Parts 1 & 2: On Zero-Tolerance and Family Separation

I have had a handful of people ask me for my views regarding the current situation with families at the border.  I do not have all the answers.  But what I will share here is some background on the situation and personal thoughts, both of which are drawn from my own research, observations, and conversations with first-person sources.

I encourage you to read the original sources that I include here and sort out the facts for yourself before buying in to the opinions of right-wing or left-wing news outlets.  There is an abundance of reactionary “information” from both sides that gets unearned credence due to its viral nature rather than its factual basis.  I believe reading original documents for yourself before reading the opinions of others (at least as much as possible) allows you to strip away the dross and come closer to understanding the true context of a situation through your own personal decision-making processes.  (Though I also realize that we don’t all got time for that!)   

What makes this issue far more delicate and complex is the fact that involves children, who are always innocent victims regardless of the circumstances.  Unfortunately, family separation is not a stand-alone issue; rather just one facet that is part of a much greater immigration and border security conversation.  I cannot touch on all the relevant points of that larger conversation here, but I will try to address the most important questions that have arisen. I have divided this post into three parts.  I begin here with a generic Q&A section that provides the basic information from a non-partisan standpoint, followed by a section that exposes the criminal element behind illegal immigration.  Below, as part three, you will find my own opinions on the current situation.  I will do my best to post updates if significant new information emerges in the period after writing this post.

PART 1: Q&A

What is the “zero-tolerance” policy?

Basically, the president has instituted a policy of uniformly prosecuting every individual who enters the country illegally.  It is a stated attempt to deter the influx of border crossings by promising to prosecute everyone who is apprehended in this country without documentation. 

When did this policy first appear?

The Attorney General released a memorandum on April 6^th, 2018, entitled “Zero Tolerance for Offenses Under 8 USC 1325a”.  Supporting documentation came from the White House on the same day in the form of a presidential memorandum entitled "Ending Catch and Release".  Attorney General Jeff Sessions announced the policy on camera in May during speeches in both Arizona and California.

Is this policy “new”? 

The law at the center of this conversation, 8 U.S.C. § 1325, has not changed.  However, enforcement of the law, as a specific policy of the current administration, has changed from the way it was enforced under the previous administration. 

Under the Obama administration, a policy emerged in which immigration enforcement resources were re-directed toward “priority” cases such as those involving career criminals or those that involved serious crimes.  (See Secretary of Homeland Security Memorandum: “Policies for the Apprehension, Detention, andRemoval of Undocumented Immigrants”, November 20, 2014.) A significant number of undocumented immigrants who did not fall into the “career criminal” or “serious crime” category were processed and then released after being served a “Notice to Appear” (NTA).  “Notices” were typically given to undocumented immigrants with no previous criminal history, and especially adults with children.  NTAs inform an immigrant that removal proceedings are being initiated and mandate that the individual appear in Immigration Court on a specified date.  The immigration judge will then determine whether there is adequate evidence for removal.  Failure to appear in court typically results in an in absentia removal order, and voids any previous or intended claim of asylum.  Consequently, immigrants who did not appear in court - and were given an in absentia removal order - are continuing to live in the country illegally.  Department of Justice (DOJ) statistics show that 28 and 25 percent of immigrants failed to appear in court in 2015 and 2016.   (DOJ Statistical Yearbook FY2016, Page 49/P1) Partisan groups debate the meaning of this statistic: whether it reflects that a “majority” of immigrants showed up in court or whether it proves a “high” failure to appear rate.  

Also, a common practice under previous administrations - and until recently - was to give non-criminal, first time offenders an “expedited removal” order (sometimes referred to as “civil deportation proceedings”).  In an expedited removal case, immigrants are processed, their information entered into a database, and then they are promptly returned to their country of origin (typically Mexico) all within the span of a few days.  Immigrants who receive an expedited removal do not typically see a judge and do not face criminal prosecution for entering illegally.  In some cases, expedited removal orders were also granted to immigrants who had entered the country illegally on multiple occasions.  

The Trump administration decided recently to prosecute every case of illegal entry, without exception. This means that undocumented immigrants apprehended near the Southern border no longer have the option of receiving an expedited removal, even if it is their first apprehension.  Additionally, far fewer individuals and family units will face the possibility of being released with only a notice to appear.  Instead, the indication is that most adult undocumented immigrants will be held in detention until their case is heard in court and a decision is rendered regarding their status.

Are/were children being separated from their parents after apprehension?

Yes.

