Zero tolerance has been zeroed out, at least temporarily, in part because of the executive order signed by Donald Trump. Sarah Huckabee Sanders announced yesterday that the Department of Homeland Security had begun to run out of resources for immigration enforcement, but the demand has come to a halt. The head of the Border Patrol announced that they would stop referring parents for prosecution:
U.S. Border Patrol agents have stopped handing parents over to the Justice Department for prosecution when they are caught crossing the border illegally with their children, the head of the U.S. Customs and Border Protection agency said Monday.
The statement by Commissioner Kevin McAleenan marked a significant, if temporary, step back from the “zero tolerance” policy that the Trump administration has pursued for the last two months, which has led to more than 2,000 children being taken from their parents. President Trump issued an order Wednesday to stop separating families.
“I directed the temporary suspension of prosecutions for families in that category while we work through a process … where we can maintain family unity while enforcing prosecution efforts,” McAleenan said.
Whether or not the driving force is resources or the EO is an open question. Both are contributing to what is in essence a return to the status quo ante of catch-and-release:
Trump administration officials had vowed to put an end to the “catch-and-release” practices that have allowed parents with children to be freed from detention while awaiting court proceedings. But with separations mostly halted and little space to hold families, U.S. border officials are essentially once more back where they started before Trump’s “zero tolerance” crackdown. Until more family detention facilities are built, the reality is that most parents with children such as Najera will be let go.
Kevin McAleenan, the commissioner of U.S. Customs and Border Protection, confirmed Monday that immediately after Trump’s order, he directed field officers to suspend criminal prosecutions for adults who arrive with children.
Those prosecutions — for the misdemeanor charge of “illegal entry” — were the mechanism the government had been using to take migrant children from their parents and place them in foster care. McAleenan said that while no category of adult would be exempt from criminal prosecution, the only circumstances in which the Border Patrol will continue to refer parents to the Justice Department would be cases in which adults have a prior criminal record, or if a child’s welfare was in danger.
Parents whose only offense was illegal entry would no longer have their children taken away, he said. “In accordance with the Executive Order, I directed the temporary suspension of prosecutions for families in that category while we work through a process with [the Department of Justice] where we can maintain family unity while enforcing prosecution efforts,” McAleenan said.
In other words, the outcome of Trump’s EO is precisely what it appeared. The order not to separate families conflicts with the statutes governing the handling of children, which leaves CBP little choice but to release the parents as well as the children. Even if it didn’t, DHS needs many more resources to support an aggressive enforcement policy on the border for anything more than a few weeks at a time.
The solution here is to have Congress change the law and provide the resources. That effort got mired down in the House when Republicans attempted to fold it into a broader effort to resolve the DACA and border-wall issues. Now they want to narrow the focus down to family detentions, but that’s still a long shot to get through the Senate:
Sen. John Cornyn (Tex.), the Senate’s No. 2 Republican leader, told reporters Monday that lawmakers will try to pass a bill narrowly aimed at addressing the crisis this week. “Yeah, I mean, we should have done it last week,” he said. “But yeah, I hope so.”
The measure under discussion in the Senate would address a flaw in the executive order Trump issued last week mandating that migrant children and parents not be separated during their detention. That order would potentially violate a 1997 court order requiring that children be released after 20 days. The Senate GOP proposal would allow children to stay longer with their parents in detention.
However, there was no guarantee that the Senate could act before lawmakers break for the week-long Fourth of July recess. GOP leaders face skepticism from Democrats who are reluctant to sign on to a revised policy that they say could keep thousands of families in indefinite federal detention.
The prospects for this don’t look good, although they aren’t non-existent. Ted Cruz and Dianne Feinstein had been working together on a potential swap of providing the fix for some broader asylum eligibility. They met again yesterday but the issue remains hung up on how long children could be detained. In order to process families through the system, the 20-day limit in the Flores settlement would have to get extended, and Dick Durbin flat-out rejected that idea after the meeting.
Right now,Senate Democrats don’t think they’ll pay a political price for forcing Trump back to the status quo ante. They may be right, although the obstruction might end up rallying Trump’s base and angering others who favor stronger enforcement, as long as it doesn’t break up families. It might suit both parties to leave this in limbo for the elections, and then see what the voters have in mind. Meanwhile, the incentives remain for people to bring children along when they try to enter illegally, a fact that doesn’t appear to be high on the priority list for those making the political rather than the governing calculations.