Are families still being separated?
For now, no. Separations were result of one policy: the Trump/Sessions/Miller policy known as "zero-tolerance." However, in practice it required two separate steps. First, DHS would apprehend a family and then refer the adults to the Dept. of Justice to be prosecuted for illegal entry. Second, the DOJ would then decide whether or not to actually prosecute. If those two things happened, then the kids would be separated, treated as unaccompanied children, and sent to HHS to be resettled.
As far as we know DHS is no longer universally referring adults in families for prosecution. And, DOJ isn't prosecuting everyone that is referred. So, families aren't being separated at the border as a policy -- though family separation continues in various forms, at the border and internally, something that has always happened given our enforcement-focused approach to immigration policy.
Note- DHS has indicated that one of the primary reasons why they've stopped separating families is because they need additional resources -- like building new facilities -- and because they need to get around a couple of inconvenient child protection laws. So while it's good that separations have stopped, DHS/DOJ aren't necessarily done with this entirely.
What about kids who were separated?
Yesterday, HHS announced that the number of kids that were actually separated was much higher than originally reported -- by about a thousand. A hundred of those kids are under the age of 5. The Government has been saying for weeks in court proceedings that it has neither a plan nor the resources to reunite children with their parents, some of whom have been deported without their kids. Part of the reason the government was saying this was to prevent the courts from ordering it to reunite families. But that's exactly what the court ordered the government to do.
A San Diego court ordered the government to reunite young children with their parents within two weeks and the rest within a month. The first deadline is this coming Tuesday and HHS/DHS has indicated -- finally -- that they will meet the deadline. DHS has also indicated that it will reunite the remaining children by the next deadline at the end of July. So there is a plan to reunite families that appears to be moving forward. However, the advocates that work on this issue are skeptical that they'll be able to get this done given how chaotic and unorganized the separation policy played out.
We shall see what happens. The important thing to keep in mind is that the Courts have weighed in and now there is an obligation by the U.S. Government to comply. And the government is, for now, attempting to comply.
What comes next?
Hard to say! It's in the courts now. It depends on what the courts decide, whether the government appeals, what appeals courts decide, etc., etc. I'd use the Muslim Ban as an example: a terrible government policy, stopped by the courts, then allowed to proceed by different courts, then ultimately upheld by SCOTUS more than a year later.
But here's what we do know. The DOJ is actively trying to loosen -- if not outright eliminate -- child protection laws in order to hold families in big family jails. And the government is building new facilities, even preparing Ft. Bliss in New Mexico to hold immigrant families expecting that either the courts (or Congress!) gives it permission to do so.
It's possible we'll have a few tense moments where the government will be faced with a decision of whether to fully comply with a court order -- for example, to release kids within 20 days or to reunite all of the kids who were separated -- or continue holding families and/or separating them. This could happen sometime in the next few weeks, but again the date is unclear.
What is this all about?
The family separation policy was always about two things. First, people in the White House really do believe that if you take kids away from parents at the border, it'll be so horrific that it'll deter immigrant families from coming to the U.S. It's made no difference as a deterrence tool. Families keep coming because, as horrific as family separation is, certain death in Central America is still far worse.
Second, the policy objective of the White House was always about one thing: indefinite family detention. Like DACA and the ACA, Trump believes that if he creates a crisis, he can use it as leverage over Congress and the courts. The end goal for Trump/Miller/Sessions was about getting around the laws that have prevented them from holding families caught at the border in family jails. So while the separations have stopped, if after all of this they get Congress or the courts to allow DHS to hold families together indefinitely and deport them without their day in court, it'll be a win for Trump and exactly what Stephen Miller wanted all along.
Where can groups make a difference?
In the immediate term, the priority is to keep Congress from passing a bill that would allow Trump to hold families together in family jails. That's exactly what the House and the Senate are hoping to do next week. Using the family separation crisis as an excuse, both chambers are likely going to try to pass something that would create family jails. The advocates we're working with -- most closely with Women's Refugee Commission -- have been clear: the immediate priority is making sure Congress doesn't pass one of these bills. Fortunately, it doesn't appear that Republicans have the votes, yet.
In the long/medium term, it's a much more complicated issue. On the policy side, we don't have a lot of realistic options. Family separations occur in every corner of the country, at the hands of both ICE and CBP. There is a movement toward abolishing ICE that has important political and policy implications. We support the abolish ICE movement, but the truth is that calling for that won't help any of these families today or this week or this year. And when we talk to immigration groups about the opportunities a Democratically-controlled House might bring, they don't all say "Abolish ICE." They often say that oversight and accountability are more important. Having Congress shine a spotlight on what ICE and CBP are doing would do more for families than a lot of other proposals. Still, making Abolish ICE a litmus test for Democrats opens up space to get the super meaningful short-term wins we need.
So what is the Policy Team doing long term on immigration?
We are working with and deferring to our closest partners to make sure we're asking for the right things. Right now, the ask is specific to the detention bills we may see next week. We're also working with NILC (and others!) on a larger strategy for the next Congress, when we'll (hopefully) have additional options. I wish I could share something more concrete but most of our partners have been busy fighting back relentless attacks and so these conversations are still in the early phase.