Even prior to the zero-tolerance policy, immigrant children were removed from their parents in certain situations that would warrant a separation for the sake of the child’s well-being.   Family separation could also occur, for example, if the parent requested that a child be released to family members residing in the United States.  Most notably, however, children were removed from parent(s) when the parent had committed a more serious crime, or when there were substantial reasons to doubt the familial relationship between the child and “parent”.  Adult immigrants, including traffickers themselves, were claiming unaccompanied as their own children, in order to be granted a release (with NTA) as a family unit.  This has been referred to as the “family unit loophole”.  Children in these situations were being released into the care of an adult they did not know - or worse, a trafficker - placing them at extremely high risk of being sex trafficked, held in domestic servitude, or used to manipulate real family members to do the criminal organization’s bidding. 

Under the zero-tolerance policy, family separation was and is occurring at a much higher rate.  Most adults have been placed in detention while awaiting their court date, meaning that the length of time an individual is spending in detention is longer than it has been in the past.  By existing law, children can only be held in detention for up to 20 days.  Accordingly, children are removed from detention – and thus from their parents – after 20 days. 

During the initial months of the “Zero-tolerance” policy, children age 6 or over were being separated from their parents by the 20 day mark, as required by law, and placed into the care of a relative or the Office of Refugee Resettlement (ORR) which is under the Department of Health and Human Services (HHS).  Due to the lack of space in facilities that housed younger children (age 6-12), the age limit was eventually raised to children age 13 or older being placed with ORR.  Children under 6 were not routinely being separated from their parent(s), though it did happen in some instances.

Within the past few weeks, as public pressure mounted and as facilities and placements filled up, new approaches were utilized.  For example, some parents – especially women – are now being released with their children to join other family members living in the U.S.  However, they are served with a Notice to Appear and fitted with an electronic ankle bracelet that tracks their location.  Additionally, there is an increased effort to prioritize family cases in court so that removal or asylum proceedings can move forward more quickly.

What is the legal framework surrounding the detention of undocumented minors who enter the country with one or both parents?

This is what was at the crux of the debate.  The question is whether it is in the best interest of the child to be restricted to a detention facility with their parents, or to be placed in a less-restrictive environment - such as in a group home, with a foster family, or with extended family members – but without their parents.  Neither seem to provide an ideal situation. 

The legal background is a bit complex.  Essentially, past court decisions make it illegal for the government to hold a minor in a typical adult detention facility for more than 20 days.  However, the options for housing family units together in an appropriate and “licensed” detention facility – as explained below - are also extremely limited, making it very complicated to legally keep the parents of immigrant children in detention when trying to keep families together.

The Flores Settlement of 1997 set forth standards for facilities that house immigrant minors and made it a priority for children to be reunited with a parent or adult family member, or to alternatively be sent to a licensed and “less restrictive” facility.  However, this settlement was originally meant for unaccompanied minors.  Later decisions by the district court and the Ninth Circuit Court of Appeals determined that it also applied to accompanied minors and limited the amount of time that minors could remain in an adult detention facility to 20 days.  Because it was determined that Flores applied to accompanied minors, it meant that facilities that housed parents and children together must also meet the standards set forth in Flores.  Detention facilities are built to restrict adult criminals, and thus are not designed to meet the Flores standards.  Consequently, the number of detention facilities that would meet the Flores standards – and be able to house family units together - are few or relatively non-existent. 

The issue during the first few months of zero-tolerance was that parents who were being prosecuted were typically being detained longer than 20 days.  There is no law that says the parent must be released with the child.  Conversely, there is no law that says the parent cannot be released with the child.  The question is whether it is A) effective from an enforcement standpoint to release parents with children, and b) compassionate to continue to detain parents with children when it results in separation.

It should be noted that the Ninth Circuit Court decision referenced above came about when the previous administration was faced with a similar dilemma during the influx of immigrants that occurred around 2014.  The Obama administration faced legal challenges when determining how to house immigrant minors with detained parents.  The overwhelming numbers of immigrants, combined with the legal limitations, created a set of challenging circumstances, and ultimately, led to a policy that prioritized release for family units.

Is it true that children were being “ripped” from their parents and placed in “cages”?  Are immigrant children and parents being treated in an undignified manner?

