CNN published a interview with Doris Meissner, the director of the US immigration policy program at the Migration Policy Institute, whose parent organization is Carnegie Endowment for International Peace, Meissner is also a former commissioner at the Immigration and Naturalization Service, where she served from 1993-2000. [highlights added by Old Curmudgeon]
Meissner: Before the Trump administration’s zero-tolerance policy, families arriving at the border without authorization to enter but claiming a credible fear if returned home were permitted to enter to apply for asylum. Whether or not they were detained while applying for asylum depended on a series of court rulings and legislation, in addition to the availability of detention bed space.
A 1997 court settlement [Clinton Era] agreed to by the US government in a case called Flores v. Reno, which remains in effect today, requires the government to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives or licensed programs willing to accept custody. If children cannot be released, Flores requires the government to hold them in the “least restrictive” setting available. The 2008 Trafficking Victims Protection Reauthorization Act, signed by President George W. Bush, codified parts of the settlement into federal law.
In 2015 [Obama Era], a federal judge in California [United States Court of Appeals for the Ninth Circuit] ruled that the Flores requirements apply not only to unaccompanied minors but also to children apprehended with their parents, meaning that all minors must be released from detention if possible. The judge also ordered the Department of Homeland Security to release parents detained along with their children. An appeals court in 2016 [Obama Era] affirmed that Flores applied to all children but reversed the ruling that parents should be released as well.
Amid a surge in family flows, there were not enough detention beds available to hold families even for the 20 days allowed under the court settlement, causing many to be released. The family detention system currently has capacity to hold just 2,700 people at a time — resulting in the “catch and release” that President Trump railed against in his election campaign and since.
Meissner: The change the Trump administration has made is to declare and try to implement a zero-tolerance policy at the US-Mexico border: Criminal prosecution of all people who seek to cross illegally between ports of entry. With Attorney General Jeff Sessions’ announcement on April 7 that all illegal crossers would be prosecuted in federal court for illegal entry or re-entry, the administration essentially ensured that parents would be separated from their children because minors cannot be kept in federal criminal detention facilities. So the parents are now being transferred from the Border Patrol to the US Marshals Service and then are being tried in court for the misdemeanor of illegal entry or the felony charge of illegal re-entry. As a result, their children are turned over to the custody of the Department of Health Human Services’ Office of Refugee Resettlement.
The Trump administration’s blanket policy to prosecute all illegal crossers, including family groups, is new. However, it builds upon earlier efforts by the Bush and Obama administrations. In 2005, the Bush administration launched Operation Streamline in one Border Patrol sector in Texas, aiming to criminally prosecute illegal crossers. Between 2003 and 2005, criminal prosecutions of first-time unauthorized crossers for illegal entry or re-entry more than quadrupled, from 4,000 to 16,500. By 2010, they had reached 44,000. Operation Streamline was extended to some other Border Patrol sectors and continued under the Obama administration, reaching a peak 97,000 criminal prosecutions in 2013.
Still, the phenomenon of families arriving at the US-Mexico border together dates from just the last few years, and was not one that the Bush or early Obama administrations confronted in any significant numbers. Few children were separated from their families during the earlier administrations as a result of criminal prosecution of the parents.
Was this outcome — lots of young children being separated from their parents — expected? Is it worse than people thought?
Meissner: We don’t know what the internal deliberations and planning were within the administration. But it seems obvious that there should have been immediate recognition that implementation of a zero-tolerance policy would almost instantly result in a de facto policy of family separation. Accordingly, the federal Office of Refugee Resettlement, which was already dealing with significant capacity issues surrounding the care of a separate flow of unaccompanied minors, would need to be in position to provide additional housing and care for a child population that is uniquely vulnerable.
ORR’s job in dealing with unaccompanied minors is to seek to reunite children with relatives already in the United States. The difference now is the agency, which is an arm of the government that has deliberately separated these families, is dealing with children who are traumatized by that separation as well as any traumas they suffered along the migration journey or in their country of origin. With reports that ORR is opening a tent city for children in El Paso, has contracted with a service provider to house children in a former Walmart, etc., the capacity issues are proving significant — and are likely to continue as long as the zero-tolerance policy continues.
Port-of-Entry Asylum Claim
This is the preferred way for asylum claims to be handled. The problem is the capacity/throughput of the port-of-entry facilities, which results in asylum seekers being told to come back later. Wait times of 5 – 13 day are being reported. Just to put this in context these are predominantly those whose arrive via the much publicized Central American Caravan. It is reported that CBP processes an average of three families per day at the Tijuana Port-of-Entry.
With the “zero-tolerance” policy in place, high-ranking U.S. government officials, including Sessions, have said that migrants presenting their asylum claims at ports of entry would not be prosecuted.
It remains unclear whether the government will provide additional resources to help process those claims. Clearly it is within DHS/CBP capability to increase the throughput.
A family apprehended crossing the border, at other than a port-of-entry, is taken into custody by Customs Border Protection.
Prior to the zero-tolerance program adults without criminal histories who crossed the border with children were not referred for prosecution. Instead, some were booked into immigrant family detention centers and others were referred for civil deportation proceedings and released
At this point they are processed based on country of origin. Those from Mexico, who opt for expedited removal are returned to Mexico after processing. Those from non-contiguous countries have a right to a deportation hearing. Both groups may apply for asylum. Minors are either unaccompanied minors or part of a family unit. DHS verifies that minor in family units are legitimately offspring or wards of the adult(s). If DHS determines the minor is not an offspring or ward they are recategorized as unaccompanied minors
The Flores decision as modified in 2015 allows HHS to detain minor children with their parents for 20 days in Family immigration detention centers.
In 2015 under the Obama administration, a federal judge ruled that Flores applied to migrant children who came with their parents, not just children who came alone. An appeals court confirmed that decision a year later.
 There are three Family immigration detention centers, with a capacity of 3,335 beds: Berks Family Residential Center in Berks County, Pennsylvania (Berks), Karnes Residential Center in Karnes City, Texas (Karnes) and South Texas Family Residential Center in Dilley , Texas (Dilley). Prior to 2014, the Obama administration had ended large-scale family detention in Texas, with Berks being the only family detention center in operation. By the end of 2014, Karnes and Dilley had opened while a fourth facility, the Artesia Family Residential Center in New Mexico, had both opened and closed amongst a firestorm of criticism
On March 1, 2003, the Homeland Security Act of 2002, Section 462, transferred responsibilities for the care and placement of unaccompanied alien children from the Commissioner of the Immigration and Naturalization Service to the Director of the Office of Refugee Resettlement (ORR).
Since then, ORR has cared for more than 175,000 children, incorporating child welfare values as well as the principles and provisions established by the Flores Agreement in 1997, the Trafficking Victims Protection Act of 2000 and its reauthorization acts, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2005 and 2008.
Unaccompanied alien children apprehended by the Department of Homeland Security (DHS) immigration officials are transferred to the care and custody of ORR. ORR promptly places an unaccompanied child in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight. ORR takes into consideration the unique nature of each child’s situation and incorporates child welfare principles when making placement, clinical, case management, and release decisions that are in the best interest of the child. The average length of stay in HHS shelters, in FY2017 was 41 days.
In 2017 HHS received 40,810 minors referred from DHS.
Under the Flores decision after 20 days children held in Family immigration detention centers are recategorized as unaccompanied minors and transferred to HHS/ORR. Since the inception of the zero-tolerance program 2,000+ minors have reached the 20 day limit and been reclassified as unaccompanied minors (Flores decision) and transferred to HHS/ORR.