This week, President Donald Trump signed an executive order that will end the process of separating children and parents detained at the U.S.-Mexican border while trying to enter the country illegally. Joining us to talk about this and developments are Angela Banks, a law professor at ASU, and Larry Levi Sandigo, pro bono manager for the Florence Immigrant and Refugee Rights Project.
Jose: THIS WEEK, PRESIDENT DONALD TRUMP SIGNED AN EXECUTIVE ORDER THAT WILL END THE PROCESS OF SEPERATING CHILDREN AND PARENTS DETAINED AT THE U.S.-MEXICO BORDER WHILE TRYING TO ENTER THE COUNTRY ILLEGALLY. JOINING ME TO TALK ABOUT THIS AND DEVELOPMENTS ARE ANGELA BANKS, A LAW PROFESSOR AT A.S.U., AND LARRY LEVI SANDIGO, PRO BONO MANAGER FOR THE FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT. WELCOME BACK TO BOTH OF YOU. WE’VE BEEN TALKING ABOUT THIS. THIS HAS BEEN A PRETTY TESTING SEVERAL WEEKS WHERE THE PRESIDENT SEEMED TO BE JUST DOUBLING DOWN ON HIS POLICY OF SEPERATING FAMILIES. AND THEN, UM, JUST AS WE’RE TAPING THE SHOW HE CHANGED HIS MIND, WHAT HAPPENED?
Banks: HE ISSUED AN EXECUTIVE ORDER EARLIER TODAY WHERE HE SAID THAT HE WOULD CONTINUE WITH THE PROSECUTION OF ILLEGAL ENTRY FOR INDIVIDUALS, BUT THAT IN ORDER TO MAINTAIN FAMILY UNITY, THAT FAMILIES WOULD BE DETAINED TOGETHER, UM, WHEN POSSIBLE AS REQUIRED BY LAW AND AS RESOURCES ALLOWED. BUT ANOTHER PIECE OF THE EXECUTIVE ORDER SPECIFIED MANDATED THAT ATTORNEY GENERAL JEFF SESSION ACTUALLY SEEK A MODIFICATION OF THE FLORES SETTLEMENT AGREEMENT, WHICH PROVIDES SOME LIMITATIONS ON HOW CHILDREN CAN BE DETAINED.
Jose: WE’RE GOING TO GET INTO THE DETAILS, AND THE FLORES CASE IN PARTICULAR. WHAT BROUGHT THIS ABOUT? THE PRESIDENT UP TO THE LAST MOMENT WAS DEFIANT.
Sandigo: THERE WAS A LARGE PUBLIC OUTCRY, UM, ON BOTH SIDES OF THE AISLE AND ALSO INTERNATIONAL CONDEMNATION FOR WHAT WAS HAPPENING ON THE BORDER. SO I THINK THAT THE IMMENSE PUBLIC PRESSURE INCLUDING FROM THE FIRST LADY, FROM THE PRESIDENT’S DAUGHTER, LEAD TO HIM ISSUING THIS EXECUTIVE ORDER.
Jose: BUT THE EXECUTIVE ORDER, AS I UNDERSTAND IT, UM, DOESN’T DO ANYTHING FOR THE PEOPLE, THE FAMILIES THAT HAVE ALREADY BEEN SEPARATED.
Sandigo: THAT’S CORRECT. FOR THE MORE THAN TWO THOUSAND FAMILIES THAT HAVE BEEN SEPARATED IT DOES NOT ADDRESS HOW THEY’RE GOING TO BE REUNIFIED, WHEN THEY WILL BE REUNIFIED, IT DOESN’T ADDRESS THEM.
Jose: AND THERE ARE SOME OTHER SHORTCOMINGS, I THINK, AT LEAST IN YOUR OPINION?
Sandigo: ABSOLUTELY. I DON’T THINK THAT THE SOLUTION TO FAMILY SEPARATION IS TO INCARCERATE FAMILIES TOGETHER. ESPECIALLY NOT AT THE EXPENSE OF THE PROTECTIONS THAT ARE AFFORDED TO MINORS UNDER THE FLORES SETTLEMENT.
Jose: ANGELA, THE RESPONSE TO THE POINT LARRY JUST MADE IS THE ALTERNATIVE IS YOU, IN THE SO-CALLED CATCH AND RELEASE. PEOPLE WHO ARE OUT, EVEN IF THEY’RE GIVEN AN ANKLE BRACELET, IT CAN BE YEARS BEFORE THEIR CASES ARE ADJUDICATED AND THEY DON’T SHOW UP.
Banks: SO, ACTUALLY, THE DATA SHOWS THAT MOST OF THE INDIVIDUALS WHO HAVE RECEIVED ANKLE BRACELETS AND WHAT NOT DO SHOW UP, MORE IMPORTANTLY INDIVIDUALS WITH COUNSEL ARE SORT OF THE GROUP THAT IS MOST LIKELY TO SHOW UP. THEY HAVE SORT OF VIABLE CASES AND THEY WANT THEIR DAY IN COURT. THIS FEAR THAT INDIVIDUALS WILL NOT RETURN TO COURT IF THEY ARE NOT DETAINED IS RATHER OVER BLOWN.
