Border securityTrump wants to prosecute all illegal border crossings without splitting up families. That will be a challenge.

By Jolie McCullough and Emma Platoff

Published 22 June 2018

When President Donald Trump on Wednesday backed down from an immigration policy that separated migrant families, he pledged to continue his “zero tolerance” approach: Parents would still be prosecuted for illegally crossing the border, but their families wouldn’t be split up. But legal and logistical challenges will make it exceedingly difficult for his administration to accomplish both goals. To do so, federal agencies need to find space for thousands of children and adults as they await criminal and civil immigration proceedings. And another federal agency must find a way to do so without running afoul of the law.

When President Donald Trump on Wednesday backed down from an immigration policy that separated migrant families, he pledged to continue his “zero tolerance” approach: Parents would still be prosecuted for illegally crossing the border, but their families wouldn’t be split up.

But legal and logistical challenges will make it exceedingly difficult for his administration to accomplish both goals.

To do so, federal agencies need to find space for thousands of children and adults as they await criminal and civil immigration proceedings. And another federal agency must find a way to do so without running afoul of the law.

“The president has issued an executive order, and the agencies now need to figure out what they’re supposed to do,” said Mark Greenberg, former head of the U.S. Health and Human Services’ Administration for Children and Families.

The government may already have acknowledged this challenge. A Customs and Border Protection official reportedly said Thursday that the agency would stop referring all illegal border crossers for prosecution until it has the resources to keep them in custody, and according to immigration attorneys handling cases in El Paso, some families who crossed the border into Texas will not be criminally charged because the government lacks facilities to house them together.

But federal officials say that the “zero tolerance” policy will remain in place. Trump’s order said that families should be housed together in detention centers run by the Department of Homeland Security. And a bill championed by a majority of congressional Republicans has called for doing the same.

If the government is to proceed with those plans, it first has to reckon with two major problems. One is a question of resources: The federal government operates three immigration detention facilities are currently housing families, two in South Texas and one in Pennsylvania. The combined capacity of the Texas facilities is around 3,500, and they were already nearing that limit weeks ago, according to the Washington Post. It’s not immediately clear where the administration will place all the families it hopes to detain.

And the other is a legal concern stemming from a 1997 settlement agreement known as Flores.

That effectively says that children cannot be detained in immigration detention centers for more than 20 days, even