CBP suspends “zero tolerance,” Sessions defends it, Military builds prisons for families

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.

Why Trump’s Executive Order doesn’t solve the family separation crisis

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…

Numerous detentions go beyond letter of Muslim Travel Ban Executive Order

We’re seeing a lot of legally ungrounded detentions and expulsions of international travelers in and around Donald Trump’s Executive Order 13769 imposing a travel ban on residents of seven Muslim countries. Here’s a brief list:

  • Prior to the January 27 Executive Order, multiple valid visas were abruptly canceled by the Department of Homeland Security, The Intercept reports: “Valid visa holders were suddenly being prevented from re-entering the country after taking trips abroad … The impacted individuals whose files the official reviewed included a young mother of a U.S. citizen child and students at some of the nation’s top universities who had been publicly recognized for their outstanding achievement. These students had already undergone rigorous U.S. government vetting before being admitted to the country, and had only traveled abroad briefly over their winter break.”
    These cancellations were imposed suddenly and the surprised visa holders were punished, the official is quoted as saying, “More disturbing, in some cases the individuals were allowed to board flights for the United States not knowing their visas had been terminated. They were only informed when they attempted to use their visas to seek admission and were denied. Even though they were ignorant of the termination, they were still charged with violating U.S. immigration law and given a five-year ban to future admission.”
  • The pattern of border officials threatening visa holders with punishment for violating immigration law continued on Saturday, January 28, as the Order began to be implemented upon people who had begun their journeys before it even existed. Cleveland Clinic medical intern Suha Abushamma, an MD from Sudan, was told she faced deportation and five-year ban from the United States unless she signed a document relinquishing her H-1B visa, according multiple press reports. UAE national and doctor Amer Al Homssi likewise had his visa cancelled upon arrival to O’Hare; the United Arab Emirates is not on the travel ban list. Al Homssi’s exclusion was reversed on February 1 as his lawyers appeared in court to press his case. Coerced departures were common at JFK as of Sunday, according to Becca Heller of the International Refugee Assistance Project, “Rogue customs and Border Patrol agents continue to try to get people on to planes. A lot of people have been handcuffed, a lot of people who don’t speak English are being coerced into taking involuntary departures.”
  • Court orders enjoining enforcement of the travel ban have been ignored by the government.
    • Abushamma’s removal came after Judge Ann Donnelly’s stay and the judge’s insistence that “nobody is to be removed in this class [i.e., those covered by the class action suit], okay?”
    • Four Democratic members of Congress were unable to compel authorities at Dulles Airport to comply with the court order on January 28.
  • Extended questioning of arrivals continued on Monday, January 30 at O’Hare airport despite court orders, with the Chicago Tribune reporting that 40 to 50 people were detained for hours.
  • Mohammad Abu Khadra, a sixteen-year-old Jordanian visa holder who sometimes lives with his family in Katy, Texas, has been detained since his January 28 arrival at Houston Intercontinental airport. (Jordan isn’t on the travel ban list.) On January 30, he was transferred to an Office of Refugee Resettlement facility in Chicago. He was first able to speak with his lawyers on February 1, and they now expect him to be detained for up to a month. He “is allowed to talk to his family twice a week for 10 minutes on the phone now that he’s been processed” according to his immigration attorney. There have been intimations in the press that he may be detained now because of a mismatch between his tourist visa and his taking English classes at a Texas high school. Khadra was released to his family on Febuary 13; his future visa status is unresolved. Representative Shirley Jackson Lee held a press conference advocating him upon his release. [Updated February 13]

In short, the Department of Homeland Security is coloring outside of the lines of the Executive Order, in the direction of a general process of arbitrary detention of foreign Muslims. Unfortunately, I fear I may be updating this list for some time to come.