Trump Issues Executive Order on Family Separation
By Heather Ham-Warren | June 22, 2018
Attorney General Jeff Sessions recently announced a zero-tolerance policy at the border, directing federal prosecutors to charge all apprehended illegal aliens for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States. The new policy soon touched off a firestorm of critical media coverage with most outlets falsely accusing the Department of Homeland Security (DHS) of launching a policy deliberately aimed at separating immigrant families and discouraging legitimate asylum applications.
Over the Father’s Day weekend, photos, videos, and sound recordings of crying children and parents caught the attention of lawmakers on both sides of the aisle. While initially appearing emboldened by the media critics, the White House was forced to reevaluate following critique from Republican lawmakers, and— by some reports— even the First Lady. Homeland Security Secretary Kirstjen Nielsen has taken the brunt of the criticism both in her official capacity and in her personal life, but has held firmly that her Department is only enforcing the laws enacted by Congress.
Congress, on the other hand, has been toying with the idea of immigration reform for the last year, but has been unable to stumble on any legislation that can pass the House and the Senate. Likely aware that legislation would have a rocky, if not impossible road ahead, President Trump used his executive authority to address the issue of family separations at the border.
Wednesday’s executive order, aptly titled “Affording Congress an Opportunity to Address Family Separation,” is aimed at protecting family units while standing firmly behind the Justice Department’s zero-tolerance policy. However, under this EO, the President can only address the immediate issue by detaining families together for as long as he can legally do so under the Flores settlement agreement. As Flores currently stands, the government cannot hold illegal alien children past 20 days, meaning at 21 days, a child must be separated from his or her parent if the parent remains in custody.
On Thursday, to address this loophole, the Department of Justice (DOJ) filed a motion to modify Flores “in order to exclude accompanied minors from the Agreement and permit use of ICE family residential centers during immigration proceedings, which would have allowed the Government to exercise this option to keep families together to the greatest extent possible during removal proceedings."
Of course, Democrats were quick to find fault with this modification, even calling the detention of families together cruel and unusual punishment. Undoubtedly, the left would prefer unfettered, full scale catch-and-release, which, as a policy under the Obama administration, led to the current crisis. In fact, half a million unaccompanied alien minors (UACs) and family units from Central America have been released into the United States since 2014 as a result of catch-and-release loopholes. The majority, of course, never return for asylum or deportation hearings. Further, since Flores was initially implemented, there has been a 3 to 5-fold increase in the number of illegal family border crossings. This surge is easily correlated to the court’s unintended message sent to those seeking illegal entry that, if you come with a family, we will not detain you.
While the EO is a band aid on the current border crisis, the President is right. Congress must still pass legislation to secure our border and allow family and minor detention and prompt removal.