Yesterday, Trump signed an executive order purporting to end the new family separation policy. The phrasing of the headlines around this suggest that this is some kind of massive concession to public outrage. “Why he caved: inside Trump’s rare reversal,” says CNN. “Trump reverses course,” says the Washington Post. This is highly misleading. Trump didn’t need to issue an executive order to end family separation, and the executive order doesn’t actually bind him to anything. The administration can continue, or resume, family separations at any time they please.
But all right, let’s take the best-case scenario, where the administration does actually intend to end family separation. Is that a good sign?
All right, lay all the bad news on me.
It’s important to understand why the Trump administration was separating families to begin with. (The family separation scheme was rumored to have been strongly pushed by Trump’s close adviser Stephen Miller, who is one of the worst human beings on the planet, but also no fool.) The Trump administration was not separating families purely for the sadistic pleasure of it, nor were the separations a harsh but incidental side-effect of the new “zero tolerance” policy of prosecuting people for illegal entry. Family separation was a policy implemented to achieve two goals: reducing border crossings, and preventing asylum-seekers from being released from immigration detention. These same goals can be accomplished a different way: by detaining families together for the entire length of their cases.
First, let’s talk about how border enforcement has operated since the Obama years. Since the so-called “migrant surge” in 2014, these were the possible things that might happen to you if you were apprehended at or near the border without papers. (You can follow along on this handy Current Affairs asylum infographic, if you wish!)
1. Unaccompanied minors from “non-contiguous countries” would be screened by the Department of Health and Human Services for possible trafficking, and placed in formal immigration court proceedings. At this point they would be placed into the custody of the Office of Refugee Resettlement, who would usually find a relative or other sponsor inside the U.S. to release them to, pending their court date.
2. Unaccompanied minors from Mexico (and, uh, I guess theoretically Canada) would be screened by Border Patrol for trafficking and possible asylum claims. If CBP didn’t think they had a claim, they could be summarily deported.
3. Adults would be immediately deported without a hearing under a process known as “expedited removal.” If they had a child with them, the child would be deported with them. HOWEVER, they might manage to halt or pause this deportation process if they stated they were afraid to return to their country. At this point, one of several things might happen:
a. Border Patrol might pressure them to sign their own deportation order anyway. It’s pretty well-known that this occurred on a regular basis. People who survive to the later phrase of the asylum determination process have often had to be adamant about their claim.
b. Border Patrol might release them (with their child, if they had one) into the U.S. with a notice to appear in court on a particular day. Speaking from my own observation, this seems to have been done with some frequency for dads crossing alone with kids, because there weren’t facilities equipped to detain dads and kids together. There was some reluctance—partly logistical, perhaps partly moral—to split kids from their only parent, when there was reason to believe they were asylum-seekers. (That said, lots of dads were separated from their kids; it just depended what Border Patrol officer you got that day.)
c. Border Patrol might send the adult into immigration detention. If they were an adult without a child, they could be sent to any number of the many immigration prisons scattered along the border and interior of the U.S. If they had a child, however, things got more complicated.
i. Dads and other non-parent relatives would be split from kids, with the kids going to ORR custody and the adult going to an adult detention facility.
ii. Moms and kids would be sent together to so-called “family detention centers,” where they would be kept in custody preparatory to a “credible fear interview.”
Now, group 3(c)(ii) on my list, asylum-seeking moms with kids, is the one that primarily interests us here. The practice of releasing people into the country from the border with notices to appear in court—what Trump has derisively called “catch and release”—has always been a totally discretionary policy on the part of the government, and all the Trump administration had to do was tell Border Patrol to stop doing it. But things were more complicated when it came to moms with kids.
Per a 1997 legal consent decree, the Flores Settlement, issued by a federal judge, the government is forbidden from keeping children in more restrictive custody than absolutely necessary. Specifically, if a child is placed in a detention center, the government must decide within 20 days whether they are going to deport the child or release them from detention. This provision was intended to prevent the government from keeping kids locked up for long stretches of time, which is known to be dangerous for their mental and emotional well-being. In 2016, the federal judge responsible for monitoring the government’s compliance with the decree, Judge Dolly Gee, issued a follow-up ruling stating that when children are detained alongside their parent, their parent must be released with them, if their cases are linked.
So, basically, if a mom passes her credible fear interview—which she does by demonstrating to an asylum officer that she has a “significant possibility” of being able to win an asylum case in a full hearing before a judge—she and her child are both legally required to be released into the country. (Usually, moms are released with GPS ankle monitors so that the government can track their movements and come after them if they try to flee.) If she fails her credible fear interview, she and her child would be deported immediately, unless the child has an independent claim that they opt to pursue separate from their mother’s.
I want to stress that this form of family detention, and the interview process that accompanies it, is profoundly cruel. It is a hostile and traumatizing process for the women and children who pass through it. Under a moral immigration regime, it would be done away with entirely. The only reason it has half-functioned up until now is because some lawyers devised a highly resource- and labor-intensive system for providing legal representation to detained mothers. Before that, women were rushed through the process and rapidly deported, despite having good asylum claims.
That said, the Trump administration has hated having to comply even with this minimally protective process, because the moms and kids who do pass their interviews are released at the end. And the overwhelming majority of them—in the 90 percent range, up until quite recently—do pass their interviews. (I can confirm, having seen hundreds of these cases, that this high success rate is not because asylum officers are lenient, but because the actual facts of the cases are pretty goddamn upsetting.) It’s the one form of “catch and release” that the administration—supposedly—can’t do away with by fiat, because the Flores Settlement blocks them from detaining children and their mothers for more than 20 days, and asylum-seekers can’t just be summarily deported until they’ve at least been granted an interview.
