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The furor over separating alien minors from detained parents has put President Trump in a difficult position.

Alien families who are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. Unless they request asylum and establish a credible fear of persecution, they will be summarily deported.

The expedited removal processrequires mandatory detention until the aliens are deported or see an immigration judge for an asylum hearing.

If Trump keeps alien minors with their parents at a detention facility for more that 20 days, he may be in violation of the Flores Settlement Agreement. But if he removes them without their parents, he will be severely criticized for separating children from their parents.

The Settlement Agreement allows the placement of alien minors at non-secure, state-licensed child-care facilities, but their parents can’t go with them. According to the Congressional Research Service, there aren't any licensed state facilities for alien minors to stay at with their parents.

That just leaves the option of releasing the entire family — but that would violate the mandatory detention provision — and Trump doesn’t have the authority to disregard it.

Immigration advocates claim that this problem can be avoided by putting the families in regular removal proceedings before immigration judges 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.

Read more at http://thehill.com/opinion/immigrati...-their-parents

Published originally on The Hill.

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.