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Does President Trump’s New Executive Order End Family Separations? An Explainer

By Cristobal Ramon

Friday, June 22, 2018

On June 20, President Trump issued an executive order to address the criticisms over the administration’s decision that resulted in separating families at the U.S.-Mexico border after prosecuting parents for improper entry under immigration law. The administration states that the order ends these separations by keeping families together during their criminal and immigration hearings. However, the order clarifies that the administration will continue its zero-tolerance policy that results in the prosecutions. While these new measures address some of the controversy around this practice, several questions remain over whether it ends family separations in the long term.

What does the president’s new executive order do about this situation?

The executive order instructs DHS to maintain families in detention as they move through their criminal and/or immigration proceedings. However, the Flores settlement established a precedent that prohibits authorities from keeping children in immigration detention for more than 20 days, even if they are with their parents. Given that the settlement remains in effect, if immigrants prosecuted for improper entry are sentenced to prison time, authorities will have to separate children from their parents and place them in federal prison facilities. As described above, although they will be returned to immigration custody after the completion of any term of sentence, it is unclear whether or how they would be reunited with their children.

Does the executive order do anything else?

The executive order asks the attorney general to file a request with the U.S. District Court for the Central District of California to modify the Flores settlement and eliminate the 20-day rule, allowing DHS to keep families in detention for the length of their criminal and immigration proceedings, which could be months or years. The order prioritizes immigration court hearings for detained families and allows DHS to use the facilities of other executive agencies to house these families in exchange for reimbursement from the agency. It specifically requires the Department of Defense to make military facilities available for this purpose at the request of the DHS secretary.

Does the executive order end the prosecution of parents at the border?

No. The executive order does not eliminate the administration’s zero-tolerance policy of charging all adults entering the United States for improper entry under immigration law, which was the key driver of family separations. As we noted previously, the decision to prosecute parents leads to separations since children cannot accompany their parents to federal criminal detention.

What issues may arise during the executive order’s implementation?

As noted above, the executive order directly conflicts with the Flores settlement, which does not allow children to remain in custody beyond 20 days. Initial reporting suggests that advocates may attempt to sue the federal government for violating this agreement if DHS keeps children beyond this period, a move that would likely strike down this part of the order. Furthermore, it remains unclear if the U.S. District Court for the Central District of California will agree to modify the settlement, making it more likely that legal challenges will impact the order’s implementation.

KEYWORDS: DEPARTMENT OF HOMELAND SECURITY, PRESIDENT DONALD TRUMP