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The United States' official policy on prosecuting immigrant families seems to depend on who you ask

The commissioner of Customs and Border Protection says his agency will stop turning over families for prosecution until the two agencies can agree on a policy that would stop children from being separated.

by Alex Lubben
Jun 26 2018, 12:00am

Press Secretary Sarah Huckabee Sanders said Monday that the White House considers due process as having occurred even in cases when undocumented immigrants aren’t allowed to see a judge before they’re deported.

“Virtually all Americans agree that it makes no sense that an illegal alien sets one foot on American soil and then they would go through a three to five year judicial process to be removed from the country,” Sanders said, adding, “Just because you don’t see a judge doesn’t mean you aren’t receiving due process.”

Her comments echoed a series of tweets posted on Trump’s account over the weekend attacking the due process afforded to undocumented immigrants at the border. Instead of hiring more judges and sending immigrants through their hearings more quickly, as some Republican-backed bills have proposed, Trump argued that denying the immigrants their rights and kicking them out of the country is a simpler solution.

Trump has pushed back on Republican plans for what they called a “compromise bill,” that would have attempted to solve more permanently the problem of family separation at the border. The executive order that Trump signed last week — which turns family separation into family detention — is likely to be challenged in the courts.

In the meantime, Kevin K. McAleenan, the commissioner of Customs and Border Protection, told the New York Times his agency will stop turning over families to the Department of Justice until the two agencies can agree on a policy that would stop children from being separated from their families. Until then, the agency will revert back to the "catch and release" policy it used under the Obama administration when dealing with families of immigrants.

Constitutional scholars, perhaps unsurprisingly, disagree with the White House’s stance, pointing out that due process guarantees an unbiased trial, regardless of one’s immigration status. And that’s something codified by the Supreme Court, which ruled in the 1982 case Plyler v. Doe that immigrants, legal or otherwise, are to be afforded due process, argued Steve Vladeck, a law professor at University of Texas at Austin.

Cover image: Nicholas Kamm/Getty images