By Everard Meade
Separating families and inflicting harm on children as a negotiating ploy is inhumane, illegal, and immoral. The country has spoken and the President issued an executive order that promises to end the practice.
Unfortunately, the executive order does not address the core of the problem, nor is it likely to pass legal muster.
The core of the problem is the President’s decision to criminally prosecute every possible incidence of “illegal entry,” a departure from the policy of every presidential administration since Eisenhower.
This “zero tolerance” policy remains unchanged. Instead, the President ordered the detention of children with their parents while they await prosecution, for a period of up to 20 days. The time limit is grace period defined by a successful legal challenge to the Obama Administration’s policy of family detention during immigration (not criminal) proceedings.
The same law that invalidated the Obama Administration’s policy invalidate’s Trump’s executive order. The 1997 consent decree in Reno v. Flores, which sets the conditions for the handling minors across our immigration system, prohibits the detention of minors (accompanied or unaccompanied) and the separation of families. Thus, the executive order is likely illegal on its face.
The administration is surely aware of this. The title of the order — “Affording Congress an Opportunity to Address Family Separation” — suggests that it is intended to be temporary or even irrelevant by the time the courts could consider a legal challenge, a strategy likely informed by this president’s previous executive orders on immigration.
What about deterrence and legality? The Attorney General and Secretary of Homeland Security have argued that asylum seekers should enter the United States legally, and thus avoid separation from their children. But, there’s more than a little bad faith here. Up and down the U.S.-Mexico border DHS agents and private contractors are blocking asylum seekers from setting foot in our ports of entry — checking passports halfway down the bridge between El Paso and Ciudad Juárez, or on the sidewalk in front of the gates at San Ysidro, and blocking asylum seekers from entry on a variety of pretexts. Many have gotten in — especially those accompanied by lawyers or journalists — but many others have been turned away, and there’s clearly a policy of making it as difficult as possible.
The irony here is that family units apprehended together are eligible for “expedited removal” proceedings, and thus avoid the backlog of 700,000 cases clogging our immigration courts. But, the second a minor is separated from her parents, she becomes “unaccompanied” and thus by law cannot be removed without a hearing in front of an immigration judge.
In other words, the family separation policy actually created unaccompanied minors, and thus made it more difficult and time-consuming to remove those individuals who do not have valid immigration claims, in addition to the harm caused by separating families.
But all of this is a grand distraction.
At the simplest level, the U.S. attorneys who are prosecuting “illegal entry” cases today are not prosecuting drug smugglers, money launderers, fraudsters, spies, or terrorists. The same goes for the federal agents who are apprehending, processing, and detaining thousands of ordinary people, for months or years, people who would’ve been removed almost immediately under the previous policy. And then, of course, there’s the bill — detention centers charging taxpayers $175 a night or federal defenders $150 an hour for cases likely to produce minimal sentences.
Much more important, we’re not listening to what the asylum seekers are telling us. Recent cases from Mexico and Central America have painted a vivid picture of a regional security crisis that is spiraling out of control. Look at the violence assailing the current election season in Mexico, the murder of scores of journalists and activists, and the routine discovery of mass graves full of unidentified Central American migrants. Things are worse in Honduras, Guatemala, and El Salvador. The scale of the killing, the wholesale hijacking of democratic institutions, and the holding of civil society hostage points to something much more severe than mere “crime.”
What have we done to address this crisis? At the macro-level, we’ve doubled down on the failed policies of the drug war, cut foreign aid, and reduced the Foreign Service. More specific to the region, we have farmed out immigration enforcement to Mexico (which has been deporting tens of thousands of Central Americans on our behalf since 2014), the President has rescinded Temporary Protected Status for 300,000 people who now face deportation to the region, and the Attorney General has overruled 20 years of careful legal precedent in attempt to disallow all asylum claims based on gang violence and other kinds of criminal threats.
Rather than global leaders, we’ve acted like a myopic local school board, demonizing the kids from the other side of the tracks and locking them up whenever possible to keep them out of our neighborhoods. We haven’t seriously asked them why they are willing to risk life and limb to come here — especially when we’re not exactly rolling out the welcome mat — or why they are so obviously afraid and traumatized. This doesn’t make us great, and it certainly doesn’t make us good (or smart).
We would do well to re-examine the findings of the 9-11 Commission. They paint a picture of a country increasingly distracted by sex scandals, culture wars, and demographic anxiety, a country that failed to invest in the future during a time of plenty, a country building fences, pulling out of international commitments, and tin-eared to rising dangers abroad — a country that was caught utterly flatfooted by attacks that look like a slow-moving train with hindsight.
Once again, we are willfully ignoring how connected we are to the rest of the world. We’re pretending that a 20-foot wall could somehow insulate us from the world that our commercial, military, and family relationships crisscross at light speed, that the killing of a quarter million people in our own backyard is somehow “private violence” that’s none of our business, that children aren’t children because they’re not our children.
The only way to see these children as a “threat” is to see the changing demographics of America as a threat. The fact that we are becoming less white is not a threat to national security, at least most of us don’t see it that way. We need a serious conversation about this, and a much more substantive, reasonable threat analysis. We could start by listening to these families. They are trying to tell us some pretty important stuff.
Everard Meade is Professor of Practice at the Kroc School of Peace Studies and director of the Trans-Border Institute at the University of San Diego.
