Family separationTrump and Sessions can end immigrant family separations without Congress’ help
Only Congress can provide the comprehensive immigration reform that would address the fundamental problems plaguing the American immigration system, including the statuses of undocumented immigrants already living in the U.S. However, current immigration laws give the executive branch considerable discretion in deciding which immigrants to detain and release from custody. President Donald Trump has at his disposal a variety of alternatives – other than separating families – that would promote his stated goal of deterring migration from Central America. Those alternatives could avoid violating international human rights norms.
A recent poll shows that two-thirds of Americans oppose the Trump administration’s policy of separating immigrant families apprehended along the U.S.-Mexico border.
Amid a firestorm of criticism, President Donald Trump has blamed Democrats and inaction in Congress for the family separation policy.
Only Congress can provide the comprehensive immigration reform that would address the fundamental problems plaguing the American immigration system, including the statuses of undocumented immigrants already living in the U.S.
However, current immigration laws give the executive branch considerable discretion in deciding which immigrants to detain and release from custody.
Trump has at his disposal a variety of alternatives – other than separating families – that would promote his stated goal of deterring migration from Central America. Those alternatives could avoid violating international human rights norms.
Immigrant detention by past administrations
Many presidents have used the detention of migrants as a tool to enforce immigration law. At the same time, the courts have rejected heavy-handed attempts to deter migration that infringe on the rights of noncitizens.
For example, in Orantes-Hernandez v. Thornburgh, a court of appeals in 1990 found mass immigrant detention and various related policies by the Reagan and first Bush administrations to be unlawful. The policies included detaining immigrants in remote locations where it was difficult for them to retain legal counsel. Together, they formed a concerted effort to deter Central Americans from pursuing asylum claims.
Similarly, in 2014, the Obama administration’s mass detention of Central Americans brought many – and many successful – lawsuits. In Flores v. Lynch in 2016, the court of appeals found that a settlement agreement in a lawsuit required the release of detained children.
