By Sylvia Longmire
Columnist, In Homeland Security
In the face of enormous pressure and opposition to a “zero tolerance” immigration policy, President Trump on June 20 signed an executive order that supposedly would keep more immigrant families together while they go through either asylum or criminal proceedings.
Trump’s move was hailed by many groups and people, even by some of his fellow Republicans, who decried the separation of children from their immigrant parents at the border as cruel and inhumane.
Relief That Migrants and their Advocates Have Been Seeking May Come Any Time Soon
However, a close examination of the executive order reveals that the relief so many border crossers and their advocates have been seeking may not be found any time soon.
The first problem that becomes immediately clear is the fact that the order will not reunite families that already have been separated – roughly 2,000 over six weeks in April and May alone. To make matters worse, existing policies place the onus on the parents to find and reunite with their children who are being held in Department of Health and Human Services (HHS) custody.
“For the minors currently in the unaccompanied alien children program, the sponsorship process will proceed as usual,” HHS spokesman Kenneth Wolfe told CNN. “There will not be a grandfathering of existing cases.”
The wording of the executive order also seems to provide considerable leeway with regard to how future border crossers will be detained after they are apprehended. The order states, “It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”
The main concern stems from this statement: “The Secretary of Homeland Security (Secretary), 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.” This wording leaves room for families to be detained for indefinite periods of time.
The 1997 District Court agreement in Flores v. Reno authorized the removal of children from immigrant parents under certain circumstances. The consent decree states: “The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.” It’s a matter of debate among child psychologists as to which is more detrimental to a child’s welfare—being in detention for months (or longer) with their parents or being separated from their parents.
Immigration Cases Involving Asylum Claims Can (and Do) Take Years to Adjudicate
The only substantial beacon of hope in Trump’s executive order is the direction that “the Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.” Normally, immigration cases involving asylum claims can (and do) take years to adjudicate, so this might offer some relief.
However, given that Trump and Sessions have made it much harder for asylum seekers from Mexico and Central America to be granted legal status in the U.S., this adjudication process will likely only mean a quicker return trip home for most of these families.
Many media outlets have made significant note of the fact that Trump’s policy reversal was something he insisted that only Congress could initiate because “you can’t do it through an executive order.”
Trump made specific reference to Congress in the order, saying, “It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.” It other words, Trump implied that he had no choice but to enact the “zero tolerance” policy under Flores v. Reno, which he just managed to reverse with an executive order.
Trump also wants to keep families detained for longer than 20 days. Due to the Flores decision, which requires approval from a federal judge, a judge could very well refuse to grant that authority. Gene Hamilton, the counselor to Attorney General Sessions, said the judge’s previous rulings prohibiting extended detentions of families has “put this Executive Branch into an untenable position.”
Reporters had a long list of questions regarding this policy change that administration officials could not answer. According to the New York Times, the order does not say where the families would be detained. It also doesn’t say whether children will continue to be separated from their parents while facilities to hold them are located or built.
The House is scheduled to vote Thursday on two competing immigration bills. However, the President’s executive order appears to have lessened the urgency for lawmakers to address the issue.
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