Last week, the Trump administration announced its promise to fix the problem of immigration separating children from their families, even those who were merely seeking asylum to the U.S. Nonetheless, the “zero-tolerance” policy remains otherwise unchanged. In other words, families are still subject to indefinite detention.
Border Policies and Their Impact on Families
The Trump administration has seemed to backpedal on a policy that it justifies on the one hand, while denying accountability for with the other. Many are justifiably outraged, while others support the measure in principle yet are left wondering how the situation could have come to this.
The only law regarding the treatment of children at the border is called the Flores Settlement, which states that:
- The government is prohibited from detaining children for more than 20 days. The government must release children to parents or other guardians without needless delay. This can include licensed programs that accept children.
- If no place can be found, the government must place the children in the “least restrictive” setting appropriate to their age and capacity.
- The government must implement basic standards relating to the children’s care and well-being.
Ostensibly, the Flores settlement makes certain that undocumented children are not held in detention centers for extended periods of time. On the other hand, ICE detention centers hold entire families that are lawfully seeking asylum.
Those who are seeking asylum must petition the government in order to become legal resident. After a year of residing in the United States, they are allowed to apply for citizenship. Changes in policy and the asylum process left many families that were once allowed to reside here legally suddenly in violation of federal law. These people were rounded up by ICE and parents were separated from their children.
This is what, in fact, has so many folks upset.
What About Trump’s Promise to Reunite Families Held in Detention?
Trump indicated that he was going to make some changes to the Flores Settlement policy that allowed children to be detained with their parents. The only likely change that Trump could make is to extend the period of time that children can be detained.
Early indications are, however, that’s not what the Trump administration is doing at all. Instead, they are allowing children to speak to their parents but offering the parents a choice. They can either remain in separate detention centers or be deported together.
In other words, those who were seeking asylum must wait indefinitely while the government processes their petition. Parents are thus being forced to choose between:
- returning to countries where they are persecuted, and
- being separated from their children.
Families Faced With an Impossible Choice
As family lawyers, we see parents make difficult choices every day — but this is a nearly impossible one.
While the administration says it’s trying to streamline the process by which parents and their children can communicate, those who are in detention while seeking asylum have no way of knowing when their case will go before a judge.
In order to be successfully granted asylum, a petitioner must prove that they are part of an oppressed racial group, political group, or otherwise being oppressed by their native government. But processing a petition for asylum takes time. Sometimes it takes months before the asylum seeker is granted the right to be freed from detention. Parents who are being offered this choice are stuck between a rock and hard place.