Originally published by Politico
President Donald Trump’s new executive order to keep migrant families together leaves his administration plenty of wiggle room to keep them apart.
The most urgent question is what will happen to thousands of children already separated from their parents under the administration’s “zero tolerance” border enforcement strategy.
Under that policy — fully implemented in early May — all suspected border crossers are referred for federal prosecution, with no exceptions for parents and asylum seekers. During a nearly five-week period in May and June, federal authorities separated more than 2,300 children from their parents at the southwest border.
“They’ve got to go find the parents and reunite the kids with the parents,” said one former Obama and George W. Bush administration official. “No aspect of this is easy, but they created this mess and they have to go back and fix it.”
But the executive order contains no language addressing how these children will be reunited with their parents, and Kenneth Wolfe, a spokesman for the Department of Health and Human Services’ Administration for Children and Families, said Wednesday no changes are in store to the agency’s normal procedures.
“For the minors currently in the unaccompanied alien children program," Wolfe told POLITICO, "the sponsorship process will proceed as usual."
A written statement issued later in the day walked back Wolfe's comments to POLITICO and other news outlets. "An ACF spokesperson misspoke earlier regarding the executive order signed today by the president," said Brian Marriott, senior director of communications. "It is still very early and we are awaiting further guidance on the matter. … Reunification is always the ultimate goal of those entrusted with the care of UACs, and the administration is working towards that for those UACs currently in HHS custody."
One potential obstacle to reuniting families is poor record-keeping. “The biggest problem, as far as I can tell, is where the kids’ records don’t have information on the parents,” said one Homeland Security Department official. “I don’t know how they’re going to go about fixing that.”
“I’m hoping that most of those kids are still pretty close to their parents and they can bring them back together quickly,” said John Sandweg, a former acting director of U.S. Immigration and Customs Enforcement under President Barack Obama.
Another question concerns the number of exceptions the Trump administration will allow to its policy of keeping parents and children together. The executive order promises only that the administration will detain alien families together "where appropriate" and where there exist "available resources," two potentially large loopholes.
DHS and two of its enforcement components did not offer insight into how the president’s order will translate into action.
Tyler Houlton, a DHS spokesman, said the administration “will do what is possible to hold illegal border crossers accountable while also holding families together as long as the law allows.“
During a call with reporters Wednesday, Gene Hamilton, a senior aide to Attorney General Jeff Sessions, said there would be an “implementation phase,” but he didn't provide any details about how federal departments will execute the president’s order.
The children who were separated from their parents at the border — from young children to teenagers — were immediately classified “unaccompanied” within the immigration system. Unaccompanied minors typically go from a U.S. Customs and Border Protection holding facility to the custody of the HHS Office of Refugee Resettlement. From there, they can be released to sponsors — another parent or person who can take custody of the child. But even that handoff could present difficulties.
The percentage of parents who’ve come forward to claim unaccompanied minors has plunged in recent years as the Trump administration has cracked down on undocumented immigrants, and a new plan to fingerprint sponsors and check their immigration status could further reduce their numbers.
Going forward, DHS could face technical difficulties processing families who are arrested at the border. The department will need to develop a process for what to do with children while parents head to federal court to face illegal entry and re-entry charges.
One former DHS official said the department’s operational staff is “tremendously resilient” and will quickly develop an implementation plan.
“Will the agencies be able to figure out how to get people back and forth from ICE detention to a courthouse?” the former official said. “Yeah, they’ll figure it out.”
Under a 1997 legal settlement, the federal government may detain children with their parents for no more than 20 days. The Trump administration assumes it will be able to renegotiate that, but doing so may prove impossible, given 20 years of subsequent legal rulings.
Then there's the matter of detention space.
ICE currently operates three family detention centers: the Berks Family Residential Center in Berks County, Pennsylvania; the Karnes County Residential Center in Karnes City, Texas; and the South Texas Family Residential Center in Dilley, Texas.
The Dilley facility has the largest capacity, with space for 2,400 detainees, according to a 2017 inspector general report. Karnes can hold 830 detainees, and Berks has space for 96 detainees.
But Karnes — the largest of the facilities — currently holds 2,000 detainees, according to figures provided by ICE. The other two facilities are more than half full.
“They’re going to have to build some family detention centers quickly,” said Sandweg. “I just don’t see where ICE is going to get the funding to do this.”