The Trump administration’s recently announced “zero tolerance” policy on illegal border crossings has led to an emotion-laden national conversation on the government’s responsibility for the welfare of children who are brought across the U.S. border by their parents. The new policy requires that all border crossers entering the U.S. without a legal visa be charged criminally instead of a civil penalty. This criminal charge requires adult migrants to be placed in federal custody, and, in so doing, forces the separation of parents from children.
The intent of this policy, according to the Department of Justice (DOJ), is to preserve the rule of law and deter illegal immigration. The tactic also appears to be part of a larger effort to reduce the number of immigrants who obtain legal status through political asylum by dissuading potential applicants from crossing the border, encouraging current applicants to withdraw their asylum requests, and narrowing and redefining the conditions under which asylum is granted.
A large number of the migrants detained at the border have fled from Honduras, Guatemala, and El Salvador to escape staggeringly high levels of violence — much of it from gang activity and domestic violence — in the hopes that they might obtain legal status in the U.S through political asylum. Under U.S. immigration law, asylum is granted to those who can show “persecution or a well-founded fear of persecution” if forced to return to their country on account of “race, religion, national origin, political opinion, or membership in a particular social group.” In fiscal year 2016, the most recent year for which complete data is available, 20,455 individuals in the U.S. were granted asylum.
Those seeking asylum, unlike other undocumented immigrants, often voluntarily turn themselves in to the border patrol to make their claim. They are then referred for a “credible fear” screening conducted by an asylum officer to ascertain the possible basis for asylum claim. Those who are successful proceed through a “merits hearing” before an immigration judge and then a final hearing in immigration court. An extremely high backlog of cases may delay their court appearances for months or even years.
By criminalizing all border crossings, the Trump administration upended the prior practice of either releasing asylum applicants who arrived with their families while their cases were pending or housing them in family detention centers. Although the administration has said those who enter official ports of entry will not be charged and separated, they are often turning away asylum applicants because the entry points are “filled to capacity,” forcing those who seek asylum to either wait an indefinite period of time or take their chances crossing elsewhere. According to reports, even those who do make it into an official port of entry are sometimes charged criminally and separated from their families.
Adults are incarcerated, while their children are sent to facilities operated by the Department of Health and Human Services Office of Refugee Resettlement (ORR) or to foster homes they oversee, often hundreds or thousands of miles away. Efforts are made to place the children with relatives or other sponsors, but few are willing to step forward due to the legal risk they expose themselves to under other new administration policies. Frequently neither parents nor children have information as to one another’s location following their forced separation and advocates for parents often have difficulty locating their young ones. The ORR does not currently have systems in place to assume responsibility for this sudden influx of children.
Once separated from their parents, children under eighteen years old are legally considered unaccompanied minors and placed on a legal track separate from that of their parents, often without representation or access to whatever documentation their parents may have brought with them to support their application. There appears to be no system for reuniting children with their families once the parents leave federal custody and in a number of cases parents have been deported without their children.
Attorney General Jeff Sessions on June 11, 2018 ordered immigration judges to stop granting asylum to most victims of domestic abuse and gang violence, issues critical to the claims of many Central American asylum seekers and a large percentage of asylum seekers overall. Sessions issued the order in spite of a warning from the United Nations High Commission on Refugees that changing the asylum rules in this manner violated international agreements about refugees into which the U.S. has entered.
It is unclear to what extent the current “crises” at the border may have been intentionally created by the “zero tolerance” policy to rally support for increased anti-immigrant measures. Some news sources have framed the administration’s border policy as defense from a “foreign invasion.” Overall, border crossings are comparable to normal levels of recent years, and overcrowded conditions at detention centers are a consequence of detaining people who previously would have been released pending the outcome of their cases.
The current predicament raises the question about who we are as a nation that harms children in the name of defending our borders. Studies have shown that breaking up families in this manner can cause irreparable harm to children’s short and long-term health.
The restrictions on the conditions for which one may be eligible for asylum and the refusal to process asylee applicants at ports of entry raises the question as to whether the U.S. has abandoned its role as a refuge for the tired, poor, “huddled masses yearning to breathe free.”
Furthermore, there is the question of whether or not the U.S. government bears some responsibility to help the region recover from the dire conditions that have caused the mass migration. U.S. foreign policy over the past several decades has contributed in great part to the desperate circumstances in many of the countries from which asylum seekers are fleeing – from intervention during the civil wars in El Salvador and Nicaragua in the 1980s, to the deportation of thousands of violent gang members, to Washington’s War on Drugs which has displaced the drug trade north into Central America and Mexico.
These are a few things concerned citizens can do to help:
*Give a donation to organizations providing legal services to migrants on the border and their children, suing the government to halt the separation of families, and organizing opposition to family separation, or consider contributing to a bond fund set up to help those eligible to leave detention.
*Engage in a nuanced dialogue about immigration with friends, family, co-workers, and neighbors. As central as it is to the foundations of the U.S., few Americans know much about U.S. immigration policy. Anti-immigrant demagoguery is promoted as a cure for societal ills, but really only further inflames totally unrelated underlying fears. If anti-immigration rhetoric didn’t so effectively energize the administration’s political base and confuse many others into silence, it might be less likely to implement such harsh policies.
*Help build support for three Democratic-sponsored Senate Bills — SB 2468, ‘Fair Day in Court for Kids Act of 2018,” SB 2937, the “Humane Enforcement and Legal Protections for Separate Children Act,” and SB “Keep Families Together” Act. Even though their passage is unlikely in a Republican-controlled legislature, these bills are a good starting point for lobbying our elected officials on the issue.
*Get involved in pro-immigrant community organizing initiatives.
Update: On June 20, 2018, President Trump issued a White House executive order, which directs DHS to keep parents together with kids while they are being criminally prosecuted (which will still happen). Of course the families will still be separated when the parents serve their misdemeanor sentences, which have often been time served in criminal custody, a sentence which won’t be available anymore.