Dire bor­der choice for par­ents: De­ten­tion or sep­a­ra­tion?

The Denver Post - - FRONT PAGE - By Nick Miroff, Josh Dawsey and Maria Sacchetti

WASH­ING­TON» The White House is ac­tively con­sid­er­ing plans that again could sep­a­rate par­ents and chil­dren at the U.S.­Mex­ico bor­der, hop­ing to re­verse soar­ing num­bers of fam­i­lies at­tempt­ing to cross il­le­gally into the United States, ac­cord­ing to sev­eral ad­min­is­tra­tion of­fi­cials with di­rect knowl­edge of the ef­fort.

One op­tion un­der con­sid­er­a­tion is for the govern­ment to de­tain asy­lum­seek­ing fam­i­lies to­gether for up to 20 days, then give par­ents a choice: Stay in fam­ily de­ten­tion with your child for months or years as your im­mi­gra­tion case pro­ceeds, or al­low your chil­dren to be taken to a govern­ment shel­ter so other rel­a­tives or guardians can seek cus­tody.

That op­tion — called “bi­nary choice” — is one of sev­eral un­der con­sid­er­a­tion amid the pres­i­dent’s frus­tra­tion over bor­der se­cu­rity. He has been un­able to ful­fill key prom­ises to build a bor­der wall and end what he calls “catch and re­lease” — a process be­gun un­der past ad­min­is­tra­tions, in which most de­tained fam­i­lies are quickly freed to await im­mi­gra­tion hear­ings. The num­ber of mi­grant fam­ily mem­bers ar­rested and charged with il­le­gally cross­ing the bor­der jumped 38 per­cent in Au­gust and is now at record lev­els, ac­cord­ing to DHS of­fi­cials.

Se­nior ad­min­is­tra­tion of­fi­cials say they are not plan­ning to re­vive the chaotic forced sepa­ra­tions car­ried out by the Trump ad­min­is­tra­tion in May and June, which spawned an enor­mous po­lit­i­cal back­lash and led to a court or­der to re­unite fam­i­lies.

But they feel com­pelled to do some­thing, and of­fi­cials say se­ nior White House ad­viser Stephen Miller is ad­vo­cat­ing tough mea­sures be­cause he be­lieves the spring­time sepa­ra­tions worked as an ef­fec­tive de­ter­rent to il­le­gal cross­ings.

At least 2,500 chil­dren were taken from their par­ents over a pe­riod of six weeks. Cross­ings by fam­i­lies de­clined slightly in May, June and July be­fore surg­ing again in Au­gust. Septem­ber num­bers are ex­pected to be even higher.

Whereas some in­side the White House and the De­part­ment of Home­land Se­cu­rity are con­cerned about the “op­tics”

and po­lit­i­cal blow­back of re­newed sepa­ra­tions, Miller and oth­ers are de­ter­mined to act, ac­cord­ing to sev­eral of­fi­cials briefed on the de­lib­er­a­tions. There have been sev­eral high­level meet­ings in the White House in re­cent weeks about the is­sue. The “bi­nary choice” op­tion is seen as one that could be tried out fairly quickly.

“Ca­reer law en­force­ment pro­fes­sion­als in the U.S. govern­ment are work­ing to an­a­lyze and eval­u­ate op­tions that would pro­tect the Amer­i­can peo­ple, pre­vent the hor­rific ac­tions of child smug­gling and stop drug car­tels from pour­ing into our com­mu­ni­ties,” deputy White House press sec­re­tary Ho­gan Gi­d­ley said in an emailed state­ment.

Any ef­fort to ex­pand fam­ily de­ten­tions and re­sume sepa­ra­tions would face mul­ti­ple lo­gis­ti­cal and le­gal hur­dles.

It would re­quire over­com­ing the com­mu­ni­ca­tion and data­man­age­ment fail­ures that plagued the first ef­fort, when Bor­der Pa­trol agents, Im­mi­gra­tion and Cus­toms En­force­ment of­fi­cials and De­part­ment of Health and Hu­man Ser­vices case­work­ers strug­gled to keep track of sep­a­rated par­ents and chil­dren scat­tered across the United States.

Lawyers have raised ques­tions about the le­gal­ity of split­ting up fam­i­lies, even if par­ents sign waivers to do so. A Con­gres­sional Re­search Ser­vice re­port last month said re­leas­ing fam­i­lies to­gether in the U.S. is “the only clearly vi­able op­tion un­der cur­rent law.”

An­other hur­dle: The govern­ment lacks de­ten­tion space for a large num­ber of ad­di­tional fam­i­lies. ICE has three “fam­ily res­i­den­tial cen­ters” with a com­bined ca­pac­ity of ap­prox­i­mately 3,000 par­ents and chil­dren. With more than four times that many ar­riv­ing each month, it is un­clear where the govern­ment would hold all the par­ents who opt to re­main with their chil­dren.

But Trump said in his June 20 ex­ec­u­tive or­der halt­ing fam­ily sepa­ra­tions that the ad­min­is­tra­tion’s pol­icy is to keep par­ents and chil­dren to­gether, “in­clud­ing by de­tain­ing” them. In re­cent weeks, fed­eral of­fi­cials have taken steps to ex­pand their abil­ity to do that.

Of­fi­cials pro­posed new rules that would al­low them to with­draw from a 1997 fed­eral court agree­ment that bars ICE from keep­ing chil­dren in cus­tody for more than 20 days.

The rules would give ICE greater flex­i­bil­ity to ex­pand fam­ily de­ten­tion cen­ters and po­ten­tially hold par­ents and chil­dren longer, although lawyers say this likely would end up in court.

Of­fi­cials also have im­ posed pro­duc­tion quo­tas on im­mi­gra­tion judges and are search­ing for more ways to speed the cal­en­dar in courts to ad­ju­di­cate cases more quickly.

Fed­eral of­fi­cials ar­gu­ing for the tougher mea­sures say the ris­ing num­ber of fam­ily cross­ings is a sign of asy­lum fraud. DHS Sec­re­tary Kirst­jen Nielsen has blasted smug­glers for charg­ing mi­grants thou­sands of dol­lars to ferry them into the United States, know­ing that “le­gal loop­holes” will force the ad­min­is­tra­tion to re­lease them pend­ing a court hear­ing.

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