FAMILY SEPARATION AT THE BORDER: HOW WILL THE NEW EXECUTIVE ORDER AFFECT IMMIGRATION ENFORCEMENT?

The United States Government has recently come under intense scrutiny for the separation of immigrant families at the U.S.-Mexico border. Denounced by many as overly harsh, President Trump’s “zero-tolerance” policy, which calls for the criminal prosecution of those who enter the United States illegally, has undoubtedly brought the issue of family separation to the forefront of United States Immigration Law. In response to news reports and public outcry related to immigrant children being separated from their families at the border, on June 20, 2018, the President signed Executive Order No. 13,841. See 83 Fed. Reg. 29435 (2018) (the “Executive Order”). Nevertheless, many Americans are still confused as to what the Executive Order does and whether it will affect them.

First, it is important to understand the history that led to the creation of the Executive Order. After years of litigation over the issue of detention of immigrant children throughout the 1980s and the 1990s, in 1997, the Clinton administration eventually entered into a settlement agreement in the case of Flores v. Reno (the “Flores Settlement”). See, e.g., Flores v. Reno, 681 F. Supp. 665 (C.D. Cal. 1997). Under the terms of the Flores Settlement, the Government established minimum standards for initial detention of minors, created procedures allowing minors to contact detained family members, and established a policy favoring the release of minors to their close family relatives.

To make matters even more complicated, two (2) subsequent court rulings further held that the Flores Settlement applied to all minors unlawfully crossing the border, whether accompanied or unaccompanied, and that the Government had to process the asylum claims of those minors within an average of 20 days. See, e.g., Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016). Simply put, these court rulings had the practical effect of either (1) requiring the Government to release entire families from detention after 20 days and during the pendency of their removal proceedings (the so-called “catch-and-release” policy) or (2) requiring the Government to separate families via detaining adults in one set of detention facilities and sending children to be placed in the custody of other family members or the Department of Health and Human Services.

The President’s Executive Order attempts to remedy these issues by taking the following actions: (1) the Department of Homeland Security (“DHS”) is ordered to detain immigrant families together to the extent permitted by law; (2) the Department of Defense is ordered to provide DHS with any existing facilities available for the housing and care of detained immigrant families; and (3) the Attorney General is ordered to request that the federal courts modify the Flores Settlement so that the Government can indefinitely detain entire immigrant families for more than 20 days, so as to avoid separating the families or returning to the previous administration’s catch-and-release policy.

Regardless of what legal effects the Executive Order may have, it is more important than ever before to immediately take what steps you can to ensure that you and your family gain legal status in the United States. See what steps you can take to protect yourself and your family by scheduling a consultation with an Immigration Law attorney today.

ABOUT THE AUTHOR: Andrew Goldstein is currently a law clerk at Cole Law Group. He recently graduated from Belmont University College of Law and looks forward to joining CLG as an associate when he is admitted to the Tennessee Bar. Andrew will focus his practice in the areas of Immigration Law and Family Law. Cole Law Group clients will benefit from Andrew's passion for the law and dedication to serving them well.

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