On Family Separation: What's Next?

"In order of importance to make ANY change to what is happening in immigration and otherwise, the top priority is to VOTE."
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Image Credit: American Immigration Council 

Image Credit: American Immigration Council 

My kids have a book entitled “How Things Work,” which is also a common refrain in our house. The chatter and inquiring as to how things work is constant, and my husband and I usually have sufficient enough answers, though there are some questions that we stump and stutter.

I have found myself stuttering much lately in regards to the current affairs of our nation. Because really, how does this work?

How does it work to forcibly take a child from a mother’s arms? How does it work to refuse human beings basic dignity at our doors? How does it work to only point fingers and reject responsibility, claiming it was done before — so what’s the problem now? How does it work to justify the previous and current atrocities our nation has put its people through?

This is, apparently, how it works: more than 2300 children have been taken from their parents since April when trying to enter the US to seek asylum. 

In an effort to comprehend how we got here and what to do post Executive Order signing, we sought counsel from immigration attorney Janay Farmer, an associate at the Global Justice Law Group. Today Farmer explains the policies, history, and current landscape of family separation at our border, and offers ideas for how we act next.

How did we get here? What policies changed in early May of this year, and what sort of power does it extend to the US government?

How we got here is a very long story, but the short answer is that in mid-May the Trump administration (notably Jeff Sessions and Steven Miller) put forth a "no tolerance policy" toward people crossing the US/Mexican border illegally.

There is no new law. Immigration "law" is a weird amalgamation of administrative law and policy, not civil or criminal law per se, and as such a lot of what influences immigration law practices on the ground come from policies (usually in the form of published "memos") by whatever administration is in power via the Department of Homeland Security.

Essentially, before May, many, many people, especially from Mexico and the Northern Triangle countries of El Salvador, Guatemala, and Honduras, would try to cross the US/Mexican border with their families. Most times when children were involved and the families were apprehended (not turning themselves in at a border inspection point, which is another process), they would either be given the opportunity to request asylum or in the alternative they would be processed and then "voluntarily returned" to Mexico, via the US Immigration system. This is what Trump calls "catch and release".

In other words:

1. When undocumented immigrants are detained, the government has the choice of either submitting them for deportation proceedings or prosecuting them for unlawful entry (a misdemeanor).

2. Deportation is an administrative process. Families in the deportation process can be kept together. It’s fast (some would say too fast) and relatively inexpensive.

3. Prosecution is a criminal process. When an immigrant is prosecuted, he or she is charged with a crime and sent to jail while awaiting trial. Unlike immigrant detention, there is no family housing in jail. Anyone referred for criminal prosecution is necessarily separated from all other family members. Criminal prosecution is costly and time-consuming.

4. Previous administrations typically reserved criminal prosecution for serious/felony offenses. People whose only crime was unlawful entry (a misdemeanor) were typically referred to immigration court for deportation. This meant families were kept together throughout the deportation process.

5. In May, the Trump Administration announced a new “zero tolerance” policy resulting in prosecutions for misdemeanor offenses, regardless of whether the defendant is part of a family. This means families are now being separated far more frequently as parents are sent to jail to await trial while children are sent to the Office of Refugee Resettlement for housing.

6. Because Trump’s new “zero tolerance” policy was announced without any advance preparation, the Office of Refugee Resettlement is unable to keep up with the increased workflow of finding family members and sponsors for children whose parents are in jail awaiting trial. The children are being sent to ad hoc detention facilities

7. Trump’s advisor, Stephen Miller, acknowledged that the purpose of separating families is to deter immigration (both illegal immigration and lawful applications for asylum).

8. The Trump Administration has offered very little information about its long term plan for immigrant families. There does not seem to be a specific policy for reuniting families who have been separated as a result of the “zero tolerance” policy.

9. Here’s where the problem gets even worse. It is important to distinguish between unlawful entry and lawful applications for asylum. It is perfectly legal for people to present themselves at a port of entry and request asylum. Under Trump’s new policy, many families requesting asylum are being separated, and the parents are given the option of remaining separated and continuing the asylum process (which takes an average of 400+ days), or pleading guilty to immigration fraud and being reunited with their families pending deportation. In other words, the government is using its immense power to coerce immigrants into pleading guilty to crimes they have not committed.

Why is the government doing this? I strongly suspect the answer lies in the fact that people convicted of immigration fraud can never lawfully immigrate to the United States. The Administration is forcing parents to plead guilty under duress knowing this will prevent them from ever lawfully immigrating to the United States.

What are some of the main reasons family seek asylum in the US?

The four main populations of people (Northern Triangle and Mexico) who seeks asylum in the US are doing so fleeing gang violence, violence generally committed in their countries of origin with impunity and/or support of the government.

However, asylum seekers from all over the world travel to South/Central American or Mexico with the intent of turning themselves in to at a US border and requesting asylum. These are generally people who cannot otherwise get a visa. I've had families from Ukraine to Somalia request asylum in this way.

How is the current administration justifying these actions?

This is disgusting, but basically the Trump administration is using the old "law and order" jargon to justify these actions.

Do you think Trump signing an executive order will change the action his team set in motion? (He is, in effect, ordering family separation to be replaced with the detention of whole families together, even after earlier arguing that "you can't do it by executive order.")

This is again, an attempt to pass the buck to others. He doesn't need to sign an EO; this policy is his administration's and needs to be rescinded. He's putting forth this EO to then be able to claim that he gallantly put an end to something his administration created.

Finally, how can we help? What can we do?

For more ways to help, here are a few organizations we trust:

  • Together Rising sends every single dollar received to organizations on the ground fighting for families
  • KIND (Kids In Need Of Defense) helps children find a safe haven and freedom from fear

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