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.
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