An important distinction to point out is that it is not standard for children to be separated from parents immediately following apprehension, or any time prior to the legal 20 day limitation.   Consequently, there should be a period of “preparation” if a child must be removed from the detention facility (and their parent) by the 20 day mark.  In the Tucson Border Patrol Sector, children are typically kept with the mother at all times immediately following apprehension, or with both parents when possible.  They are transported together, processed together, and put into holding together.  Holding facilities at the Tucson Coordination Center that house mothers and children together have basic necessities available as needed including diapers, hygiene items, snacks and drinks, etc.  Toys and games are available for the children as well.  They have access to showers.  They also have a more “free environment”, though it is obviously within the bounds of a detention facility.  For example, adjacent holding cells might be kept open so that the parents and children can have some extra space and relative freedom to walk around.  The only time in which a temporary separation might occur is, for example, if the parent wants to take a shower (without the child) or when a parent must go to court for a few hours.  Otherwise, parents and children are not routinely separated prior to the 20 day limit.  While I can only speak to what goes on at the Tucson facility, I can also point out that the same entities that govern the standards at that facility also govern the standards at other facilities in other states, suggesting that their standards should be fairly uniform.

I do not have information on the guidelines used for removing a child from a detention facility when the 20 day limit is reached.  I can only imagine the heart wrenching scenes that occur when a child is removed as few parents would easily or willingly part with their child.  While there are certainly some less than stellar people who work for ICE/CBP, I can also say with the same certainty that there are a great many men and women who are parents themselves, and are both respectful and compassionate while doing their job. 

In regards to the detention facilities, there have been many accusations about the way that immigrants are treated.  One accusation has been that immigrants are only given thin “emergency”-type blankets (“space blankets”) to use when sleeping.  The reason these blankets are used for short-term detention is because “regular” blankets used in the past were carrying diseases, even after being washed.  The emergency blankets, although thin, do provide a lot of warmth when wrapped around an individual.  Each person then also knows that the blanket is new and sanitary. 

Another accusation that emerged recently is that children are held in “cages”.  This headline appeared after a handful of reporters and at least one congressperson had been given the opportunity to briefly tour a facility in McAllen, Texas.  It was reported that children were being kept in fenced enclosures, or “cages”.  However, the same articles also report that there were three separate areas: one for men, one for unaccompanied minors, and one for families.  The latter description falls into line with requirements that different “groups” of immigrants be separated from each other.  For their own safety, minors cannot be housed with adults, unless they are with a parent.  Thus, there would have been enclosed areas dedicated strictly to unaccompanied minors who were awaiting placement.  And, children who had crossed the border with a parent would have been kept with their parents in the appropriate area for families.  It should also be noted that the media – by their own admission - were not permitted to take any pictures inside the facility for the sake of the children’s privacy.  Consequently, the pictures that have been shown in the media in relation to this headline are largely from the year 2014 when there was a large influx of unaccompanied minors. 

The Rio Grande Sector in Texas is consistently the Border Patrol sector with the highest number of apprehensions.  Most Border Patrol stations are not equipped to hold large numbers of people at once.  This means that some stations require additional, larger facilities in which to temporarily house and detain immigrants while they await initial court appearances or transfers to appropriate facilities.  Enclosures are needed in the larger facilities to keep people separated who should not be mingling – most notably, unaccompanied minors should not be placed in holding areas with adults.  Having fenced areas for minors is not merely to keep the children “in”, but also to keep potentially harmful people from gaining access to them. 

While it is important to understand that these are very temporary holding facilities and not meant to be long-term, a fenced enclosure is nonetheless not an ideal environment for a child.   The question remains as to what better alternatives might exist for effectively processing such large numbers of immigrants while also ensuring that children and families are transferred to appropriate facilities as speedily as possible.

What services are provided to children (accompanied or unaccompanied) who are housed in ORR facilities?

The following information comes directly from an individual who has worked in both a caseworker and managerial position with organizations that are contracted with ORR to house immigrant children in Tucson.  

• Each child is assigned a case manager and clinician that they meet with at least once a week. If anything else comes up during their stay, they have immediate access to a clinician.
• All clinicians must have a master’s degree and several years of experience to work there...and must be bilingual. It is actually quite difficult to be hired as a clinician at most ORR shelters due to the experience requirement.
• Each child is seen by trained medical staff within the first 24 hours. They receive lice treatments if necessary. TB test and are caught up on any necessary vaccinations.
• Kids are taken to see a dentist and any necessary treatment is paid for by ORR.
• It is rare that kids require additional mental health care. But I did have a few in my 3 years [at her previous position]. When that happens, the assigned clinician takes them to a psychiatric evaluation and assures the child receives whatever treatment they require.
• Kids are provided with clothes and shoes. All necessary hygiene as well. They each have a bed.
• They attend school Monday to Friday.
• There are many activities planned for them both inside and outside of the facility.
• Most staff that work with the kids on a daily basis to provide supervision [might only have] a high school diploma, but they have a huge heart and truly care about the kids.
• Are there a few staff who do the job for a paycheck? Yes, just like anywhere else. And those are the few who the media picks out as being the untrained and unqualified staff.

