The President’s Executive Order on Family Separation: What Does it Mean?

from the desk of Bonnie Stern Wasser, Staff Attorney, OneAmerica

On June 20, 2018, the President issued an Executive Order (EO) strangely named “Affording Congress an Opportunity to Address Family Separation.”  The EO was issued in the wake of public uproar after CBP and ICE started separating children from their parents as part of Attorney General Sessions’ “zero tolerance” policy. This policy aims to criminally prosecute 100% of individuals and families attempting to enter the USA illegally. The government has been placing parents in adult detention facilities and has been labeling all children as “unaccompanied alien minors” by placing them in separate US Health and Human Services (HHS) operated shelters throughout the United States far away from their parents.

What does the Executive Order say?

  • The EO, at the outset, blames Congress and court orders for the situation rather than acknowledging the government’s own role in detaining and prosecuting everyone.
  • The EO restates the government policy to prosecute individuals for “at least” the crime of improper [illegal] entry under 8 USC 1325(a), a misdemeanor (versus the felony ground of 8 USC 1326 illegal re-entry after prior deportation although these are being prosecuted, too). (See discussion below)
  • The EO states that families can stay together “where appropriate” and “depending upon government resources.” None of this is defined, nor are parameters given. CBP/ICE can still separate families if the government decides detaining a child with his/her parent “would pose a risk to the child’s welfare.” A parent’s “risk to the child’s welfare” is not defined either.
  • To keep families together, they will all be detained together for the duration of criminal and immigration proceedings.
  • The EO commands the Secretary of Defense and other agency heads to provide any existing facilities for housing and care of “alien families.”
  • The EO commands the Attorney General to go into Federal Court and request a modification of the Flores v. Reno consent agreement from 1997, as enforced by the 9th Circuit in 2015 (see below).
  • The EO prioritizes detained family cases by ordering them adjudicated on a fast track basis “to the extent practicable.”

What does the Executive Order NOT do?

  • There are no specific plans to reunite families.
  • There are no specific funding sources for the increase in detention and housing of detained families. Since the zero tolerance policy started and the EO was just issued, there have been no specific Congressional funding hearings on the subject on how to finance this monumental build-up of infrastructure at taxpayer expense.
  • There are no provisions for discretionary release of families or children.
  • Many of the provisions are vague and undefined.
  • Children could be detained indefinitely with their parents

What has happened since the Executive Order was issued?

The President has indicated through various press statements and speeches that families will be reunited only if they accept deportation and not pursue their asylum claims. In other words, lack of family reunification is hostage to pursuing valid claims to asylum or other benefits. The President has stated that rather than hire more immigration judges and prosecutors needed to support the increase in federal prosecutions and immigration court cases, that immigrants not be given any rights to a hearing or due process and that they be deported immediately. This of course, violates the US Constitution, statutes created by Congress, regulations issued by the Executive Branch and various international agreements on the treatment of refugees and asylees.  Meanwhile, the AG has ordered the Defense Department to send military JAG officers with criminal experience to the border to serve as prosecutors.

Previously, the President ordered National Guard troops to assist with border duties. But, starting last week, some states are refusing to send National Guard troops or other state personnel that would be involved in any activity involving the separation of children. Likewise, some private companies, such as airlines, are refusing to transport individuals being separated at the border.

In the meantime, children have been scattered to residential facilities all across the United States.  Parents who have already been deported have an uphill battle to find their children and get them back before agencies start assigning them to foster care and adoption for “abandonment” or “neglect.”

Despite naming the EO “Affording Congress an Opportunity” to fix the problem, the President has since said that Congress should kick the can down the road and wait until the November election “red sweep.”

And, finally, the Attorney General has filed a motion to modify the Flores decision in federal court.

What is the Flores v. Reno consent agreement or settlement?

The Flores case was originally brought in 1985 challenging the detention and treatment of immigrant minors.  In 1997, there was a class-wide settlement agreement that set forth standards for detention and release of minors attempting to enter the USA with and without their parents.

During the Obama administration in 2015, following a new surge of Central American unaccompanied minors attempting illegal entry into the USA, Flores and class members asked the Federal District Court in California to enforce the settlement agreement.  The government filed a motion to amend the agreement.  The District court found the government to be in violation of the agreement and ordered it to make continuous efforts toward family reunification and release of minors without delay in order of preference to a parent first, whether or not apprehended with the child.  The court order also stated that minors, if detained, should be in licensed unsecured facilities; that parents should be released in a non-discriminatory manner if not a flight risk or threat to others or national security; and the government should issue standards for safe and sanitary facility conditions.  The court further held that the original settlement agreement made no distinction between unaccompanied and accompanied minors with regard to the protections.  The court also reaffirmed that deterrence is not an acceptable policy for detention since the legal standard is flight risk or risk to national security.

