Detention Rules Are Based on a False Claim Exposed In Successful Brief; It is Not “Necessary” to Detain Entire Families Crossing The Border To Insure Adults Will Attend Hearing
WASHINGTON, D.C. (August 21, 2019) – The Trump administration‘s new rule to expand family detentions is based upon a false premise which was exposed in a legal brief which helped persuade federal Judge Dolly Gee to reject an earlier attempt to cut back or even circumvent the protections afforded to immigrants under the Flores settlement, notes public interest law professor John Banzhaf.
Here's a statement he issued at the time.
As a result of a federal judge's decision refusing to extend - beyond the current 20 days - the period during which children of illegal immigrants can be held in detention, Immigration and Customs Enforcement [ICE] has been forced to adopt a simple, inexpensive, and proven alternative originally suggested by Banzhaf almost 2 years ago.
"Parents with children under the age of 5 are being reunited with their children and then released and enrolled into an alternative detention program," conceded Matthew Albence, ICE's executive associate director of enforcement and removal operations.
Also, the New York Times reported that, as a result of this judicial decision, ICE would again begin releasing families apprehended crossing the border illegally while assuring that they would show up for their court appearance by tracking them with ankle monitors.
This is one of several procedures ICE refers to as "alternative to detention," or ATD, which Banzhaf brought to the judge's attention in his brief.
Other ATD techniques include requiring illegal immigrants to check in periodically via cell phone, where the GPS system built into the phone can assure that they are where they are supposed to be. Their identity can be confirmed either by facial recognition or by voice comparison, notes Banzhaf.
Federal Judge Dolly Gee's decision refusing to permit indefinite detention of children, like many others related to Trump's legal initiates, was predicted by Banzhaf, who had submitted a brief amicus curiae opposing the government's request, and suggesting a alternatives President Trump could adopt which would allow him to accomplish both objectives - establishing a zero-tolerance policy while at the same time not separating families - simply and easily.
His officials now apparently have done just that, argues Banzhaf.
"If Trump wants to go ahead with both policies, he would have to go ahead with my suggestion," predicted Banzhaf, for using one or more of several well-proven and inexpensive techniques to assure that families crossing the border illegally and/or waiting for decisions regarding asylum will show up for their court dates.
Here's the background of Banzhaf's June 21st filing before Judge Gee.
It appears that if President Donald Trump wants to adhere to his zero tolerance policy of prosecuting everyone who crosses the border illegally, but at the same time keep his promise to no longer separate parents charged with a crime from their children, he will have to incarcerate the children with the parents.
But, since under the Flores settlement he must move the children within 20 days to the least restrictive environment, it seems that he would either have to separate the children to place them in better surroundings while leaving the parents in more primitive detention facilities, or move the children along with their parents to a least restrictive environment which would probably be prohibitively expensive.
But a possible solution, and one Trump may well be forced to consider if the judge, as many expect, refuses to modify the Flores requirements, would be to permit families crossing the border illegally to be criminally charged as is now being done, but permit the adults to be required to wear an ankle monitor rather than face expensive and largely unnecessary physical detention, suggests Banzhaf, who has advocated the use of such monitors for years.
Holding entire families in physical custody so as to avoid separating parents from children costs hundreds of dollars a day, even in the most primitive conditions, and much more if the children's right to be in the least restrictive environment means that, to avoid separations, their parents must be kept with them in this better but more expensive facility.
On the other hand, it reportedly costs only a dollar or two a day to keep track of each person required to wear an ankle monitor, yet reports indicate this simple technique provides sufficient motivation and control that over 90% of those wearing the devices do in fact show up in court when required.
"If the Flores requirements are not modified, and the administration insists on detaining parents along with the children to avoid separating families, it will run up against Flores in as little as 20 days, so the much-touted executive order will do nothing more than kick the can down the road for an additional several weeks," says Banzhaf.
Rather than trying to find suitable quarters for some 20,000 on military bases as is now being reported, the administration should at least begin to consider expanding its existing and very successful ankle monitor program to include all the new families crossing the border likely to be caught up in the new zero tolerance policy, Banzhaf argues.
A copy of Banzhaf's brief may be found at banzhaf.net/FloresLetterBrief.pdf