Trump administration considers asking parents to make dire border choice: detention or separation

The White House is actively considering plans that could again separate parents and children at the U.S.-Mexico border, hoping to reverse soaring numbers of families attempting to cross illegally into the United States, according to several administration officials with direct knowledge of the effort.

One option under consideration is for the government to detain asylum-seeking families together for up to 20 days, then give parents a choice: stay in family detention with your child for months or years as your immigration case proceeds, or allow your children to be taken to a government shelter so other relatives or guardians can seek custody.

That option — called “binary choice” — is one of several under consideration amid the president’s frustration over border policy. He has been unable to fulfill key promises to build a border wall and end what he calls “catch and release” — a process begun under past administrations in which most detained families are quickly freed to await immigration hearings. The number of migrant family members arrested and charged with illegally crossing the border jumped 38% in August and is now at record levels, according to Department of Homeland Security officials.

Senior administration officials say they are not planning to revive the chaotic forced separations carried out by the Trump administration in May and June, which spawned an enormous political backlash and led to a court order to reunite families.

But they feel compelled to do something, and officials say senior White House advisor Stephen Miller is advocating rigid measures because he believes the springtime separations worked as an effective deterrent to illegal crossings.

At least 2,500 children were taken from their parents over a period of six weeks. Crossings by families declined slightly in May, June and July before surging again in August, officials say. September numbers are expected to be even higher.

While some inside the White House and the Department of Homeland Security are concerned about the public perception and political blowback of renewed separations, Miller and others are determined to act. There have been several high-level meetings in the White House in recent weeks about the issue, according to several officials briefed on the deliberations. The “binary choice” option is seen as one that could be tried out fairly quickly.

“Career law enforcement professionals in the U.S. government are working to analyze and evaluate options that would protect the American people, prevent the horrific actions of child smuggling, and stop drug cartels from pouring into our communities,” White House Deputy Press Secretary Hogan Gidley said in an emailed statement.

Any effort to expand family detentions and resume separations would face logistical and legal hurdles.

It would require overcoming the communication and data-management failures that plagued the first effort, when Border Patrol agents, Immigration and Customs Enforcement officials and Department of Health and Human Services caseworkers struggled to keep track of separated parents and children scattered across the United States.

Lawyers have also raised questions about the legality of splitting up families, even if parents sign waivers to permit it. A Congressional Research Service report last month said that releasing families together in the United States is “the only clearly viable option under current law.”

Another hurdle: The government lacks detention space for a large number of additional families. ICE has three “family residential centers” with a combined capacity of roughly 3,000 parents and children. With more than four times that many arriving each month, it is unclear where the government would hold all the parents who opt to remain with their children.

But President Trump said in his June 20 executive order halting family separations that the administration’s policy is to keep parents and children together, “including by detaining” them. In recent weeks, federal officials have taken steps to expand their ability to do that.

Officials proposed new rules that would allow them to withdraw from a 1997 federal court agreement that bars ICE from keeping children in custody for more than 20 days.

The rules would give ICE greater flexibility to expand family detention centers and potentially hold parents and children longer, though lawyers say this would be probably to end up in court.

Officials have also imposed quotas on immigration judges and are searching for other ways to speed up the calendar in courts to adjudicate cases more quickly.

Federal officials arguing for the stringent measures say the rising number of family crossings is a sign of asylum fraud. Homeland Security Secretary Kirstjen Nielsen has described smugglers charging migrants thousands of dollars to sneak them into the United States, knowing that “legal loopholes” will force the administration to release them pending a court hearing. Federal officials say released families are rarely deported.

Advocates for immigrants counter that asylum seekers are fleeing violence and acute poverty, mainly in Central America, and deserve to have a full hearing before an immigration judge.

“There is currently a crisis at our southern border as we encounter rising numbers of adults who enter the country illegally with children,” Homeland Security spokeswoman Katie Waldman said. “DHS will continue to enforce the law humanely, and will continue to examine a range of options to secure our nation’s borders.”

In southern Arizona, so many families have crossed in the last 10 days that the government has been releasing them en masse to shelters and charities. A lack of available bus tickets has stranded hundreds of parents and children in Tucson, where they sleep on Red Cross cots in a church gymnasium.

At a Senate hearing Wednesday, Sen. Jon Kyl (R-Ariz.) told Nielsen that migrants were “flooding into the community” and that authorities there had “no ability to do anything about it.”

Nielsen said lawmakers need to give Homeland Security officials more latitude to hold families with children in detention until their cases can be fully adjudicated — a process that can take months or years because of the huge court backlogs.

Homeland Security officials have seen the biggest increase this year in families arriving from Guatemala, where smugglers, known as coyotes, tell migrants they can avoid detention and deportation by bringing a child, according to community leaders in areas with the highest rates of emigration.

On Friday, Nielsen called on Central American leaders to dissuade potential migrants from making the journey north. She called for a regional effort to combat smuggling and violence in the region and to “heighten our penalties for traffickers.”

“I think there’s more that we can do to hold them responsible, particularly those who traffic in children,” she said in a speech at the second Conference on Prosperity and Security in Central America.

More than 90,000 adults with children were caught at the southwestern border last fiscal year, which ended Sept. 30, surpassing the previous high of 77,600 in 2016.