'They Are Prisons': Inside Trump's Executive Order on Indefinite Family Detention

Days after Homeland Security Secretary Kirstjen Nielsen flat-out denied that the administration was separating families at the border, and hours after she justified the policy by saying asylum seekers are criminals “smuggling” children across the border, the Trump administration drafted an executive order to end its policy of family separation by reportedly detaining them together indefinitely. Trump signed the order on Wednesday afternoon, hours after the the Associated Press first reported on the draft.

Nielsen, along with Donald Trump, has repeatedly blamed congressional Democrats for the policy that Attorney General Jeff Sessions announced in May. “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law,” he said at the time. The policy has so far torn 2,300 children from their families, and hundreds have already been forced into temporary shelters in the Texas desert. There are so-called “tender age shelters” to detain separated toddlers and babies. As CNN notes, “The President was not required to sign anything to change the administration’s practice that elicited outrage. He could have reversed the practice of splitting children from their parents with a phone call.”

Per the New York Times, the order codifies Sessions’s zero-tolerance policy, instructing officials to continue to prosecute undocumented adults crossing the border as criminals, “but will seek to find or build facilities that can hold families—parents and children together—instead of separating them while their legal cases are considered by the courts.” The order also seeks to modify the 1997 Flores settlement agreement that bars the detention of migrant children for more than 20 days.

Immigration policy experts are alarmed by the dangers of an administration that continues to treat asylum seekers as criminals and intends to detain families indefinitely. “What we fear is that ‘ending family separation’ will turn into a call for increased family detention, as Trump apparently called for today,” Carol Anne Donohoe, an attorney with Pennsylvania immigration nonprofit Aldea, told Jezebel via email. “And having represented families in detention for the past four years, we know the horrors of that.”

“Family detention is not the solution,” Camille Mackler, ‎director of Immigration Legal Policy at the New York Immigration Coalition, reiterated. “I’ve been to these family detention facilities; they are prisons.”

The Obama administration also expanded family detention, and the Trump administration is going even further, infringing on the rights of people seeking asylum and others crossing the border through its “zero-tolerance” mandate around criminal prosecution. “I would say one of the pillars of the Trump administration’s immigration policy is to go after criminals,” said Mackler. “But what we’re seeing now is they are creating criminals to then justify going after them.”

There are currently three family detention centers in the U.S.—in Leesport, Pennsylvania, Karnes City, Texas, and Dilley, Texas—that house women and children together. Last year, Amanda Doroshow, a staff attorney at Her Justice, told WNYC’s the Takeaway about the “horrific” conditions she witnessed in 2015 at the South Texas Residential Center in Dilley, the largest family detention center in the country.

“All of the children were unbelievably sick. They were vomiting, they had diarrhea, and all the children had this severe, severe cough, that—I remember I would put my hands on the back of a three or four-year-old and I could feel their lungs rattle when they breathe,” she said. In another incident, a volunteer walked in to find a 4-year-old “unconscious on the floor” and “no one had any idea” how long the child was non-responsive.

Amy Fischer, the policy director for the Refugee and Immigrant Center for Education and Legal Services (RAICES), which represents families in detention, told the San Antonio Express in 2017 that about 90 percent of families housed in the Dilley detention center pass the credible fear interview—which is the first step of the asylum seeking process—and are released within 20 days. They are allowed to live in the U.S. as they continue the immigration court process. But the Trump administration, which is now seeking indefinite detention of families, has been working to strip the rights of asylum seekers throughout every stage of the application process. In June, for example, Sessions instructed immigration judges to block victims of domestic and gang violence from applying for asylum.

Elizabeth Camarena, associate Director of the Casa Cornelia Law Center, a public interest law firm that works with victims of human rights violations, expressed concern about how the sharp increase in detainees will affect immigration courts, which are inundated with a backlog of 700,000 cases. “We’re dealing with a system that is stretched to beyond capacity now,” she said, explaining that processing more individuals in detention will lead to “severe consequences all around.” Camarena suspects a legal challenge similar to a 2015 case in which a federal judge barred ICE from indefinitely detaining families facing deportation.

While the Trump administration should end its family separation policy immediately, advocates agree that indefinite family detention isn’t a solution. “It’s still just as horrific as anything else that we’ve been seeing,” said Mackler.

Update 6/20, 5:03 p.m.: Upon reading the executive order, Camille Mackler, ‎director of Immigration Legal Policy at the New York Immigration Coalition, expressed several concerns. The administration aims to maintain custody of families throughout proceedings indefinitely, which is a significant change from how family detention centers currently operate, she explained. This will make it harder for individuals to file asylum claims because their access to resources and legal help at detention centers will be extremely limited. Furthermore, by charging Department of Defense the responsibility to find housing for detainees, Mackler fears immigrants will be locked up in military centers—not licensed childcare facilities, as required by the 1997 Flores agreement. The executive order seeks to relitigate the 1997 agreement to give the administration full permission to indefinitely detain families. “Literally families would be in prisons,” she said. She notes, too, that the executive order still allows for family separation in cases where there’s a “risk to the child’s welfare.”

“They’ve ignored accepted norms for child welfare,” she said, “so what does that really mean?”