The Trump administration is developing a plan that would give parents who are caught crossing the border illegally a difficult choice: Remain detained with their child in a large tent city or give up custody of their child, at least temporarily, according to two sources who have discussed the plans with administration officials.
The proposal is being considered as part of a hastily crafted solution to the problem of complying with President Donald Trump's executive order last week that ended his administration's policy of separating parents and children arrested at the border.
The idea is a way to side-step a major legal road block that prevents Trump from fully implementing his executive order to keep parents and children detained during their court proceedings. Current law prohibits the federal government from keeping children detained, even with their parents, in immigration detention for more than 20 days.
But, if a parent does not wish the child to be released from custody and taken away from them, the so-called Flores court settlement notes the parent can keep the child with them in custody. More than 2,000 Latin American children have been placed in shelters or foster homes since the Trump administration's "zero-tolerance" plan went into effect.
Critics said they see the proposal as morally unsound, for a parent to choose between detention for their child or give them up to the government, but supporters argue there are advantages to remaining in detention if their asylum claim is legitimate. Not only does the family remain united, but detention cases move much faster and a quicker resolution is likely.
“If you cooperate then we have more flexibility,” said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, which advocates for tougher immigration laws. “Things might go a bit easier for you. We cannot detain you together unless it’s something you’re okay with. And you’re going to have to decide whether this is something that is important to you.”
The administration must distinguish between migrants who are coming to the United States illegally and those who have legitimate asylum requests. Crossing the border illegally is a misdemeanor that can result in deportation, sometimes quickly. An asylum request must be investigated.
Trump's executive order, signed Wednesday, directs the Department of Homeland Security to keep families detained, but intact throughout the duration of their court proceedings.
The order directs Attorney General Jeff Sessions to try to modify the 1997 Flores settlement, to keep the families together, but President Barack Obama already tried and lost .
"They want to take the power of the mother away to be able to say, 'I want my kid released'," said Peter Schey, the lawyer who represented the mothers in the Flores case. "They want to take that away. Say 'no, forget that, the kid has to be detained with you until the very end.' "
Schey described Trump's proposal as "Hobson's choice," but said the DHS can already detain parents and children together if the parent does not want their child to be released. He said parents need to understand and be informed that they do have choices.
"Neither the language nor the intention of anything in the Flores agreement precludes a parent from retaining decision-making power over their children,” Schey said. "We never thought to usurp that decision-making authority which we highly respect."
The Department of Defense is working with the Trump administration to build massive tent cities to house thousands of immigrants on military bases in several states, McClatchy reported two weeks ago. The Pentagon has said it plans to shelter 20,000 migrant children on four bases, but sources tell McClatchy the administration is considering holding the parents there as well.
The administration did not respond to questions about the plan. But the administration has repeatedly said that children receive a high level of care and services in semi-permanent structures as well as in permanent structures, including medical care, recreation activities, dining and shower/bathroom purposes.
Clara Long, U.S. researcher at Human Rights Watch, said that regardless of the materials on the wall or whether they're with a parent, children shouldn't be detained.
“How sneaky and cruel,” she said. “The choice between keeping your child on a tent city, military base, internment camp or ripping them apart is incredibly coercive.”
Long and others say that the stress from separating children from their parents can cause serious mental harm, so does the stress of indefinite detainment along with a parent.
Obama also grappled with the problem when he resurrected the almost-abandoned practice of family detention after tens of thousands of Salvadoran, Honduran and Guatemalan immigrants raced to the border, fleeing violence and poverty.
In 2015, Sonia Hernandez, who was detained with her 3-year-old son at family detention facility in Karnes, Texas, told members of Congress studying the psychological impacts of family detention that she didn't think she could ever erase the memory of the detention center from her child’s mind.
“My 3-year-old son always says to me, ‘Mommy, I’m here,’” she said. “He won’t leave my sight. He asks me, ‘Are we going back to Room 108?’”
U.S. District Judge Dolly Gee in California largely put a stop to the practice when she ruled in 2015 that the policy to detain families together violated parts of the 20-year-old Flores agreement.
The Trump administration acknowledges the challenges of carrying out its executive order under the agreement’s current parameters.
“It cannot be done,” wrote Chad A Readler, acting assistant attorney general, in a motion to the court seeking to modify the agreement.
Under the Trump administration’s proposal, parents would be able to change their minds at any time and the child would be released. The child would then be turned over to the Department of Health and Human Services who would place the child with a family member or approved sponsor. It’s unclear what would happen if the parent changed their mind again and wanted the child back.
Trump is insisting his zero tolerance policy for illegal border crossings must remain in effect.
“If you took zero tolerance away, everybody would come, right now,” Trump said during a Cabinet meeting Thursday. “They'd be getting their little belongings, unfortunately, and they would be heading up. You would be -- you would have a run on this country the likes of which nobody's ever seen.”
Vaughn said the proposal gives the administration and family more options. And it’s unclear how strong some of these family’s cases are for asylum. They may choose to return when they realize they’re unlikely to win. One of the goals, she said, is to make it easier for those with good cases.
The majority will likely lose their cases. Only 20 percent or 10,690 asylum requests, were granted in 2017. And while a large majority of cases prove they have a credible fear of returning to their country, not all see the process through. Less than 40 percent of migrants who were found in 2017 to have a credible fear continued through with the asylum process. This year, in 2018, it’s just 15 percent.
“I think that everyone can agree that the faster these cases are processed the better it is for everyone,” Vaughn said, “except for the people who are trying to game the system."
Franco Ordoñez: 202-383-6155, @francoordonez
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