clock menu more-arrow no yes

The Trump administration isn’t sure whether it’s still prosecuting migrant parents or not

But even ending “zero tolerance” wouldn’t stop them from keeping families in immigration detention.

A Customs and Border Protection official has said that parents who enter the US between ports of entry will no longer be referred to the Department of Justice to be prosecuted for illegal entry.
A Customs and Border Protection official said that parents who enter the US between ports of entry will no longer be referred to the Department of Justice to be prosecuted for illegal entry.
US Customs and Border Protection via Getty Images

President Trump signed an executive order Wednesday that allowed the federal government to keep families together in immigration detention while parents are prosecuted for illegal entry.

But the Trump administration might be pausing criminal illegal entry prosecutions for parents anyway.

A senior official at Customs and Border Protection, the agency that oversees the US Border Patrol, told the Washington Post’s Nick Miroff that Border Patrol agents (in Miroff’s words) “have been instructed to stop sending parents with children to federal courthouses for prosecution.”

This doesn’t affect the Trump administration’s efforts to keep families together in immigration detention indefinitely. The executive order Trump signed yesterday specifies that families should be detained until their criminal and immigration proceedings are completed — meaning until they are deported or granted legal status. The immigration proceedings are the part of the process that takes months or years for asylum seekers (which is why the Trump administration is on a collision course with a court order requiring release of children after 20 days) regardless of whether or not they are prosecuted.

But it would represent a temporary end to the “zero tolerance” policy on prosecuting illegal border crossings, less than a day after Trump signed an executive order that explicitly allowed it to continue.

Why Trump administration officials are saying two different things about prosecutions

In response to Miroff’s report, the Department of Justice put out a statement insisting that it would continue to prosecute anyone referred to it by Border Patrol for illegal entry prosecution.

This might mean that there are no changes to policy and that the Customs and Border Protection official was wrong. But it also might mean that CBP is changing its policy and DOJ is not: DOJ is still prosecuting everyone who gets referred for prosecution, but CBP is no longer referring parents to DOJ.

That would, in effect, mean an end to the “zero tolerance” policy the Trump administration has had in place since early May. (It would revert to the policy from April, when the DOJ had a “zero tolerance” policy in effect but DHS did not.)

The pause is for ICE to expand immigration detention

Whether or not the pause is real, it’s definitely not a sign that the Trump administration is ending “zero tolerance” entirely. The CBP official told Miroff that they needed to temporarily stop prosecuting parents “until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody.”

That makes some sense. The executive order is directing ICE to keep custody of families while they’re being prosecuted, which requires them not just to have enough space to house the families, but also to have space for magistrate judges and prosecutors to conduct trials in DHS facilities.

It might be true that ICE doesn’t even have enough room to detain all families — that it’s reverting to the “catch and release” practices Trump hates so much. But it’s not necessarily true.

ICE is allowed to detain unauthorized immigrants whether or not they’re prosecuted in criminal court, for the duration of their civil immigration proceedings. The exception has been children who arrive in the US without adults — and, for the past few years, children who arrive in the US with adults too.

The purpose of Trump’s executive order was to allow ICE to detain families indefinitely again. Ending “zero tolerance” doesn’t divert the Trump administration from that course.