Yesterday afternoon, June 20, President Trump publicly retreated from the family separation policy (Wikipedia article) that has torn at least 2,342 children from their families. A close reading of the Executive Order he signed, however, reveals that instead of retreating, Trump codified Jeff Sessions’ zero-tolerance policy and proposed an expanding system of indefinite family detention. Further reporting revealed that the Administration is not yet prepared to re-unite divide families. Practical and legal constraints may render the promises of the Executive Order worthless, or (and this is the only speculative part of this post) prompt renewed family separations within days or weeks.

A close read of the Executive Order

This is a slightly amplified version of a post that went viral on Facebook yesterday. While I am not an immigration lawyer, I am a trained policy analyst (M.P.P., University of Chicago, 1998) familiar with Executive Orders and recent immigration policy. My read here is a direct analysis of what the White House proposed, rather than an assessment of what it can legally or practically implement.

I’ve just read the Trump Executive Order. It’s not a solution, and it makes some things worse.

Here’s what the Executive Order actually does (numbered by section) …

1. Codifies Jeff Sessions’ “zero tolerance” directive until new immigration legislation is passed. Prior to the Trump/Sessions crackdown, the US government only criminally prosecuted about 21% of unlawful entrants, concentrating on return offenders and smugglers and exempting families with children. “This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise.”

2. Limits the definition of family to parent-child pairs. Aunts, uncles, grandparents, etc. are excluded. “Alien family” means…

3a. Puts families under Homeland Security custody during criminal, immigration cases. Previously, children and detained families had to be held in facilities contracted by the Department of Health and Human Services. [Correction 6/27: Detained families are held by DHS in three facilities: the privately operated Karnes County Residential Center and South Texas Family Residential Center in Texas, and the Berks County Residential Center in Pennsylvania. These facilities must be state-licensed as child-care facilities under rulings pursuant to the Reno v. Flores litigation.] 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 

3b.Authorizes immigration authorities to separate parents from children if joint detention “would pose a risk to the child’s welfare.” This phrase seems intended to separate abusers from their kids, but no procedure is elaborated.

3c. Authorizes the military to build new prisons for migrant families. The wording actually gives the Homeland Security Secretary, currently Kirstjen Nielsen, to choose any military facility she wishes.  The Secretary of Defense shall take all legally available measures to provide to the Secretary [of Homeland Security], upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. 

3d. Allows all Federal departments to offer their buildings as prisons. Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. 

3e. Authorizes the DOJ to try to wriggle out of the Flores Agreement. This phrasing is the most foreboding since it would seek legal authorization for DHS (not Health and Human Services) to detain families throughout their often-lengthy criminal, deportation, and asylum proceedings. 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… to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

4. Orders parents to be prosecuted first in immigration courts, presumably to deport them fastest. This phrase, intended to expedite prosecution and removal, puts families to the head of a line that also includes people being deported for dangerous criminal offenses, the exact opposite of the policy pursued by the Obama administration.

Early signs the crisis isn’t over

• Wednesday afternoon, Kenneth Wolfe, a spokeman for  the Administration for Children and Families told the press, “There will not be a grandfathering of existing cases.” And also “For the minors currently in the unaccompanied alien children program, the sponsorship process will proceed as usual.”
• Seemingly embarrassed by these admissions, the Department of Health and Human Services walked them back later on Wednesday, saying instead: “It is still very early and we are awaiting further guidance on the matter. … Reunification is always the ultimate goal of those entrusted with the care of UACs, and the administration is working towards that for those UACs currently in HHS custody.”
• Once guidance comes, there is the problem of a system not built to keep families connected at all. Politico reports that “The biggest problem, as far as I can tell, is where the kids’ records don’t have information on the parents,” said one Homeland Security Department official. “I don’t know how they’re going to go about fixing that.”
• Should families be reunited, they might not have a place to go. The Executive Order instructs the Department of Homeland Security (ICE and CBP) to incarcerate families together. At the moment, ICE has very limited detention space for families. As the Washington Post reports, “ICE operates two large family detention centers in Texas and a smaller facility in Pennsylvania, with a combined capacity for about 3,000 beds. As of June 9, the three facilities had nearly 2,600 of those beds occupied.” Reuniting families immediately would require some five thousand separated family members into 400 beds.

Looming obstacles mean family separation will likely resume, and soon

Again, this is the only speculative part of this post.

• Reports indicate that ICE has been separating 65 children per day. As noted above, ICE family detention capacity is low (perhaps as few as 400 empty beds), even if already separated families remain separate. Incarcerating families will require putting around 130 people into these facilities every day, or rapidly building more. Either the government will rapidly stop detaining families together, or they will start putting them into makeshift facilities recently built for immigrant children, like the tent camp in Tornillo.
• Legal constraints, primarily the Flores Settlement, limit DHS custody of children to 72 hours and HHS custody to 20 days. If enforced, these would require either separating or releasing families at the end of these windows.
• There will be lawsuits over the new family detention policy, and some of it seems manifestly against existing law or legal orders. Politico reports: “The president doesn’t get any brownie points for moving from a policy of locking up families and kids separately to locking them up together,” said Karen Tumlin of the National Immigrant Law Center. “I will not hesitate to use every legal tool available to challenge these policies in court….May a thousand litigation flowers bloom.”

On the other hand…

We did get some genuinely good news today (Thursday) with this announcement from Customs and Border Patrol, reported by the Washington Post:

The U.S. Border Patrol will no longer refer migrant parents who cross into the United States illegally with children to federal courthouses to face criminal charges, a senior U.S. Customs and Border Protection official told The Washington Post on Thursday.

…

A Justice Department spokesperson denied changes to the zero tolerance policy and said prosecutions would continue.

…

Because ICE lacks the detention capacity to increase the number of families it holds in detention, the official acknowledged that many migrant parents and children will likely be released from custody while they await court hearings.

Top CBP officials did not know what the executive order would ask them to do until its release Wednesday, the official said. The decision to cease prosecutions of parents with children was made by the Department of Homeland Security for logistical purposes because the official said it would not be “feasible” to bring children to federal courtrooms while their parents go before a judge.

This is a logistical decision; there really is nowhere to put families with children. So, it may be reversed. But it is the first sign that CBP might not implement the mass detention of families, for now.

Mass prosecutions of adults without children continue. So the zero tolerance policy has not be reversed.

Further reading

I’m not just a voice in the wilderness saying these things. You can read reporting and commentary here…

• Trump’s Executive Order on Family Separation, Explained (New York Times)
• Family separations will persist under Trump’s order (Politico)
• Flores agreement: Trump’s executive order to end family separation might run afoul of a 1997 court ruling (Vox)