Can individuals and families who are fleeing persecution still claim asylum?

Yes, that has not changed.  The “proper”, or perhaps “preferred”, way for immigrants to claim asylum is at an official port of entry, according to the U.S. Department of Homeland Security.  Individuals or families can go directly to a port of entry and claim the need for asylum, without fear of reprisal and without being turned away. 

Does this mean that undocumented immigrants apprehended within the United States cannot claim asylum?  No.  Currently, immigrants apprehended “between ports of entry” can still claim asylum.  Border Patrol is required to ask every immigrant if they have a credible fear of returning to their own country.  Those that answer “yes” are referred for an asylum interview and asylum proceedings.

However, technically speaking, being apprehended withinthe United States can hurt an individual’s case for asylum, though it does not in any way prevent their case from being heard.  Why?  Because the United States government (from their perspective) provides a clear, straightforward way for immigrants to declare asylum without legal consequences: they must simply go to a port of entry and ask for it.  Consequently, when an immigrant is apprehended inside the country after illegal entry, and then claims asylum, it begs the question of why they did not claim asylum at the Port of Entry in the first place rather than going through the hardship of crossing the border illegally.  The authenticity of asylum claims are often judged based on the desperateness of an individual’s actions and the corroborating elements of their story.  If the individual passed by a Port of Entry on their way into the U.S. without claiming asylum, then it gives the appearance that they were not really desperate for protection.  Instead, the claim for asylum appears as merely a stall tactic or last resort to avoid deportation.

The paragraph above is meant to explain the perspective of the U.S. government when considering asylum claims for immigrants apprehended inside the country.  But, realistically speaking, there are significant barriers on the southern side of the border that prevent individuals from accessing the official ports of entry in order to claim asylum.  Please see the section entitled “The Hidden Factor” below.

What does the president’s executive order from June 20^th, 2018, entail?

In summary, the Executive Order “Affording Congress the Opportunity to Address Family Separation” does the following:

• States a policy of maintaining family unity “where appropriate and consistent with law and available resources”
• Provides for the identification or construction of appropriate facilities to house family units together
• Requests a modification to the Flores Settlement (so that children may continue to be housed with detained parents)
• Prioritizes the adjudication of cases that involve families

Other Resources: 

DHS FAQ on Zero Tolerance

Myth vs. Fact: DHS Zero-Tolerance Policy

Executive Office for Immigration Review: An Agency Guide  

DHS Immigration Enforcement Actions

Part 2: The Hidden Factor

A foundational element that is left out of most border conversations is that of the very real, very dangerous criminal element that operates at the southern border: the Cartels. The power and the reach of the cartels is far beyond what most Americans realize.  They have incredible criminal networks that operate around the border and in practically every major city of every state.  Make no mistake, the business that they run is about money, power, and control.  And they are ruthless, on both sides of the border. 

It is important to understand that the cartel controls every inch of the Mexican side of the southern border, which means that they control all the crossings that are made outside of the official ports of entry.  No onecan cross the border without their permission, and without making a payment.  Every immigrant who comes across the border is subject to this criminal element and, in a dreadful way, beholden to it.  Human smuggling is one of the two major businesses that the cartels operate.  (The other being drug smuggling.)  If individuals or families could cross the border of their own free will, then the cartels’ profits would substantially decrease.  Thus, the cartels have made it abundantly clear that they own the border crossing business.  Individuals who attempt to cross without paying the fee are either “persuaded” to make the payment, or end up dead.  Similarly, the cartels have an interest in preventing people from going to a Port of Entry to claim asylum.  To them, an asylum seeker at the Port of Entry equals potential business lost since those people are not paying to be smuggled across the border.

The journey of an immigrant across the border varies depending on the area of the border, the route taken, the amount of money that was paid, the final destination, etc.  A group of immigrants may traverse extensive areas on foot, or be transported in a vehicle - usually some combination of the two.  Immigrants who cross the border on foot with their cartel guides (coyotes) are at the complete whim and mercy of the guide.  The coyotes care about getting paid, not about preserving life.  They do not hesitate to enforce their own authority through intimidation, threats, and physical violence.  (If you have never heard of a “rape tree”, google it.)  Immigrants in the group typically adhere to the coyote’s orders for fear of being left behind in unfamiliar and desolate terrain where they could wander for days in scorching deserts or snowy mountains before finally succumbing to the elements.  When it suits their interest, coyotes do not hesitate to leave behind those who are too slow, sick, or injured, including women and children.  In fact, a young man died just this last week about 20 miles from my house after his guide and his group left him.  He could have received lifesaving help if the guide had notified someone immediately or if the group had merely carried him one more mile to “civilization”.   Instead, he was left alone to die in the scorching summer heat.

