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What Trump's executive order on child separation actually means: indefinite youth detention

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Donald Trump's US administration has been lambasted around the world for its hard-line approach of separating migrant children from their parents at the border. His executive order to 'end' the process is not what it seems though

Anna Freeman

21 Junio 2018 16:47

The past few weeks have seen an immigration crisis unfold for President Donald Trump and his administration as images, reports, videos and recordings of children being separated from their parents at the US border came to light.

It is not secret that Trump has sought to take a ‘zero tolerance’ approach to undocumented migrants who attempt to enter America through unofficial means since his election campaign. But the world watched in numbing helplessness at the reality of his administration’s treatment of Central American families at the southern border.

Trump and his band of seemingly callous cabinet members claimed that they would obviously prefer to keep families together in immigration detention facilities, but were forced by lack of any other options to separate babies, toddlers, and teenagers from their parents at the US-Mexico border so the adults could be prosecuted for entering America illegally.

As pressure mounted on the leader of the US, particularly over the last week, he appeared to make a U-turn on his tough stance of ripping families apart. Trump signed an executive order yesterday, which contrary to being a ‘reversal’ of his inhumane ‘zero tolerance’ approach, actually allows for the administration to do what they could not do before: keep children in immigration detention while their parents are prosecuted.

Rather than being one long leap in the fight for humanity, what Trump and his administration is relying upon is that this will in turn allow for these families’ fast deportation. If that is not the eventuality, the administration is willing to detain families for an indefinite amount of time.

The executive order, entitled ‘Affording Congress an Opportunity to Address Family Separation,’ will essentially jump start Congress to make a quick decision about validating a proposal to keep families detained indefinitely.

Without Congress, it is unlikely that the federal judiciary will allow this order to stand in its current form, Vox reports, because it appears to violate the 1997 Flores settlement that the administration cited as the reason it could not detain families indefinitely.

The order also does not require the president to stop separating families, but it most likely will curtail the aggressive means in which it has been implemented in the last six weeks.

This is what the executive order actually does

  • Migrants entering the US illegally can be prosecuted without being put in the custody of the Department of Justice. This allows parents to stay with their children in detention.
  • Department of Homeland Security can keep families in its custody until both the criminal case and immigration case are completed.
  • Immigration cases of detained families will be fast-tracked by the Department of Justice, at the request of the Trump administration. There are well-founded concerns that this will impinge due process.
  • As a result, other immigration cases will be pushed back even further in the already-inundated immigration courts.
  • There is no room left for detainees at Immigration and Customs Enforcement, therefore the order allows for use of other departments, including the military, to house migrant families if necessary.
  • The executive order instructs Attorney General Jeff Sessions to ask the courts to reverse their Obama-era interpretation of the Flores settlement, which prevents the federal government from keeping children in immigration detention for longer than necessary.
  • It seems highly likely that this executive order will lead the government to violate the Flores settlement as it stands now. Trump’s solution is to tell Sessions to ask the federal courts to amend the settlement.

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