U.S. Border Patrol agents with illegal immigrants at the U.S.-Mexico border near McAllen, Texas, May 9, 2018. (Loren Elliott/Rueters)
The latest furor over Trump immigration policy involves the separation of children from parents at the border.
As usual, the outrage obscures more than it illuminates, so it’s worth walking through what’s happening here.
For the longest time, illegal immigration was driven by single males from Mexico. Over the last decade, the flow has shifted to women, children, and family units from Central America. This poses challenges we haven’t confronted before and has made what once were relatively minor wrinkles in the law loom very large.
The Trump administration isn’t changing the rules that pertain to separating an adult from the child. Those remain the same. Separation happens only if officials find that the adult is falsely claiming to be the child’s parent, or is a threat to the child, or is put into criminal proceedings.
It's the last that is operative here. The past practice had been to give a free pass to an adult who is part of a family unit. The new Trump policy is to prosecute all adults. The idea is to send a signal that we are serious about our laws and to create a deterrent against re-entry. (Illegal entry is a misdemeanor, illegal re-entry a felony.)
When a migrant is prosecuted for illegal entry, he or she is taken into custody by the U.S. Marshals. In no circumstance anywhere in the U.S. do the marshals care for the children of people they take into custody. The child is taken into the custody of HHS, who cares for them at temporary shelters.
The criminal proceedings are exceptionally short, assuming there is no aggravating factor such as a prior illegal entity or another crime. The migrants generally plead guilty, and they are then sentenced to time served, typically all in the same day, although practices vary along the border. After this, they are returned to the custody of ICE.
If the adult then wants to go home, in keeping with the expedited order of removal that is issued as a matter of course, it’s relatively simple. The adult should be reunited quickly with his or her child, and the family returned home as a unit. In this scenario, there’s only a very brief separation.
Where it becomes much more of an issue is if the adult files an asylum claim. In that scenario, the adults are almost certainly going to be detained longer than the government is allowed to hold their children.
That’s because of something called the Flores Consent Decree from 1997. It says that unaccompanied children can be held only 20 days. A ruling by the Ninth Circuit extended this 20-day limit to children who come as part of family units. So even if we want to hold a family unit together, we are forbidden from doing so.
The clock ticking on the time the government can hold a child will almost always run out before an asylum claim is settled. The migrant is allowed ten days to seek an attorney, and there may be continuances or other complications.
This creates the choice of either releasing the adults and children together into the country pending the ajudication of the asylum claim, or holding the adults and releasing the children. If the adult is held, HHS places the child with a responsible party in the U.S., ideally a relative (migrants are likely to have family and friends here).
Even if Flores didn’t exist, the government would be very constrained in how many family units it can accommodate. ICE has only about 3,000 family spaces in shelters. It is also limited in its overall space at the border, which is overwhelmed by the ongoing influx. This means that — whatever the Trump administration would prefer to do — many adults are still swiftly released.
Why try to hold adults at all? First of all, if an asylum-seeker is detained, it means that the claim goes through the process much more quickly, a couple of months or less rather than years. Second, if an adult is released while the claim is pending, the chances of ever finding that person again once he or she is in the country are dicey, to say the least. It is tantamount to allowing the migrant to live here, no matter what the merits of the case.
A few points about all this:
1) Family units can go home quickly. The option that both honors our laws and keeps family units together is a swift return home after prosecution. But immigrant advocates hate it because they want the migrants to stay in the United States. How you view this question will depend a lot on how you view the motivation of the migrants (and how seriously you take our laws and our border).
2) There’s a better way to claim asylum. Every indication is that the migrant flow to the United States is discretionary. It nearly dried up at the beginning of the Trump administration when migrants believed that they had no chance of getting into the United States. Now, it is going in earnest again because the message got out that, despite the rhetoric, the policy at the border hasn’t changed. This strongly suggests that the flow overwhelmingly consists of economic migrants who would prefer to live in the United States, rather than victims of persecution in their home country who have no option but to get out.
Even if a migrant does have a credible fear of persecution, there is a legitimate way to pursue that claim, and it does not involve entering the United States illegally. First, such people should make their asylum claim in the first country where they feel safe, i.e., Mexico or some other country they are traversing to get here. Second, if for some reason they are threatened everywhere but the United States, they should show up at a port of entry and make their claim there rather than crossing the border illegally.
3) There is a significant moral cost to not enforcing the border. There is obviously a moral cost to separating a parent from a child and almost everyone would prefer not to do it. But, under current policy and with the current resources, the only practical alternative is letting family units who show up at the border live in the country for the duration. Not only does this make a mockery of our laws, it creates an incentive for people to keep bringing children with them.
Needless to say, children should not be making this journey that is fraught with peril. But there is now a premium on bringing children because of how we have handled these cases. They are considered chits.
Some migrants have admitted they brought their children not only to remove them from danger in such places as Central America and Africa, but because they believed it would cause the authorities to release them from custody sooner.
Others have admitted to posing falsely with children who are not their own, and Border Patrol officials say that such instances of fraud are increasing.
If someone is determined to come here illegally, the decent and safest thing would be to leave the child at home with a relative and send money back home. Because we favor family units over single adults, we are creating an incentive to do the opposite and use children to cut deals with smugglers.
4) Congress can fix this. Congress can change the rules so the Flores consent decree will no longer apply, and it can appropriate more money for family shelters at the border. This is an obvious thing to do that would eliminate the tension between enforcing our laws and keeping family units together. The Trump administration is throwing as many resources as it can at the border to expedite the process, and it desperately wants the Flores consent decree reversed. Despite some mixed messages, if the administration had its druthers, family units would be kept together and their cases settled quickly.
The missing piece here is Congress, but little outrage will be directed at it, and probably nothing will be done. And so our perverse system will remain in place and the crisis at the border will rumble on.