Other immigrants are smuggled into a border town only to be held at a dirty, overcrowded stash house for days until their “handlers” arrange for them to be transported to the next destination.   Teenage girls and young women are at high risk of being sex trafficked at this point, since they are often placed in vehicles without knowing the driver or the destination.  Sometimes immigrants are transported in personal vehicles by drivers who are “hired” by the cartel.  (The cartel preys on vulnerable – and often naïve - Americans to be their “drivers”: drug addicts, pregnant women, young people, the unemployed, or those who owe a “debt”.)  Sometimes, large groups of immigrants are transported in a large truck with little food, water, or air.  If their handler decides midway through the journey that it is too risky, the immigrants are abandoned in the back of a locked truck.  The lucky ones are found before they die of dehydration or asphyxiation.

There is no compassion in the human smuggling business.  The appalling practice should elicit two responses from Americans: outrage that the cartels can operate in such a manner (with relative impunity) on our soil, and compassion for individuals who are so desperate to escape that they would endure such a journey.  It is even more outrageous when considering the vicious circle that the cartels perpetuate.  They create an atmosphere of violence and intimidation through their turf wars, with no concern for the collateral damage that results.  The people who are victimized by the violence want to escape.  But, in order to escape, they have to pay the very criminal organizations which are causing the violence to smuggle them out of their own country and into the United States.

So, what does this have to do with family separation? 

Human smuggling is a business.  The cartels will utilize every opportunity to expand their business, and their profits.  Consequently, it is in their interest to see policies enacted that provide minimal consequence for illegal immigrants to come to the United States.   They take utmost advantage of “lax” immigration policies on the American side and even employ them as a marketing tool to get more “clients”.  (More “clients” for the cartels also equals more potential victims left in the desert.)  The former policy of releasing immigrants with a Notice to Appear did not go unnoticed.  Family units were coming into the U.S. with the expectation of not being detained or deported.  Adult immigrants were instructed by smugglers to fabricate their relationships to unrelated children in order to create the false appearance of a “family unit”.  The point is that immigrants are more willing to make such an arduous journey if they know they will not be detained or immediately deported upon apprehension.  While none of this is meant as a justification for family separation on the American side, it is an explanation of how big of a role our policies play in the human smuggling business.

The catalyst behind so many of the immigration problems that plague our country is the insidious, malicious business of the cartels.  While we are responsible for how we, as a nation, choose to respond to issues like that of family separation, we also need to recognize that this issue might not exist without the criminal element that fuels illegal immigration in the first place.  We can pursue policies of deterrence, enforcement, and prosecution (or not).  But we rarely seek to eliminate, address, or even acknowledge the root of the problem: the organized crime that creates instability in Central America and facilitates the human smuggling business. 

PART 3: Personal Thoughts on Zero-Tolerance and Family Separation

I debated whether to write a post on this situation.  All too often, there are too many voices in the fray.  The need for genuine questions, civil debate, and active listening tends to get lost in the cacophony of noise that is being made by those who have drawn a line in the sand and villainize those who do not share their perspective.  I do not want to be part of that cacophony.  At the end of this post, you may not agree with some things I have said.  We are allowed to disagree.  I am always open to listening to differing points of view.  I encourage you to do your own research.  Ask questions of others who might have a first-hand perspective or be knowledgeable.  Don’t believe everything that is being said in the media, or that comes from the White House.  Pray. 

When formulating an informed opinion, I do several things:

•  Avoid media articles as much as possible, especially in the beginning
• Read original sources and official documentation
• Research the context of a situation
• Draw from my own observations and first-hand knowledge (both my own and others I have access to)

I cannot emphasize the value of reading the original sources and documents for yourself.  I have included links to most of these documents in the Q & A section.  I do not believe it to be intellectually honest to comment on controversial issues when you have not actually researched the original sources as opposed to taking media articles at face value. 

My perspective on family separation is complex due to the fact that I agree with the general intention of the zero-tolerance policy (to better enforce immigration law), but have obvious concerns about the effects of the policy on immigrant families.  While I have never been – and likely never will be – a fan of President Trump, I do think that we have to look at each policy and issue individually and separate from the person of Donald Trump in order to draw an informed opinion about what is good, what is bad, and what is actually useful about the given policy.  I do believe that a president’s personality, morality, and rhetoric play a role in policy-making.  But I also think it is unfair for either side to jump to conclusions without thoroughly investigating all the facts. 

