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

June 21, 2018June 27, 2018 Carwil Bjork-James2 Comments

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.

Making immigration illegal has always been a racist move

September 6, 2017 Carwil Bjork-JamesLeave a comment

From the beginning, US immigration law has been about race.

The 1790 Naturalization Act offered US citizenship only to “free white persons.”

The Chinese were nearly all banned by the 1882 Chinese Exclusion Act, which also made those Chinese already here ineligible for naturalization.

The 1917 Immigration Act created the Asiatic Barred Zone, added a vast zone of East, Southeast, and South Asians and the Persian and Arab world to the exclusions.

Until 1921, all white immigrants to the United States were legal immigrants, although a variety of entry criteria were made to exclude the poorest, radicals, homosexuals, and the disabled.

Then, explicitly racist people passed two immigration acts (in 1921 and 1924) designed to rebalance immigration away from Southern and Eastern Europe. They created the concept of illegal immigrants, and quotas. They You can read President Calvin Coolidge’s intentions here:

Criminalizing immigration has always been a racist move. And illegal alien has always been a legal gloss on racially undesirable immigrant.

Heroes

Among the immigrants on the white side of my family: a German fleeing conscription and the Franco-Prussian War, and Polish Jews in an era of pogroms. Draft dodgers and war refugees. They got here before 1921, so they didn’t break the law to enter. Instead, fear of people like them inspire those racist laws.

It’s easy to see now how the Chinese who overstayed their bonded labor status and gave birth to citizen children were heroes. Likewise the Chinese who became “paper sons” to bring their families and countrymen in. And so we’re the Italians and Slavs and Jews who defied the 1924 law (many of whose relatives, like mine, would not make it through World War II and the Holocaust). People who come here so their kids can have a better life, racist laws be damned, were heroes then and are heroes now.

Image at top: Racial types and criminality infographic by anthropologist and eugenicist Earnest Hooton, an advocate of immigration controls.

“Eco” Opponents of Immigration Really Concerned about Brown People, Not Green Issues

August 21, 2008 Carwil Bjork-James1 Comment

Writing in the SF Chronicle (“The changing face of America poses risks”), Californians for Population Stabilization cites recent Census projections on US racial demographics to expose his, the group’s and allegedly white America’s fears about losing control of the country.

the increasingly rapid erosion of the white population in America raises the stakes considerably no matter who wins the White House. The question transcends what the occupant of the Oval Office looks like and becomes whether whites are ready for the accelerating changes that will result in an America that no longer looks like them, sounds like them or necessarily embraces their cultural tastes.

The author, Mark Cromer is a “senior writing fellow” for CPS, a group spun off from Zero Population Growth, and descended from the efforts to use the Sierra Club to oppose immigration to the United States on ecological grounds. Perhaps the Earth isn’t exactly their top priority. With current projections showing the U.S. will no longer have a non-Hispanic white majority in my generation’s lifetime, Cromer is focused on so-called stability of racial divides:

In just over 300 of [3100 U.S. counties], ethnic minorities are now the majority population. The effect has often been the real-world elimination of hard-won racial balances, with traditional working and middle-class black and white communities effectively disappearing. In many places throughout Southern California, the white flight that marked the efforts at integration in the 1960s and early 1970s struck again in the 1990s, turning into a middle-class Anglo exodus from the state in the face of massive immigration from Mexico, helping create the first minority-majority state in the union.

In essence, he’s saying those whites who agreed to “tolerate” a certain level of black faces are not okay with black and brown people together outnumbering. The result he predicts is this…

This demographic upheaval has spawned another phenomena among the white middle class that has become iconic: the gated community.

Knowing the white folks in my own family who fled for the far suburbs when their neighborhood became “too ethnic,” I’m hesitant to dismiss this explanation. Such frankness on the anti-brown-immigrant, pro-white-flight side is very rare. But when it comes to policymaking, Cromer is calling for a racial compromise that means racial planning of immigration policy:

to begin any new round of negotiation on immigration reform with an understanding that any effort to legalize the status of millions of illegal immigrants will be matched with a commensurate reduction in legal immigration into the United States, spread out over years. This would go far in ameliorating the pervasive sense among whites that America is being overrun.

Read that again. More legalization of brown people must be offset less legal immigration of brown people. The presence of people of color feels like “America” is “being overrun.” Of course not all people have this racist perspective, but important thing is to compromise between other values and racism:

Failure to seize the opportunity to build a real national consensus – one that can only be obtained through what surely will be a hard-fought compromise – is to risk further alienating a white majority that will ultimately insist on having its voice heard on these issues, one way or the other.

The question is: do racist fears deserve a seat at the table in planning our cities and policing our borders, or should we act beyond racism and let our neighbors be whoever moves into the houses and apartments next door? Fortunately the answers will come with the free decisions and political lives of my generation. I want to ask my white peers whether this represents you, your friends, or your cousins. I’m really curious, and will strive not to be judgmental:

it’s not the end result that most white Americans probably find troubling today, but rather the factors that are fueling those projections [of a white non-majority], namely unrestrained immigration and the increasingly bitter sense that they’ve had little to no say about this matter.

Oh, and if this doesn’t represent you, consider dropping a line to the writer at Mrcromer@aol.com.