The administration’s “zero tolerance” policy at the border has engendered one of the more intense firestorms of Trump’s presidency, and that’s saying something.
The administration has moved to prosecute all adults illegally crossing the border, including those traveling with children. This entails the separation of the children from the adults, who are taken into custody of the criminal-justice system, which doesn’t take care of kids. They go to shelters. The legal proceedings against the adults, unless there is an aggravating factor, are rapid and pro forma — they are charged with a misdemeanor offense, and they usually plead guilty and are sentenced to time served. The idea is to send a message that we take our laws seriously and create a deterrent against illegal re-entry, which is a felony. The entire process takes a matter of days. In theory, then the adults can be reunited with their children and deported together.
But the adults will often claim asylum. The administration wants to hold as many of the migrants as possible while their claims are adjudicated, because if they are released they are likely to abscond. Under a more rational system, the parents and the children could be held together. But the long-standing Flores consent decree, recently expanded by the courts, makes it impossible to hold minors for more than about 20 days. This means that if we want to keep families together the only option is to release them together — creating an incentive for more migrants to make the dangerous journey to the border, to get released into the interior in their turn.
This is an insane way to run an immigration system and starkly pits humanitarian concerns against enforcement. It’s easy to condemn the separations at the border — they are indeed wrenching and appear to be overwhelming an already taxed system. But most critics don’t grapple with the fact that the administration literally doesn’t have the option of holding parents and kids together for more than a few weeks, which isn’t long enough to resolve an asylum claim.
Congress needs to address all this. It should give the executive the authority to hold kids longer than mandated in the Flores decree; fix provisions in a well-intentioned anti-trafficking law that make it difficult to quickly deport Central American minors; appropriate funds for more detention space, especially family space; and hire more immigration judges and do everything possible to expedite the asylum process. (Attorney General Sessions took a step in the right direction by making it clear asylum isn’t for people fleeing general disorder or abusive relationships — it’d be even better if all asylum seekers had to apply at our consulates abroad or at ports of entry.)
The House is about to consider DACA legislation but should break out a border package focused on these measures, and Ted Cruz is proposing a similar bill in the Senate. One would hope it would have a good chance of passage in the slipstream of outrage over the last week; if Democrats won’t support it, it will be a telling statement that they oppose enforcing our immigration laws as much as separating families.
The only way that the ongoing influx at the border will stop is if migrants realize that they won’t make it into the United States. Congress has it within its power to make it possible to hold families together and — if they don’t have legitimate asylum claims — swiftly return them home together. It should act, and act quickly.
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