In the wake of Donal Trump’s executive order (text) that promised to replace family separation with joint detention of undocumented migrant families, the US government’s actions have been fractured. Over two thousand children remain separated from their parents. As I noted on the day it was issued, the Executive Order codifies the “zero tolerance” policy of prosecuting all arriving adults as criminals for crossing the border.
However, unexpectedly, Customs and Border Protection (part of the Department of Homeland Security) has retreated from zero tolerance and stopped prosecuting arriving families through criminal courts, for now. CBP’s new approach was announced informally on June 21 and formally on June 25. In both announcements, the agency said its reasons are logistical, though the mass public pressure and media embarrassment associated with separating families are obvious major factors. CBP’s head reaffirmed yesterday that he would like to imprison families if he only had the room:
Kevin K. McAleenan, the commissioner of Customs and Border Protection, said his agency and the Justice Department should agree on a policy “where adults who bring their kids across the border — who violate our laws and risk their lives at the border — can be prosecuted without an extended separation from their children.”
Because Immigration and Customs Enforcement does not have enough detention space for the surge of families crossing the border, many families will be quickly released, with a promise to return for a court hearing. Mr. McAleenan said that the agency would continue to refer single adults for prosecution for illegally crossing the border, and that border agents would also separate children from adults if the child is in danger or if the adult has a criminal record.
Meanwhile, Attorney General Jeff Sessions claims that the Department of Justice is holding fast to its zero-tolerance policy, under which it instructed prosecutors on April 6, 2018 (memo|2017 memo authorizing aggressive prosecution), to prosecute all adults referred to them for the crime of unlawful entry. Dogged by protests in Reno, Nevada, Sessions insisted that
The president has made this clear. We are going to continue to prosecute those adults who enter here illegally. We are going to do everything in our power, however, to avoid separating families. All federal agencies are working hard to accomplish this goal.
Squaring this circle requires more jails for families. On Monday, June 25, Defense Secretary Mattis announced that Fort Bliss (near El Paso, Texas) and Goodfellow Air Force Base have been selected as the first detention facilities on military bases.
Migrant families who were taken into custody will be housed at Fort Bliss, an Army base outside El Paso, according to Bowman. Unaccompanied migrant children will be housed at Goodfellow Air Force Base, near San Angelo in central Texas.
As the Department of Defense constructs family detention facilities, they will be solving CBP’s “logistical problem.” Accepting the agencies at their word, we should expect families housed at Fort Bliss to be put through zero-tolerance prosecutions.