President Donald J. Trump’s executive order to end the separation of children from their parents at the country’s border doesn’t end the detention of families. Now, children and their families will simply be detained together. And, if the courts change a 1997 decree that places a limit on the length of time children can be held, these families could be detained for lengthy periods of time.
Signed under enormous political pressure in the wake of reports of children being torn from their parents’ arms and then housed in cages, Trump’s executive order leaves many crucial details unanswered. It also leaves untouched the Trump administration’s “zero-tolerance” policy of criminally prosecuting every individual found to have entered the country unlawfully, including refugees and asylum-seekers.
This policy, announced by Attorney General Jeff Sessions earlier this summer, marked a “radical departure from previous administrations,” said Matt Cameron, an attorney who teaches immigration policy at Northeastern. Previously, people who were found to be in the United States unlawfully after crossing the border would be charged with a civil violation of the Immigration and Nationality Act, a determination that would trigger deportation proceedings.
The criminalization of border-crossing is the engine behind the current crisis, and is still very much in effect even under Trump’s recent executive order, said Rachel Rosenbloom, Northeastern law professor and co-director of the university’s Immigrant Justice Clinic.
“Once parents are in the criminal system, their kids can’t be in prison with them,” Rosenbloom said.
Children whose parents are imprisoned are subsequently considered unaccompanied minors. They’re handed over to the Office of Refugee Resettlement within the Department of Health and Human Services, where they’re supposed to be placed with a sponsor or foster family in the United States.
“In theory, this is supposed to be a more humane system,” Rosenbloom said. “In fact, that system is overwhelmed and you’re seeing egregious conditions under which to house children.” Some children are now being held at a former Walmart in one part of Texas, and at a tent city in another.
Additionally, the children in the care of the Office of Refugee Resettlement might not have a family member in the United States who could serve as a sponsor because they came here with their parents, who are detained while awaiting trial for a misdemeanor crime.
Roughly 2,300 such children and teenagers were separated from their families at the border. Their status will not be affected by any new policy based on Trump’s executive order.
“Efforts will be made to reunite these children with their families, but it’s going to be a slow process and there is a realistic possibility that some families will remain separated for years—or even, in a few cases, for life,” Cameron said. “We get a look at this possibility in a chilling interview from one of President Obama’s former Immigration and Customs Enforcement chiefs.”
Even temporary separation can have devastating long-term psychological effects on children, said William Sharp, assistant teaching professor in Northeastern’s College of Science who specializes in child psychology.
“Separating children from parents—their primary attachment figures at critical windows in their development—has a greater negative effect than some forms of neglect, such as lack of feeding,” he said.
The United States suddenly finds itself with thousands of children who need caregivers “and it’s not clear who is doing that work in the detention centers,” Sharp said.
“So, what is happening to these kids? Lots of damage that might take years of therapy to overcome,” he said. “What can we expect to see? Disturbed attachments, trouble forming bonds even when reunited, and issues with relationships in their adult lives.”
If the developments seen at the border make it seem like there should be laws regarding the treatment of unaccompanied minors, there are; sort of.
A case settled in 1997 known as Flores v. Reno resulted in a consent decree “in which the government made certain commitments in terms of its treatment of minors, in particular to house them in the least restrictive environment possible, and not to detain them,” Rosenbloom said.
Though, she added, “Some of the pictures we’ve seen certainly look like detention.”
The Trump administration has cited the Flores decree as reason for separating children and parents—children can’t be detained, but their parents will be until their hearings.
The government filed a motion Thursday to modify the consent decree. “The big picture here is that the government is trying to bring back family detention,” said Rosenbloom. “But the court that put a stop to family detention under the Obama administration was absolutely clear that family detention violates Flores. Children should never be subjected to detention.”