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Originally published by LA Times

President Trump was right to end his inhumane policy of separating children from parents charged with the misdemeanor crime of crossing the border without permission, but his executive order seems to contain the seeds for an even broader attempt to detain whole families as they go through deportation hearings.

Part of the order reads:

Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally. (a) 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.

It’s the or immigration proceedings that stands out. The order identifies an alien family as not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and … that person’s alien child or alien children.

So it reads as though families caught far from the border could also be detained.

Trump also ordered the attorney general to seek a modification to the Flores consent decree, which bars the government from detaining minors for more than 20 days. The order calls for the agreement to be modified in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

Again, the or construct is important. This seems to authorize – despite the limitations placed on the government two decades ago by the Flores agreement – the detention of any family facing deportation proceedings, even if no members have been accused of a criminal violation.

Of course, finding space for all those people would be a challenge. And getting around what seems likely to be a flash injunction would be tough, too.

But in resolving the issue of separating kids from their parents who entered the U.S. without permission, the administration may be setting the stage for a broader detention policy.

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