On the Zero-Tolerance Policy:

The media has done an excellent job of painting the zero-tolerance policy as “draconian” and “cruel”, by comparing it to the policies of the previous administration.  One article I read stated that under the previous administration "people caught crossing the border illegally were simply returned to Mexico after pleading guilty and being briefly detained".  That is true.  But the important question is whether people were supposed to be returned to Mexico, or released, rather than face some sort of prosecution.  The justice system is expected to uphold our laws and enforce consequences when those laws our broken.  Illegal entry into the U.S. is a crime under our current legal code.  The previous administration tended to focus its prosecutions of immigration cases on those that involved career criminals or individuals who had committed other serious crime in addition to illegal entry.   In most other cases, the law was “enforced” by granting illegal immigrants an expedited removal or by releasing them with a Notice to Appear (NTA), which many would argue is quite lenient.  Neither of those two things provide a consequence that would really deter someone from entering illegally in the first place.  Consequently, in comparison to being released or returned, detention and prosecution is easy to characterize as harsh.  Though, in reality, it is just a “Trumped-up” (pun intended) enforcement of the law the way it was originally intended. 

Having a front row seat to the abuses that occur at the border (abuses to our legal system) make it difficult to understand how there has not been better enforcement in place all along.  Enforcement becomes a mockery when the same individuals are apprehended two or three times for illegal entry (after being returned to Mexico each time) within the span of a few months.   Some immigrants literally say “see you next week” to Border Patrol agents as they board a bus to be returned to Mexico.  Likewise, prosecutions should be the norm, not the exception, in evidenced cases of illegal entry or criminal activity.  The constant game of cat-and-mouse between law enforcement and cartel smugglers is both amusing and alarming.  But, most of all, it is frustrating when “the bad guys” can get away time and again with such grievous crimes.

I believe wholeheartedly in showing compassion to immigrants coming across the border, especially those who genuinely need asylum.  Not only do I support the provision of sanctuary to those who have been persecuted, but I also believe it is our moral obligation to do so to the extent possible.  I also believe that the reason we, as a nation, can be compassionate is because we provide a secure environment in which to do so.  In order to maintain that secure environment, we must take reasonable measures to uphold our sovereignty and to preserve national security.  From my own first-hand observations, I absolutely believe that border security is crucial to protecting the freedoms and rights that make our country a place where people can seek sanctuary in the first place.  This includes enforcing the law in a way that de-incentivizes illegal entry and combats the role of criminal networks.   Apprehending and then releasing illegal immigrants without follow-up or consequences does not do this.  Worse yet, would be an “open border” system.  Open borders would not merely be irresponsible, but also would invite criminal elements that are far more threatening than the cartels to enter our country. 

I am in favor of more effective enforcement of current immigrations laws and I believe that “zero-tolerance” is correct in its intention to uniformly prosecute individuals for breaking the law.  But I also believe alternatives should immediately be pursued to prevent family separation, and, as much as possible, to also prevent prolonged detention of family units.

On Family Separation:

Family separation in any circumstance is heartbreaking, specifically for the children involved.  While technically these individuals did break the law and detention/prosecution is a consequence of breaking the law, I do not believe their actions warrant measures that cause unnecessary distress.   I say this primarily in reference to those families and individuals who are coming with genuine claims of credible fear.  This section of the immigrant population is not a threat.  They are fleeing from terrible situations and have a legitimate need for safety.  If a compassionate response is possible while still upholding the law (and I believe both are possible), then alternatives should be readily pursued.  Families and especially children who have already been through so much trauma and hardship should not face the additional pain of being separated.  I believe the first few months of the zero-tolerance policy resulted in separations that could have been prevented with better preparation and foresight by the Trump administration.  As I touch on further below, I also think there are solutions that would enforce the law while still preventing the removal of children from their parents.

I have seen a lot of posts about President Trump’s “policy” of separating families.  While I do not like the man, I still believe that is important to be clear that the zero-tolerance policy as stated is to prosecute immigrants who enter illegally.  It is not a direct policy to separate families. The practice of family separation is a by-product of the actual policy, albeit a concerning by-product that we as compassionate people should be scrutinizing.  It also needs to be clarified that the government was acting in accordance with an existing law that was originally put into effect for the well-being of immigrant children.  The Flores settlement of 1997 and subsequent court rulings in 2015-2016 determined that it was not in the well-being of immigrant children to be kept in adult detention facilities.  Instead, children were to be remanded to the care of another relative (if available) or to the care of HHS/ORR in the form of foster care or a licensed facility.   The courts decided that 20 days was a reasonable amount of time for a child to be transferred from detention to an appropriate facility. That ruling did notspecify that parents had to be released along with their children.  Thus, in cases where the parent(s) would remain in detention past 20 days, the court essentially prioritized the “freedom” of the child over the unification of the family.  Based on the legal background, a more accurate term for “family separation” might actually be something like “child welfare removal”, though it results in family separation all the same.

