Far from a fix, the new executive order actually codifies family internment camps.
How did we get here? In May 2018, Jeff Sessions announced a zero-tolerance policy, whereby everyone entering the United States unlawfully, including persons with bona-fide asylum claims who were forced to enter unlawfully after being turned around at the border, would be criminally prosecuted. This resulted in a major catastrophe where many parents were detained and criminally prosecuted, while their children were taken from them. Many media outlets have reported on this family separation policy, and uncovered the horror as children were ripped from their parents without due process of law and sent to ill-equipped facilities where they faced child abuse, child neglect and sexual abuse. With over 2,000 children separated from their parents within weeks, the ACLU brought a lawsuit against this policy. A federal judge has allowed this lawsuit to proceed and is set to rule on it.
Trump and his officials have falsely blamed an existing law — the Flores settlement — for this family separation policy. However, there is no law that requires the Trump administration to separate families arriving at the border. Rather, this self-inflicted public relations nightmare was created in order to re-negotiate the Flores v. Reno settlement.
What is the Flores v. Reno (“Flores”) settlement? The Flores Settlement Agreement is a long-standing court order after years of litigating, that did three things:
- Require the government to release children from detention without delay
- If a sponsor or relative is not found for the children, required the government to keep children in least restrictive setting; and
- Required the government to set standards for care of children in detention
In other words, there is no need to renegotiate Flores. The Agreement is sound. It is the Trump Administration that has created this policy crisis in order to renegotiate the settlement.
The Obama Administration built family detention centers that did not comply with the Flores v. Reno Settlement and they were sued for it. The Trump Administration has falsely claimed that because it cannot keep parents and children in detention facilities together, it has no choice but to detain parents while sending the children to Department of Health and Human Services custody (a separate agency tasked with the care of unaccompanied migrant children).
Now this is untrue because there are many alternatives to detention of families at the border, including not prosecuting them for entering the country unlawfully, releasing them on their own recognizance to await court hearings, and paroling them into the United States. There is enough precedent for this.
The Trump Administration, by blaming the Flores Settlement Agreement for their own despicable border policies and trying to now renegotiate the Agreement, is trying to open the door to prolonged abuse and detention of all immigrants. They hope to reduce asylum claims by indefinitely detaining families together at the border, while continuing to prosecute asylum seekers for entering the country unlawfully (after turning them around at a port of entry) against international laws and norms. The real goal is mass criminal prosecution and indefinite detention as a goal to reduce immigration to the United States.
Who does this serve? White nationalists and the private immigrant detention industry.
The real way to stop family separation is to stop criminally prosecuting asylum seekers and sending parents to prison. Any policy change short of that is a scam.
Donald Trump and his cronies should be criminally prosecuted for kidnapping children, holding them for ransom, and then depriving both children and their parents of basic rights and process. A request for prosecution is forthcoming.