I imagine this is what it feels like to be an emergency responder – a highway patrolman on the scene of an accident, a firefighter, or an emergency room nurse. You are aware that chaos and suffering surround you, but you put your head down and focus on the task at hand. You know that at the end of your shift you will go home, take off your shoes, and reflect on what you saw. But stopping to feel in the middle of the shift will distract you and spiral you downward. I feel this myself and sense this when I am talking to first responders in the family separation crisis. The disbelief and grief lie below the surface, but we can’t bear to talk about it yet. We are in the emergency, waiting for it to be over before we can reflect.
My head is down, and I am doing my work. I am an immigration lawyer and pro bono advocate, so my job is to provide legal services to separated parents, to train pro bono attorneys and coordinate representation, to help people figure out how they can help, and to share the horrific truth of what I am seeing with my network so that more people can be informed. This means I am exposing myself to the public and all sides of this nasty debate. I have seen ugliness and utter disregard for the suffering of asylum seekers and it is scary. I decided recently to stop responding to the trolls because it was not a good use of my time or my energy. And then I checked my Facebook page and saw a post from a family member I love and respect, suggesting that Trump has no choice but to enforce a bad law passed years ago. I am writing this post in response to her. This is my attempt to de-mystify the origin of the zero-tolerance policy for the well-meaning but uninformed.
What “old law” is Trump enforcing? Which is it? Obama-era policy or Clinton-era? Or is it Bush? The answer is none of the above. There is no law mandating separation of families. Let me say it again. There is no law mandating separation of families.
Let’s review the various “laws” being blamed for zero-tolerance.
8 USC Section 1325: Criminal prosecution for illegal entry
The claim: A moral country enforces and respects its own borders. By not enforcing the laws and not prosecuting people who have entered the country illegally, Trump would be ignoring his responsibility.
Without delving into prosecutorial discretion and the long-established notion that the State selectively prosecutes, let’s debunk this culprit for family separation. In practice, what is happening is that families are being separated at the border patrol processing stations, the parents taken to court for prosecution, and the children placed in the custody of the Office of Refugee Resettlement. In court, the parents are pleading guilty and receiving time served for the misdemeanor offense. Hours later, they are taken back to the border patrol facilities, in many cases already finding their children gone. I heard of two mothers crying inconsolably in court, after having been told by Border Patrol Officers to say goodbye to their five-year-old daughters who may not be there upon their return from court.
If it only takes hours to prosecute, why would it be necessary to separate the families?
1997 Flores Settlement
The claim: An agreement signed in the late 1990’s hamstrings the Department of Homeland Security because children are only allowed to be detained for 20 days or less, and a judge ruled that this agreement applies children detained with parents. The asylum process takes more than twenty days, so we must release the kids without the parents, and that requires separation.
First, let’s stop for a moment and reflect upon the fact that Trump is a master of twisting facts in his favor for the sake of negotiation. The entire purpose of the Flores Settlement is to protect children, and Trump has convinced his base that it is the reason he must take the children away from their parents and put them in cages.
Children should not be detained for longer than twenty days. That is both legally true and also the truth. However, it is not a reason to separate kids and detain parents. An alternative would be to conduct credible fear interviews within enough time to either approve or deny claims so that families can be sent home or released from detention after proving their threshold eligibility for asylum.
2008 Trafficking Victims Protection Act:
The claim: Unaccompanied minors must be transferred to the Office of Refugee Resettlement within 72 hours.
This one is easy. These kids are not unaccompanied until we take them away from their parents. But do you know what else happens when we turn accompanied kids into unaccompanied kids? We make it logistically impossible to reunite them with their parents in many cases. This is because adults are placed in expedited removal and can be deported without a judge’s order. The unaccompanied minors can only be ordered deported by a judge, so be separating these families, we are placing them in two rail cars heading down split tracks at different speeds with different drop off points. This is why we are seeing parents deported without their children.
A discussion on immigration requires knowledge and understanding, which is difficult to achieve with a controversial and complex topic. To the trolls who fail to even feel sorry for these families, I can offer no hope for you. But for the others, those of you who believe in a secure border and the rule of law but whose hearts hurt a little bit when you see pictures of crying children, pay attention. Our president has made a decision to rip children as young as infants from their parents’ arms all for the purpose of political bargaining. That is the bottom line. It is up to us to hold our lawmakers accountable.
Pick up your phone and call your legislators today, tomorrow, and every day, until this ends.
Image credit to Kristen Gunn