EL PASO, Texas — The Trump administration’s plan for immigrant families on the southern border involves holding them together on military bases for a prolonged, uncertain period of time.
President Trump’s executive order issued Wednesday seeks to keep families together in detention while both parents and children await decisions on their immigration and criminal court cases. With Immigrations and Customs Enforcement facilities already at or near capacity, the order requires the Secretary of Defense to make “any existing facilities available for the housing and care of alien families” and to ”construct such facilities if necessary.”
Among the likely facilities are three in Texas, the Army’s Fort Bliss and Dyess and Goodfellow Air Force Bases. The Department of Health and Human Services visited those sites before Trump’s order to determine their fitness for operating on-base facilities. Little Rock Air Force Base in Arkansas is also under consideration.
Unaccompanied children include those the government separated from their families. The executive order appeared to halt those separations.
Trump’s order “provides for the possibility that children will be locked up in a family unit in a jail or prison or former military base (internment camps). It places enforcement of border laws ahead of decency and is no solution to the current situation,” said Maureen Franco, head of the federal public defender’s office in El Paso, in an email to The Daily Beast.
Many of the immigrants being tried under zero tolerance are crossing for the first time and have no criminal histories, said Franco, who scoffed at Trump’s insistence that criminals and MS-13 gang members are “pouring” over the border. Many are fleeing violence in Guatemala, Honduras, and elsewhere in Central and South America.
“Terror overcomes deterrence,” Franco said. “When you’re coming from Guatemala and you have lawlessness in your country and the government isn’t doing anything to stop it, they’re going to do the thing that any person would do: get your child out of there.”
A soldier stationed at Fort Bliss told the Daily Beast he was uncomfortable with the proposal, saying the base had resources to house immigrants “but in terms of caring for them in a humanitarian way, I’m not too sure.”
On Thursday, Attorney General Jeff Sessions filed a motion in federal court to modify the “Flores settlement,” a 1997 federal court case that requires facilities where child immigrants are held to meet certain standards of care and prohibits detaining them for more than 20 days.
Claiming a border “crisis” compels detention of misdemeanor border crossings, lest the government “permit such illegality by releasing all aliens after apprehension,” the Justice Department requested the court modify Flores to permit families to be detained together for a prolonged, uncertain period until they can have their case heard by an immigration judge. The department also asked the court to release ICE “family residential” facilities from a state licensure requirements.
The Flores settlement said child-care facilities must meet standards for mental and physical health care, counseling, educational opportunities, and privacy.
Immigration lawyers and advocates said they feared this would happen.
Michelle Brané, director of the Women’s Refugee Commission Migrant Rights and Justice program, said the Flores settlement requires facilities be licensed to care for children and secure.
“There’s no way the current family detention facilities qualify. They are not licensed and they certainly not secure,” Brané said. “You are not exempt because you are on a base.”
A Senate Democratic aide told The Daily Beast the administration is “effectively trying to get around regulations that protect child welfare they are trying to put these new facilities on federal property what that has the effect of doing—they are on federal property they are able to get out of the state regulations.”
Military bases don’t meet Flores standards of care “simply because they're not therapeutic settings,” said Cristina Parker of Grassroots Leadership, an anti-private prison and immigrant advocacy group in Austin, Texas.
The Pentagon and HHS did not respond to questions. CNN, citing a Defense Department official, reported Thursday that HHS has requested the Pentagon prepare to house up to 20,000 unaccompanied migrant children on military bases. Before Trump signed the executive order, Defense Secretary Jim Mattis indicated to reporters he considered it appropriate.
“We have housed refugees. We have house people thrown out of their homes by earthquakes and hurricanes. We do whatever is in the best interest of the country,” Mattis said Wednesday.
After members of Congress reported difficulties accessing civilian detention facilities, the top Democrats on the House and Senate armed-services requested Mattis assure them that legislators will be permitted to conduct oversight on any bases HHS selects.
“It is essential that members of Congress have access to these facilities even in circumstances where short notice is provided,” Rep. Adam Smith and Sen. Jack Reed wrote Mattis on Wednesday.
Trump’s order doesn’t address the chaos ensuing in federal courtrooms in Texas and elsewhere that are clogged with thousands of non-violent border crossers being unnecessarily prosecuted, two federal public defenders said.
