Trump administration considers family separation option as border arrests soar

The Trump administration is considering ways to deter a soaring number of families arriving at the U.S.-Mexico border — including once again separating parents and children, three current and former Homeland Security Department officials told POLITICO.

If parents and children are separated, parents will have a say, the officials emphasized. Under a 90-day pilot program, parents seeking asylum would be given a “binary choice” to be detained with their children through the course of their immigration proceedings or to send their children to a shelter where they can be released to a sponsor.

“I don’t know how much this is going to lead to additional family separation or how much this is going to lead to prolonged detention of these families,” said one DHS official. “I think the White House believes both of those are good things, because both of those would have a deterrent effect.”

But DHS official called binary choice “another Trump administration special” that appears geared toward manufacturing a crisis. “They look at a bunch of options and think how can they drive up the chaos,” the official said.

The Washington Post first reported Friday on the potential plan to discourage migrants through the choice of detention or separation.

Arrests of family members at the southwest border rose nearly 30 percent in September compared with the previous month, according to preliminary figures obtained by POLITICO. Border Patrol arrested approximately 16,500 family members in September — the highest monthly total since such record keeping began in 2012.

The continuing effort to stem the flow of migrants shows that the Trump administration remains very much unfazed by the furious backlash that its family separations inspired last spring. A zero-tolerance policy toward border-crossers split thousands of children from their parents over a three-month period. In early September, the administration issued a proposed rule to establish standards for keeping migrant parents and children locked up together — another sign that White House senior adviser Stephen Miller and his allies haven’t back down.

"There is currently a crisis at our southern border as we encounter rising numbers of adults who enter the country illegally with children,” said DHS spokeswoman Katie Waldman. “Catch-and-release loopholes in the law incentivize illegal border-crossers to take this dangerous journey because they are unlikely to face consequences for their illegal conduct and in fact will almost certainly be released.”

Still, any policy that leads to family separations will stir memories of the painful scenes of wailing children and parents prompted by the administration’s zero-tolerance policy, which was in effect from April to June.

The pilot program would take place at the Karnes County Residential Center, a family detention center in Texas with a total capacity of 1,158 people.

Detention space for any broad implementation of the pilot could prove hard to find. DHS maintains 3,326 family detention beds, according to an April report by the U.S. Government Accountability Office.

A working group with representatives from DHS, DOJ, HHS and the State Department has explored a range of options to quell the flow of family members arriving at the border, according to three people familiar with the effort.

Some of the options, if pursued, would be longer-term. For instance, U.S. Citizenship and Immigration Services is exploring a possible regulation to make it more difficult to prove “credible fear” of persecution, the first step in an asylum claim.

The agency also is considering whether asylum proceedings that now go before an immigration judge can be handled by DHS, according to a DHS official.

“Everything’s on the table,” the official said. “Nothing is ruled out by virtue of having litigation risk.”

The binary option for families seeking asylum would test recent court orders in cases related to family separation and the care of unaccompanied children.

In late June, U.S. District Judge Dana Sabraw ordered the Trump administration to reunite parents and children separated at the border, but later he made clear that reunification did not give parents the right to be released from custody.

The 1997 Flores settlement limits to 20 days the time children can spend in detention. Sabraw wrote in an August order that parents can waive that right so that children can remain with them.

However, a new policy that required parents to choose between long-term family detention and separation could prompt challenges in that litigation, or in the Flores case.

“We believe detaining families who are not a flight risk or danger is unlawful, and will cause yet more harm to children,” said Lee Gelernt, an attorney with the American Civil Liberties Union, which represents separated parents in the San Diego case.

The public outcry could also be an issue. Before Sabraw ordered families reunited in June, President Donald Trump signed an executive order that effectively ended the policy of separating families at the border — a signal that the White House can withstand only so much criticism when it comes to the contentious idea of splitting apart parents and children.

One former official said the idea of separating families once they’re in custody “seems possible” but could generate the same public outcry.

“All of the people who have been screaming about separating parents in the past, are they going to scream again?”

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