Immigrant advocates applauded President Trump’s decision on Wednesday to end the separation of migrant families crossing the U.S.-Mexico border illegally but fear a return to long detentions while the families’ court cases are decided.
“We’re going to go from family separation, which is a terrible practice and we shouldn’t be doing it, but we’re going to go back to longtime family detention, which is just as abhorrent a practice,” said Jacquelyn Kline, a lawyer who has represented parents and children being held at Berks County Residential Center in Leesport, Pennsylvania.
Outrage over the images of children behind chain-link fences and sounds of small children crying after they were removed from their parents forced Trump to reverse his policy. But warnings from advocates about the medical, physical and emotional damage of long detentions have not gotten the same response, she said.
“There hasn’t been as much of the same outcry,” Kline said.
A number of court rulings require that migrant children be released from the custody of government officials. Under the 1997 settlement of a class-action lawsuit, the Flores settlement, officials must turn over children who crossed the border unaccompanied to parents or other relatives — or if that is not possible to the “least restrictive” setting. A federal judge in Los Angeles in 2015 added those protections to children caught with their parents.
Meanwhile the 2008 Trafficking Victims Protection Reauthorization Act guarantees deportation hearings for child migrants not from Mexico or Canada and without relatives in the United States.
Families with children are held in three centers in the United States — Berks County Residential Center, Karnes County Residential Center in Karnes City, Texas, and South Texas Family Residential Center in Dilley, Texas.
The Los Angeles judge, Dolly Gee of the U.S. District Court for the Central District of California, also found that the Texas detention centers violated the Flores settlement, which required that the facilities be licensed to take care of children and not be secured or prison-like.
Advocates have opposed licensing for all three centers and at the end of 2016, a Texas judge found licenses for the two Texas facilities to be invalid. The decision was appealed.
Meanwhile the Berks County Residential Center failed to receive a renewal of its license, though it continues to hold families while officials there also appeal, Kline said. It, like the Texas facilities, is a secured facility, she said.
Advocates say it is ill suited for children, who are woken up every 15 minutes for bed checks, do not get home-cooked meals and can outside under under supervision of guards. In 2016, a guard was found guilty of raping a 19-year-old Honduran woman being held there.
An annual inspection by the Department of Homeland Security on Tuesday found several violations, but none that required an emergency closure, it said.
The executive order signed by Trump on Wednesday does not reverse the “zero tolerance” policy that prompted the chaos — the decision in April to charge all people entering the country illegally, typically with a misdemeanor. As adults were placed in the custody of the U.S. Marshals Service, children were sent to facilities run by the Department of Health and Human Services.
Now instead of removing children from their parents while they are prosecuted, the Trump administration will keep the families together, though it is not clear how it will not run afoul of the Flores settlement. Attorney General Jeff Sessions is directed to ask a federal court to modify the settlement’s prohibition against holding children in detention for longer than 20 days in an unlicensed facility.
Trump claims that once in the country, migrants disappear and do not return to court for their cases. Only 3 percent come back, he has said, an inaccurate statement according to statistics from the U.S. Department of Justice's annual yearbook of immigration statistics. According to the Department of Justice, between 2012 and 2016, from 11 percent to 28 percent of migrants have failed to show up for court sessions. Immigrants advocates say many more return if they are given legal assistance.
Then there is the question of where the families will be held. Since the “zero tolerance” policy went into effect at the beginning of May, more than 2,300 children have been taken from their parents, according to the Department of Homeland Security.
“There are not enough facilities in the United States,” Kline said.
The executive order calls for the use of any existing facilities available for housing and the construction of new facilities by the Department of Defense if necessary. Officials have been examining whether families can be housed on military bases.
The American Academy of Pediatrics objected to the new policy, saying that detention centers were no place for children even with their families. Studies of detained immigrants have shown that children and parents may suffer anxiety, depression and post-traumatic stress disorder as a result, the group said.
“We urge our government to stop exposing children to conditions or settings that may re-traumatize them, such as those that exist in immigration detention,” it said in a statement.
Conditions in U.S. detention facilities, in which children have been forced to sleep on cement floors, use open toilets, and be subjected to constant light, insufficient food and water, no bathing facilities, and extremely cold temperatures, are traumatizing, it said. No child should ever have to endure these conditions, it said
The American Civil Liberties Union, in a statement said that the crisis would end only when every child was reunited with his or her parent.
What Happens When Families Get Separated at the Border?
“This executive order would replace one crisis for another,” said Anthony D. Romero, the executive director. “Children don’t belong in jail at all, even with their parents, under any set of circumstances. If the president thinks placing families in jail indefinitely is what people have been asking for, he is grossly mistaken.”
The ACLU had asked a federal judge in California for an injunction against further family separations and for the reunification of families already split apart. On Thursday, it said it would continue to press its case despite the executive order.
The administration has not said how it plans to reunite families although on Thursday, the first lady, Melania Trump, visited a children's center on the border in McAllen, Texas, and asked how she could help bring children and parents back together as quickly as possible.
And the Southern Poverty Law Center in Montgomery, Alabama, said that by detaining families, the administration would continue to treat them like criminals.
“(Trump) needs to stop using people’s lives and futures as political bargaining chips to get funding for an expensive wall that won’t solve anything,” the center's president, Richard Cohen, said in a statement.