Thus, the practiceof removing children from their parents did not originate with the zero-tolerance policy.  It was already occurring prior to zero-tolerance as required by law or as necessitated for the welfare of the child, albeit at much lower rates.  The reason we heard less about it prior to this year is because there were less cases in which this law had to be enforced.   The previous policy of “catch and release” meant that family units were often released within 20 days, and thus not subject to separation.  So, as much as I dislike President Trump, it is important here to point out that some of the more radical claims that he actually initiated the practice of family separation are inaccurate. 

Given the president’s past statements and rhetoric concerning immigrants, I truly do understand the desire to conclude that the underlying intention of the policy was to separate families.  While I do not yet see enough evidence to support this accusation, I do believe that the administration is at fault for not adequately preparing for the policy’s consequences on families.   An accusation of subsequent apathy might be more appropriate than an accusation of intentional family separation. It would have been beneficial for more “licensed” (Flores-compliant) family detention centers to have been prepared in advance as I am sure the administration must have seen these legal challenges coming. And, I believe it is wrong for the administration to suggest that family separation in and of itself be used as a deterrent for illegal immigration.  It may be necessary by law, but it should not be invoked as a form of “punishment” since innocent children are also being punished in this situation. 

On Compassion for Immigrant Families:

Now that that’s out on the table, let me also talk for a minute about immigrant families.  People who say things like “if they don’t want their family to be separated, then they never should have come here in the first place” are either dismissive or ignorant of the dangers and complexities of everyday life for a host of people in Central America.  Compassion is absolutely paramount to the conversation surrounding border security and immigration.  The stories that come out of Central America are tragic.  The need for sanctuary for many families (and individuals) is very real.  My husband have talked many times about what we would do if we were in the shoes of these immigrant parents.  We would flee too… to anyplace close enough that provided safety for our family.

Immigrants coming from Central America into the U.S. can vary greatly in terms of background, economic circumstances, country of origin, and reasons for entering the U.S.  On one end of the spectrum are criminals and cartel henchman coming in with malicious intent.  These individuals are dangerous.  They know the “game” at the border very well, making it easier for them to elude capture and to blend in to American society.  They typically have the resources and wealth of their cartel employers behind them, meaning that they can move around the country with relative ease while they facilitate smuggling operations, money laundering, arms dealing, cartel-ordered executions, etc.  Somewhere in the middle are the economic migrants, who tend to be city-dwellers and blue collar workers.  They typically have no fear of persecution or retribution at home, but merely want better economic or educational opportunities for themselves or their families.  They make a calculated risk to enter the U.S. illegally in hopes of flying under the radar and working at a job that would pay more in a month than they could make in a year at home.  

At the bottom of the totem pole are the individuals whose stories should elicit the most sympathy.  More often than not, individuals and families fleeing from rural places in Guatemala, Honduras, and Southern Mexico (Oaxaca, for example) tend to be poor, less educated, and more vulnerable to criminal organizations.  They also tend to be less “street smart” and less aware of the way the wider world operates, meaning that they are more easily manipulated by cartel guides on their journey into the U.S.  These people are often tougher physically due to their farming or labor-intensive backgrounds, but ill-prepared for the actual threats they can face on the journey.  They are the ones who tend to be conned, abused, used as “bait”, or abandoned completely by their traffickers.  They are more likely to be trafficked into bonded servitude.  They are also more likely to be apprehended.  They are the individuals who are mystified by computers as they watch their fingerprints being taken, and who are utterly amazed when they are given a tiny packet that unfolds into a large, shiny blanket (space blanket).  Some of these individuals are so truly innocent that they do not even understand they have entered the country illegally and are facing potential prosecution.  It has to be explained to them that they are not allowed to enter the United States without documentation.  And they are more often the immigrants who are fleeing with a legitimate need for asylum.  The heartbreaking problem is that many of them cannot articulate who is persecuting them or why, both of which are vital to proving a need for asylum in court. 

The immigration issue is highly complex.  Reform is no doubt needed.  The question is how to keep out criminal elements while also opening a door for those who legitimately need sanctuary.  That will have to be a conversation for a later post.  But I will say here that as long as the cartels continue to operate with relative impunity both inside and outside of Mexico, they continue to muddy the waters and ensure that there is less chance that we can reform our immigration system in a way that is both more effective and compassionate.

On the Options and Possible Solutions to Family Separation:

Let’s get back to the issue at hand.  So, what arethe options for addressing the problem of family separation?

