Frequently Asked Questions About Family Detention Executive Order
On Wednesday, June 20, President Donald J. Trump issued an Executive Order regarding family separation, “Affording Congress an Opportunity to Address Family Separation”. These FAQ’s are designed to help better understand what the Executive Order means.
1. What is an Executive Order? How does this impact the law?
An executive order is a directive from the president of the United States that manages operations of the federal government. Although executive orders are not legislation and do not require approval from Congress, they do have the force of law. However, Congress may pass legislation to limit the implementation of the order.
2. Does the Executive Order end family separation?
Not completely. The focus of the Executive Order is on making a transition from the current policy of family separation to a system of potentially indefinite family detention, but no specific timelines are set for this to happen. The order claims that the administration’s policy is to maintain family unity, and that family detention is a means to achieve this goal.
Customs and Border Protection (CBP) issued a statement on June 21st, which provides that families may continue to be separated due to “humanitarian, health and safety, or criminal history in addition to illegally crossing the border”, but does not set specific standards for interpretation or application. The administration was already practicing family separation before the implementation of “zero tolerance” as a deterrent to migration. Many of those classified currently as unaccompanied minors initially crossed or presented themselves at the border with their families. There is a danger that these practices will persist.
3. What will happen to the children and families who have already been separated?
There are no provisions in the Executive Order for the immediate end to family separation or for the reunification of currently separated families. The fate of the approximately 2,400 children who have been separated, detained and placed in shelters or foster care is unclear.
4. What is the impact of the Executive Order on immigration detention?
It is likely that the Executive Order may result in increasing numbers of migrants being held for long periods of time in immigrant detention facilities. As the number of those detained increases, issues as to the conditions of detention and as to the status and appropriate processing of unaccompanied minors are likely to fall between the cracks.
5. Does the Executive Order establish any requirements as to the conditions under which families will be detained, or for how long?
No. The Executive Order (EO) does not set any specific standards for the conditions under which families will be detained indefinitely. The Flores Settlement Agreement sets a 20 day limit on the detention of children accompanied by their parents.
Attorney General Sessions has filed a request with the U.S. District Court for the Central District of California to modify the Flores Settlement Agreement to make it possible for DHS Secretary Nielsen, given current “resource constraints”, to “detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or immigration proceedings” (emphasis added) in facilities which are not licensed for children. The Executive Order provides that Sessions shall, “to the extent practicable”, prioritize the adjudication of cases involving detained families” but does not define standards or timelines. The number of criminal prosecutions has already begun to diminish in cases involving families, but the burden of this shift will in effect be transferred to the immigration court and detention system, resulting in more cases of potentially long-term detention amid mounting backlogs of hundreds of thousands of cases.
6. What is the relationship between the Executive Order, “zero tolerance”, and congressional action?
Even though the title of the Executive Order is “Affording Congress an Opportunity to Address Family Separation”, the only reference to Congress in its text is to the Executive Branch’s determination to continue with its “zero tolerance” policy “unless Congress directs otherwise” (Sec. 1). The Executive Order continues to manipulate the facts by claiming that it is “Congress’ failure to act and court orders” that “have put the Administration in the position of separating alien families to effectively enforce the law” (Sec. 1). It is in fact the administration’s “zero tolerance” policy which creates the circumstances that lead to the separation and detention of families.
7. The Executive Order states that the “only legal way for an alien to enter this country is at a designated port of entry at an appropriate time,” is this true?
No. Observers have documented cases of asylum seekers and migrants who have presented themselves legally for admission at ports of entry but have nonetheless been detained, separated from their families, and even referred for prosecution. Communities across the southern border have documented cases of asylum seekers being turned away at ports of entry since the beginning of the administration. Under “zero tolerance”, this unlawful practice has intensified. CBP agents are now regularly posted in the middle of the international bridges to dissuade asylum seekers from exercising their right to request protection from violence and persecution. It is a violation of international and U.S. law to penalize or deter asylum seekers from exercising their right to apply for protection from persecution anywhere.
8. Where will families be detained as a result of the Executive Order?
Section 3 of the Executive Order emphasizes that the Department of Defense is required to play a central role in providing family detention space at “any existing facilities available”, and “shall construct such facilities if necessary and consistent with law”, and also requires that other executive departments and agencies “make available...any facilities that are appropriate for such purposes”. In both cases the Secretary of DHS will be responsible for making necessary reimbursements for the use of such facilities. Military bases such as Fort Bliss, San Angelo, Goodfellow and Dyess Air Force Base (all in Texas) and Little Rock Air Force Base in Arkansas will likely be among the sites considered and prioritized for new family detention facilities, since they have already been inspected by HHS regarding their suitability for the purpose of detaining as many as 20,000 children. Military facilities of this kind are not intended, nor licensed to shelter children or families. 7,000 minors were detained by the Obama administration at three military facilities under similar circumstances in 2014.
9. What are the fiscal implications of the new system of mass family detention established by the Executive Order?
It is unclear how the administration is planning to fund the expansion of detention facilities that is the predictable result of the Executive Order. The Executive Order makes reference to funding being dependent on the availability of appropriations. Several leading immigrant advocacy organizations have estimated that family detention, on average, costs $319 for each family per day, compared to some $775 per day for each child who is detained in a facility separate from their parents.
10. What are the implications of the Executive Order for communities of faith?
As Bishop Seitz from the Diocese of El Paso has noted in his recent statement regarding family separation and family detention, “incarcerating families in prison camps is an unacceptable option, which will cause irreparable harm to children. We should also remember that family separation occurs every time a family is torn apart by deportation, whether here at the border or in other parts of the country...At the end of the day, we will be judged as individuals, as El Pasoans and as a nation by the degree to which we recognize the presence of God in the poor and vulnerable knocking on our door looking for safety and refuge. Let us not fail this basic moral test.” Catholic Social Teaching specifically recognizes a right to migrate for those who have been denied the conditions necessary to have a dignified life in their countries and communities of origin because of structural injustices or armed conflicts. More than 200 theologians and scholars from diverse faith traditions throughout the U.S and from Mexico, Ecuador, Puerto Rico, Germany, Norway and Australia have issued a statement affirming that, “As scholars and teachers of religion, we rejoice that public pressure led to initial steps to end family separation. Yet, we remain deeply concerned with the Trump administration’s attempt to substitute mass detention of families as a ‘solution’ for family separation. These practices continue to be rooted in an inhumane policy of ‘zero tolerance’ that is morally, ethically, and spiritually reprehensible, and we exhort all people of faith, and all people of good will, to reject and resist this immoral approach.”