The much-vilified U.S. policy of separating children from parents who illegally cross the U.S.-Mexico border could continue under certain circumstances because of ambiguous language in President Donald Trump’s order meant to end the practice, legal experts said.
“The first thing that hit me when I read the order was the tremendous amount of wiggle room built into it,” said John Banzhaf, a professor or public interest law at George Washington University.
The order signed by Trump on Wednesday calls for those families to be detained together but it permits separation if deemed that detention with a parent “would pose a risk to the child’s welfare.” Family unity is the policy “where appropriate and consistent with law and available resources,” the order said.
Legal experts said this language could be exploited by the government to separate families on various grounds and be challenged in court, potentially adding to the welter of litigation against Trump’s hardline immigration policy.
Despite Trump’s order, the American Civil Liberties Union said it would press on with a lawsuit arguing the family separation policy violated the Fifth Amendment of the U.S. Constitution, which holds no person can be deprived of life, liberty or property without due process.
A family separated on the basis of a loophole in Trump’s executive order could potentially bring a similar due process challenge.
In April, the administration announced a “zero tolerance” policy that all immigrants apprehended while crossing the border illegally should be prosecuted under the country’s criminal entry statute.
It led to separations of parents and children because when border agents refer apprehended migrants to court, parents are held in federal jail to await trial by a judge while the children either remain in border patrol custody or are moved into facilities managed by the Office of Refugee Resettlement.
Trump’s executive order could allow the government to argue separation was necessary on the grounds that detention facilities were too crowded, for instance, said Greg Siskind, a Memphis immigration lawyer.
The U.S. Department of Justice declined to comment and the Department of Homeland Security did not respond to a request for comment.
CAP ON CHILD DETENTION
On Thursday, the Justice Department asked a court to ease curbs on the detention of children who enter the country illegally with their parents, the most immediate issue facing the executive order.
Indefinite detentions run afoul of the so-called Flores settlement, a 1997 agreement that has been interpreted by courts as requiring children not be detained for more than 20 days.