Jose: SO WE HAD THE PRESIDENT INSISTING THAT EXISTING LAW REQUIRED THIS POLICY. UM, MOST OTHER OBSERVERS ARE SAYING THAT’S NOT TRUE. ONE OF THE THINGS HE’S BEEN CITING IS THE FLORES SETTLEMENT. TELL US HOW THAT WORKS.
Banks: WELL, SO, WHAT’S INTERESTING IS THAT THE JUSTIFICATION FOR THE FAMILY SEPERATION WAS THIS IDEA THAT INDIVIDUALS WERE GOING TO BE CHARGED, ADULTS, WERE GOING TO BE CHARGED WITH ILLEGAL ENTRY. ATTORNEY GENERAL JEFF SESSIONS HAD SAID THAT HE WAS HAVING A ZERO TOLERANCE POLICY. SO, ANYONE WHO WAS IDENTIFIED AS ATTEMPTING TO ENTER THE UNITED STATES, OUTSIDE OF A PORT OF ENTRY, WOULD BE CHARGED WITH ILLEGAL ENTRY. AS A RESULT OF THAT CRIMINAL CHARGE, THE ARGUMENT WAS THAT THE PARENTS WOULD BE DETAINED IN A FEDERAL CRIMINAL DETENTION FACILITY, OR UNDER THE MARTIAL’S AUTHORITY, OR UNDER THE BURRO OF PRISONS, AND THAT CHILDREN COULD NOT BE DETAINED IN THOSE FACILITIES. AND, SO, THAT WAS THE JUSTIFICATION FOR THE SEPARATION, WHEN, IN FACT, WE’VE SEEN THAT WAS NOT---FIRST OF ALL, IT’S NOT NECESSARY TO CRIMINALLY CHARGE EVERYBODY WITH ILLEGAL ENTRY, FIRST OF ALL. IT’S A MISDEMEANOR.
Jose: PRIOR TO THE ADMINISTRATION TO EXERCISE DISCRETION.
Banks: ABSOLUTELY, ABSOLUTELY. AND, SECOND OF ALL, EVEN IF THEY ARE GOING TO CHARGE INDIVIDUALS WITH ILLEGAL ENTRY, THERE ARE A VARIETY OF STRATEGIES THAT COULD HAVE BEEN TAKEN IN THAT PROCESS. FOR EXAMPLE, IN SOME PARTS OF SOUTH TEXAS THE ADULTS WERE NOT ACTUALLY REMOVED FROM CUSTOMS AND BORDER PATROL DETENTION. THEY WHERE ACTUALLY HELD THERE UNTIL THEY APPEARED BEFORE A FEDERAL JUDGE FOR CRIMINAL PROCEEDINGS. YET, THEY WERE ALSO BEING SEPARATED FROM THEIR CHILDREN. THERE WAS NO NEED TO DO THAT IF THEY WERE ALL GOING TO BE IN IMMIGRATION DETENTION. SO, THIS IDEA THAT THIS LAW REQUIRED THE SEPARATION WAS NOT TRUE, AND I THINK THE EXECUTIVE ORDER THAT WS ISSUED TODAY DEMONSTRATES THE INACCURACY THAT THAT WAS A REQUIRED OUTCOME.
Jose: SO, LARRY, HOW’S IT GOING TO WORK GOING FORWARD? WE KNOW IT DOESN’T DO ANYTHING FOR THE PEOPLE WHO HAVE ALREADY BEEN SEPARATED, BUT GOING FORWARD, IF THEY DON’T GET RELEASED FROM THE FLORES SETTLEMENT, WHICH REQUIRES RELEASE, RIGHT, AFTER 20 DAYS, HOW’S IT GOING TO WORK?
Sandigo: IT’S UNKNOWN. SO, ONE OF THE MODIFICATIONS THAT ATTORNEY GENERAL JEFF SESSIONS WILL BE SEEKING IS TO CHANGE THE LIMIT ON DETENTION AND SO WHAT WILL RESULT IS INDEFINITE DETENTION.
Jose: OF THE ENTIRE FAMILY.
Sandigo: YES. THAT’S WHAT THE ORDER SAYS THAT THE MODIFICATION WILL SEEK THAT THE ENTIRE FAMILY BE DETAINED INDEFINITELY. SO THE ORDER DIRECTS THE DEPARTMENT OF DEFENSE AND OTHER AGENCIES TO FIND WAYS TO CONSTRUCT NEW FAMILY DETENTION CENTERS ESSENTIALLY, BUT IT DOESN’T SAY WHERE THEY WILL BE CONSTRUCTED, WHAT SORT OF CONSTRUCTION THEY WILL BE, WHETHER THEY’LL BE PERMANENT, OR THE TENT HOUSING THAT WE’VE SEEN SO FAR. SO IT’S LIGHT ON DETAILS, SO I ASSUME AS THE DAYS GO ON, WE’LL HEAR MORE ABOUT HOW IT WILL ACTUALLY BE IMPLEMENTED.
