By Rich Lowry
Monday, May 28, 2018
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 adjudication 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.
In April, the New
York Times reported:
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.
According to azcentral.com, it is “common to have parents
entrust their children to a smuggler as a favor or for profit.”
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.
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