White House con­sid­ers re­sum­ing fam­ily sepa­ra­tions

Those caught at bor­der would be given choice be­tween de­ten­tion, be­ing split up

Santa Fe New Mexican - - FRONT PAGE - By Nick Miroff, Josh Dawsey and Maria Sacchetti WASHINGTON POST FILE PHOTO Washington Post

WASHINGTON — The White House is ac­tively con­sid­er­ing plans that could again 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 their child for months or years as their im­mi­gra­tion case pro­ceeds, or al­low 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. Pres­i­dent Don­ald Trump has been un­able to ful­fill key prom­ises to build a bor­der wall and end what he calls “catch and re­lease,” a process that be­gan 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 a record level, ac­cord­ing to De­part­ment of Home­land Se­cu­rity 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 that spawned an enor­mous po­lit­i­cal back­lash and led to a court or­der to re­unite fam­i­lies.

But they feel com­pelled to do some­thing, and of­fi­cials say se­nior White House ad­viser Stephen Miller is ad­vo­cat­ing for tougher 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.

While 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 of­fi­cials briefed on the de­lib­er­a­tions. There have been sev­eral high-level 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 data man­age­ment 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.

The Trump ad­min­is­tra­tion be­lieves it is on solid le­gal ground, ac­cord­ing to two of­fi­cials, in part be­cause U.S. Dis­trict Judge Dana Sabraw, who or­dered the gov­ern­ment to re­unite sep­a­rated fam­i­lies in June, ap­proved the bi­na­rychoice ap­proach in one of his rul­ings. But a Con­gres­sional Re­search Ser­vice re­port last month said “prac­ti­cal and le­gal bar­ri­ers” re­main to us­ing that ap­proach in the fu­ture and said re­leas­ing fam­i­lies to­gether in the United States is “the only clearly vi­able op­tion un­der cur­rent law.”

Ad­min­is­tra­tion of­fi­cials said the CRS re­port cited ear­lier le­gal rul­ings. But the Amer­i­can Civil Lib­er­ties Union, which launched the sepa­ra­tions law­suit, dis­puted that in­ter­pre­ta­tion and said it would op­pose any at­tempt at ex­panded fam­ily de­ten­tions or sepa­ra­tions.

“The gov­ern­ment need not, and legally may not, in­dis­crim­i­nately de­tain fam­i­lies who present no flight risk or dan­ger,” ACLU at­tor­ney Lee Gel­ernt said in an email. “It is deeply trou­bling that this Ad­min­is­tra­tion con­tin­ues to look for ways to cause harm to small chil­dren.”

An­other hur­dle is that the gov­ern­ment does not have de­ten­tion space for a large num­ber of ad­di­tional fam­i­lies. ICE has three “fam­ily res­i­den­tial cen­ters” with a com­bined ca­pac­ity of roughly 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 would 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.

In ad­di­tion to con­sid­er­ing “bi­nary choice” and other op­tions, of­fi­cials have 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.

Two young moth­ers from Hon­duras and their chil­dren are de­tained by Bor­der Pa­trol agents af­ter raft­ing across the Rio Grande in Gran­jeno, Texas, in June.

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