BU Law immigration expert says new policy “is legally and morally indefensible.”
Bowing to political pressure following a growing public outcry, President Trump signed an executive order on Wednesday reversing a policy that separates parents and children at the US-Mexico border. It was a rare about-face for Trump, who met with mounting condemnation from human rights activists and members of his own party. But Trump said his policy of zero tolerance would continue. “We’re going to have strong—very strong—borders, but we are going to keep the families together,” he said when he signed the new immigration order.
Pressure had increased on Trump to reverse course after journalists and politicians touring the facilities where the children are housed reported seeing traumatized children, and in some instances, metal cages to keep them contained. A video obtained by ProPublica and released to news outlets across the globe played sounds of wailing children and added to the mounting public outrage.
The new order leaves many unanswered questions about the fate of the 2,300 children currently in detention centers, such as if and when they will be reunited with their parents. And the president’s order faces numerous legal obstacles, including whether families can be detained indefinitely. According to the New York Times, a federal judge could refuse to give the Trump administration the authority it wants to hold families in custody for more than 20 days, the current limit as stipulated by a 1997 court order known as the Flores Settlement.
BU Today spoke with Sarah Sherman-Stokes, a School of Law clinical instructor and the associate director of the LAW Immigrants’ Rights & Human Trafficking Program, about the new order and the likelihood of a legal challenge.
Before coming to BU, Sherman-Stokes was an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project, where she represented noncitizens in removal proceedings, with a special focus on the representation of detained, mentally ill refugees. Her research focuses on the intersections of immigration law and mental health and disability, as well as the interactions between immigration and the criminal justice system. As associate director of the immigrant and trafficking program, she teaches seminars on lawyering skills and trial advocacy and supervises students representing newly unaccompanied children facing deportation, refugees fleeing human rights abuses, and other immigrants in court and administrative proceedings.
BU Today: What does this new executive order mean? Is it a shift away from current immigration policy?
Sherman-Stokes: There’s been a lot of immigration news over the last few days. To lay out what happened, the president set out a policy of his own making, to engage in zero tolerance at the border—that is, to prosecute criminally anyone who entered the United States unlawfully or without authorization. He decided in doing so that he would separate children from their parents. That’s not required by any law, statute, or regulation, but he decided that’s what he would do. More than 2,300 children were separated from their parents in less than two months, and in the face of public outrage over that decision, he signed an executive order June 20, saying that in lieu of family separation, he will now detain families together, indefinitely.
The executive order is not a positive step, not a compromise. I think it is an insidious ploy to make family detention a permanent fixture of our immigration system and offer it up as some kind of compromise or way to prevent family separation. It’s almost equally as bad.
What is the likelihood of an immediate legal challenge to the new executive order?
I imagine there will be a legal challenge, in particular because the president’s executive order suggests that children and families can be held indefinitely, which is a direct violation of the Flores Settlement, the settlement agreement from 1997 that said that children can be held for only a short period of time, even with their parents, up to 20 days. The president’s plan would allow for indefinite detention, so I imagine there would be an immediate legal challenge because it so clearly violates the Flores Settlement.
Do you think the Trump administration can persuade the courts to modify the Flores Settlement to allow for indefinite detention?
I actually think Trump knows exactly what he’s doing, or at least the people around him know what they’re doing. By signing this executive order, he knows his actions are in direct violation of the Flores Settlement. That’s intentional. He wants this to come to a court challenge, because he either wants a judge to modify or amend the Flores Settlement to suit his wishes, or if a judge is unwilling to do that, he wants congress to pass a law doing away with Flores.
There have been people on the right side of the aisle who have long hated this Flores Settlement and have long waited to erode it, chip away from it, or do away with it all together. And I think that’s the goal here.
Right now, there is a negotiated 20-day limit for the amount of time that children can be held in detention with their parents. I don’t know if Trump wants to extend that to a longer period of time, or do away with it all together. You can imagine if people are being held indefinitely, because the conditions are so miserable and abusive, they will end up giving up bona fide claims for release, because they simply can’t tolerate being detained in a jail for such a long period of time. Many people will keep fighting, but we’re talking about the most vulnerable people, who have undergone horrific trauma, who could have mental and physical illnesses, young children. They are inside the pressure cooker, and if they are looking at indefinite detention while they fight their cases or make their case for asylum, they may become so disheartened that they give up.
What is the fate of the 2,300 children currently in detention centers? Do you think they will be reunited in a timely fashion?
I don’t know. The executive order provides no avenue for reunification, which is extremely troubling. The executive order is completely disingenuous. I’ve heard anecdotally, from folks on the ground, that it’s chaos. Parents aren’t able to reunite with their children and the type of information that was needed to provide reunification wasn’t made, and that’s frankly not surprising. I don’t think that this administration’s goal was to provide a path for reunification. So I don’t know what will happen.
What are some of the hurdles these families face in being reunited?
In immigration removal proceedings, you are not entitled to a lawyer unless you can afford a lawyer on your own or unless you can benefit from one of the legal service providers. The demand far outstrips the resources. Many people need lawyers, but there aren’t enough lawyers to represent everyone for free. There are language barriers, there are parents and children who are deeply traumatized. Asking someone up against all those odds to navigate this complex bureaucracy, to find their missing child, when all they are given is a flyer with a 1-800 number, is preposterous.
In previous interviews, you’ve said that you cannot deter families who are fleeing for their lives. Can you talk about this?
At least from my experience, my clients do not typically wake up one day and decide on a whim that they are going to make the treacherous journey to the United States. The journey is fraught with potential horrors—people die, they become very sick, people are assaulted, raped; it’s not a pleasant journey to undertake and it’s expensive. People only make that journey when they feel they have no choice. The president has said that this policy that he instated, although he later denied instating it, is a policy of deterrence. But as I said before, you cannot deter people who are fleeing for their lives. These people are making the only choice they have for the lives of their children.
Anything else you’d like to add?
To be really clear-eyed about what this executive order does and does not do, I’m seeing spin from Republicans in Congress saying, well, Democrats and advocates first didn’t want kids separated, so OK, we stopped separating kids, now they want more. This a crisis of Trump’s own making, and now he is swooping in to change it. It’s morally and legally indefensible, and I believe it was a ploy all along. It is very dangerous and scary.
Immigration is not a criminal matter, it’s a civil one, yet we treat these people like criminals, with jumpsuits and numbers, but they don’t have the right to a lawyer and other rights.
Reported by Amy Laskowski, originally published by BU Today
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