The Slatest

Report: On-the-Ground Border Policy on Family Separation May, in Fact, Have Changed Overnight

A small boy in a baby carrier worn by a woman carrying a manilla folder that appears to have been provided by an aid group.
A line at the Central Station Bus Terminal in McAllen, Texas on Tuesday. Jahi Chikwendiu/The Washington Post via Getty Images

MSNBC’s Chris Hayes has been doing a lot of reporting on the Trump administration’s policy of separating undocumented families at the U.S.-Mexico border by charging parents with illegal entry and keeping them in adult facilities that will not house their children. On Wednesday, Donald Trump signed an executive order that purported to halt this policy, though it was not clear from the language of the order exactly how the situation would change on the ground. Now Hayes is reporting that authorities have dropped plans to charge 17 individuals in McAllen, Texas with criminal illegal entry, and that the decision appears to be linked to Thursday’s order:

Hayes has subsequently retweeted a local immigration lawyer and civil rights group who say that the individuals in question were separated from their children at an earlier date, but if they’re not being charged criminally, there would appear to be no legal or practical reason that they can’t now be reunited. It’s not yet clear, though, when or how that will happen. (The administration hasn’t come out with a clear statement about what if anything it’s going to do to reunify all the other families that were already separated, either.)

What’s unusual about this development is that both Trump’s order and a subsequent statement by Customs and Border Protection seemed to say that criminal prosecutions of all illegal entry would continue, implying that parents would be charged while their families were be kept together in some sort of improvised family criminal detention. (Fun phrase!) Here’s the text of the order:

It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. 

If Hayes’ source is right, though, and these people are not being charged criminally, then what’s going on? Here are a few possibilities:

• An official in McAllen who saw the executive order but wasn’t sure how it was supposed to be carried out reverted to the policy of previous administrations, in which families are handled through civil, not criminal, proceedings and can be kept together (and potentially be released from detention with an instruction to appear at a later hearing).

• The administration, despite its statements, has decided that what it’s actually going to do is pursue a policy of indefinite civil (not criminal) family detention—which would seemingly put it at odds with the 1997 Flores court settlement in which the government agreed to release undocumented minors from custody “as expeditiously as possible.” (The administration has asked for Flores to be modified to allow for indefinite detention.)

• Something else is happening that we don’t understand yet.

Update, 12:50 p.m.: The Washington Post is now citing a “senior U.S. official” who says the government is “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,” which would appear to mean that criminal prosecutions will resume once detention facilities are set up that would allow for families to be held together. A Department of Justice spokesperson, however, says the Post’s report—which is a direct quote!—is “not accurate.” The confusion grows.

Stay tuned.