Sudden release of migrant families may spark new family separation program
The Trump administration appears to be building the case for a new family separation policy just days after immigration officials in Arizona suddenly released hundreds of immigrant families, forgoing coordination and travel plans, and forcing advocates to scramble for help.
Beginning last Saturday, officials delivered around 113 families, mostly from Guatemala, to a Tucson church, said Teresa Cavandish, the director of operations for Catholic Community Services in Tucson.
Cavandish said that many of the people she talked with had been in Border Patrol custody for 8 to 10 days, and volunteers were working as quickly as possible to set up travel arrangements, an effort complicated by the arrival of Hurricane Michael this week, which shut down bus lines east of Houston last week.
Immigration officials said that the sudden release was because "the government remains severely constrained its ability to detain and promptly remove families that have no legal basis to remain in the United States."
Those released are part of a "incredibly high volume" of families who have presented themselves to Border Patrol agents along Arizona's border, and that Immigration and Customs Enforcement "no longer has the capacity to conduct these reviews," without violating a long-standing court agreement, known as the Flores Settlement, that governs how long children can be held in immigration custody, said Yasmeen Pitts O'Keefe, a spokeswoman for ICE.
"As a result," she said, "family units continue to cross the border at high volumes and are likely to continue to do so, as they face no consequence for their actions," she said.
ICE usually reviews a "post-release plan" for migrant families, including "ensuring they have a mean to reach a final destination within the United States."
"This is a time and resource intensive process that can delay the release of a [family] by several days while ICE confirms bus routes, coordinates with NGOs (non-governmental organizations), and communicates with family members. There is no requirement that this review be conducted, it is a self-imposed process instituted by ICE," O'Keefe said.
Many of these people were asylum seekers who crossed into the United States in large groups in the remote desert near either Lukeville or Yuma, Ariz.
From late September to early October, Tucson Sector Border Patrol agents reported that in just seven days, more than 800 people from Central America crossed the U.S.-Mexico border and presented themselves to agents, and asked for asylum. This included a group of 61 people who were rescued around 5 a.m. after one of the people in the group called 911. Agents said that their search of the area was delayed because of heavy rain, which caused flooding on roads and washes in the area.
The group was mostly from Guatemala and Honduras, and included a seven-month-old baby, as well as 66-year-old man.
In just seven days in early October, Border Patrol agents in the Tucson Sector arrested more than 800 Central Americans in the 330,000-acre Organ Pipe Cactus National Wildlife Refuge, which surrounds Lukeville and State Route 85, about 110 miles southwest of Tucson.
Similarly large groups have also arrived in the nearby Yuma Sector, which covers the U.S.-Mexico border from California to Arizona, straddling the Colorado River, and over the last three months, agents in Arizona's two sectors have apprehended more than 4,000 people traveling in family groups, according to figures compiled by TucsonSentinel.com from CBP's own data and news releases.
While apprehensions along the southwest border continue to decline, the number of asylum-seeking families from Central America have crowded Border Patrol stations and exceeded the number of beds at ICE's three family detention centers.
By August, nearly 91,000 people had arrived in what the agency calls "family units," following a long-term trend that has been steadily growing since 2013. Under the Obama administration, officials apprehended nearly 78,000 people in 2016, though the number declined slightly to around 76,000 during the Trump administration's first year.
Tucson Sector officials would not specifically say how many detainees were in custody, nor how long the families who had entered the U.S. near Lukeville had been at Border Patrol stations in Arizona. However, a spokesman for the agency, Daniel Hernandez, said that holding areas at the stations were "temporarily pushed to the limit," and that the agency was "divesting resources from patrol" to get people out of custody "as fast as possible."
"Tucson Sector has the ability to temporarily hold hundreds of detained persons," Hernandez said later. "CBP is committed to the safety, security and care of those in custody. Keep in mind, our temporary holding areas are for short term detention and a considerable effort is made with partner agencies to ensure persons in custody are sent to their next destination in the immigration process."
Following the releases, the Washington Post reported that the White House is "actively considering plans" to again separate parents and children at the U.S.-Mexico border, hoping to use family separation as a deterrent to stem the number of families attempting to cross the border, and ask for asylum in the United States.
One option under consideration, called "binary choice" is for officials to detain asylum-seeking families together for 20 days, and then give parents a choice: either stay in family detention while their case winds through the immigration courts, or allow officials to take their children to shelters run by Health and Human Services, while parents stay in ICE custody, the Washington Post reported.
Speaking to reporters at the White House, President Donald Trump defended the idea Saturday by saying that "if they feel there will be separation, they don't come," the Wall Street Journal reported.
During a Senate hearing Wednesday on Homeland Security Threats, Kirstjen Nielsen said that Homeland Security will "continue to ask Congress to pass legislation to clarify that families can be detained until they are removed. If they have an asylum claim, they can be detained until we can adjudicate that asylum claim."
