Politicians from both parties agree that President Donald Trump’s “zero tolerance” policy that separated thousands of families along the southern border was a failure. Now legislators are grappling with a far more difficult question: what comes next?
Trump formally ended the practice of separating parents from their children when he signed an executive order in June. A federal judge in California is overseeing the reunification of those families under tight deadlines. And lawmakers on both sides agreed on Tuesday that the U.S. should never return to a policy of forcibly separating children from their parents.
Members of both parties even accepted part of the blame for not updating U.S. immigration laws to deal with the ever-growing flow of families entering the country and claiming asylum.
“Although the administration mishandled the family separations, it’s also important to remember that this institution, the Congress, also deserves its fair share of blame,” said Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee in opening a hearing to review the family separation policy.
But Tuesday’s hearing showed that the two sides remained miles apart on how exactly those families should be kept together.
Republicans believe undocumented families should remain together in federal detention centers as they await their asylum or deportation hearing before an immigration judge. Democrats believe most families should be released into the country as they await their day in court.
Finding a compromise, especially in an election year, will be difficult. But Benjamin Johnson, executive director of the American Immigration Lawyers Association, said the problem has become so acute, and the collective disgust so widespread, that Congress needs to put aside its long history of inaction and get to work.
“The odds are obviously very low that Congress is going to find a path forward on any controversial issues, particularly on immigration,” Johnson said. “But the moral outrage around family separations coming from almost every corner of the American population I think is a compelling force to remind them to do their jobs.”
According to the Department of Homeland Security, the number of parents illegally entering the U.S. with their children, mostly from Central America, has skyrocketed in recent years. After an initial surge in 2014, the numbers have continued to rise, with over 106,000 members of family units apprehended so far in fiscal year 2018. That number is already higher than all of fiscal year 2017, according to Immigration and Customs Enforcement.
A series of court rulings and U.S. laws prevent the government from keeping minors in prisons or detention centers for longer than 20 days. But Trump’s so-called “zero tolerance” policy imposed criminal charges against most parents, prompting government officials to transfer them to adult prisons. Since children could not stay in those facilities, the government transferred them to shelters run by the Department of Health and Human Services.
The solution to that conundrum, according to Republicans, is to revoke or amend the 1997 agreement brokered between the Clinton Justice Department and attorneys representing immigrants, which is known as the Flores settlement.
GOP Sens. Thom Tillis of North Carolina, Ted Cruz of Texas, and Grassley introduced a bill that would do just that, allowing the government to house parents and children together for longer periods of time in “family residential centers.” In an op-ed they co-authored for USA TODAY, the senators argued that those centers would be required to maintain “high humane standards.”
“We should not have to choose between tearing children from their parents and enforcing our nation’s lawful immigration system,” they wrote.
Democrats have fought back against that proposal, arguing that any prolonged detention of minors is not only inhumane, but flies against the long-held ideal of the U.S. serving as a beacon for downtrodden immigrants.
Democratic Sens. Kamala Harris of California, Jeff Merkley of Oregon, and Catherine Cortez Masto of Nevada, filed a bill Monday that would allow most family units to be released into the U.S. as they await the conclusion of their hearings. It would also prevent the deportation of parents until the child’s case before an immigration judge is resolved, ending either in a deportation order or legal status in the U.S.
The Trump administration decries such policies as “catch and release.” As Sen. John Cornyn, R-Texas, put it on Tuesday, immigrants who are released and ordered to appear before an immigration judge simply ignore that order and “escape into the great American landscape never to be heard from again.”
Democrats say there are simple ways to fix that. The Department of Homeland Security has used several programs, collectively known as “alternative to detention,” where government officials track immigrants awaiting court hearings through phone calls, in-person visits, or ankle monitors.
The Department of Homeland Security’s Inspector General concluded in a report in November that one of those programs, known as the Family Case Management System, showed remarkable success. Of the 781 undocumented immigrants in the program, 99% completed all their required check-ins and in-person appointments, and 100% attended all their court hearings.
The Trump administration ended that program last year.
Ur Jaddou, director of DHS Watch, an advocacy group that monitors the government’s immigration enforcement actions, said the administration should restart, and invest more heavily in, those programs because they cost a fraction of the cost of detention and have proven to be effective at getting immigrants to court.
“It makes not only dollar sense, but it’s morally the right thing to do,” Jaddou said.
Matthew Albence, head of ICE’s removal operations, said the alternatives to detention have been “fairly successful,” but said they have been “woefully unsuccessful” at deporting people.
To prove his point, Albence said during Tuesday’s Senate hearing that of the 75,000 immigrants currently in those programs, only 2,430 were deported in fiscal year 2017. When asked how many of those immigrants were not deported because they won their asylum case, ICE said it did not track that data.
Another proposal to improve the family separation problem includes hiring more immigration judges to alleviate the 700,000-case backlog currently in the system. For immigrants who are released from detention, final decisions on their immigration cases are averaging more than eight years, according to the Department of Homeland Security.
There are currently 334 immigration judges, and Attorney General Jeff Sessions has tried to hire 84 more in the past year and is trying to hire even more.
(Author Alan Gomez is an immigration reporter at USA Today. He has covered Florida, Congress, hurricanes, the Tea Party, Iraq, Afghanistan, Gitmo, cops, courts, high school football and suicide squirrels. This opinion appears from USA Today)