Trump’s new order on families at the border raises even more questions about what happens next for child migrants

A mother is seen holding her child.

President Donald Trump signed an executive order Wednesday ending his administration’s policy of separating migrant children and parents at the southern border. Instead, the order says, they will be kept together in detention as their legal cases are resolved.

The order, posted on the White House website, leaves several major questions unanswered. It does not address what will happen to the thousands of families that were separated under the “zero-tolerance” immigration policy, nor does it explain if and how it will get around prior court rulings that restrict the government’s ability to detain immigrant children. Immigrant advocates say they are preparing for court battles.

At a meeting with lawmakers on Wednesday, Trump said immigration requires security and compassion. He called his executive order a preliminary step that “ultimately will be matched by legislation.”

The order says families will be kept together “where appropriate and consistent with law and available resources” but that it will still separate them in cases where the government determines keeping them together “would pose a risk to the child’s welfare” — which gives the government fairly wide latitude to continue its separation policy at a time when existing federal detention centers are stretched to capacity.

From May 5 through June 9, 2,342 children were taken from their parents, about 65 per day, according to government officials. The Department of Health and Human Services says the US government now has more than 10,000 migrant children in its custody.

Listeners to PRI’s The World sent in many questions about the “zero-tolerance” policy, the children affected and how the asylum and immigration system works. We are going to address as many of your questions as we can with our reporting in the coming weeks, but to get us started, here are some answers we can give you now.

1. Many of you asked variations of this question today: What does Trump’s executive order change? Is it legal?

The order requires Homeland Security agents “to the extent permitted by law and subject to the availability of appropriations” to detain any family apprehended at the border through their criminal and immigration proceedings. It replaces one controversial policy, that of separating migrant families, with another: holding them in detention indefinitely.

In 2015, during the Obama administration, a federal court ruled that the US government cannot indefinitely detain asylum seekers and must follow the ruling of a 1997 case known as Flores. The summer before, nearly 70,000 minors were apprehended alone at the border, and nearly as many came in family groups. Most were from Central America, particularly Honduras, El Salvador and Guatemala, and fleeing extreme violence. The court said the government must release children with their parents if they do not pose flight or security risks. If release is not possible, it must place children in facilities that have licenses for childcare and are not secured like prisons.

(For more, the American Immigration Lawyers Association has a repository of documents and summaries related to the Flores settlement.)

The Obama administration responded to restrictions on its family detention program by expanding the alternatives to detention program, which requires bond payments, ankle monitors or check-ins with immigration authorities as conditions for release. It also, unsuccessfully, attempted to ask the court to modify the 1997 Flores ruling.

Trump’s executive order calls for returning immigrant families to immigration detention facilities. How much the Flores ruling will restrict that action is still to be seen.

Importantly, here’s a note about what the order does not do: It does not end the “zero-tolerance” policy of criminally prosecuting every adult migrant who crosses the border between checkpoints. This means that adults will have to be detained.

“If ‘zero-tolerance’ continues as it has, the only recourse to keep these families together is to the courts though a modification of the 1997 ‘Flores settlement’ consent decree,” says Loyola Law School professor Rebecca A. Delfino. “It is unclear whether the court will agree to a modification.”

The new executive order also calls for the attorney general to ask the court to allow it to detain families for as long as it takes to process their cases. If the court does not agree, Delfino says the executive order does “give Trump another place to put the blame for the crisis created by his ‘zero-tolerance’ policy.”

At the beginning of 2018, the backlog of asylum cases was almost 300,000 and the government pursued a “last in, first out” strategy to hear the cases of recent migrants first. Immigration court cases generally have been pending on average for about two years, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University.

Trump’s order asks the attorney general to prioritize the cases of detained immigrant families.

“That raises certain due process concerns,” says Sarah Pierce, a policy analyst with the Migration Policy Institute. “Will they be afforded enough time to prepare for their cases and get an attorney? In the past, when we’ve seen adjudications speed up, sometimes you’ll see an immigration hearing will happen before the immigrant is even notified.”

2. Lauren Dobbins Webb asked, what is the plan for tracking and reuniting children and parents who were separated under the “zero-tolerance” policy? Matt Schmidt asked if parents have been deported without their children?

It’s complicated, but there is no real plan. The federal government is ill-equipped to reunite families once they have been forcibly separated.

This is because, once separated, parents and children are placed on separate legal paths. Parents are referred for criminal prosecution and then placed in removal proceedings where they attempt to argue for asylum. In some cases, they are deported without their children. Children, meanwhile, are entitled to a full hearing before an immigration judge, so resolution of their cases takes much longer. The children are treated as unaccompanied minors, as though they arrived at the border alone. Initially, they stay in shelters run by the Department of Health and Human Services’ Office of Refugee Resettlement, which is responsible for unaccompanied minors, while their parents sit in federal prison or detention. Next, the children can be transferred to other, longer-term shelters located elsewhere in the country until they are placed with a relative or in a foster home.

Parents and children fall under different government agencies and are assigned different case numbers, so it’s very difficult for immigration advocates to track their cases concurrently and for parents and children to keep in touch while their cases proceed.

