifying
parents and children in this situation.
•

Reunification efforts must be clearly documented in the relevant electronic system of record.

H. Effective Date
This policy becomes effective on the day the policy is signed.
I. No Private Right
This is an internal policy statement of CBP and does not create or confer any rights, privileges,
or benefits on any person or party.
J. Approval Authority

Troy A. Miller
Senior Official Performing the Duties of the Commissioner
U.S. Customs and Border Protection

December 11, 2023
Date

Attachment 1- Information for the Parents Tear Sheet_English
Attachment 2- Information for the Parents Tear Sheet_Spanish

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