In April 2018, Attorney General Jeff Sessions announced a “zero tolerance” policy at the border, directing the Department of Justice (DOJ) to prosecute 100 percent of border crossers, including asylum-seekers and parents crossing the border with their children. When parents are apprehended at the border, they are taken to jail and prosecuted, and their children become “unaccompanied” due to the separation. These “unaccompanied” children are then placed into the custody of the Department of Health and Human Services‘ Office of Refugee Resettlement. Since the policy was announced, more than 2,300 children have been ripped away from their parents and placed in detention facilities across the country. It was recently reported that the government is operating three detention facilities for “tender age” children, many of them babies and toddlers, with plans to open a fourth.
The public has, rightly, been outraged. What began as pleas from immigration and children’s advocates to stop this shameful practice has swelled into a chorus of diverse voices crying out in righteous anger. People have taken to the streets as protests have sprung up across the country. On Monday (June 18), ProPublica released audio of children in detention wailing and begging for their parents. Department of Homeland Security Secretary Kirstjen Nielsen was shamed out of a DC restaurant two nights ago. Media personalities have broken down in tears on air as they report on this issue.
In the face of this intense advocacy and public pressure, yesterday (June 20) Trump issued an executive order that he claimed would ameliorate the crisis he created. But, the order falls perilously short of that claim.
First, the "Affording Congress an Opportunity to Address Family Separation" order does nothing to address the “zero tolerance” policy, keeping in place Sessions’ draconian prosecution scheme, which will continue to subject migrants, including asylum-seekers, to court proceedings that are often held en masse and cloaked by only the thinnest veneer of due process. Consequently, many families will still be separated. If parents are hastily prosecuted and sent to jail, their children will still be sent to government facilities. Additionally, the order gives government officials the discretion to separate families without meaningful parameters. Leaving this type of determination to the discretion of individual immigration officers will undoubtedly result in continued family separation.
Second, Trump’s order claims to “solve” the issue of family separation by indefinitely jailing families together and mandating that the Department of Defense not only continue using existing facilities, but also construct new ones to incarcerate them. Family detention has long been criticized by advocates, child welfare experts and medical professionals as harmful to children. In fact, the American Academy of Pediatrics has repeatedly decried the practice, making it clear that no amount of detention is safe for children. For Trump to claim he is saddened by the family separation policy he created and to offer family detention as a benevolent act reeks of cynicism and hypocrisy.
To implement this family detention machine, Trump has ordered the government to petition the federal courts to gut the Flores Settlement Agreement, which he falsely claims prevents him from keeping families together. Flores is a historic, long-standing agreement, litigated over a decade, that set humane national standards for how immigrant children should be treated in detention. If detention facilities do not meet Flores‘ standards, the settlement requires that, in most instances, children be released without delay, which is currently defined as within 20 days. The dissolution of Flores would allow the Trump administration to incarcerate families indefinitely. But if the court decides that Flores remains law, the government would be required, generally, to release children.
The bottom line is that families do not have to be incarcerated at all. The government can offer families alternatives to detention, which would allow them to remain together and check in with immigration officials on a regular basis. One model, Immigration and Customs Enforcement’s Family Case Management Program—which reported a 99 percent success rate for immigration check-ins—was shuttered by the Trump administration last year.
Third, the order promises to prioritize the immigration proceedings of detained people. For asylum-seekers, this means that in addition to being prosecuted and detained, they will likely be rushed through the asylum process. Recently, Sessions issued a decision narrowing the ability of individuals fleeing gang violence or domestic violence from obtaining asylum, placing those making such claims in danger of being removed expeditiously and returned to life-threatening situations.
Last, and most chillingly, Trump’s executive order does nothing to reunite parents with their children. It has been reported over and over that the government has no mechanism in place to reunite children with their parents. In fact, a former ICE director admitted that it is likely that many children will be separated from their parents permanently.
The solution to family separation is not family detention. The solution is an end to the “zero tolerance” policy instituted by the Trump administration. Contrary to Trump’s claims that the DOJ must enforce the law, the agency also has the power of prosecutorial discretion, which gives law enforcement wide latitude to decide how and whether to pursue charges against an individual. While Trump made this cruel policy choice in an attempt to pander to his political base, the rest of us will continue to rise up in opposition and fight for immigrant families.
Amanda Baran is an attorney, activist and writer who engages in policy analysis and advocacy for immigrant and women’s rights. Previously, she worked at Legal Momentum: The Women’s Legal Defense and Education Fund and at the Department of Homeland Security, where she co-founded the Department’s Council on Combating Violence Against Women. She’s on Twitter at @abaran76.