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What Does Trump’s Immigration Order Mean?

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 and 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.

13 Comments
Amy Laskowski

Amy Laskowski can be reached at amlaskow@bu.edu.

13 Comments on What Does Trump’s Immigration Order Mean?

  • Emily on 06.22.2018 at 7:02 am

    Isn’t it true that these metal cages and reports of human rights abuses had been done something between 2014-2016, under the Obama administration? Some dates of the specific accounts would be appreciated. Thanks!

  • Ryan Burke on 06.22.2018 at 7:54 am

    Great article. Not subjective or biased at all. I feel all possible perspective angles were covered.

    • Caroline on 06.22.2018 at 9:15 am

      You realize this is an interview, right?

    • Richard Chappo on 06.22.2018 at 10:09 am

      Her article is absolutely biased. Our immigration policy is in shambles thanks to obama. President Trump is enforcing the laws Clinton and Obama put in place. Furthermore, President Trump is trying to fix the Immigration system, but Schummer won’t allow anything to pass.

      • Jack on 06.22.2018 at 1:07 pm

        Are you interested in Trump enforcing all laws, like say the emoluments clause of the constitution, or just the laws that you like?

  • Chris on 06.22.2018 at 9:09 am

    The Obama era pictures of cages you refer to were for an unexpected influx of children who were traveling on their own without parents. This article shows that the Trump facilities are no better, and worse, these children were forcibly separated from their parents. Obama was dealing with a temporary crisis while Trump made a decision to start separating families without a place to take care of the kids. Obama may have been unprepared, but Trump did this on purpose.

    http://www.businessinsider.com/migrant-children-in-cages-2014-photos-explained-2018-5

    • Richard Chappo on 06.22.2018 at 10:11 am

      The cages were from the Obama years. Currently, the children are not housed in cages. Check the facts for yourself.

      • Chris on 06.22.2018 at 11:42 am

        Did you click the article? The pictures from 2014 AND 2018 both have chain link cages.

  • michael on 06.22.2018 at 9:48 am

    I love how the media tries to blame Trump for an Obama era policy. Way to dig deep and cover all the facts, lol. If you don’t want to get separated from your kids, here’s an easy solution, don’t break the law. TRUMP 2020!

  • Greg on 06.22.2018 at 10:02 am

    Let’s be crystal clear …

    One the one hand, immigration lawyers ‘care’ about this issue … they really do, and I don’t doubt that they do some genuinely fine work every day within the laws of the land .. and they should keep doing this sort of work, cause it can genuinely be helpful to a democratic society.

    One the other hand, politicians and media don’t give a rats rear end about illegal immigration … they never have, and they never will … basically, they’re all living in gated communities, are surrounded by security and private planes to zip in and out for the photo ops, and they share exactly nothing in common with the scenarios the author so eloquently sets out above … it’s all politics and spin with these folks, and it always will be – period! You can find all sorts of instances where Bubba, Bushie, or Barry talked the tough talk of ‘Border security’ – blah, blah, blah … you’ll next read, or not be able to read (cause nobody in the media really cares) the spin … well, he really ‘meant’ ____, or this was really more about ___, or how sure we let thousands come or go because ____, etc etc etc … it’s all BS!

    As much as Ds don’t seem to like Rs, and Rs always seem locked up with Ds, the real culprit to progress in the country would appear to be the main stream media … they really are dishonest, obsessed with controlling the narrative v reporting the most material facts and letting the people decide, and not they’re not opposed to making stuff up when necessary.

    The MSM got the 2016 Election SO WRONG, and were SO BADLY EMBARRASSED by their poor reporting, that they’ve committed to bringing down the presidency – Nation, and the votes of 60+ million people, be damned!

    They’ve tried;
    – ‘racism’ … hasn’t worked.
    – ‘fascism’ … hasn’t worked.
    – ‘sexism’ … hasn’t worked.
    – ‘rigged election’ … hasn’t worked.
    – ‘Russia’ … hasn’t worked.
    – ‘gun control’ … hasn’t worked.
    – ‘nuclear war with NK’ … hasn’t worked.
    – ‘Stormy Daniels’ … yeah, that hasn’t worked either.
    – etc, etc, etc, etc … none of these obstructionist pathways are working.

    We’ve witnessed the FBI, DOJ, DNI, NSA, IRS – the whole alphabet soup of government agencies EACH sorta conspired to throw an election … the head of the FBI and his right arm are deeply under suspicion, others there look deeply corrupted too … the former leadership at the DOJ and CIA looks more corrupt that even the greatest skeptics could’ve imagined – Clapper and Brennan look really BAD … Susan Rice SPIED on American citizens, etc etc etc — and what do we hear from the MSM? {{{{crickets}}}} … instead, it’s ‘Trump may have eaten Russian dressing, Mueller is investigating’. It’s nuts!

    So, now, they’ll try to blame Trump for a law that’s a few decades old, that the last administration basically ignored, that he’s seeking to enforce – cause THAT’S what he said he’d do!

    This will NOT end well for the Democrats in mid-term elections if they don’t drop the obstructionism and at least ‘fake’ that they’re trying to help solve the problem. Open Borders, Higher Taxes, Salvaging the ACA, Rooting for Recession, and Rallying Around a Tired Looking Porn Star and Stripper – all in the spirit of Resist Trump is NOT a strategy.

    To the immigration lawyer – keep up the good fight … but do so in the proper context – you’ll catch more flies with honey than with vinegar … Trump ‘can’ be the tool to ‘fix a very and badly broken system’ – try to use the tool positively or risk getting hammered .. your choice.

    • Jack on 06.22.2018 at 1:11 pm

      You’ve omitted what the author said in the article. Trump did not have to separate families. There’s nothing in the law that requires it. To the contrary, it’s illegal to systematically abuse children. I don’t care if he “said” he would do it during his campaign. It’s illegal to abuse children and to keep them in cages. This is about what’s happening here and now. It’s scary that Trump was only willing to stop caging children when everyone, dems, republicans, everyone, all demanded it.

      • Yanez on 06.22.2018 at 4:48 pm

        Jack,

        What some people see as moral is not always the same as what is legal. Advocates for open borders — Sharon Sherman Stokes is a great case in point — need to stop playing the emotion card. Most Americans care about people, but only when they’ve earned our concern.

  • pedro on 06.25.2018 at 5:48 am

    great

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