This left the Trump administration with two options to avoid releasing moms and kids:
1. Separate the moms from their kids and detain them separately; under this plan, kids would get released to sponsors or youth shelters, per Flores, but their moms could be kept in detention as long as the government wished, or
2. Get rid of the Flores Settlement so that the moms and kids could be detained together indefinitely.
With this executive order, Trump is apparently abandoning option 1 in favor of option 2, proposing to detain whole families together for the duration of their immigration proceedings. (Incidentally, the executive order authorizing this detention doesn’t distinguish at all between families who present themselves at ports of entry to ask for asylum and families who cross the border “illegally” to ask for asylum, so the administration is evidently done pretending this was a distinction that ever mattered to them.)
Can the administration just get rid of the consent decree like that?
Not really. The executive order states that the Attorney General will apply to the federal judge who decided the Flores Settlement to ask for a modification. I could be wrong, but my guess is that she’s going to say no thanks. If the government wants to fight her on that, the case will probably have to go to the Supreme Court. It’s likely we will also see other family detention lawsuits go up through the courts, which could perhaps result in a federal injunction, forcing the government to temporarily halt its non-Flores-compliant child detention practices until the Supreme Court makes a decision on the matter.
What happens if the government fights it up to the Supreme Court, and the Supreme Court says that detaining kids is totally fine?
They might well decide that detaining kids is fine! It’s hard to say. I mean, the Supreme Court did issue a decision this March basically stating that immigrants in long-term detention have no constitutional right to a bail hearing because—get this—they are not legal “persons” and are not, as a matter of law, “present in” the United States. I mean, they’re physically here, but they’re not legally here, you know? “Why do we allow people to become judges who are apparently too stupid to grasp the concept of object permanence,” you may be thinking, and you are correct. Any court that would accept reasoning that morally callous and comically divorced from reality is really capable of anything.
If the Supreme Court gives the green light, the government could keep moms and kids interned together in longer-term detention facilities. This will have a number of consequences. One is trauma to children: Being ripped away from your parent is horrific, but being trapped in a jail or a camp surrounded by armed guards is also horrific.
Now, citing benevolent motives, the government will likely try to push cases through the system faster, supposedly so that the kids don’t have to be detained so long. What this means, in turn, is that their parents will have less time to prepare their asylum case. Asylum cases are a lot of work. I have routinely filed 1000 pages or more of documents for the asylum hearings I’ve worked on as a law student. Because the parents are detained, they will a) be far less likely to be able to recruit a lawyer, b) have almost no ability to gather documents or conduct research for their cases, c) be up against a judge attached to the detention center where they’re being housed, likely in the Fifth Circuit, which is not friendly to asylum-seekers.
This situation is all the worse in light of Jeff Sessions’s recent decision, Matter of A-B-, which purports to restrict asylum for domestic violence survivors (and restrict asylum still further for people fleeing gang violence, who already had an uphill battle to win their claims). There are courts in this country—New York, for example—who are still going to look carefully at the facts of each asylum case and consider legal theories that would allow them to grant it. Judges in border states are far more likely to just issue an immediate “no.”
Are there other options for Trump to get rid of Flores besides the courts?
The Republicans have had repealing Flores on their legislative agenda for months. (Current Affairs wrote about this very issue back in October, and again in January, in fact!) A Congressionally-passed statutory definition of how children can be detained would be harder to challenge in court than an executive order, so this would strengthen the administration’s position. But the Democrats won’t be tricked into supporting any immigration bills that happen to revoke Flores, right? They’re all alert, conscientious people with a great track record on protecting immigrants, and we should definitely trust them!
What happens if the government can’t get the consent decree altered?
Well, they’d have a few options. One would be to abandon the whole scheme and return to the (shitty) form of family detention we already had, where moms and kids are detained for the length of the credible fear determination process, and then either deported or released. It burns my guts to present this as a “desirable” outcome, because the family detention status quo is terrible, and only appears humane against the backdrop of these other, exaggeratedly evil policies. That said, it is the best-case scenario currently within the realm of possibility.
Another option for the Trump administration would be to resume family separations, probably accompanied by some pat rhetoric about activist judges making it impossible to implement kinder policy measures.
Another would be to just ignore Flores—the government already violates Flores constantly, keeping children detained longer than they’re supposed to—and try to pass legislation supplanting Flores before the next round of lawsuits get appealed up. Within about 24 hours, nobody in the media will give a damn about any of this anymore, so they can probably do whatever they like.
Likely, what the Trump administration is partly banking on is that the fear of family separation—plus the widespread rejection of domestic violence and gang-related asylum claims at the credible fear stage, based on Jeff Sessions’ recent decision on Matter of A-B-—will significantly drive down border crossings, so that they won’t have to detain that many people anyway. We’ll have to see how that pans out. They will need to build a lot more detention centers if border crossings continue at the present rate and they want to keep everyone locked up longer. That’d be good news for the private prison companies that build these detention centers, of course. Incidentally, there are three Democratic Congresspeople who are listed on Open Secrets as among the top 20 recipients of campaign contributions from private prison companies. If your representative is Henry Cuellar, Jon Tester, or Sanford Bishop, give them an angry phone call, maybe.
Now I’m mad again, what can I do?
Sign up to go down to the border and help fight these cases! As more and more women are getting negatives on their credible fear interviews, thanks to Jeff Sessions’s recent ruling on domestic violence, the workload on the ground is increasing rapidly for the lawyers who help detained mothers and children. And if the Trump administration does actually begin detaining whole families up until their asylum hearing dates, the caseload will likely be staggering. You can be useful whether you are a lawyer or not! Be bold!
If you can’t travel just now, here’s a list of other things you can do.
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