Trump Signs Executive Order on Family Separation at Southern U.S. Border

Latest Trump order far from the policy reversal that critics of child separation hoped for.

By , J.D.

After days of blistering criticism of the Trump Administration's policy of separating children from parents at the U.S. border, coming from not only immigration advocates but religious leaders, the international community, and even former First Ladies of the United States, Trump issued an Executive Order purporting to address the issue.

It's titled, somewhat oddly, "Affording Congress an Opportunity to Address Family Separation."

Though widely hailed as a reversal of the policy, very little in the language of the order suggests this. Here are the most noteworthy takeaways:

  • It begins with tough enforcement language, in the form of a statement that the Administration will "rigorously enforce our immigration laws."
  • It asserts that a non-citizen who crosses the border without permission "has committed at least the crime of improper entry." Innocuous though that might sound, it means that the Administration's zero-tolerance policy (which helped create the family-separation policy) continues. All illegal entries will continue to be prosecuted as a crime (under Section 275 of the Immigration and Nationality Act). In the past, immediate deportation or civil penalties were often imposed instead. Also, the order makes no mention of adjusting the policy for people seeking political asylum, who frequently have little choice but to enter without advance permission.
  • It includes a long paragraph that seemingly boils down to, "Gosh, we'd love to keep families together, but our hands are tied due to Congress and the courts." (The exact language is: "It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress's failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.") This is a reassertion of earlier false statements that some law requires family separation.
  • It reiterates the need to keep people in detention for having crossed the border illegally, then half implies that the whole family should stay together, then creates a giant loophole, saying that DHS should not "detain an alien family together when there is a concern that detention of an alien child with the child's alien parent would pose a risk to the child's welfare." That could take us back to where we were before, with children being separated from their parents who are supposedly "criminals," having committed the misdemeanor of crossing the U.S. border (even if to flee persecution).
  • It orders use of existing available facilities (some speculate military bases) and construction of new facilities as needed to house families in detention.
  • It seeks the power to detain children indefinitely, by directing the Department of Justice to ask the court in a case called Flores v. Sessions to undo protections guaranteed by the Flores Settlement Agreement, which set standards for the humane detention (including a maximum 20 days' stay), release, and treatment of children in immigration detention.

Until the zero tolerance policy is gone and the detention of immigrants on a mass, unprecedented scale thus ends, the best that this order could seemingly achieve is to make sure that some children are detained along with their parents—for what could be a very long time.

Effective Date: June 20, 2018