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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 held that 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.”

Detaining families.

The Settlement Agreement only permits the detention of alien minors for 20 or so days. If continued detention is necessary, they must be placed in non-secure, state-licensed child-care facilities.

According to the Congressional Research Service, there aren't any licensed state facilities that can house alien minors with their parents.

If Trump transfers alien minors to child-care facilities without their parents, he will be separating children from their parents, and critics of his administration believe that family separation is an unpardonable atrocity. Articles show children crying themselves to sleep because they don’t know where their parents are.

DHS provides an alternative to detention, the Intensive Supervision Appearance Program, but congress would have to amend the mandatory detention provision to make the program available to entire families in expedited removal proceedings.

This program allows immigrants to work and to live with their families while their deportation proceedings are pending. It uses electronic ankle monitors, telephone checkups with biometric voice recognition software, unannounced home visits, and in-person reporting to supervise participants.

It is run by for-profit companies such as, BI Inc., which provides a full continuum of monitoring technologies and related supervision services.

According to Matthew Labence, from the Office of Enforcement and Removal Operations, alternatives to detention are less effective than detention.

In fiscal 2017, only 2,430 of approximately 75,000 participants in the alternative program were removed from the country.

Moreover, family units who are released from custody and placed in the alternative program abscond at high rates. In fiscal 2018, through July 31, 2018, the absconder rate for family units in the alternative program was 27.7 percent.

Also, ICE lacks sufficient resources to locate and arrest un-detained families that are subject to a final order of deportation. Consequently, most of the aliens in the alternative program remain in the country.

Trump has proposed a regulation that would make it possible to release entire families in expedited removal proceedings to non-secure Family Residential Centers which would provide the care required by the Settlement Agreement.

But releasing them to non-secure residential centers probably would violate the mandatory detention provision.

Immigration advocates claim that this dilemma can be avoided by putting the families in regular removal proceedings instead of in expedited removal proceedings, but the immigration court cannot handle the cases it already has.

The 330-judge immigration court had a backlog of 746,049 cases as of the end of July, which was 38 percent larger than when Trump took office. The average wait for a hearing is just shy of two years.

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.