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Judge’s Order to End Trump Family Separation Policy Should Close Door on Year-long Effort to Criminalize, Detain and Separate Immigrant Families and Asylum Seekers

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And Should Open the Door to Workable Alternatives

On Tuesday, a federal judge issued a decision in Ms. L. v. ICE. In it, Judge Dana Sabraw, a George W. Bush appointee, ends the Trumps-Sessions-Nielsen family separation policy and strongly criticizes the administration for violating the constitutional rights to family association and integrity.  

The family separation policy is a direct result of the Sessions’ “zero tolerance” policy, which aims to prosecute 100% of all who cross the border outside of official border checkpoints. Upon initiating criminal proceedings, typically for a misdemeanor, children were separated and sent as unaccompanied minors to facilities managed by HHS. Following mass guilty pleas for entering the U.S. without authorization and with little due process, adults were kept in ICE detention centers. For the most part, separated children and parents have difficulty locating each other. If they do, the government’s mismanagement, insistence on detention and neglect make reunification even more difficult.   

Judge Sabraw was having none of it. As Greg Sargent, Washington Post columnist, wrote yesterday, “What’s remarkable about this ruling is how scathing a rebuke of the Trump administration’s cruelty, inhumanity and incompetence it delivers.”

Brief History on More Than Year-long Effort to Criminalize, Detain, and Separate Families

March 7, 2017:  Then Secretary of Homeland Security and now White House Chief of Staff Kelly stated that he was considering a policy of separating families to achieve a deterrent effect.  He explained, “I would do almost anything to deter the people from Central America to getting on this very, very dangerous network that brings them up through Mexico into the United States….It’s more important to me [than keeping children with their parents]…to try to keep people off of this awful network.”

April 2017:  Following public outcry and opposition from members of Congress, Kelly claimed to back off. It was later discovered that DHS had, in fact, conducted a five-month family separation pilot in 2017.

April 11, 2017:  Attorney General Jeff Sessions issued a memo to prioritize immigration violations for prosecution.

December 11, 2017:  Several organizations collected first-hand accounts of family separation and filed a complaint with DHS.  

February 8, 2018:  Members of Congress again raised concerns and the administration repeatedly denied the existence of a family separation policy.  

April 6, 2018:  Attorney General Jeff Sessions issued a memo directing federal prosecutors to adopt a “zero tolerance” policy for crossing the border outside of official checkpoints, usually a misdemeanor.  

April 20, 2018:  The New York Times reported DHS had already separated 700 children from parents, including over 100 children under the age of 4.  

May 4, 2018:  Secretary Nielsen issues memo requiring referral of every case involving an individual crossing the border outside of official checkpoints for criminal prosecution.

May 8, 2018:  Just weeks after publicly denying the existence of a family separation policy, the policy was officially implemented.  

May-June 2018:  In spite of sustained public outrage, the Trump administration did not back down for almost two months, attempting instead to deflect blame on Democrats, Congress, and the court-sanctioned “Flores Agreement” that ensures humane treatment of children.

June 20, 2018:  Trump issued an executive order (E.O.) that purports to end family separation. In reality, the E.O. may have been more focused on changing the media narrative than on changing the policy. The order explicitly continues the zero tolerance policy of 100% prosecution for all that cross outside of official border checkpoints – which, when implemented, triggers family separation. Furthermore, the order is silent on reunification of already separated families and trades family separation for indefinite family detention.

How Judge Sabraw’s Order Should Close the Door on Family Separation

Trump’s June 20 executive order seeks to bring families together by detaining parents and children together.  Because children may not currently be held in detention for longer than 20 days pursuant to the Flores Agreement, the order instructs DOJ to seek an amendment to Flores. DOJ did so on June 21, but many experts agree this effort is likely to fail.  After all, the Flores Agreement is based on the best interests of the child, and prolonged detention, even with parents, is considered damaging to the child’s development.

Up until Judge Sabraw’s sharp rebuke of Trump’s family separation policy in Ms. L. v. ICE, failure to amend Flores might well have led to a confrontation over the 20 day limit on the detention of children, which the administration might have used as a pretext to restart family separation. Indeed, Trump’s E.O. contained a gaping hole that would have allowed for family separation to start up once again. But now that Judge Sabraw has enjoined the policy and practice of family separation, the Trump administration will be compelled to release families in detention, since Flores requires that children be released within 20 days. Parents must also be released to avoid family separation now prohibited by Ms. L v. ICE.

