Nearly two months after the Trump administration began removing immigrant children from their parents at our southern border, a federal judge ruled Tuesday night in San Diego that the 2,300 youths ripped from their families must be reunited with them within 30 days. Kids under age five must be returned within two weeks, and no more separations can occur, ordered Judge Dana M. Sabraw.
“The practice of separating these families was implemented without any effective system or procedure for tracking the children after they were separated from their parents, enabling communication between the parents and their children after separation, and reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence,” Sabraw stated in her ruling. “Under the present system migrant children are not accounted for with the same efficiency and accuracy as property.”
The order is a huge victory for the immigrant families, most of whom have until now received no updates about when or if they would be reunited, and who have spent weeks in detention with nearly no chance to communicate.
“Many of these children were wondering if they'd ever see their families again,” Lee Gelernt, director of the ACLU’s Immigrant Rights Project, which sued the administration to stop family separation, told me. “When the word gets out to the detention centers that they will be reunited in no more than 30 days there will be overwhelming joy.”
A Department of Justice spokesman said that the Tuesday court decision “makes it even more imperative that Congress finally act to give federal law enforcement the ability to simultaneously enforce the law and keep families together” by ending the policy called “catch and release,” in which immigrants at the border are not detained.
“Without this action by Congress, lawlessness at the border will continue, which will only lead to predictable results—more heroin and fentanyl pushed by Mexican cartels plaguing our communities, a surge in MS-13 gang members, and an increase in the number of human trafficking prosecutions,” he said in an emailed statement.
As the Trump administration backs off from separating families—a policy change it announced last week—it has launched its next so-called solution to stop an influx of families into the US: extended, extremely expanded family immigrant detention. In order to uphold Attorney General Jeff Sessions’s “zero tolerance policy,” under which every border crosser is prosecuted for illegal entry, the administration is working to add tens of thousands of detention beds and to hold families beyond the current legal limit of 20 days.
The policy—which in practice prosecutes individuals, predominantly asylum seekers from Central American violence, for stepping onto US soil—actually does not require detaining families for months, or spending billions of dollars in new detention space. Instead, it appears to be a flimsy justification a massive system of long-term family incarceration beyond what our nation has ever seen, immigration experts say.
“Zero tolerance, the policy of prosecuting every illegal border crosser, does not by itself generate a need for expanded or prolonged immigration detention,” Randy Capps, director of the nonpartisan Migration Policy Institute’s research for US programs, told me. Under the current policy, he explained, most border crossers have spent just one or two days in US Marshals Service custody for their trials and then are sentenced to time served, meaning they spend no more additional time in jail. Seventy percent of such border crossers received this sentence from mid-May to mid-June, and another 13 percent received unsupervised probation, a USA Today analysis found.
“Prosecution when it doesn't carry a time sentence is a scare tactic,” Capps continued. “To me the whole point of it appeared to be to force the separation of parents from their children. There isn't any other practical implication for the parent other than spending a couple of days in US Marshals Service custody.”
Capps said he believed the real reason the administration had paused its criminal prosecutions of parents was because they “haven’t figured out how to try the parent without separating him from the kid” for those few days the parent is awwiting trial, since children are not placed into US Marshal custody.
The White House, however, claims that it is in dire need of resources to continue implementing zero tolerance, which Press Secretary Sarah Huckabee Sanders told reporters Monday night was meant to “stop the crime coming into our country."
“We’re not changing the policy,” she said. “We’re just out of resources. And at some point, Congress has to do what they were elected to do, and that is secure our border.”
These “resources” could amount to roughly 100,000 more detention beds: The federal government has issued a request for proposals for further family detention space of up to 15,000 beds Friday, along with identifying space for an internment camp for as many as 47,000 people at former Naval Weapons Station Concord in northern California, and another facility that could house as many as 47,000 people at a Marines training facility in Southern California.
“The broad goal here is to deter asylum seekers from seeking their right.”
In a separate case from the one decided Tuesday night, Sessions has asked the US District Court of California to overturn its previous decision limiting children’s detention to 20 days, so that families could remain detained throughout the duration of any immigration proceedings. This means asylum seekers who turn themselves in at the border—in addition to those caught having crossed it—could be locked up for months.
“It’s abolishing the distinction between people who have illegally crossed versus those who have presented themselves at a port of entry in the ‘right’ way… proposing that all these people should be detained indiscriminately,” California immigration attorney Sabrina Damast told me. “The broad goal here is to deter asylum seekers from seeking their right.”
But as the administration looks to expand the country’s already mammoth immigrant detention system, local resistance to detaining women and children is building—even in the most unexpected places. On Tuesday, the commissioners court in Texas’s conservative Williamson County voted four to one to end its contract with private prison corporation CoreCivic, which operates the T. Don Hutto immigrant detention facility there. The facility—the only all-women ICE facility in the US—currently holds about 35 mothers who were separated from their children at the border, advocates said.
“This is now a time that ICE is scrambling and trying to get as many more beds as they can and there was a wrench thrown in these 512 beds,” said Cristina Parker, the communications director for the Austin-based immigrant rights group Grassroots Leadership, which has been campaigning for years to shut down Hutto. The facility, notorious for guards’ alleged sexual abuse and solitary confinement of former detainee Laura Monterrosa, has faced mounting pressure to close.
“There’s been intense local pressure and then when you add the family separation that’s been happening, all that crescendoed to this moment,” Parker said. An ICE spokesman did not respond to requests for comment about Hutto or about the administration’s zero tolerance policy or plans for expanded detention.
The facility’s contract ends in January, so the women currently detained continue to wait for their release and reunion with their children. Many of those have spent the past month in Hutto have been able to speak with their kids just once, attorney Whitney Drake told me. One El Salvadorian mother has anxiously approached Drake about her seven-year-old son, who told her on the phone he couldn’t sleep or understand why he was in “prison.”
Drake also noted that more women had begun failing their “credible fear” interviews—the first phase in the asylum process—on the grounds that Sessions has revoked protections for domestic violence victims. Upon failing that interview, the women could be immediately deported.
“It’s very traumatizing—it’s been hard to piece together the information they’re receiving and were receiving,” said Drake.
As the Trump administration pushes for increased detention of new arrivals, it is struggling to pick up the pieces of its short-lived but impactful family separation policy.
The Texas Civil Rights Project, which has worked with hundreds of families near the border, has already seen several parents deported without their children—and even two minor siblings deported without their father, TCRP President Mimi Marziani told me. “We’re still trying to track down the parents we believe have been released or deported,” Marziani added.
Marziani said they had seen a suspension in parents' prosecutions as of last Thursday after Trump's executive order, but said she did not feel confident the pause would last.
"Our experience confirms the prosecution of families has halted right now, however we are concerned this is temporary,” she said, “and that the administration is pushing forward a plan that is illegal and unworkable to build what appear to be internment camps to house these families.”
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