President Trump has backed off his wildly unpopular policy of separating children from asylum-seeking Central American families at the southern border, which was rolled out to help facilitate the administration’s zero-tolerance approach on prosecuting crossers.
But his executive order halting separations is hardly the end of the roiling debate about how Central American children who arrive at the border should be handled. Here is a look at a couple of the unanswered questions.
The Kids Who Are Detained with Parents
Under current federal law, the only way “zero-tolerance” works on family arrivals is if Immigrations and Customs Enforcement (ICE) officials can place children in the Unaccompanied Alien Children program, which was established to handle youth arriving at the border without their parents. Under UAC, ICE transfers Central American youth to the custody of Department of Health and Human Services, which is tasked with finding family or other sponsors for them to live with before their asylum hearing.
Why is it necessary? Because a 1997 consent decree called the Flores Settlement states that children can only be held in family detention centers for 20 days. A parent can be detained for longer, but the child must be released in that time frame.
The administration conceded that, under those terms, it is already backing off zero-tolerance for now. But to the extent that families are detained, the executive order forces a choice on the administration.
One option is to release the family into the country on some level of supervision and monitoring. Intensive monitoring has been done using GPS monitoring through ankle bracelets. The Trump administration could also revive a pilot project it canceled last year, which used a combination of social workers, counselors and legal assistance with released families. The Family Case Management project, managed by GEO Group with several community-based nonprofits as subcontractors, yielded nearly perfect attendance at immigration court proceedings.
Another way to maintain zero tolerance would be to separate children from their families after 20 days, essentially the same policy that was just rescinded but with a 20-day lag while children live in detention centers. Since Trump signed the executive order halting family separation on June 20, the judgment call on which path to choose would come around July 10. This could mean that news crews stationed by family detention centers may catch federal agents moving children on that day.
But that’s under current rules. Both the White House and Republican leadership are moving on parallel tracks to change this policy.
The Trump administration has asked federal judge Dolly Gee to amend Flores to permit longer detention stays for children. That’s unlikely to work – Gee ruled against the Obama administration (she was appointed by Obama in 2009) when it sought exceptions to Flores in the wake of a massive surge in unaccompanied minors that started in 2014.
Republicans have produced a bill that would legislatively nix the 20-day rule from Flores. This could be voted on as early as this week.
The Kids Who Were Separated
The Trump administration has said it has a plan to reunify the 2,000-plus children who were taken from parents under the dark stain that was the family separation policy. That’s good, because a federal judge ruled this week that the Department of Health and Human Services (HHS) – which runs the UAC program – has a 30-day window to reunite all of those kids with their parents. For children under the age of 5, the deadline is 14 days.
The decision, made by United States District Court Judge Dana Sabraw, essentially put a retroactive rebuke on the separation policy. Sabraw said the separations were a departure from “measured and ordered governance” that were a “chaotic circumstance of the Government’s own making.”
It will surely be an arduous process to quickly make these reunifications. HHS receives custody of children from ICE all the time through UAC, but there is no procedure for returning them to ICE. Once a child is in UAC, HHS custody essentially ends when the child is under the sponsorship of a relative or parent in the United States.
Federal vs. Domestic Foster Care
There has been a lot of speculation about the idea that these separated children could end up in foster care and then adopted by American families, a rumor that was not helped by a border patrol officer actually threatening such a scenario to a parent.
That is technically possible, but not in the ways mainstream media is suggesting it. Here’s a crack at simplifying.
Kids in the UAC program – mostly teens who arrive at the border without parents, and the kids who were separated – are placed into HHS custody. The department then routes them to placements managed by providers who contract directly with HHS.
Most of those placements will be to group care facilities, some of which are enormous but most of which can accommodate dozens of children. And a smaller fraction of those children will end up in foster homes managed by those contracted providers.
Those providers work with HHS to identify safe sponsors for UAC children to live with until their day in immigration court, at which point their claim of asylum will be heard. Most often, those sponsors are parents or relatives of the child who are living in America.
All of that is done outside the network of foster homes and group placements managed by states and counties. It is a totally separate system. The rules and policies are not the same.
For example, one MSNBC analyst suggested that, by federal law, parental rights must be terminated if a youth has been in foster care for 15 out of 22 months. That is a timeline specified in federal law called the Adoption and Safe Families Act, which was passed in 1997.
Almost no state lives up to that timeline, so the suggestion that this has to happen is not true. But more importantly, it applies to children in state and county foster care; it is not a timeline that applies to youth in the federal UAC program.
HHS has confirmed that there is no way that a UAC child could go directly from the agency’s custody into the custody of a state or county, or be adopted directly from HHS.
UAC “has its own long-term foster care network, for a relatively small group of children in the program,” said HHS spokesperson Kenneth Wolfe.
But there is a path by which a UAC child could end up in the traditional foster care system, and in so doing become a candidate for adoption. Once the UAC provider hands off a child to a sponsor, the laws around abuse and neglect in that sponsor’s home state certainly apply.
Let’s say a child is sent to live with a parent or relative in San Bernardino County, California. If the county child protective services agency investigates that home based on an abuse or neglect report, it could remove children in that home and place them into locally run foster care.
Here’s another scenario that could land UAC children in local foster care. Let’s say a sponsor parent or relative was undocumented, which is fairly common. If ICE apprehends them and initiates deportation proceedings, a child in their care could end up heading to local foster care if no other relative is able to care for them.
That hypothetical was less likely under Obama or Bush, because neither administration was interested in the immigration status of UAC sponsors. But the Trump administration is asking HHS to share status information with ICE.
The Future of UAC
Once the children who were separated from families have been reunited, per the federal order to do so, there will still be more than 10,000 children living in the shelters and homes provided through UAC. As mentioned, those are mostly teens from Central America who will be placed with a sponsor family in the United States.
The whole point of the program is to provide these youth with a day in court to argue for political asylum. As The Imprint has reported before, the results on that count have been murky.
But the future of the UAC program is tied up in the ongoing Republican negotiations of immigration reform. The so-called “compromise bill” on immigration policies would take several steps to shrink the UAC program:
- Removes the distinction in current UAC policy between Mexican and Central American youth. Mexican youth can be immediately returned home; right now, the asylum claims of Central American youth must be handled within U.S. borders.
- Gives ICE 30 days to determine a “credible fear” underlying an unaccompanied minor’s asylum claim, and return any child whose claim was dismissed. Right now, all of those children must be placed into HHS custody within 72 hours.
- Requires HHS to do what the Trump administration has already asked for in terms of information sharing. The agency would have to disclose biographical information and immigration status details for any household taking in an unaccompanied minor.
Those changes have been approved by Republicans on the House Judiciary Committee for years. They are also championed by Attorney General Jeff Sessions, who led on UAC legislation in the Senate before he joined the administration.
The compromise bill was dealt a blow already this week when it failed to pass in the House despite endorsement from Speaker Paul Ryan (R-Wisc.), which sent Republicans back to the drawing board on any sort of reform package.