Trump signs executive order to end family separations: Key questions surrounding the issue

The Trump administration's "zero tolerance" policy directs border officials to refer for prosecution all immigrants apprehended while crossing the US-Mexico border illegally.
The Trump administration's "zero tolerance" policy directs border officials to refer for prosecution all immigrants apprehended while crossing the US-Mexico border illegally.PHOTO: AFP

WASHINGTON (REUTERS, AFP, NYTIMES) - Over 2,300 children were separated from their parents at the US-Mexico border between May 5 and June 9 under the Trump administration's "zero tolerance" policy, US Customs and Border Protection said on Tuesday (June 19). The policy directs border officials to refer for prosecution all immigrants apprehended while crossing the US-Mexico border illegally.

The issue has fuelled an uproar from Republicans, Democrats and the international community, leading President Donald Trump on Wednesday (June 20) to sign an executive order requiring immigrant families be detained together when they are caught.

Here are some key questions about the controversy.

WHY IS THE TRUMP ADMINISTRATION CRACKING DOWN ON ILLEGAL IMMIGRATION IN THE US?

Despite efforts to stifle it, illegal immigration into the United States remains at high levels. From March to May this year more than 50,000 people a month were apprehended for illegally crossing the border from Mexico. About 15 per cent of those are arriving as families, and 8 per cent as unaccompanied children.

Mexican nationals can be pushed back into their country, but an increasing number are from violence-plagued countries of Central America, Guatemala, Honduras and El Salvador.

Many, including almost all of the families and unaccompanied children arriving, request asylum, claiming a "credible fear" of persecution or torture if they return to their country.

Previously, asylum seekers registered their cases and then were released into the US while the cases were reviewed. Now there is a backlog of some 600,000 cases, and many never show up for their hearings, instead disappearing into US society.

President Donald Trump's administration says that approach has become a magnet for anyone wanting to enter the United States. It says an increasing number of migrants arrive with the help of human smugglers, well-coached to request "credible fear" asylum, and can't be turned back.

In the face of backlash over the issue, Trump declared Monday that the US will not become a "migrant camp".

WHAT HAS BEEN THE IMPACT OF THE MOVE?

Between October 2017 and April this year about 700 children were taken from their parents, and held for weeks or sent on to other caretakers before they could be reunited again. But that failed to impact arrivals.

After Trump ordered tougher action, Attorney-General Jeff Sessions on May 7 announced a "zero tolerance" policy: Everyone who illegally crosses the border will be arrested on criminal charges. For those who came with families, their children would be removed from them. Sessions said this policy aimed to deter others from arriving.

In the five weeks from the announcement, more than 2,300 children were taken from their parents and adult relatives.

When the parents are arrested on criminal charges, they must be separated from their children, as is the case with domestic criminal cases. They cannot take their children to court.

It can take days or weeks for the adults to be tried on the charges. Most are encouraged to plead guilty, at which point they are given a sentence of "time served". They are then released while their asylum claim is reviewed, but they have a criminal record - a permanent strike against them.

IS IT POLICY OR LAW?

Under former President Barack Obama, the authorities initially responded to a similar surge in illegal border crossings by setting up family detention centres where children and their parents could be held together.

But in response to a lawsuit against the Obama administration, a judge stopped the government from holding families for months without explanation. Having no effective way to detain the parents with their children, Obama administration officials decided to release the families pending the resolution of their asylum cases. Some were given ankle bracelets. Others were simply ordered to return for a court hearing. What they refused to do was to automatically split the children from their parents so that the adults could be detained.

Effectively, they made an exception for illegal immigrants who arrived with children - an exception that Trump administration officials followed until Sessions imposed the zero-tolerance policy this year. While the authorities are permitted to separate children, they are not required to do so. But the Trump administration interpreted this as a requirement, or "loophole" that Congress must fix to stop the separations.

WHAT DOES TRUMP'S EXECUTIVE ORDER DO? 

President Trump's order explicitly states that the executive branch will continue to criminally prosecute people who cross the border illegally, signalling that the zero-tolerance policy remains in place.

But children of migrant family groups crossing the border illegally will no longer be separated from their parents. The family units will now be detained together by the Department of Homeland Security, instead of the Justice and Housing and Human Services departments as in the past.Under the plan, families will be housed together in ad hoc detention centres, including on military bases, that the administration hopes a court will approve.

They will be held by DHS over the period required for their court trial on illegal entry charges, and for reviews of their 
immigration requests. As those together can take months or even years, the Trump administration will seek to change the 1997 Flores Settlement, which forbids the government from holding children in detention, even with their families, for more than 20 days. 

But Trump’s order also says that, “to the extent practicable”, cases involving families will be prioritised. 

WHAT HAPPENS TO THE CHILDREN WHO HAVE BEEN SEPARATED FROM THEIR PARENTS?

Despite the order, there was no plan in place to reunite the thousands of children already separated from their families, according to multiple US media reports, citing officials from the Health and Human Services Department. Those kids would remain separated while their parents were under federal custody during immigration proceedings, according to The New York Times.  

The order will apply only to families who arrive moving forward, while children already in the department's custody will go through the standard process, where the government tries to find a parent or other close relative already in the country who can take care of the children and bring them to their immigration court proceedings.

Meanwhile, the move to challenge the 1997 Flores Settlement could lead to new legal battles for the administration. Trump has said there was a need to sustain his zero tolerance” policy to prevent crime, which he blames illegal immigrants for.