Nolan writes:
President Donald Trump is being criticized for detaining alien families, but President Barack Obama did the same thing in 2014, when there was a rapid increase in the number of families crossing the border illegally.
Obama’s DHS Secretary, Jeh Johnson, explained the decision this way: “Frankly, we want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released.”
Opponents of Obama’s family detention policy claimed that it violated the 1997 Flores Settlement Agreement, which established a nationwide policy for the detention, release, and treatment of unaccompanied alien minors.
In 1962, a U.S. Court of Appeals acknowledged that the Flores litigation focused initially on the problems facing unaccompanied minors, but it heldthat the underlying policies applied equally to alien minors who are with a parent.
This created a no-win situation in expedited removal proceedings.
Alien families that are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. If they want asylum, they are given an opportunity to establish that they have a credible fear of persecution. If they succeed, they are placed in regular removal proceedings for an asylum hearing before an immigration judge. Otherwise, they are deported without further proceedings.
Detention is mandatory in expedited removal proceedings, “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”
The Board of Immigration Appeals held that the mandatory detention period ends when a credible fear has been established, but Attorney General Jeff Sessions recently directed that decision to himself for a determination of whether it should be overruled.
DHS, however, has the discretion to parole an alien in expedited removal proceedings for “urgent humanitarian reasons” or “significant public benefit.”
. . . .
Congress is aware of these problems.
A Senate Committee recently held a hearing on the implications of extending the Settlement Agreement to children who are with a parent. According to Committee Chairman Ron Johnson, (R-WI), “it is well past time for Congress to act.”
The most promising solution may be to amend the mandatory detention provision and provide funding for the development of effective alternatives to detention.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.