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It’s official: the Trump administration has replaced family separation with indefinite family detention

In a new court filing, Trump’s Department of Justice says it’s now legally allowed to detain migrant families — no matter how long their cases take.

Immigrant woman with young child
A woman who crossed the US-Mexico border and her son at Catholic Charities Humanitarian Respite Center in McAllen, Texas. The Trump administration is now insisting it can detain migrant families indefinitely.
Spencer Platt/Getty Images

The Trump administration is keeping families together. In immigration detention. Indefinitely.

And they’re arguing that a court order preventing family separation gives them the legal power to do so.

In federal court Friday night, Trump’s Department of Justice, led by Attorney General Jeff Sessions, filed an announcement that it is now keeping families in detention “during the pendency of” their immigration cases. That could easily mean months of detention (or longer) for some asylum-seekers — or, alternatively, a form of “assembly-line justice” that moves families’ cases through too quickly to allow for real due process.

The administration was already trying to get the courts and Congress to approve indefinite family detention by overruling a 2015 order (made as part of the “Flores settlement”) that prevented children from being kept in immigration detention with their parents for more than 20 days.

But the administration now claims that a more recent court ruling — the order by US District Judge Dana Sabraw on Tuesday that barred the administration from splitting up any more families and ordered them to reunite the 2,000 remaining separated ones within 30 days — means that they are now allowed to detain thousands of families in temporary facilities for as long as it takes to either grant them legal status or (the administration’s preference) deport them.

Family detention has always been Plan A — but the Flores agreement kept Trump from doing it

President Donald Trump and his officials have argued for months that they should have the power to detain migrant families who cross the US-Mexico border together until their immigration cases are completed. And they claim they separated thousands of families over the past several months — with 65 families separated a day during the peak of the policy — only because they weren’t allowed to detain them together.

The executive order Trump signed June 20, which he claimed would end family separation, was in fact an instruction for the executive branch to start finding as much space as possible for family detention. It also told the Department of Justice to ask US District Judge Dolly Gee to reverse her own 2015 Flores settlement ruling that prevented the government from keeping children in immigration detention longer than necessary even when they were being held with their parents.

At the time, it wasn’t clear what exactly Trump would do if the DOJ didn’t get Gee to back down. (Congress could have avoided the showdown by passing a bill explicitly allowing for families to be detained for the length of their cases, but it looks unlikely that Congress will do anything of the sort in the next few weeks.)

But now, the administration’s no longer asking permission to detain families. It’s not even really begging forgiveness. It’s declaring that it is allowed to detain families indefinitely now, and telling Judge Gee that it would be helpful if she agreed.

The administration says it has two choices: detain families or separate them

According to Friday’s court filing, the administration acknowledges that it can’t separate families anymore (after Judge Sabraw’s ruling from Tuesday night). That means, the administration says, that it has to be allowed to detain families for as long as it takes to complete their cases.

Empirically, that isn’t true: There are options beyond detention and separation. The Trump administration has the option to release families together — what Trump and his officials deride as “catch-and-release” — or to use “alternatives to detention” to monitor migrants and make sure they show up to court, as Alexia Fernandez-Campbell has written for Vox.

But the DOJ maintains that it doesn’t need to use those alternatives if it doesn’t want to because the law always gives the government the power to choose to keep any adult in immigration detention, and even sometimes requires them to do so. And in the case of parents caught crossing the US-Mexico border between ports of entry, it is choosing detention.

The filing points out that neither the 2015 order nor the new order bans both separation and family detention at once. The Ninth Circuit’s most recent ruling on the Flores says the “settlement does not require the government to release parents,” only their children — leaving the door open to separation. And Judge Sabraw’s order banning separation said it didn’t affect the government’s decision “to release or detain class members” — i.e., the separated families who sued over the policy.

Instead of putting the two together to conclude that both separation and detention are independently banned, though, the government is saying Judge Sabraw’s order authorizes indefinite detention. And while it’s still asking Judge Gee to modify her 2015 interpretation of the Flores settlement to confirm that detention of families is okay, it now considers that more of a formality.

More people could be affected by family detention than family separation

The federal government is already working to build temporary facilities on military bases to house thousands of migrant families. The Department of Homeland Security has asked the Pentagon to provide space for 2,000 detainees within 45 days. Ultimately, it wants space to detain 12,000 more people in family detention. (Existing family detention facilities have space for about 1,500.)

If Trump follows former President Barack Obama’s lead, families in detention will be rammed through an “expedited” legal process. That would be disastrous for due process. Pro bono lawyers who went to temporary family facilities in 2014 reported that it was all but impossible for families to get due process for their asylum claims — with only one lawyer for every 120 detainees, and immigration judges trying to keep lawyers out of the room during their clients’ hearings.

If Trump wants to provide a full legal process — or simply doesn’t have the resources to expedite it — it will mean months, or years, in detention for many families. The long-term detention of immigrant children raises some of the same concerns that keeping them in custody without their parents does, in terms of trauma.

Family detention facilities may not be identical to facilities for adults, but they’re still, essentially, jails. In the facility currently used for long-term family detention, in Berks County, Pennsylvania, bright lights reportedly keep children from sleeping well, and they can be disciplined if they try to climb into a parent’s bed for comfort.

The Trump administration isn’t fighting to separate families; it’s fighting to detain them. The question is whether the latter is something that critics of family separation will see as an acceptable solution — and what they’ll do if it isn’t.

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