The Washington PostDemocracy Dies in Darkness

With prosecutions of parents suspended, status quo returns at the border

A mother migrating from Honduras holds her 1-year-old child while surrendering to U.S. Border Patrol agents after illegally crossing the border near McAllen, Tex., on Monday. (David J. Phillip/AP)

MCALLEN, Tex. — Two days after crossing into the United States with her 16-year-old daughter to seek asylum, Rosalba Najera waited in the sticky heat outside the bus station here with a black plastic band around her ankle. The monitoring device was now the only physical hold U.S. immigration officers had on the Salvadoran mother.

The bracelet was itchy and tight, Najera said. But she had two bus tickets to Virginia, and she and Yoana, her daughter, were free from custody after less than 48 hours.

“I’m so happy,” Najera said. “I just hope they let us stay.”

The speed of their release over the weekend was one sign of a return to the status quo here at the border, five days after President Trump’s executive order put an abrupt freeze on the family separation system that triggered a national outcry.

Trump administration officials had vowed to put an end to the “catch-and-release” practices that have allowed parents with children to be freed from detention while awaiting court proceedings. But with separations mostly halted and little space to hold families, U.S. border officials are essentially once more back where they started before Trump’s “zero tolerance” crackdown. Until more family detention facilities are built, the reality is that most parents with children such as Najera will be let go.

Kevin McAleenan, the commissioner of U.S. Customs and Border Protection, confirmed Monday that immediately after Trump’s order, he directed field officers to suspend criminal prosecutions for adults who arrive with children.

Those prosecutions — for the misdemeanor charge of “illegal entry” — were the mechanism the government had been using to take migrant children from their parents and place them in foster care. McAleenan said that while no category of adult would be exempt from criminal prosecution, the only circumstances in which the Border Patrol will continue to refer parents to the Justice Department would be cases in which adults have a prior criminal record, or if a child’s welfare was in danger.

Parents whose only offense was illegal entry would no longer have their children taken away, he said. “In accordance with the Executive Order, I directed the temporary suspension of prosecutions for families in that category while we work through a process with [the Department of Justice] where we can maintain family unity while enforcing prosecution efforts,” McAleenan said.

McAleenan said the administration would still come down hard on border-jumpers by applying “zero tolerance” to single adults who arrive without children. Those offenders will still be taken to courthouses to face misdemeanor charges for crossing illegally.

But the effectiveness of that approach has also been called into question, given that many first-time offenders receive a sentence of time served, before being transferred to U.S. Immigration and Customs Enforcement for possible deportation. If anything, the ride to the courthouse and back could just end up slowing down their removal from the United States, critics say.

Administration officials in Washington acknowledged Monday that current enforcement practices amount to a return in part to what was occurring before Attorney General Jeff Sessions announced the “zero tolerance” initiative in early April.

The officials said the suspension of prosecutions for parents with children is intended to be temporary, and the administration hopes that in a matter of weeks it will have more facilities enabling the government to more effectively detain and deport adults crossing the border with their families. The officials spoke on the condition of anonymity to discuss internal deliberations.

McAleenan spoke to a small group of reporters here at the cavernous Border Patrol Centralized Processing Center near the border, where more than 1,100 adults and children — all recent arrivals — are held in chain-link detention pens on the cement floors of a converted warehouse.

Derided as “the dog kennel” by border agents and migrants alike, it was images of the detention cells that prompted accusations that the government was keeping children in “cages.” With its high ceilings, industrial lighting and stacked crates of food, the facility resembles a Border Patrol version of Costco — big box retail applied to immigration enforcement.

More than half of the migrants at the warehouse Monday were adults with children, and the elevated numbers being taken into custody along the river in recent days also appeared to indicate that migration pressures had changed little as a result of the short-lived family separation experiment.

More than 50,000 migrants have been taken into immigration custody along the Mexico border in each of the past three months, the highest totals of the Trump presidency. The arrest numbers are the most widely used barometer for illegal migration trends, and their increase has deprived Trump of a chance to campaign on a record of toughness at the border, leaving him lashing out at Homeland Security officials.

McAleenan said Monday he expected the arrest totals to decline in June, without giving precise figures. “I believe the focus on border enforcement has had an impact on the crossings,” he said.

Making what he said was his third visit in more than a month to the Rio Grande Valley of South Texas, McAleenan said he would meet with chief officers in several sectors of the border this week to discuss changes to operations as a result of Trump’s executive order.

As the highest-ranking Customs and Border Protection official, he is responsible for U.S. border security and the implementation of some of the president’s signature policy initiatives, including his calls for the construction of a wall along the boundary with Mexico.

McAleenan told reporters that the large number of children and families arriving at the border was part of a “multiyear phenomenon,” calling it a “complex situation that requires a significant strategy.” Working with governments in Central America to improve security and reduce migration pressures is crucial, he said, while echoing the administration’s disdain for court rulings that limit family detention. He said the catch-and-release system is a powerful incentive for parents to migrate with their children, at significant risk.

“The clear position of administration is that the status quo is not acceptable,” McAleenan said. “We have to address it.”

Najera, the Salvadoran mother at the bus station, carried a manila folder indicating that she and her daughter had entered the United States at an official border crossing in Rio Grande City, Tex., to claim asylum. Since they did not cross illegally, they would likely not have been split up under the family separation system that sent more than 2,500 migrant children into foster care between May 5 and June 20.

Najera said she and her daughter fled their home near the city of Usulutan, where Najera worked catching shrimp and fish along the coast. Two months earlier, Barrio 18 gang members robbed the family and threatened to kill her daughter, Najera said.

Her older daughter remained home with the girls’ father, and Najera said she had heard that traveling with the 16-year-old increased the chances that they would not be separated at the border. “Now I’m worried what will happen to my other daughter,” she said.

Najera said her first court hearing was scheduled for mid-July at the federal immigration court in Arlington, Va. The asylum officer who processed her claim seemed to doubt her story, she said. “It was our dream to come here,” Najera said. “I’m scared that if they don’t believe me, we’ll be sent back to our country.”

Devlin Barrett contributed to this report from Washington.