The separation of families at the Southern border has sparked furious outrage in recent days. The chainlink cages and creepy big box stores converted to house crying children ripped from their parent’s arms seem like the stuff of some fictional authoritarian dystopia. Yet, this is real.

From April 19 to May 31st, 1,995 children were separated from their parents at the border, according to Bureau of Customs and Border Protection data released Friday. President Trump has pinned the blame on “liberals” and insists that it is Congress’ problem to fix, not his — that is until late Wednesday he issued an executive order doing exactly that.

Still, while there are some complicated legal factors involved, the family separation crisis is an entirely foreseeable consequence of President Trump’s decision to change the way illegal entrants are handled when apprehended at the border.

The Backstory

Many of the people entering the country illegally are seeking asylum in the United States. Previously, the Obama Administration detained families together, sometimes for months, while their asylum claims were sorted out. But, Obama’s detention policy drew outrage from immigration advocates and the left who argued that locking up children was inhumane. In 2015, a Federal Judge ruled that the Flores consent decree, which stemmed from a 1997 case that barred the government detaining unaccompanied minors for more than 20-days, also applies to minors accompanied by an adult.

Because asylum claims take substantially longer than that 20-days to evaluate, children would have to be released before their family’s asylum case could be heard. Rather than split families up, the Obama Administration decided to release asylum claimants into the US with an order to return for a hearing in their case. Many of those released just melded into the country and were never heard from again.

This workaround — which President Trump refers to as “catch and release” — kept families together, but also made it advantageous to arrive at the border with a child in tow. The Trump administration argues that this created an incentive to expose children to the perilous border crossing, often facilitated by dangerous human smuggling networks.

While crossing the border is a criminal offense, past administrations have usually charged illegal entrants, especially first-time offenders with civil infractions. However, under the Trump Administration’s new “zero tolerance policy,” all illegal entrants will now be criminally prosecuted.

The problem is that you can’t bring kids to jail. The criminal justice system is just not equipped to accommodate children. So, children are taken from their parents and turned over to the Department of Health and Human Service’s Office of Refugee Resettlement (ORR). ORR houses the children in detention facilities while they try to find a relative or friend in the United States that can take the child. Once the parent’s asylum claim is decided, they can then reclaim the child. But, in some cases, ORR has been unable to locate the child before the parent deported. It isn’t supposed to work this way, but it happens often enough that a hotline has been set up to help deported parents find their children.

A Range of Explanations

Many of the immigrants crossing America’s southern border and seeking asylum did so because they believed that America is benevolent and fair in a way that their home country was not. President Trump’s policy will disabuse them of that notion. Instead, it sends the message that America is mercurial and cruel — don’t come. Whether this was the intent depends upon who you ask. Various Trump Administration officials have offered a range of contradictory explanations for the policy.

Some Trump aides argue that the horrors being played out in converted big box stores on the southern border will serve as a deterrent to other potential illegal immigrants. The message is stark: try to come to America illegally and your children will be taken from you.

Others, like Homeland Security Secretary Kristjen Nielsen bristle at this. In a press conference Monday, a reporter asked whether family separation was intended to send a message to discourage would be illegal immigrants. Nielsen shot back. “I find that offensive,” Nielsen said. “No. Because why would I create a policy that purposely does that?”

Instead, Nielsen claimed that it out of her hands. “Congress and the courts created this problem, and Congress alone can fix it,” Nielsen said.

Maybe. But, the Trump administration knew that criminal prosecution of all illegal entrants would mean that families were separated. Yet, they did not seem to do much to prevent the problem. There doesn’t seem to have been much effort to inform Congress or seek any legislative action to fix it before moving forward with a zero-tolerance policy.

Previous administrations faced the same quandary and thought better of it though. “The agencies were surfacing every possible idea,” Cecilia Muñoz, President Obama’s domestic policy adviser, told the New York Times, including whether to separate parents from their children. “I do remember looking at each other like, ‘We’re not going to do this, are we?’ We spent five minutes thinking it through and concluded that it was a bad idea. The morality of it was clear — that’s not who we are.”

The situation at the border is a result of long-simmering problems that Washington has been unable to solve. Immigration, once a mostly bipartisan issue, now inspires a frothing at the mouth anger that has paralyzed our political system and rendered it impotent to deal with the issue in any meaningful way. The result is a broken system held together by dubious executive actions and other half-measures. The chances of that changing any time soon are slim.

Matt Tait, a cybersecurity expert, and also a rather keen political observer, may have put it best in a recent tweet: “The outrage will perhaps evaporate in a few days, but the insane suffering caused by our national inability to have a sustained and serious conversation about immigration will not.”

Comments

comments