When President Donald Trump on Wednesday backed down from an immigration policy that separated migrant families, he pledged to continue his “zero tolerance” approach: Parents would still be prosecuted for illegally crossing the border, but their families wouldn’t be split up.
But legal and logistical challenges will make it exceedingly difficult for his administration to accomplish both goals.
To do so, federal agencies need to find space for thousands of children and adults as they await criminal and civil immigration proceedings. And another federal agency must find a way to do so without running afoul of the law.
“The president has issued an executive order, and the agencies now need to figure out what they’re supposed to do,” said Mark Greenberg, former head of the U.S. Health and Human Services’ Administration for Children and Families.
The government may already have acknowledged this challenge. A Customs and Border Protection official reportedly said Thursday that the agency would stop referring all people who cross the border illegally for prosecution until it has the resources to keep them in custody; according to immigration attorneys handling cases in El Paso, some families who crossed the border into Texas will not be criminally charged because the government lacks facilities to house them together.
But federal officials say that the "zero tolerance" policy will remain in place. Trump's order said that families should be housed together in detention centers run by the Department of Homeland Security, and a bill championed by a majority of congressional Republicans has called for doing the same.
If the government is to proceed with those plans, it first has to reckon with two major problems. One is a question of resources: The federal government operates three immigration detention facilities that are currently housing families, two in South Texas and one in Pennsylvania. The combined capacity of the Texas facilities is around 3,500, and they were already nearing that limit weeks ago, according to The Washington Post. It’s not immediately clear where the administration will place all the families it hopes to detain.
The other is a legal concern stemming from a 1997 settlement agreement known as Flores.
That settlement effectively says that children cannot be detained in immigration detention centers for more than 20 days, even if they are with their parents. Detaining immigrant families through their criminal proceedings, their civil deportation processes and the process of adjudicating their asylum cases would almost certainly take longer than that.
The government admitted as much Thursday in a filing submitted at the president’s behest to the federal court in California with the power to relax those restrictions.
“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,” lawyers for the Department of Justice wrote. “It cannot be done.”
For that reason, the government argued it needs the court to modify the settlement in several major ways to accommodate “significant changes” in immigration circumstances — namely “the ongoing, worsening influx of family units on the Southwest border.” Experts expressed doubt that the court will heed the government’s request.
It’s not clear whether the government will wait for a resolution from that court — likely to take weeks or months — or just go ahead with its plans, facing the legal ramifications later.
“They’re aware of the legal repercussions because they filed the papers today. They’ve already filed the plea,” said Barbara Hines, the former director of the University of Texas at Austin's law school’s immigration clinic. “I think at this point they are proceeding through the appropriate channels, which is trying to get the settlement modified. I don’t think they’ll be successful.”
Going ahead without court permission would be “outrageous,” Hines said.
Finding space for families
The administration faces challenges beyond the law.
“Even if there was no 20-day restriction, they would still face the constraint of not having very much capacity,” Greenberg said.
Between October and May, more than 59,000 people traveling with family members were apprehended along the border, according to U.S. Customs and Border Protection. As the flow of migrants continues, the government will likely have to find a place to house all those families.
"Expanding family detention is not going to give Trump what he wants,” said Kevin Landy, who directed the U.S. Immigrations and Customs Enforcement’s Office of Detention Policy and Planning under the Obama administration. “DHS will not be able to detain and remove sufficient numbers of families to have any impact on the current influx."
The two family detention centers in Texas are operated under intergovernmental service agreements that allow for ICE to work with local jurisdictions, which hand operations over to private prison companies, CoreCivic and the GEO Group.
Bob Libal, executive director of Grassroots Leadership, an immigrants rights group, said the government goes through these agreements because they’re faster than a direct contract with the operating companies. With the new federal policy and increased detention of families, he expects to see solicitations for new family centers.
But those structures still require environmental assessments and take time and money to build. The government could also look to temporary, more immediate fixes.
“If DHS tries to build family detention facilities quickly and cheaply, the result will be awful,” Landy said. “The worst case scenario is what we're seeing in Tornillo.”
When federal authorities needed more space for children, the government quickly erected a tent city in Tornillo, near El Paso. By setting up on federal property, the government was able to skirt state licensing requirements for detaining children, according to Greenberg. But it’s unclear if family detention centers could be handled the same way.
“If they try to do that [for families], there will surely be litigation on what are the standards that have to apply,” Greenberg said, adding that families require different services and accommodations than unaccompanied children.
The U.S. government has set up a temporary shelter for families before, though. In 2014, when an influx of Central American families came to the United States to escape violent environments in their home countries, the Obama administration converted a federal law enforcement training center in the small town of Artesia, New Mexico, into a temporary family detention center capable of holding up to 700 people.
The facility, which consisted of three barracks, held people as they were processed for deportation or sought asylum. The facility was closed months later, when the families being held there were transferred to the newly opened permanent detention center in Dilley.
Libal said if the government moves to construct more temporary or permanent detention centers, it will face harsh opposition.
In any community, “They’re going to be fought every step of the way, in the courts and in town halls and in county commission meetings and in the streets,” he said.
Marilyn Haigh contributed reporting.
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