The Path Forward is Release on Recognizance, Bond, and Alternatives to Detention:  An Effective, Cost-Efficient, and Humane Solution

In Ms. L v. ICE, the government argued that ending family separation would prevent the administration from enforcing criminal and immigration laws.  Judge Sabraw rejected the administration’s position, writing that the injunction to end family separation “would do nothing of the sort.”  The injunction does not specify how best to proceed, but we offer up our recommendations below.

Enforcement of border security law does not require family separation. The key is for the government to use a variety of community supervision programs. For example, families released to be reunited can be subject to release on bond, recognizance, and effective alternative programs to detention, depending on the circumstances of each family.  

These alternatives to detention (ATDs) have strong records of ensuring high rates of compliance with immigration check-ins, hearings and removal. That is because asylum-seekers are highly motivated to pursue their claims. According to direct legal service providers who work with immigrants and refugees, “Asylum seekers and those with credible legal claims and family and community in the United States have strong incentives to appear in immigration court and comply with requirements. Consequently, for many, release on recognizance or a minimal bond is appropriate because they pose little flight risk or risk to the community.”

Moreover, alternatives to detention (ATDs) are far more cost-effective than detention. According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day. A 2014 GAO study found that the ATD daily rate was less than 7% of the daily cost in detention.

Here are some findings from ATD initiatives that have been implemented and tested in recent years:

  • The now-terminated Family Case Management Program (FCMP) had compliance rates of 99% with respect to compliance with court hearings and immigration appointments (including with families who were ultimately deported). The cost was $36 per day per family.
  • Two national ATD programs – one run by the Lutheran Immigration and Refugee Service (LIRS) at $7-24 a day per individual, and another run by the U.S. Catholic Conference of Bishops (USCCB), produced a 97% compliance rate.   
  • A 1999 INS-LIRS ATD program for 25 Chinese asylum seekers produced a 96% appearance rate, with the cost coming in at 3% of cost of detention.
  • An INS-Catholic Charities program, run from 1999-2002, cost $1,430 per year per person, resulted in a 97% appearance rate for 39 asylum seekers and 64 “indefinite detainees” who could not be removed from the U.S.  
  • A Vera Institute of Justice report on a supervised release and assistance program run from 1997-2000 found that, of over 500 asylum seekers, non-citizens with criminal convictions facing removal, and undocumented workers, 91% appeared for required hearings (93% for asylum seekers).
  • A 2015 family detention alternative run by LIRS cost only $50 a day for an entire family to receive housing for families with support, orientations on compliance, access to legal representation and wrap-around case management. This is just 6% of the cost of family detention.

Not only are ATDs effective and cost-efficient, they allow for the humane treatment of asylum seekers. Medical experts agree that detention of parents and children, even together, is harmful.  Furthermore, detention drastically limits access to counsel, resources, and due process necessary to develop asylum claims for an effective hearing before an immigration judge.  

Under international agreements signed by the U.S., the “detention of immigrants, particularly asylum seekers, must be a measure of last resort.” In a recent report, Human Rights First explains why detention of immigrants and asylum seekers is problematic.    

Detention is a barrier to legal representation—a barrier exacerbated by the lack of funding, the remote location of Texas detention facilities, and the lack of confidential attorney-client visitation rooms, among other impediments. Many immigrants in Texas detention—an estimated 90 percent in the Houston area and at least 72 percent statewide—do not have legal representation. The problem persists even though representation leads to high appearance rates and successful asylum and other immigration grant rates. Texas attorneys reported long waits—from two to six hours—for client meetings, frequent transfers of detainees, limited confidentiality, and access impediments for legal assistants, law students, and interpreters.

ATDs address many of the issues associated with indefinite detention of immigrants and asylum seekers – from ensuring appearances for government appointments and cost-efficiency to humane treatment and access to legal resources. This is a humane, workable and cost-effective alternative to the administration’s desire to put families in prolonged detention.