Trump forced to reinstate 'catch and release' after court defeats

Sabrina Siddiqui in Washington and Jamiles Lartey in New Orleans
Updated

Some migrant families to be fitted with ankle monitors and allowed to go free while their cases are determined

A mother and son who were separated at the US border hold hands following their reunion.
A mother and son who were separated at the US border hold hands following their reunion. Photograph: Patrick Semansky/AP

Donald Trump’s administration has said it will release some migrant families from detention with ankle monitors, marking a return to the so-called “catch-and-release” policy the president vehemently denounced.

The announcement comes as the US government scrambles to reunite thousands of migrant children who were separated from their parents at the border under the Trump administration’s “zero tolerance” immigration policy.

“Parents of children under the age of five are being reunified with their children, then released and enrolled into an alternative to detention (ATD) program, meaning they will be placed on an ankle monitor and released into the community,” said Matthew Albence, a senior official with US Immigration and Customs Enforcement.

The Trump administration was left with few options after a series of court orders. A federal judge last month ordered the reunification of children under five by 10 July. That deadline was not met, officials acknowledged, while noting plans were under way on Tuesday to reunite up to 54 migrant children under five with their parents. There are an estimated 102 migrant children under five in federal custody, with a limited number of cases not qualifying for reunification due to the parents’ criminal background or signs of child abuse.

The administration additionally lost in an attempt to overturn a 1997 court precedent that says minors cannot be held for more than 20 days.

With no other apparent plans in motion for how to receive the waves of migrants fleeing Central America, the Trump administration appears to have turned to the very same practice the president has blamed for the status quo.

Earlier on Tuesday Trump doubled down on the notion that migrants crossing the border should be prosecuted with a crime. Speaking outside the White House before flying to Europe, Trump said: “Well, I have a solution. Tell people not to come to our country illegally. That’s the solution. Don’t come to our country illegally. Come like other people do. Come legally.”

Pressed on whether his “solution” was to punish children for being brought to the US illegally by adults, Trump retreated to more general comments.
“We have laws. We have borders. Don’t come to our country illegally,” he said. “We want no crime, and we want borders where borders mean something. And remember this: without borders you do not have a country.”

Trump’s comments came after a federal judge in California rejected a DoJ request to allow the long-term detention of migrant children. In preserving the decades-old Flores settlement, Judge Dolly Gee also denied a DoJ request to suspend requirements that immigrant children be held only in facilities that meet state child welfare licensing regulations.

This threw a major wrench into the administration’s immigration strategy. Under Trump’s executive order ending the separation of families at the border, the revised procedure was to detain children alongside their parents until the families’ immigration proceedings were complete — a process that can take months. Flores stipulates that children cannot be held in detention for more than 20 days.

Without separations, or family detention, the government has few options besides allowing families to pursue their immigration claims “at liberty” as prior administrations had generally done. Trump has repeatedly decried this practice as “catch and release”.

The administration is nonetheless contending with a deadline of 26 July to reunite all of the more than 2,000 children who were separated from parents this spring and summer.

It was not immediately clear the government was also preparing to release qualifying parents with children over five to alternative to detention programs with ankle monitors. A spokeswoman for ICE did not immediately return a request for comment to provide more clarity around the shift, and to which groups of migrant families it would apply.