To recap:

A)     Children must be removed from detention facilities after 20 days in accordance with law.

B)      Parents do not have to be removed from detention, but could be.

C)      Parents and children may be kept together in facilities that meet certain standards.

D)     Very few facilities currently exist which would meet the legal standards, and those that do exist are filled to capacity.

E)      If the Trump administration wants to prevent family separation, they can attempt to either A) seek an amendment to the Flores agreement, B) construct family facilities that would meet the standards of the Flores agreement, or C) release both parents and children together.

One option is to simply not detain or prosecute any family units apprehended near the border, either by simply releasing them or releasing them in the previous manner with a Notice to Appear.  Family units that are not detained or prosecuted would obviously not need to be separated.  Proponents of open borders have been pushing for this “solution”.   The obvious problem is that this approach essentially gives family units a free pass to remain in the country illegally.  What is most concerning, however, is that it actually strengthens the cartels and provides much greater opportunities for human smuggling organizations to traffic unaccompanied children for nefarious purposes.   

On the opposite end of the spectrum, there are people who suggest that the “solution” to the family separation problem is to simply prevent immigrants from entering the country illegally in the first place.  Oftentimes this view is pushed by those who desire a completely closed border with the intention of keeping “everyone” out, usually through increased border security measures.  The impracticalities of this approach are numerous, not to mention the complete lack of compassion displayed for immigrants who come here with a legitimate need for sanctuary.  Border security is a good thing.  I am in favor of strengthening border security in ways that are practical, reasonable, and effective.  I am also in favor of security measures that serve to deter and funnel trafficking operations.  However, the idea that we can completely stop illegal immigration is not realistic at this point.  The type of “security measures” necessary to achieve this end are impractical in terms of both financial and humanitarian cost.  We will never be able to completely halt the pattern of human and drug smuggling while the cartels are still operational. 

A lie I believe is being insinuated in some media outlets is that the only compassionate solution to this problem is release all family units on their own recognizance.  Are there options that provide both compassion and promote security?  I believe there are.  Here are three that I would support:

1)      Detain family units together in designated “family detention centers” that provide a less-restrictive environment while also keeping the families contained within secure facilities. 

The recent executive order indicates that the government might be heading in this direction.  I would support this option if it included a provision that set limitations on how long families could be held in detention (for example, no more than 1 year maximum).  The availability of family detention should not be utilized as an excuse to hold families indefinitely if the immigration courts become backlogged.  Family cases should still be prioritized in court to prevent the prolonged detention of family units.  But, unless the Trump administration is able to secure an amendment to the Flores settlement, there are practicality concerns with this option.  The time consuming nature of constructing and/or licensing new facilities to meet the standards of Flores could delay the wide-spread availability of this option.  

2)      Re-instate expedited removals for family units only. 

This option would still be tantamount to granting families a “free pass” since they would not face official prosecution.  However, enforcement overall would still be bolstered through the continued prosecution of all cases not involving children.  To be clear, this option would be applicable only for family units who are not claiming asylum.  There would also have to be a caveat to this approach to prevent a multiplicity of re-entry by the same family individuals.  For example, after more than three apprehensions, the adult family members could be subject to prosecution rather than being granted another expedited removal.  One downside of this approach is that it does not completely remove the availability of the “family unit loophole”.  Adult immigrants might still seek to avoid prosecution by falsifying a parental relationship with unrelated minors. 

3)      Release family units with one or both parents by serving the adults an NTA and fitting them with an electronic ankle bracelet. 

This is an option that has being utilized more in the past few weeks in order to prevent families from being separated after 20 days in custody.  The added measure of an ankle bracelet provides more assurance that individuals will show up in court, and prevents them from “disappearing” within the country if they choose to elude their court hearing.  A no-show in court would be an automatic deportation, and authorities would be able to easily locate the individuals through the monitoring system.  The benefit of this approach is that it ensures follow-up with prosecution and potential deportation, while relieving the government of having to house families and relieving families (children) from having to be placed in detention.  And, it allows families with a genuine case for asylum to live more “freely” until asylum is actually granted.  As with the family expedited removals, this option could still be utilized by smugglers seeking to take advantage of the “family unit loophole”.  However, the idea of wearing an ankle bracelet and being tracked by authorities would be a strong deterrent for adults (especially criminals) who might otherwise attempt to falsify a parental relationship.

I believe the above three options, or perhaps some combination of them, are the most realistic and effective for enforcing immigration laws while still providing a compassionate response to family arrivals.  The last two approaches would significantly cut down the number of families being held in detention for extended periods of time and eliminate the need for family separation to even be an issue, in most cases.