A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This has resulted in large numbers of children being separated from their parents. So today President Trump passed an executive order intended to end the family separation issue. Here is what it says:
The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.
Now some have argued that this executive order will be overturned because extended detention of children violates the Flores settlement, and the courts may not be willing to modify the Flores settlement. But I'm interested in a different issue.
Under the executive order, parents being criminally prosecuted for crossing the border illegally would be held in detention centers by the Department of Homeland Security as they await trial. My question is, is this permitted under federal law? Or does federal law require that those being criminally prosecuted at the federal level (at least for illegal entry) be held in the custody of U.S. Marshals in federal jail as they await trial?
Here is what this article says:
To be clear, there is no official Trump policy stating that every family entering the US without papers has to be separated. What there is is a policy that all adults caught crossing into the US illegally are supposed to be criminally prosecuted — and when that happens to a parent, separation is inevitable.
Typically, people apprehended crossing into the US are held in immigration detention and sent before an immigration judge to see if they will be deported as unauthorized immigrants.
But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time. That’s where the separation happens — because you can’t be kept with your children in federal jail.
But when the article talks about those referred for criminal prosecution being sent to federal jail, is it just talking about standard practice, or is it talking about what federal law requires?