Originally I wrote a closer looks to examine the Keeping Families Together Act of 2018 – which aimed to keep families attempting to cross the US border together. But, in light of Trump reversing his previous position and signing an executive order ending his policy of separating families at the border, I now must examine what this means – and how the problem is almost as far from being solved as it was yesterday.
Although most of us have been hearing about this issue non-stop in the news and socially over the last week, the Keeping Families Together Act is the first legislation proposed that directly addressed the issue. When looking at this bill, 100% of Democrats signed on – at the time I wrote this – no Republicans signed on.
This bill was introduced after the Trump administration implemented a new “zero tolerance” immigration policy, requiring everyone who crosses the border illegally to be criminally prosecuted; this policy differs from how previous administrations have handled the issue. At the heart of the separation crisis is a court decision, the Flores Settlement Agreement, made in 1997, which required that:
- Juveniles be released from custody without unnecessary delay, and in order of preference to the following: a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.
- Where they cannot be released because of significant public safety or flight risk concerns, juveniles must be held in the least restrictive setting appropriate to age and special needs, generally, in a nonsecure facility licensed by a child welfare entity and separated from unrelated adults and delinquent offenders.
- Children cannot be detained for more than 20 days
Because children must be held under the “least restrictive” settings possible, they cannot be detained for long periods of time in jail with their parents. This interpretation allowed the current administration to use Flores and other existing laws to claim “it is the law” that parents are to be separated from their children.
Trump’s executive order now plans to keep families together in federal custody while awaiting prosecution for illegal border crossings – totally violating the agreement that this family separation policy was founded upon. Exacerbating the situation is the reality that our system is not set up for the massive amount of prosecutions now taking place. Parents are being held for even longer periods of time (well over the 20 day maximum put forth by the Flores Agreement); and now, their children will be also.
When looking at the absurdity of this issue and how it is now trying to be addressed; it is ludicrous. This article in the Washington Post discusses how this policy has affected the judicial process of parents going to court and being prosecuted. Where they used to ask “How much time am I looking at? What do these charges mean? Is my judge fair?” they now ask “Where is my little girl? Who’s taking care of her? When do I get to see her again? Will they deport me without her? How can I talk with her?”. The lawyer in the article says when he attempts to find out where the children are and any information about how to get in contact with them, the government is consistently answering they do not know. A Texas judge had this to say about the situation:
I can’t understand this. If someone at the jail takes your wallet, they give you a receipt. They take your kids, and you get nothing? Not even a slip of paper?
One thing is clear, these separations were inhumane. Now we need a solution to address the multitude of issues it created. What the solution will be I do not know, but nearly 2,000 children were separated from their parents in the last six weeks, according to the Department of Homeland Security. Trump’s executive order did not put forth any way to solve or address the fact that there is no plan for the children already separated and detained and no plan to reunite families. The children who woke up in detention centers without their parents this morning will also go to sleep in detention centers without their parents tonight and quite possibly for many nights to come.
The proposed Keeping Families Together Act would prohibit the Department of Homeland Security from separating children from their parents except in certain circumstances and requires policies and procedures allowing parents and children to locate each other. Circumstances under which children could still be separated from their legal guardians or parents under this bill are:
- An authorized state court determines that it is in the child’s best interests to be removed
- A state or county child welfare official with expertise in child trauma and development determines that it is in the child’s best interests to be removed because of abuse or neglect
- The Chief Patrol Agent or the Area Port Director authorizes separation based on a documented finding that the child is a trafficking victim or is at significant risk of becoming a victim, a strong likelihood exists that the adult is not the parent or legal guardian or the child is in danger of abuse or neglect
This new bill would also address other issues which could mitigate what is fast becoming an international crisis:
- Place a delay of prosecution for asylum seekers accused of illegal entry in order to limit the criminal prosecutions
- Require all Customs and Border Patrol officers and agents complete child welfare training on an annual basis
- Require the Department of Human Services to develop policies which allow parents and children to locate each other and reunite after they are separated
- Promote the public understanding of the use of family separation while requiring a report on the separation of families every six months
Amnesty International released a statement on June 19th in support of the bill.
Senator Joe Donnelly, a cosponsor of the bill, stated
“While people trying to enter our country illegally should be held accountable and our immigration laws should be enforced, my faith has taught me that our policies should also reflect our values. We need to fix our broken immigration system and strengthen our borders, and I continue to stand ready to work in a bipartisan manner to do so.”
Though House Republicans have attempted to address this issue and many others through a broad immigration bill (see the draft of it here), critics say it would not fix what is at the heart of the problem, but rather simply relax the Flores Settlement. This means children would still be separated from their parents, but for a shorter period of time – which is no longer a possibility with Trump’s order.
Ted Cruz announced “emergency legislation” on June 18th through a news release that would address some of the currently unaddressed issues:
- Double the amount of federal immigration judges
- Create new shelters for immigrants with accommodations to keep families together
- Mandate immigrant families be kept together, as long as there is no aggravated criminal conduct or threat of harm to children
- Provide for expedited processing and review of asylum cases to be within 14 days. Meaning those who meet the legal standards will be granted asylum and those who do not will be immediately returned to their home countries
When addressing the bill the Democrats have put out, Cruz said,
“The answer is not what congressional Democrats are proposing: simply releasing illegal aliens and returning to the failed policy of ‘catch and release’. Rather, we should fix the backlog in immigration cases, remove the legal barriers to swift processing, and resolve asylum cases on an expedited basis. While these cases are pending, families should stay together. Children belong with their mothers and fathers.”
The party lines in this issue have been starkly drawn but somehow compromise must happen. With the contentious atmosphere in the House and Senate, I do not know how quickly we can reach a resolution. But every day that goes by represents more children traumatized by this horrific policy and lack of action.
What do you think should be done? What do you think can be done? Where do we go from here?
Cover Photo by Chris Boese on Unsplash
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