President Trump Signs Executive Order to End Migrant Family Separation by Indefinitely Detaining Parents and Children Together at the Border

By Elizabeth (Liz) Espín Stern, Paul W. Virtue & Maximillian L. Del Rey on June 20, 2018

On Tuesday, June 19, 2018, President Donald Trump told House Republicans to send him a compromise immigration bill to address border security and other key issues. Within less than 24 hours, in a move designed to stave off the continued public outcry over the separation of children from migrant parents detained at the southern border, on June 20 the president signed an executive order, “Affording Congress an Opportunity to Address Family Separation.” The executive order states that officials will continue to prosecute everyone who crosses the border illegally but will find or build facilities to hold families together while the parents’ cases are considered by the courts.

Zero Tolerance Policy Reiterated

The president indicated the border will be “just as tough,” with borders “very strong,” but families will no longer be separated. In a news conference where he was flanked by Vice President Mike Pence and Secretary of Homeland Security Kirstjen Nielsen, President Trump indicated, “We are keeping a very powerful border and it continues to be a zero tolerance.” The executive order similarly reiterates the administration’s hard-line policy to detain any adults entering the country illegally, a policy that, according to statistics released on June 19, has led to the separation of more than 2,300 children from their parents. As stated in the order:

“It is the policy of the Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, the alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. The Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise.

Family Unity Depends on Detention of Children with Parents

To stem the separations the detentions have caused to date, the executive order provides a temporary detention policy, authorizing the secretary of Homeland Security, “to the extent permitted by law and subject to the availability of appropriations,” to maintain custody of alien families— including minor children—during the pendency of any criminal or immigration proceedings. The executive order also requires the attorney general to prioritize the adjudication of cases involving detained families.

Detention of Children Subject to Legal Challenge

The seeming resolution has at least two major impediments, however. The first is the legal constraints restricting extended detention of minors in government custody. An existing 1997 consent decree, Flores v. Reno, CV 85-4544, in the US District Court for the Central District of California, restricts the federal government from keeping children in detention and orders them to be placed in the least-restrictive settings possible. A subsequent District Court ruling in 2016, on the government’s motion to modify the settlement agreement, upheld in part by the Ninth Circuit in Flores v. Lynch, No. 15-56434 (July 6, 2016), bars the government from keeping children in immigration detention, even if they are with their parents, for more than 20 days. Unless government lawyers can succeed in modifying the Flores settlement, the administration is likely to face an immediate legal challenge that could stay the impact of the order.

Republicans in Congress have proposed legislation that would overrule Flores and allow children to be kept with their parents in ICE custody while they are put through criminal prosecution and deportation proceedings. That process can take months, or even years, as migrant families can, for example, fight the proceedings by initiating political asylum claims.

Second, the executive order instructs the Department of Homeland Security to keep families in custody “to the extent permitted by law and subject to the availability of appropriations.” The language is indicative of the limited availability of government facilities currently, with DHS agency facilities already stretched to capacity (ICE reports having an average daily population of 41,280 detainees during Fiscal Year 2018).

Congress Still on the Line to Take Action

The House was expected to vote on a pair of immigration bills on June 21, 2018, but widespread reports after the whip count on Tuesday evening indicated the House is still far from the 218 votes needed to pass a compromise immigration bill. Whether and when lawmakers will undertake action is now in question. At stake is the future status of some 800,000 young people who were brought to the United States as children without immigration documentation, the “Dreamers.”

The president has indicated that he expects any bill that emerges will adhere to the fundamental elements in the White House’s previously announced blueprint for reform, the January 25, 2018, Framework on Immigration Reform and Border Security. The Framework specifically includes a path to citizenship for Dreamers, and a border security proposal that would include, among other items, a $25 billion fund for a border wall system. The Framework also includes two other fundamental elements: to restrict issuance of immigrant visas in cases of what the White House has deemed extended family “chain migration,” and to end the visa lottery system for individuals from countries with low immigrant usage.

The Two Competing Hill Proposals.

H.R. 6136 – Border Security and Immigration Reform Act of 2018. On June 19, 2018, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Congressman Carlos Curbelo (R-Fla.), House Homeland Security Committee Chairman Michael McCaul (R-Texas), and Congressman Jeff Denham (R-Calif.) unveiled the Border Security and Immigration Reform Act of 2018 (H.R. 6136), a bill the sponsors deemed to be consensus legislation aligning with the administration’s Framework. The bill’s principal provisions include the following.

