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Trump Administration Threatening to Revive Inhumane Family Separation and Massive Increase in Indefinite Family Incarceration

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Notwithstanding widespread outrage at Trump over last summer’s family separation policy, a federal court injunction, an executive order purporting to end family separation, and the President himself saying, “I didn’t like the sight or the feeling of families being separated,” reports suggest the Trump administration may revive inhumane family separation in a form not enjoined by a court, at least not yet. Another idea being floated is to finalize a recently proposed regulation to remove legal prohibitions on indefinite detention of children which would result in a massive increase in indefinite incarceration of families seeking asylum.

Sophie’s Choice: Family Separation or Indefinite Family Incarceration

According to the New York Times, the Trump administration, led by immigration architect-in-chief Stephen Miller, is considering a so-called “binary choice” policy. Under this policy, “migrant parents would be given a choice of whether to voluntarily allow their children to be separated from them, or to waive their child’s humanitarian protections so the family can be detained together, indefinitely, in jail-like conditions.” Not only would this practice be inhumane, under the circumstances, immigration advocates have stated that it would likely be found illegal by courts given the questionable nature of the “voluntary” decision – a Sophie’s Choice.   

Indefinite Incarceration of Families Seeking Protection

Regardless of whether the Trump administration implements the “binary choice” policy described above, the Trump administration proposed a regulation last September to indefinitely incarcerate children under weaker standards and conditions than those currently in place under the Flores Settlement Agreement (FSA). Under the FSA, federal detention of children must be consistent with basic child welfare principles and children must be released without unnecessary delay, which was recently determined to be 20 days under extenuating circumstances. If the proposed regulation is finalized and implemented, the result would be incarceration of families seeking asylum as they indefinitely await decisions on their cases in the immigration courts, a process that could take months or even years given the increasing court backlog.  

The required public comment period for the proposed Flores regulation closed at the end of last year and the Trump administration may finalize the regulation at anytime, thereby allowing for a massive increase in indefinite incarceration of families, including young children.  

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:  “Apparently President Trump and his administration fail to understand – or simply disregard – the horrific consequences of family separation publicly noted by countless medical experts, reports by the DHS and HHS Inspector Generals, and multiple accounts by parents and children.  Their ‘get tougher’ approach, and when that doesn’t work ‘get tougher still’ strategy, on family separation and incarceration flies in the face of the fact that it fails as a form of deterrence. All this in spite of available and more effective, cost-efficient, and humane alternatives.”  

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:  “That the Trump administration would now double down on family separation – a despicable, malevolent policy that has been blocked by the courts and even by Trump’s own executive order – speaks to the wickedness of this administration. The so-called ‘binary choice’ is no choice at all. Forcing desperate migrant parents to choose between allowing their children to be separated from them, perhaps permanently, or waiving their child’s humanitarian protections so the family can be locked up together is plain evil. It’s yet another Stephen Miller induced morally corrupt scheme aimed at creating maximum chaos and misery at the border rather than finding smart policy solutions. Congress needs to start asking serious questions about Stephen Miller’s unchecked power over Trump’s failed, cruel immigration policies.”