Immigration "loophole" that Trump bemoaned returns after zero tolerance rollback

A head-spinning sequence of events appears to have put the Trump administration right where it started: running a "catch and release" immigration system in which families crossing the border illegally stay in the country as the government processes their asylum claims.

Silvia Guidel and her daughters Seily, 7, and twins Nahsliy Nicole and Nahsliy Dariana, 4, from Guatemala, make their way from the McAllen bus station to the Catholic Charities Humanitarian Respite Center on July 31, 2018. Verónica G. Cárdenas for The Texas Tribune

The Trump administration's “zero tolerance” immigration policy, which led to the separation of children from adults who crossed the border illegally, has fueled a national outcry. Sign up for our ongoing coverage. Send story ideas to tips@texastribune.org.

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MCALLEN — After fleeing Guatemala, 25-year-old Silvia Guidel crossed the Rio Grande last month on a raft with her three young daughters, walked in the South Texas heat for nearly an hour, and then turned her family in to U.S. Border Patrol agents to seek asylum in America.

Had she arrived six weeks earlier, Guidel, who said she fled violence and extortion in her home country, could well have been separated from her children at an immigrant processing center overseen by U.S. Customs and Border Protection. But last Tuesday, Guidel sat in the Greyhound bus station in McAllen with her daughters — 7-year-old Seily and 4-year-old identical twins Nahsliy Dariana and Nahsliy Nicole — huddled beside her as she recounted her journey to the United States.

Because she crossed the border a month after the Trump administration’s rollback of its "zero tolerance" immigration policy, Guidel was on her way to Boston to meet up with an uncle, rather than sitting in detention pining for her daughters.

"I heard they were separating families," she said, "but then I didn't hear that anymore."

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As the United States’ immigration policies continue to shift, the procedures that dictated the fates of asylum-seeking families as recently as a few weeks ago already seem like ancient history. A head-spinning sequence of events — chaotic procedural changes, followed by furious public outcry and abrupt policy reversals — appears to have put the Trump administration back where it started: running an immigration enforcement system in which migrant families who cross the border illegally are allowed to stay in the country while the government processes their asylum claims.

“The administration has backed off,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “The procedures that we’re seeing at the border are those that were previously conducted, prior to the announcement of zero tolerance.”

Under the zero-tolerance policy, which the Trump administration announced in May, Border Patrol officers handed migrant parents who crossed the border illegally to the U.S. Department of Justice for prosecution. That process resulted in thousands of family separations, as immigrant children — who the government cannot detain for longer than 20 days under a 1997 consent decree known as the Flores Agreement — were transferred to shelters while their parents went to detention centers.

But in late June, after President Donald Trump issued an executive order ending family separations, Border Patrol Commissioner Kevin McAleenan announced that agents had temporarily stopped referring adult migrants with children for prosecution. A Border Patrol spokesman confirmed last week that a “temporary suspension” remains in effect as the agency works with the Justice Department to “maintain family unity while enforcing prosecution efforts.”

The administration’s retreat from "zero tolerance" was on full display at McAllen's bus station last Tuesday as a long line of recently released immigrant parents arrived with tracking devices strapped to their ankles. Among them was Carla Molina, 27, who said she paid smugglers $7,000 to help her and her 6-year-old daughter travel to the border from Honduras.

Molina said she and her daughter were headed to San Antonio, where they plan to stay with friends.

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“I always trust in God,” she said. “With God, anything is possible.”

Like Molina and Guidel, parents who earlier in the summer would have been separated from their children and prosecuted by the government are instead starting new lives in the United States, reuniting with friends and relatives all over the country. Trump has called this system of “catch and release” — a term borrowed from the world of recreational fishing that some immigrant advocates consider dehumanizing — a “deadly” and “disgraceful” loophole in immigration law.

And in South Texas, the government’s return to the approach has frustrated immigration hardliners who argue that the practice encourages more illegal immigration.

“I’m saddened to learn, if true, that we’re headed back to a catch-and-release setup,” said Sergio Sanchez, the former chair of the Hidalgo County Republican Party and the host of a radio show called The Wall. “Yet again, the slow-churning wheels of our government can’t seem to speed up and properly secure the border.”

In his executive order, Trump declared that migrant families should be detained together over the course of their immigration proceedings. But that plan has run into a variety of legal and logistical obstacles.

“Under current law and legal rulings," Justice Department lawyers wrote in a court filing in June, "it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings."

In testimony to Congress last week, Matthew Albence, executive associate director for U.S. Immigration and Customs Enforcement, said the Flores Agreement “imposes judicially-mandated catch and release” for immigrant parents who cross illegally with their children. An ICE spokesman said the agency does not keep track of how many such asylum-seekers are released into the United States each month.

In June, the number of apprehensions at the border dropped significantly, a decrease that the Trump administration hailed as evidence that the zero-tolerance policy has deterred migrants from trying to enter the country illegally. The July numbers are scheduled to come out later this week.

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But thousands continue to make the long trek north, despite the shifting currents of American immigration policy. Some parents interviewed after crossing the border last month seemed only vaguely aware of the zero-tolerance policy, while others said they'd heard the U.S. government was separating families and decided to come anyway.

Doris Romero, 42, from Honduras, waits with her son, Jose, 14, and her nephew, Ronald, 4, wait to be processed after turning themselves in to U.S. Border Patrol agents, near McAllen on August 1, 2018. Verónica G. Cárdenas for The Texas Tribune

On a sandy road not far from the river last week, 42-year-old Honduran immigrant Doris Romero dropped her belongings — a tube of lotion, a hairbrush, a deodorant dispenser — into a plastic bag and handed them to a Border Patrol officer. Romero traveled to the border with her 14-year-old son, Jose, and her 6-year-old nephew, Ronald, after following news coverage of the zero-tolerance policy at home in Honduras.

Fighting back tears, Romero, who plans to travel to Houston after making her asylum claim, said she was relieved when the Trump administration stopped separating families. But even if immigration officials had continued to enforce the policy, Romero said, she would still have come to the United States to escape her home country, where she said her two adult stepsons were killed by drug traffickers.

“Honduras is misery," she said. "There’s no work. There’s no medicine. Every day, it gets worse, and we all have to leave.”

Jay Root and Juan Luis García Hernández contributed to this report.

Editor's note: The Texas Tribune and TIME have partnered to closely track the family separation crisis at the U.S.-Mexico border. This story is not available for republishing by a national news organization until August 8, 2018, at 6 a.m. Texas news organizations may run it at any time. For more information email nchoate@texastribune.org.