“Oftentimes, what we’re seeing is that the parents are going to accept removal because of the strain of detention and being separated from their child — even if they have a legitimate case,” says Jennifer Podkul, director of policy for Kids in Need of Defense, an advocacy group.

John Sandweg, the former acting director of Immigration and Customs Enforcement during the Obama administration, told MSNBC that some parents and children will end up permanently separated.

“If they don’t reunite these kids and their parents right away, what can happen is the kids will be stuck in the US for years, guardians will be appointed, and their parents will be down in Honduras or Guatemala with no idea where their child is and no meaningful way to reunite,” he said.

Trump’s executive order does not provide a solution for those families.

“This executive order does nothing to address the thousands of families that have already been separated. The administration needs a system or plan to address that issue and reunite them,” Pierce says.

But the government has no such plans. It will be up to parents to find their children through a labyrinth process and reunite with them.

“For the minors currently in the unaccompanied alien children program, the sponsorship process will proceed as usual,” a Health and Human Services spokesman told reporters.

The Trump administration’s “zero-tolerance” policy is already under legal attack. The American Civil Liberties Union (ACLU) is awaiting a decision from US District Judge Dana M. Sabraw in San Diego on a class-action lawsuit it filed on behalf of families seeking asylum at the US-Mexico border, including at ports of entry, who were separated.

Earlier this month, Judge Sabraw denied the Trump administration’s motion to dismiss the suit. In his ruling, he called the family separation practice “brutal” and “offensive.” Alleged violation of due process rights is at the heart of the ACLU’s lawsuit, a claim that was also made when family detention was reintroduced during the Obama administration.

It is unclear if Judge Sabraw were to issue a preliminary injunction if that would halt family separations nationally, or if that would have implications for the government’s ability to detain families and children together.

“The government is just flatout doing what it can to deter future asylum seekers from coming here,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project in New York.

Hear from Global Nation editor Monica Campbell and Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project in New York:

3. One listener asked, “Would the administration’s solution of allowing children to be detained with their parents in federal detention facilities while they await processing solve the problem?”

Many advocates and immigrants who have been in detention say no.

For one thing, immigration cases can take months or years to be resolved. Trump’s order would detain children alongside their parents until judges rule on their misdemeanor charge, then their immigration cases.

There have also been serious questions about the government’s ability to properly care for children and families it detains, and the fitness of the private companies it contracts with to do so.

These facilities have been plagued by issues related to health care, access to legal services and safety. In 2014, one young migrant was sexually assaulted at a facility in New York. In 2016, mothers went on a hunger strike at a family detention facility in Pennsylvania to protest their treatment and the lengthy detention of their young children. Advocates that there is not enough oversight in these facilities, while the government maintains that it regularly inspects and reports on how its contractors operate.

More recently, a lawsuit alleges that a Houston facility has been forcibly injecting children with medications and that there is a pattern of serious allegations of safety and health violations with the companies that contract with the federal government to detain or shelter children.

4. Michael Kaiser wants to know about illegal entry as a federal misdemeanor. What other crimes fall into this category? Do these other misdemeanors lead to immediate arrest while awaiting a judicial hearing?

Entering the country without authorization, called “improper entry” in the Immigration and Naturalization Act, is a class B misdemeanor for first-time offenders. It is a criminal category that also includes first-time shoplifting, low-level drug possession and driving under the influence. A conviction can carry a fine, up to six months in prison, or both. Critics of blanket prosecution of first-time offending border crossers say that the response to such a misdemeanor charge is outsized.

“If you look around the country, there are hundreds and hundreds of state and federal misdemeanors,” says Gelernt at the ACLU. “When is the last time you heard of ‘zero-tolerance’, where we are going to prosecute every single misdemeanor violation and we’re going to do so even when the parent is the sole caretaker and it would mean the parent goes to jail and the child goes to foster care?”

Trump’s order says that the only way migrants can enter the country legally is “at a designated port of entry at an appropriate time.” That’s the only way to avoid getting caught up in the “zero-tolerance” policy.

It’s a law that’s been on the books for a long time and, over decades, most presidents have elected to enforce it selectively. In 2005, President George W. Bush enacted another “zero-tolerance” approach called “Operation Streamline,” which pushed people slated for deportation into the criminal justice system. That effort lasted into the Obama administration. Neither administration targeted parents traveling with children, though.

So, it is a misdemeanor to cross the border improperly. But the rules are different for asylum seekers. When migrants cross because they fear returning to their home countries, the US is bound by the United Nation Convention on Refugees. It says, “No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

The Department of Homeland Security’s Inspector General said in 2015, regarding Operation Streamline, that prosecuting asylum seekers “may violate US treaty obligations.” On June 5, the Office of the United Nations High Commissioner for Human Rights censured the US and called for a halt to the separations caused by the “zero-tolerance” policy.

Marco Werman speaks to Lily Axelrod to help explain the “zero-tolerance” policy:

Lily Axelrod, an immigration attorney in Memphis, says that the Trump administration is backing migrants into a corner. “In many cases the only reason they’re coming in illegally is because our border patrol officials are interfering with their right to get in line and do it the right way,” she says.

It’s just that now, she adds, the stakes for this misdemeanor are much higher.

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