The family separation bait-and-switch
The Trump administration this month instituted a policy of forcibly separating parents at the border from their small children, charging the parents criminally while pushing the children into government holding facilities or foster care, often without adequate paperwork to ensure that they could ever be reunited.
To the surprise of almost nobody, that policy was hugely unpopular. The notion that we should deter people coming to the U.S. to seek asylum or otherwise to escape horrific conditions in their home countries by tearing their small children away from them, imposing on those children permanent and unutterable trauma by pulling them away from the only security they have ever known, is no more supportable than the idea that we should protect U.S. borders by physically torturing every person who crosses into this country seeking asylum. Neither approach is imaginable if we wish to think of ourselves as a civilized nation.
And so, the president signed an executive order Wednesday announcing that he was decreeing a new approach – one in which all border crossers will be criminally prosecuted, but adults and children will now be jailed together. The administration describes this as a welcome solution to the problem of family separation. We shouldn’t buy that bait-and-switch.
Congress passed the Trafficking Victims Protection Reauthorization Act in 2008, under President Bush, to protect the rights of child refugees seeking to enter the United States across our southern border. The TVPRA mandates that children awaiting immigration hearings be placed in the least restrictive setting possible, preferably in the care of a family member.
Because the U.S. government failed to live up to its TVPRA obligations, a coalition of civil rights groups sued it, in the landmark Flores litigation. The government ultimately agreed to a settlement in that case. Under the Flores settlement, the government may not keep children in immigration detention facilities, except transitionally, and for no more than 20 days at most. After that, they must be released to a parent, if available; to a family member; and if none of these can be found, as a last resort to foster care.
The Obama administration’s commitment to Flores was tested when it was faced with a large volume of Central American parents and children seeking refuge at our southern border in 2014. DHS stumbled at first, and began with a too-restrictive policy. But court rulings ultimately pushed it to an approach in which it detained most families relatively briefly, pending a determination of whether they were entitled to a hearing before an immigration judge, and then released them to be monitored in community-based family case management programs until their hearing date came round. That approach worked. Children were able to live in a home setting with their parents and attend school. Families showed up for their hearings.
The current administration, on the other hand, has done the following: It has refused to allow asylum seekers to present themselves at authorized points of entry on the Mexican border, claiming that U.S. workers are too busy to process them. If a family chooses instead to cross the river at an unauthorized point, the administration follows a blanket policy of charging the adults criminally. Until now, it has pulled the children away into a resettlement and foster-care system that was designed for kids found without any parents at all. In some cases, even if parents managed to present themselves legally at a point of entry, their children were still taken from them. Those parents don’t know where their children are, and there is no system in place to ensure that their kids can quickly be returned to them if they are deported or released.
President Trump repudiated part of that approach on Wednesday. The administration will still criminally prosecute all border crossers, but instead of separating families, it will jail parents and children together, perhaps for extended periods of time. That’s still deeply wrong.
The point of Flores is a simple one: immigrant children should not be jailed. If they have parents, they should be in a noncustodial environment with their parents. There can be exceptions to that rule in special cases, where there is particularized reason to believe that a migrant will flee or commit violent crimes. But as a general matter, there is no excuse for keeping children in long-term immigration detention. It’s good that the current administration is moving away from its family separation policy. But the fallback plan of jailing children and adults together is not right, and we shouldn't let the president get away with it.
Jonathan T. Weinberg is a professor at Wayne State University Law School in Detroit.