Jose: WHAT’S THE ALTERNATIVE? LET’S ASSUME THEY GET THE RELEASE FROM THE FLORES ORDER, THEY ARE ALLOWED TO DETAIN UNTIL THE CASES ARE ADJUDICATED, IS THAT SUCH A BAD THING?
Sandigo: I THINK SO. I THINK THAT INDEFINITE DETENTION IS CONTRARY TO OUR AMERICAN VALUES AND IS ALSO IN VIOLATION OF THE DUE PROCESS CLAUSE. THAT WE CAN’T JUST HOLD PEOPLE FOREVER UNTIL WE DECIDE THEIR CASES. THERE ARE SUPREME COURT CASES THAT ADDRESS DETENTION THAT’S PROLONGED. I THINK IT WOULD BE A STEP IN THE WRONG DIRECTION AND QUICKLY RESULT IN LAWSUITS IF THERE WAS INDEFINITE DETENTION.
Jose: ANGELA, WE’RE ALMOST OUT OF TIME, WHAT DOES THIS DO TO THE TWO PENDING BILLS IN CONGRESS THAT WE’RE ABOUT TO BE VOTED ON AND WHAT DOES THIS DO WITH RESPECT TO THE DREAMERS?
Sandigo: SO, IT’S INTERESTING. SO, THE CONGRESS IS SCHEDULED TO VOTE ON TWO BILLS THIS WEEK AND THEY’RE DEALING WITH ONE,THE DREAMER SITUATION; ONE BILL WOULD GRANT, WELL, BOTH BILLS WOULD GRANT DREAMERS A FORMER LEGAL STATUS, BUT ONLY THE BILL THAT WAS DRAFTED BY WHITE HOUSE STAFFERS AND THE REPUBLICAN LEADERSHIP WOULD PROVIDE A PATHWAY TO CITIZENSHIP, AND IT WOULDN’T BE GUARANTEED FOR ALL DREAMERS IT WOULD ONLY BE FOR THOSE WHO HAD—THERE’S A POINTS SYSTEM. IF YOU ACQUIRED ENOUGH POINTS IN THE CALCULATION, THEN YOU COULD BE ELIGIBLE FOR A GREEN CARD. THE OTHER PIECE OF IT IS THAT IT WOULD OF COURSE PROVIDE MONEY FOR BORDER SECURITY, PARTICULARLY THE WALL. ANOTHER IMPORTANT FEATURE OF THESE BILLS IS THAT THEY WOULD ELIMINATE CERTAIN CATEGORIES OF GREEN CARDS. SO THEY WOULD ELIMINATE THE DIVERSITY VISE, WHICH IS A VISA AVAILABLE TO INDIVIDUALS WHO COME FROM COUNTRIES WHERE WE DON’T HAVE A LOT OF IMMIGRANTS AND IT IS A LOTTERY. THE SECOND CATEGORY WOULD BE FAMILY BASED MIGRATION. IF YOU ACQUIRED ENOUGH POINTS IN THE CALCULATION, THEN YOU COULD BE ELIGIBLE FOR A GREEN CARD. THE OTHER PIECE OF IT IS THAT IT WOULD OF COURSE PROVIDE MONEY FOR BORDER SECURITY, PARTICULARLY THE WALL. ANOTHER IMPORTANT FEATER OF THESE BILLS IS THAT THEY WOULD ELIMINATE CERTAIN CATEGORIES OF GREEN CARDS. OS THEY WOULD ELIMINATE THE DIVERSITY VISA, WHICH IS A VISA AVAILABLE TO INDIVIDUALS WHO COME FROM COUNTRIES WHERE WE DON’T HAVE A LOT OF IMMIGRANTS AND IT IS A LOTTERY. THE SECOND CATEGORY WOULD BE FAMILY-BASED MIGRATION, BOTH BILLS WOULD SIGNIGICANTLY CUT THE CATEGORIES OF FAMILY MEMBERS THAT WOULD BE ELIGIBLE FOR A GREEN CARD. AND THEN, FINALLY, THEY WOULD ADDRESS ASYLYM, AND SO THEY WOULD CREATE SOME NEW REQUIREMENTS. ESSENTIALLY, REQUIRING BORDER OFFICIALS TO ASSESS THE CREDIBILITY OF ASYLUM SEEKERS WHEN THEY’RE SEEKING ON INCREDIBLE FEAR.
Jose: THERE’S MORE TO BE LOOKING FOR.
Sandigo: YES, EXACTLY.
Jose: WE HAVE TO END IT THERE. THANK YOU SO MUCH.
Sandigo: THANK YOU.
Angela Banks: Law Professor, ASU
Larry Levi Sandigo: Pro Bono Manager, Florence Immigrant & Refugee Rights Project
