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As Written, Trump’s Executive Order Fails to End Family Separation, Calls for Kids and their Families to be Detained, Together or Separately

 

Yesterday, President Trump signed an executive order which purports to end his cruel family separation policy.  However, as written, it does no such thing. In fact, it could make the situation worse by requiring indefinite detention of families and continuing to permit children to be taken from their parents.

No Requirement That Families be Detained Together:  At first glance, sections 3(a) and (b) purport to trade required family separation for required family detention.  However, there is no requirement that families be detained together. Nor is there an explicit prohibition against family separation.  Section 3(b) merely sets forth limited circumstances where children shall not be detained with their parents.

Does Nothing to Reunify Families Already Separated:  The executive order is silent on how families will be reunited. Furthermore, as Tal Kopan of CNN reported, HHS, the agency charged with the care and custody of separated children, has provided no plan for reunification.  Wendy Young, President of an advocacy and legal service provider organization – KIND, said “The process to find one’s child is ‘incredibly challenging and what I fear is that it might, in some cases, be impossible,’” when the parent has already been deported.  

Zero Tolerance Policy:  Although reports from DHS today suggest they will temporarily suspend referrals for prosecutions under the Trump-Sessions-Nielsen zero tolerance policy, DOJ has stated otherwise.  DOJ’s statement is consistent with section 1 of the executive order which states that the administration “will initiate” prosecutions, often a misdemeanor, against those who cross outside of official border checkpoints.  It is also unclear how families could remain together as parents go through federal misdemeanor proceedings.

Even if Families are Detained Together, They Could Be Separated Again:  Under the Flores Settlement Agreement, children would need to be released from detention within 21 days.  Because the Trump administration refuses to use highly effective alternatives to detention for families, insisting on the indefinite and harmful detention of families, children could again be separated from parents while parents remain in detention.  

Cynical Ploy to End Flores Agreement Which Guarantees Humane Treatment of Children: To allow the indefinite detention of children, including babies and toddlers, section 3(e) of the executive order directs the DOJ to ask the court in Flores v. Sessions to strip children of the protections guaranteed by the Flores Settlement Agreement — which sets national standards for the humane detention, release, and treatment of all children in ICE detention.

Family Detention is Just as Harmful as Family Separation:  Medical experts, from pediatricians to psychologists, resoundingly agree that separating children from parents under Trump’s family separation policy is “causing irreparable harm…[and] can carry lifelong consequences for children.”  Like their opposition to family separation, the AAP also opposes incarceration of families, as they consider it to be harmful with long-term consequences to the well-being of both children and adults.

Detention Applies to All, Including Applicants for Asylum at Official Border Checkpoints:  Sections 2(a) and 3(a) require the detention of all families who apply for asylum even at official border checkpoints.  This assumes they will have their claims heard. The Washington Post reported that the Trump Administration has “warned those who cross the border illegally and make asylum requests that they will face criminal prosecution, but if they go through the official border crossings their applications will be processed. Yet in several cities along the border, asylum seekers who follow those instructions are turned away and told to return later.”  Similar accounts have been reported at an El Paso, Texas border crossing.

Provides for the Specter of Families Being Detained At Military Bases.  Section 3(c), which directs the Department of Defense to provide military facilities for the detention of families, raises a host of deeply disturbing questions.  Will families be subjected to assembly line justice where federal magistrate judges, federal prosecutors, federal immigration judges, and DHS trial attorneys, temporarily assigned to military compounds, prosecute federal misdemeanor charges and deportation cases in rapid succession? Will DHS officers summarily dismiss credible fear claims under the purported authority of Attorney General Jeff Sessions’ recent decision in Matter of A.B., exposing families to immediate removal to the very horrific violence from which they fled?  Will the federal misdemeanor and deportation hearings be neatly packaged into a 21-day timeframe to expedite the rapid removal of entire families without Flores protections for the children and at the expense of due process for families?

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:  “Even before the Trump Administration officially announced its family separation policy, it was taking children from parents and denying such actions.  Then, it announced an official policy change that Trump and his administration later denied having authority to fix, falsely claiming it was the fault of Democrats, the court, and Congress.  Now, Trump is using this self-created crisis to set up a false choice for Americans to choose between ripping kids from parents or indefinitely detaining families.  Except that Trump is, through this executive order, once again attempting to pull the wool over the eyes of the American people by making matters worse – he not only fails to clearly end family separation, but he requires detention of all even without making the Faustian choice to keep families together that he claims to be doing.  On top of that, Republicans in Congress are trying to hijack this moment to decimate asylum protections and our legal immigration system that reflect long-held American values.     

David Leopold, Partner at Ulmer and Berne and former President of the American Immigration Lawyers Association (AILA), said “Trump’s executive order is little more than a cynical screed which fails to clearly end family separation, a cruel and disastrous policy that he alone created and he alone can fix.  Instead the executive order doubles down on the brutal and wasteful Trump-Session-Nielsen zero-tolerance policy which is calculated to deter families fleeing for their lives from coming to the U.S. to seek safe haven – a process that is absolutely lawful.  Trump knows full well that this executive order, like his earlier executive orders, will be shot down by the Courts. And that’s exactly what he wants because it will allow him to continue to falsely claim that his wicked policy of family separation is someone else’s fault, whether it be the courts or the Democrats.  Most insidiously, Trump, whether it be through mass deportation, the cancellation of DACA or the separation of families at the border has demonstrated an ugly pattern and practice of leveraging his power over children – even babies and toddlers – for political gain. This executive order is just the latest in a never ending series of cynical policy choices that tear apart families, put children at risk and do absolutely nothing to keep our borders secure or our communities safe.  That’s not only craven, it’s evil.”