Since the day it was implemented, zero tolerance has caused chaos in the federal court system—and Wednesday’s executive order is expected to cause even more, lawyers and advocates say.
The order came with slightly more forewarning than the zero tolerance policy itself, thanks to an announcement by the president early Wednesday. Federal public defenders, court staff, the U.S. Marshals and immigration authorities working the front lines of the border were given no advance notice of the policy’s implementation, according to Franco.
“It’s not as if anyone was calling up the judges, clerks, federal public defenders to tell them this was coming,” Franco said. “None of that happened. On the human side of this, no thought was given to the fact that all the shelters for unaccompanied minors were already full. And now that (many parents will soon be deported), what process or procedure is in place to make sure that these children are reunified with their parents? The answer is none.”
The Justice Department did not respond to a request for comment.
As a result of the lack of forewarning, federal courts have been inundated with first-time border crossers with no criminal histories, many of them mothers fleeing violence in Central and South America with their children. Those immigrants are being tried en masse in federal courtrooms.
On Friday, more than a dozen immigrants were tried in El Paso federal court at once for the misdemeanor crime of illegal entry. Dozens more will be tried every day for the foreseeable future as long as zero tolerance remains in place, with many of them pleading guilty in a desperate attempt to have their children returned to them.
“The order does not address the fundamental question of how to keep a child in the care of (their) parent while the parent is simultaneously in criminal custody undergoing prosecution for illegal entry,” said Chris Carlin, head of the federal public defender’s office in Alpine, Texas, about 200 miles from El Paso. “The order calls for both things to happen. It doesn’t match the reality of criminal court procedure.”
“I can’t even begin to address the logistical implications,” Carlin added. “How do you create an entirely new type of hybrid criminal/immigration detention system without congressional funding or oversight, overnight? The mind boggles, then explodes.”
When zero tolerance was put in place, border agents began referring everyone who crossed the border illegally to the Justice Department for prosecution. Prior to the policy, many of those immigrants would have simply been sent back to Mexico at the point of arrest or immediately processed by Immigrations and Customs Enforcement for expedited deportation instead of being prosecuted in federal court.
“Before zero tolerance, prosecutors would look at cases and evaluate them based on their resources, like how many beds were available,” said Carlin. “They had to decide, do you want to allocate those resources to low priority cases like these zero tolerance ones or do you want to focus on high priority cases, as in people who are actually violent?”
Without any advance notice of zero tolerance, the U.S. Marshals Service has scrambled to find places to house immigrants once they come into their custody to be tried in federal court, Franco said. In some cases, children don’t have relatives in the United States to be released to so they’re placed in foster care facilities run by companies contracted by the Office of Refugee Resettlement. In the case of one Guatemalan woman whose case is being handled by Carlin’s office, her three children couldn’t stay in one such facility in El Paso so they were sent to Manhattan.
She remains in El Paso. It took Carlin’s office nearly a month to locate the children. Once his office reached workers at the facility in Manhattan, they said they had no idea the children’s mother was in custody in El Paso because ICE classified them only as “unaccompanied minors,” a “legal fiction” necessitated by zero tolerance because children must be classified as such once their parents are charged and detained in the federal criminal court system.
Without adequate space in holding cells to account for the influx of adult immigrants being prosecuted under zero tolerance, the Marshals have tried to find ways around holding immigrants for very long. One tactic U.S. attorneys have taken to: arrest, prosecute, sentence and discharge immigrants to ICE in a single day, according to Franco.
From a legal perspective, those rushed cases are problematic for immigrant parents who often have little education, have been flung into a justice system they may have trouble understanding, and who are distraught over the loss of their child, Franco said.
“We’re still spending an inordinate amount of time not on the client’s immigration case but consoling the client.”
With little in the way of a system to reunite parents and children, both Franco and Carlin said immigrants are and will be deported without their children, creating significant difficulties of finding them in the interior of the U.S. once they’ve returned to their home country.
“When they arrest someone, they will inventory their property,” Franco explained. “They’ll give you a receipt for your belt, but the most valuable thing in your life—that you’ve probably spent the last 30 days travelling here and protecting with your life, your child—they won’t give you a piece of paper to get them back.”
— With reporting from Jackie Kucinich