Nielsen has previously said that she would be seeking to end "legal loopholes," which included the Flores Agreement, the result of a settlement from a 1997 class-action lawsuit that created guidelines on how long immigrant families, including children, can be held by U.S. authorities.
Minor children cannot be held in Customs and Border Protection custody for more than 72 hours, and they also cannot be held in adult detention centers. ICE maintains three detention centers for families, two in Texas and another in Pennsylvania, capable of holding up to 3,300 people, and the agency has been seeking out ways to expand the number of beds by more than 12,000 at former military bases.
The Justice Department under Attorney General Jeff Sessions has challenged the Flores Agreement in court, claiming that the protections that have been instituted since 2005 have "precipitated a destabilizing migratory crisis."
In September, DHS and Health and Human Services moved to amend the current agreement in Flores to make it easier to seek state licenses for detention centers that would hold families. "As long as the licensing must come from a state specifically (rather than from the federal government), DHS’s ability to effectively use family detention is limited," wrote administration officials.
Frustrated by what officials call "catch and release," the administration began seeking the prosecution of anyone who crossed the border under a "zero tolerance" policy, including parents traveling with children.
Following a public outcry, the Trump administration backed off on the policy, but not before at least 2,342 children were separated from their parents, an action that months later, still means children have not been reunited with their parents.
Additionally, a review of CBP data from Amnesty International believes that the Trump administration began separating families in 2017, and split apart more than 6,000 families in an attempt to deter crossings.
While the policy was called "zero tolerance," the administration may have actually targeted families for prosecution, according to data from the Transactional Records Access Clearinghouse, a nonpartisan research project supported by Syracuse University. Data showed that in May 2018, administration officials chose to prosecute parents with children over prosecuting adults without children, even though they were apprehended in even larger numbers.
When a family was picked up by Border Patrol agents or arrived at U.S. ports, mothers and father would be handed over to the Justice Department for prosecution while their children would be taken to facilities maintained by Health and Human Services.
In a 35-day period over the summer, U.S. officials took at least 2,342 children from their parents, said HHS Secretary Alex Azar during a Congressional hearing.
However, an estimate from Amnesty International pinned the numbers far higher, estimating that officials separated nearly 8,000 families beginning in 2017, though confusion between how Customs and Border Protection tracked families, in large part owing to the administration's inability to track parents and children as they moved through the system.
As the Inspector General for DHS noted in a special report, "DHS was not fully prepared to implement the Zero Tolerance Policy, or to deal with certain effects of the policy following implementation."
The OIG report also noted that because officials used "metering" to manage the flow of people, by blocking people from crossing bridges in Texas and San Diego, or by simply requiring people to wait outside the port of entry in Nogales, officials may have contributed to "additional illegal border crossings."
The report also noted, that CBP regularly violated the Flores agreement by keeping children longer than 72-hours. In the most egregious case, one child spent 12 days at a Border Patrol facility.
Finally, OIG investigators said that DHS lacked a system to reliably track children when they were separated from their parents. While Border Patrol's own computer systems can communicate with Health and Human Services, where children go after they are separated from their parents under an office known as the Office of Refugee Resettlement, officials at the nation's ports could not do the same thing.
Most damning, OIG could not find a centralized database that DHS said it was using.
On June 23 DHS released a fact-sheet that announced the agency had "a central database which HHS and DHS can access and update when a parent(s) or minor(s) location information changes."
However, OIG found no evidence that such a database exists.
"The OIG team asked several ICE employees, including those involved with DHS’ reunification efforts at ICE Headquarters, if they knew of such a database, and they did not," wrote John V. Kelly. "Two officials suggested that the 'central database'referenced in DHS’ announcement is actually a manually-compiled spreadsheet maintained by HHS, CBP, and ICE personnel. According to these officials, DHS calls this spreadsheet a 'matching table.'"
During the crisis, Nielsen's office said that media outlets and advocacy groups were "misreporting" the agency's policies, calling them "irresponsible and unproductive."
"As I have said many times before, if you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry," Nielsen wrote.
Of course, current U.S. law does not require asylum seekers to enter the United States through a port of entry, rather the law states that "any alien who is physically present in the United States" whether or not at a "designated port of arrival" may "apply for asylum."
"We do not have a policy of separating families at the border. Period," Nielsen wrote.
However, in a memo sent to Nielsen outlining the use of a new "zero tolerance" policy, Nielsen agreed to an option that specifically would allow DHS to separate parents or legal guardians from minors.
In the memo, officials wrote that "DHS could also permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted."
Two other options were redacted from the public, but in the memo, officials recommended what was called Option 3.
"We recommend Option 3 as the most effective method to achieve operational objectives and the Administration’s goal to end 'catch and release.' This initiative would pursue prosecution of all amenable adults who cross the border illegally, including those presenting with a family unit, between ports of entry in coordination with DOJ."
That option was signed by Nielsen.