In 2016, the 9th Circuit Court of Appeals affirmed the District Court order but also found that the original Flores settlement did not offer release rights to the parents.

What is AG Sessions asking from the court in his request to modify Flores?

In the request for modification, DOJ is asking that the court grant limited emergency relief that would:

  1. Exempt DHS from the Flores settlement agreement’s release provisions so that ICE may detain undocumented minors who have arrived with their parent or legal guardian together in ICE family residential facilities; and
  2. Exempt ICE family residential facilities from the agreement’s state licensure requirement.

The request notes that “the Government is not asking to be relieved from the substantive language of the agreement on the conditions of detention in these facilities. The Government asks for immediate relief, along with a schedule to allow the parties to more fully address the issues raised by this request.”

Sessions argues that “[t]hese changes are justified by several material changes in circumstances–including the ongoing and worsening influx of families unlawfully entering the United States at the southwest border.”  “Under current law and legal rulings, including this Court’s, it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings. It cannot be done. One reason those families ‘decide to make the dangerous journey to illegally enter the United States is that they expect to be released from custody.’” His directly contradicts the EO that states “It is also the policy of this Administration to maintain family unity…”

These are the same exact arguments the court rejected in 2015, but at the time, there was no 100 criminal prosecution policy at the border. The government argues now as it did then that immigrants come to the US from Central America because they believe they will get work permits (“permisos”) if they are released from detention. The Court previously found this to be untrue and reaffirmed that deterrence is not a legitimate reason for mass detentions. Further, this rationale by the government ignores the country conditions occurring in Central America that force people to leave their homes in search of safety and protection for their children. Neither the President’s EO nor the motion to modify the Flores case indicate any effort whatsoever by the government to modify its foreign policy abroad to help alleviate the suffering of people there.

How do border criminal prosecutions differ from immigration prosecutions?

Operation Streamline, which involves criminal border prosecutions, was actually started in 2005 with a primary focus on felony illegal re-entries after a prior deportations. Felony prosecutions increased substantially under the Obama Administration, but misdemeanor prosecutions for first time misdemeanor illegal entries were never a priority until the present Administration.  It’s unclear why the Administration has decided to concentrate so many resources on misdemeanor prosecutions rather than focus on felony drug and smuggling networks or other violent or white collar crimes.

Criminal cases along the border are prosecuted in the Federal Courts. Ironically, unlike civil immigration court cases, defendants in criminal cases have a Constitutional right to government appointed counsel at no expense to the defendant under the 6th Amendment as well as many procedural court protections. By contrast, in immigration court, while immigrants have a constitutional right to counsel under the Due Process Clause of the 5th Amendment, immigrants do not have a right to government paid counsel, although some cities, states and counties are starting to fund legal services for immigration defense.  Part of the government’s strategy is to detain individuals in remote locations making it difficult for immigrants to access counsel, prepare their cases, locate witnesses or find their children. Statistics show that immigrants with access to counsel have a much better rate of success than those without counsel.

Does it make a difference if someone asks for asylum at a border check point or if caught while trying to enter between border stations?

While the government has said people can file for asylum if they present themselves at a border station, at some locations, potential applicants have been told there are not enough resources at the station and they must wait or go home. This has caused some people to try to enter the USA illegally between border stations. But even then, most of these people ask for asylum as soon as they can locate a CBP agent.  The government, however, is trying to use all means it can to dissuade people from applying for asylum or continuing with their claims by detaining people so they give up, or by saying they will keep families separated throughout the process, or by keeping kids locked up with families in secure rather than insecure facilities dictated by the Flores settlement. Indeed, by statute enacted by Congress, the asylum law says in the Immigration and Nationality Act at:

Sec. 208. (a) Authority to Apply for Asylum.- 

(1) In general. – Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b). (Emphasis added)

Therefore, it makes no difference whether an asylum applicant requests asylum at a border station or upon arrest for having tried to enter unlawfully between border posts or later after admission in any status. (By way of clarification, asylum is the process for demonstrating one meets the definition of refugee at a US border or once inside the USA.  A refugee is someone outside the USA who has already applied for refugee status, has been adjudicated to be a refugee, and is entering the USA in valid refugee status. However, the current President reduced the number of annual refugee admissions from 110,000 to 45,000, only a few of which have even made it to the USA because of the travel ban. In President Obama’s final year, only 85,000 refugees were actually admitted.)

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