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Trump’s ‘zero tolerance’ policy is effectively dead

President Donald Trump may not admit it but, practically speaking, his administration’s “zero-tolerance” border strategy is dead.

Top officials at the Department of Homeland Security acknowledged that reality at a meeting Thursday afternoon, according to a former department official with knowledge of the meeting.

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“It’s going to be ‘catch and release’ because they don’t have the detention beds for them,” the former official said.

That same message was delivered by Brandon Judd, president of a union for Border Patrol agents, who told CNN Thursday that the executive order Trump signed Wednesday requiring families caught at the border to be detained together simply left his agency no choice.

“We’re going to have to release them,” he said.

Homeland Security and Justice Department officials declined to comment.

The policy slammed into a series of brick walls that made it all but impossible to fully enforce on the ground — insufficient space for incarcerating the hundreds of families crossing the border, strict legal limits on how long migrant children can be detained, and political backlash against separating them from their parents.

Even before Trump signed the executive order, his zero tolerance policy had never approached the “100 percent” promised by Attorney General Jeff Sessions. That’s because DHS was referring only about 60 percent of suspected border-crossers for prosecution, based on data provided by the department. That 60 percent was double the previous rate and more than enough to overwhelm the system.

Trump’s decision to announce the end to family separation effectively delivered the death knell to zero tolerance simply because the facilities to place families in detention were already close to capacity.

U.S. Immigration and Customs Enforcement maintains just 3,326 beds in three family detention centers, according to a 2018 report to Congress. As of June 20, the agency had placed 2,623 people in them. The number of migrant family members arrested by the Border Patrol each month is in the thousands.

Another obstacle to zero tolerance was the courts. The 1997 Flores settlement agreement — which outlines the basic standards for treatment of unaccompanied minors in detention — mandated that children be incarcerated no more than 20 days. U.S. District Court Judge Dolly Gee ruled in 2015 that the guidelines also extended to children with their parents.

The Justice Department on Thursday filed a motion with the court to change the agreement to allow for indefinite detention of children with their parents or guardians. But plaintiffs in the case oppose any alteration, and Gee, an appointee of President Barack Obama, is not expected to grant it.

The political fallout surrounding family separations poses yet another obstacle to maintaining zero tolerance, as the Trump administration dodges questions about whether it will reunite the nearly 2,300 children separated over a five-week period with their parents — some of whom were already deported — prior to the executive order.

DHS officials told several media outlets Friday that 500 of those children had been reunited with parents, but offered no details.

“The administration either didn’t think it through, or did think it through and didn’t care,” Cecilia Muñoz, White House Domestic Policy Council director under Obama, told POLITICO. “Neither of those is particularly comforting.”

Donald Trump is pictured. | Getty

Sessions announced the first part of the “zero tolerance” policy in early April, directing U.S. attorney’s offices along the southwest border to prosecute offenses under an illegal entry statute “to the extent practicable.” Roughly a month later, Sessions announced that DHS would refer “100 percent of illegal southwest border crossings” for criminal prosecutions — a controversial move that precipitated the rapid rise in family separations.

“We don’t want to separate families, but we don’t want families to come to the border illegally,” Sessions said then. “This is just the way the world works.”

But the stated 100 percent of border-crossers turned out really to be about 60 percent, and the Justice department has not made public the proportion of those 60 percent who were actually prosecuted.

A senior U.S. Customs and Border Protection official told The Washington Post on Thursday that the agency would stop referring families caught at the border for prosecution, a further sign of the demise of the hard-line border enforcement stance.

Sarah Isgur Flores, a DOJ spokeswoman, tweeted that the Justice Department had not changed its part of the zero tolerance policy, but did not provide data requested by POLITICO on its implementation.

“There has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally,” she wrote.

A migrant girl is pictured. | POLITICO Illustration/Getty Images

Whatever the percentage of suspected border-crossers prosecuted, it was more than enough to create chaos. Trump’s executive order was supposed to resolve that crisis, but top administration officials appeared this week to have little idea about how it would work in practice.

On a call with reporters Wednesday, Gene Hamilton, a top aide to Sessions at the Justice Department and an immigration hard-liner, said he couldn’t offer details on how various federal departments would implement the order.

“I’m not an operator and I can’t pretend to tell precisely what they’re going to do,” he said. “But that being said, the president’s executive order makes it clear what the policy will be going forward.”

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