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 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.
So it orders people awaiting criminimal prosecution for illegal entry to be held by the Department of Homeland Security (DHS). This is in contrast to the standard practice before this, which was to keep people awaiting criminal prosecution for illegal entry in federal jail until their trial.
I’m wondering about how this will affect sentencing. Before the executive order, judges would sentence most people convicted of illegal entry to “time served”, i.e. their sentence would be the jail time they already served before their trial, rather than an additional sentence after the trial. But my question is, how does this work if a person is kept in DHS custody rather than federal jail while awaiting criminal prosecution? Can time spent in that sort of DHS custody count as “time served” for sentencing purposes?
The reason I ask is that if judges don’t have the “time served” option, then they may opt to sentence people to federal prison, where they’ll be away from their kids.