More Mixed Signals on Family Separation Policy

The day after Trump signed an executive order riddled with loopholes and weasel words, things got no more clear on what is actually going to change as a result. The Washington Post cites an anonymous source saying that they will no longer criminally charge parents who arrive with their kids, but then the White House appeared to contradict that.

President’s Trump’s executive order to halt family separations unleashed confusion in Washington and at the Mexico border Thursday, as Customs and Border Protection said it would it stop referring such cases for prosecution and migrant parents arrived at courthouses in Texas and Arizona wearing handcuffs only to be led away without facing charges.

After a senior U.S. Customs and Border Protection official told The Washington Post that the agency would freeze criminal referrals for migrant parents who cross illegally with children , Justice Department officials insisted their “zero tolerance” policy remained in force and that U.S. attorneys would continue to prosecute those entering the United States unlawfully…

In scenes reminiscent of the botched “Muslim ban” in the early days of the Trump presidency, federal agencies Thursday were largely left to interpret the sudden changes hastily ordered by the White House a day prior and figure out how to implement them. A family separation system that had been planned and tested over several months vanished at the president’s pen, with no stated plan to reverse its effects.

The administration’s about-face leaves intact its so-called “zero tolerance” policy toward those who break the law, but the senior Customs and Border Protection official, asked to explain how the government would change enforcement practices, said Border Patrol agents were instructed to stop sending parents who arrive in the United States with children illegally to federal courthouses for prosecution.

“We’re suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody,” the official said, speaking on the condition of anonymity to explain how the agency’s has interpreted and implemented Trump’s order.

They have no idea what they’re doing. Or do they? Are the mixed signals a sign of genuine confusion or are they instead trying to sow confusion so they can play to their base and calm down the furor at the same time? So much about this executive order just appears to a smokescreen, a Schrodinger’s Order that could become whatever they want it to become depending on whether they choose to take advantage of those loopholes and how they choose to enforce it. Meanwhile, there is no process in place to reunite parents and children who have already been separated.

And here’s the thing: None of this was necessary at all. What no one seems to want to talk about is how the zero tolerance policy overwhelms an already overburdened system. In an average year, we prosecute about 20,000 people for illegal border crossing, which is only a misdemeanor and almost never results in jail time, only deportation. Prosecuting every single case, as Trump is doing, will push that over 300,000 cases a year. That simply is not possible. There will be a backlog that goes back years and years before a case gets heard. And then what happens? They get deported. But they can be deported without criminal charges anyway. So we’re killing the entire system, paying to keep them locked up for years pending a trial for which the outcome will be exactly the same as it was if we just sent them back immediately.

This applies to everyone except those who request asylum or refugee status, but in those cases criminal charges are inappropriate anyway. The law does not require that they be charged, it can be treated as a civil matter and we don’t get stuck with the expense of detaining them while they await their hearing on the matter and a judge’s ruling. And we won’t have to break those families up. This policy is stupid and wasteful on every possible level. It’s a completely self-inflicted wound that never needed to happen.

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