Immigrant advocates applauded President Trumps 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 appeals for asylum are decided.
“Were going to go from family separation, which is a terrible practice and we shouldnt be doing it, but were 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 and sounds of small children removed from their parents, crying on their own behind chain-link fences, 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 hasnt been as much of the same outcry,” Kline said.
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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. And all three are secured facilities, she said.
The executive order signed by Trump on Wednesday does not reverse the “zero tolerance” policy that prompted the chaos — the decision 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.
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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 settlements prohibition against holding children in detention for longer than 20 days.
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 if necessary.
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.
“This executive order would replace one crisis for another,” said Anthony D. Romero, the executive director. “Children dont 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.”