Border Security, Monitoring of Aliens, and Tools to Prevent Illegal Immigration. The bill would increase border security and provide nearly $25 billion in advance appropriations for a wall and infrastructure along the Southern border, and it would require implementation of a full biometric exit-entry program at all US ports of entry. The bill would end “catch and release,” heighten the credible fear standard for asylum eligibility, facilitate return of unaccompanied children to their home countries, and empower DHS to detain dangerous, criminal aliens.
Shift to Merit-Based Immigration System, Elimination of Per-Country Quota, and Long-Term, Net Reduction in Immigration Levels. The bill would create a new merit-based immigration program (rewarding skills, education, and work experience, among other criteria), but award of merit-based visas would be contingent on the border wall being funded. The bill would also eliminate per-country caps on employment-based green cards, thus shifting the employment-based regime to a first-in-line visa system. The bill would end the DV lottery, eliminate green card programs for relatives other than spouses and minor children, increase the cap on family-based immigration sponsorship from 7 to 15%, and reduce overall immigration numbers over the long term.
Six-Year Renewable Status for Dreamers. The bill would provide Dreamers with an opportunity to earn a six-year renewable legal status allowing them to work and travel abroad, but would not provide any automatic path to residency or citizenship. Dreamers could attempt to use other existing bases for permanent residency, such as the new merit-based program, for which they could qualify based on achieving English proficiency, vocational training and skills, work experience, and military service.
Detention of Minor Children With Families and Modification of Flores Settlement. The bill would stop separation of accompanying children from families, while eliminating the restriction on detention of children that the Flores settlement currently imposes. DHS would be charged with maintaining custody of families, and the bill would allocate funding for family detention space.
Exempt DHS from the Administrative Procedure Act. In certain instances at the discretion of the Secretary of Homeland Security, DHS would be exempt from the APA.

H.R. 4760 – Securing America’s Future Act of 2018. On January 10, 2018, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), House Homeland Security Committee Chairman Michael McCaul (R-Texas), House Judiciary Committee Immigration and Border Security Subcommittee Chairman Raúl Labrador (R-Idaho), and House Homeland Security Committee Border and Maritime Security Subcommittee Chairwoman Martha McSally (R-Ariz.) introduced the Securing America’s Future Act (H.R. 4760). The bill’s principal provisions include the following.

Border Security, Monitoring of Aliens, and Tools to Prevent Illegal Immigration. Similar to H.R. 6136, the bill would authorize border wall construction, facilitate the deployment of additional advanced technology, roads, and other tactical infrastructure to secure the border, and modernize and expand ports of entry along the southern border. The bill would also add 5,000 Border Patrol agents, authorize the National Guard to provide aviation and intelligence support for border security operations, and require full implementation of a biometric entry-exit system at all US ports of entry. The bill would end “catch and release,” heighten the credible fear standard for asylum eligibility, facilitate return of unaccompanied children to their home countries, and empower DHS to detain dangerous, criminal aliens.
Mandatory E-Verify Participation. It would also make E-Verify mandatory across employers, to validate legality of work authorization for all workers.
Criminalization of Visa Overstays. The bill would make visa overstays a federal misdemeanor.
Shift to Skilled Immigration and annual Reduction in Overall Immigration Levels. The bill would increase the number of green cards available in the three skilled worker green card categories from 120,000 to 175,000 per year, an increase of 45%. The bill would end the DV lottery, eliminate green card programs for relatives other than spouses and minor children, and reduce immigration levels by about 260,000 per year, a decrease of about 25%.
Three-Year Renewable Status for Dreamers. The bill would provide Dreamers with a three-year renewable legal status allowing them to work and travel abroad, but would not provide them with any path to residency or citizenship. Dreamers would only be allowed to make use of existing paths to obtaining green cards (e.g., skilled worker immigration options).

The House is not expected to approve either measure. Should the House produce an approved bill, the Senate could take up the bill, pass its own measure, or decline to act, though Senate Republican leadership has confirmed that an immigration bill is not presently on the Senate’s agenda.