President Trump has signed an executive order directing the Department of Homeland Security to reverse its policy separating young children crossing the U.S. border from their families. According to DHS, some 2,000 children have been separated from their parents and guardians and placed in detention centers since April when the administration announced a tougher policy on illegal border crossing.
A little after 3 P.M. today the President signed an executive order that allows immigrant families to remain together while any court proceeding takes place. “The Secretary of Homeland Security shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members,” the order read.
“I didn’t like the sight or the feeling of families being separated. It’s a problem that’s gone on for many years, as you know, through many administrations. And we’re working very hard on immigration. It’s been left out in the cold. People haven’t dealt with it, and we are dealing with it,” the President said from the Oval Office before signing the order. He was flanked by Department of Homeland Security Secretary Kirstjen Nielsen and Vice President Mike Pence.
“So we’re keeping families together, and this will solve that problem. At the same time, we are keeping a very powerful border and it continues to be a zero-tolerance. We have zero tolerance for people that enter our country illegally,” the President said.
The Trump administration announced its zero tolerance policy in April.
Separation at the Border
“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest—that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” wrote Attorney General Jeff Sessions at the time.
“To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.
In the last several weeks it has turned into a full-blown humanitarian crisis as pictures have emerged of children held in cages sleeping under aluminum “heatsheets” to keep them warm. The publication of audio recordings of children crying out for their parents after being separated and revelations of “tender-age” detention facilities where children and babies younger than 5 years old, as well as special needs children, are being held alone, fueled a political backlash that proved to be too much for Republicans on Capitol Hill.
Senate Republicans announced yesterday that they wanted to see an end to the policy and planned on working on a legislative fix to address it.
“I support, and all of the members of the Republican conference support, a plan that keeps families together while their immigration status is determined,” Senate Majority Leader Mitch McConnell said.
Separation of children from their families is not a specific target of the Trump administration’s zero tolerance policy, but it is a byproduct as parents entering the country illegally are charged with a crime while the children are not. The parents are therefore detained.
The Trump administration had been looking for ways to deal with the immigration crisis for months. Building a wall along the southern border and ending illegal immigration has been one of President Trump’s main campaign promises.
The zero tolerance policy has its origins in the George W. Bush administration. In 2005, he launched Operation Streamline which referred for criminal prosecution anybody crossing the border illegally in one Border Patrol sector in Texas.
The program expedited immigration trials for those entering illegally with the goal of quickly deporting them. It yielded results and was quickly expanded to more sectors. It made exceptions however for adults traveling with young children, juveniles and people who were ill.
The Obama administration continued the program, also with exceptions: It did not treat first-time crossers as priorities for prosecution and it detained families together in Immigration and Customs Enforcement custody under custody that was administrative and not criminal detention.
Exacerbating America’s immigration problems are two laws that bind how U.S. authorities can treat illegal immigrants, especially minors.
A 1997 federal court decision known as the Flores settlement requires the federal government to do two things: place children who have crossed the border illegally with a close relative or family friend “without unnecessary delay,” and to keep young children who remain in custody in the “least restrictive conditions” possible.
A subsequent court decision in 2016 said the Flores settlement also applied to families. That recent decision meant that families would be released effectively within 20 days of being taken into custody. Most are released on their recognizance – some with GPS ankle bracelets – on the promise that they return when their cases are due to be heard.
Then in 2008, Congress passed the William Wilberforce Trafficking Protection Act as protection for young children. Under U.S. law, minors from countries contiguous with the U.S. (i.e. Mexico and Canada) can be quickly deported to their countries. But under the Wilberforce Act, minors from other countries had to be transferred within 72 hours to the Office of Refugee Resettlement at the Department of Health and Human Services, and placed in the least restrictive setting possible while awaiting a hearing with a judge.
The law was meant to provide protection for minors who were being illegally trafficked in the drug or sex trades.
‘Catch and Release’
Along with the Flores decisions this meant that many minors were released into the U.S. public within 20 days of being taken into custody. This became known to immigration hawks as America’s “catch and release” policy.
The laws and policies combine to create an incentive for unaccompanied minors to make the trip to the U.S. under treacherous conditions. If they make it and claim a “credible fear” of returning home to war-torn countries or countries ravaged by crime and gang violence, they are almost assured the ability to stay in the country, even if temporarily.
An inordinate backlog of asylum cases means it may take years before their case is heard and they are asked to prove that claim. Many never return to the courts to do so even when their case is called.
Over the last ten years there has been a 1,700% increase in asylum claims according to Secretary Nielsen, resulting in a backlog of over 600,000 cases.
The change the Trump administration made was to say that all illegal crossers would be prosecuted in federal court for illegally entering the country. This ensured a separation of families at the border because parents are now being transferred from the Border Patrol to the U.S. Marshals Service and are being tried in court (charged with a misdemeanor if entering illegally for the first time, or a felony if re-entering illegally), and their children are now turned over to the Department of Health Human Services’ Office of Refugee Resettlement.
When illegal border crossing surged again early this year (there was a 203% increase in illegal border crossings from March 2017 to March 2018, and a 37% increase from February 2018 to March 2018, according to authorities), the Trump administration decided to implement those changes in an effort to curb the seeming exploitation of U.S. laws and policies. But the Flores and Wilberforce laws have tightly restricted the way the administration could affect those changes.
“No nation can have the policy that whole classes of people are immune from immigration law or enforcement,” said senior White House adviser Stephen Miller who many consider to be the architect of the policy to The New York Times this week.
“It was a simple decision by the administration to have a zero tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.”
Photo by U.S. Customs and Border Protection via Flickr