Terry H. Schwadron
Oct. 18, 2018
Last week, Iwrote about the case of two-year-old Fernanda, separated from her grandmother on the border, and held for months before the decision was made to return her to parents in Honduras.
The grind of government enforcement of bad law and alternatives continue unabated. Now Politico.com reportsthat the Trump administration, which is still digging its way out of resettlement of hundreds of young children removed from migrant parents on the border, now is considering once again separating parents and children, according to three current and former Homeland Security Department officials. Indeed, upwards of 13,000 young people in all are being detained.
This time, if parents and children are separated, parents will have a choice: Under a 90-day pilot program, parents seeking asylum could choose to be detained with their children through the course of their immigration proceedings or they could send their children to a shelter where they can be released to a sponsor while the parent is detained.
And it is happening just as the latest migrant “caravan” has started gathering in Honduras to head for the United States. President Trump has threatened to withhold any U.S. aid to Honduras unless the government there takes action to stop the caravan. And, it is happening as the numbers of migrant families have been increasing again, despite the Trump policies.
It’s almost funny how none of the choices ever is to hear the asylum case argument in a timely manner and consider welcoming the migrant family into the United States. It also never seems to be a policy choice to send the secretary of state to Honduras to work with the government there to improve conditions that launch these migrant caravans.
“I don’t know how much this is going to lead to additional family separation or how much this is going to lead to prolonged detention of these families,” one DHS official told Politico.com. “I think the White House believes both of those are good things, because both of those would have a deterrent effect.”
But another DHS official called binary choice “another Trump administration special” that appears geared toward manufacturing a crisis. “They look at a bunch of options and think how can they drive up the chaos,” the official said.
The Washington Post first reported last week on the potential plan to discourage migrants through the choice of detention or separation.
Arrests of family members at the southwest border rose nearly 30 % in September compared with the previous month, according to preliminary figures obtained by Politico. Border Patrol arrested approximately 16,500 family members in September — the highest monthly total since such record keeping began in 2012.
Per Politico, the continuing effort to stem the flow of migrants shows that the Trump administration remains very much unfazed by the furious backlash that its family separations inspired last spring. A zero-tolerance policy toward border-crossers split thousands of children from their parents over three months. In early September, the administration issued a proposed rule to establish standards for keeping migrant parents and children locked up together — another sign that White House senior adviser Stephen Miller and his allies haven’t back down.
Any policy that leads to family separations will stir memories of the painful scenes of wailing children and parents prompted by the administration’s zero-tolerance policy, which was in effect from April to June.
The pilot program would take place at the Karnes County Residential Center, a family detention center in Texas with a total capacity of 1,158 people. Detention space for any broad implementation of the pilot could prove hard to find. DHS maintains 3,326 family detention beds, according to an April report by the U.S. Government Accountability Office.
A working group with representatives from DHS, DOJ, HHS and the State Department has explored a range of options to quell the flow of family members arriving at the border, according to three people familiar with the effort.
Some of the options, if pursued, would be longer-term. For instance, U.S. Citizenship and Immigration Services is exploring a possible regulation to make it more difficult to prove “credible fear” of persecution, the first step in an asylum claim. The agency also is considering whether asylum proceedings that now go before an immigration judge can be handled by DHS, according to a DHS official. That is easy if the answer is always no.
The binary option for families seeking asylum would test recent court orders in cases related to family separation and the care of unaccompanied children.
In late June, U.S. District Judge Dana Sabraw ordered the Trump administration to reunite parents and children, but later he made clear that reunification did not give parents the right to be released from custody. The 1997 Flores settlement limits to 20 days the time children can spend in detention. Sabraw wrote in an August order that parents can waive that right so that children can remain with them.
However, a new policy that required parents to choose between long-term family detention and separation could prompt challenges in that litigation, or in the Flores case.
President Donald Trump signed an executive order that effectively ended the policy of separating families at the border. One former official said the idea of separating families once they’re in custody “seems possible” but could generate the same public outcry.
Meanwhile, ICE sent a four-year-old separated child back to Guatemala City without alerting her familythat she was en route home, according to the Huffinton Post. The arriving child was held again in Guatemala under the family finally was notified.
According to HuffPost, legal and immigration experts say ICE is sending children back to Central America without properly notifying parents of their travel plans. The Department of Justice recently said ICE is only handling only “a relatively small number” of repatriation cases, but advocates say even a handful of situations in which parents aren’t given the proper notice to pick up their children is a major cause for concern.
According to the American Civil Liberties Union, which is suing the government over separations, there are still 219 kids in the Office of Refugee Resettlement’s custody whose parents have been deported as a result of the Trump administration’s zero tolerance policy.
So, let’s review. We have a policy that seem inhumane enough to draw international scorn, which is abandoned and likely illegal, but now is adjudged worth renewing. Forget wacky policy. When do we decide that there is a competence problem with our government?