The President signed an executive order today “ending family separation.”  As they say, the devil is in the details.  The Executive Order can be found here.  Let’s examine the details:

“This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise.”

The “zero-tolerance” policy of enforcing this misdemeanor charge, appears to remain intact.

“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 administration will be taking us back to the often criticized, and inhumane, family detention policy of the Obama Administration.  Make no mistake, family detention may be “better” than detaining children without their families, but it is by no means a good policy. 

“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.”

Immigration courts are backlogged (massively backlogged).  An asylum case could be pending for yearsTRAC keeps data on the current backlog.  The current data states that there are approximately, 714,067 pending in the United States.

The Flores Settlement provides that:

“1. Juveniles be released from custody without unnecessary delay, and in order of preference to the following: a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.

2. Where they cannot be released because of significant public safety or flight risk concerns, juveniles must be held in the least restrictive setting appropriate to age and special needs, generally, in a nonsecure facility licensed by a child welfare entity and separated from unrelated adults and delinquent offenders.”  – KIND, Flores Settlement Myth v. Fact. 

While the Flores Settlement did not mandate release, it does prioritize release, and further, prolonged family detention is no solution at all; it is still extremely traumatizing to already vulnerable populations.  There are alternatives to detention, such as GPS ankle monitors, supervision through ICE, and the Family Case Management Program, that was terminated by the Trump Administration, which reportedly had a 99% appearance rate for the persons in the program.

Notably, the 9th Circuit ruled in 2016 that the Flores Settlement applied to accompanied and unaccompanied minors, and found that the government could not hold the children in custody for longer than 20 days.  (Order in Flores v. Lynch)

“The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

Indefinite family detention is the goal.  The Trump Administration wants to take us back to the era of family detention, a policy that was bad from its inception, traumatizing parents, and children.  Children who arrived in search of protection and spent a good part of their formative years in a detention center.  Except, as mentioned by Amy Maldonado on CNN, “without the discretion” that agencies had in the Obama Era.  This is still bad.  We must keep the pressure on, and continue to support organizations helping on the ground (click here to see how you can help). 

” 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.”

What is unfortunate, is that we have an administration that tried to force legislation by using children as pawns.  This policy rests squarely on the shoulders of the Trump Administration.