For the first time in 50 years, a US President is enforcing the illegal entry laws that protect America. The result of the prosecutions has created the separation of minor children from parents apprehended illegally after crossing our borders. The pictures, the “fact-checking,” the media reporting, and the social media hysteria has created a Border Propaganda war among mostly ill-informed Americans.
Let’s set the record straight for anyone who cares about the law and facts.
Has Trump Adopted a Policy Mandating that Families be Separated?
No. That’s not only false but in some cases, it is couched in these terms for propaganda to be deliberately false and to continue to mislead people. There is no “policy to separate families.” The Trump administration has ended catch and release, and it has asked DOJ to charge and prosecute all people apprehended for illegal entry. It is the law that requires separation.
Why are Families being Separated, and Why Doesn’t President Trump do Something About It?
Please read this carefully. The law in the United States, affirmed on July 6, 2016, requires that family members be separated from those held pending charges. Trump can’t change that. Only Congress can change that.
Update … minutes after I published this piece, the President issued an executive order mandating that families held separately from those facing charges at detention centers be held together. I didn’t list this as an option, because it is not one. Really.
While it may be popular, and maybe even right to order that families held be held together during the pendency of criminal charges … the only fix for a Court decision on the law … is a legislative fix by the Congress.
That’s third-grade civics.
Update 2 — 6-21-18 — You can read the text of President Trump’s executive order right here. I am glad we have it. Effectively, it changes nothing right now. The President has stated that it is his intended policy to hold families together while a parent or parents face charges on illegal entry (or others). Most importantly, it does the only thing it can do. It directs the Attorney General to “initiate proceedings” … which means file a motion or action with the correct court, asking that court to modify the Flores consent decree so that families can be held together.
The law presently prevents that, as discussed and cited in this piece. The President can’t change that law. He needs a Court, and the parties to that original decree to agree with the modification. They likely will. Then, the Court needs to reduce this to an order to take effect. That could take some time.
Also, the law that separates families is based on case law that interprets the decree. The Court that gets this case must look carefully to ensure that neither court that upheld that law did so based on other grounds or precedent. If it did, amending the Consent decree alone would not be enough. In short, until a Court takes action on the AG’s request directed by this President, families will and must remain separated if the President wants to continue to enforce the illegal entry statute on the books since 1952.
Why didn’t President Obama do This too, if That is the Law?
Actually, he did. In fact, this entire fake crisis was kicked off when a former Obama advisor tweeted out a picture of kids sleeping on the floor in what looks like a cage. As it turns out, it was a 2014 photo from conditions in a detention center under President Obama. The difference between the two administrations is this. Mr. Obama, like Bush, Clinton, Bush Sr., Reagan, Carter, and Nixon, rarely enforced fully the illegal entry laws.
Mr. Obama, for instance, either caught and released illegal entrants, or he caught, charged them, and released them and their families to come back for a court date. This means far fewer children being separated because far fewer offenders were being charged and held.
Why are We Charging People with Crimes for Seeking Asylum?
UPDATE — I inadvertently mischaracterized this explanation … and an angry you alumni from my law school was quick to point it out. There is one way to lawfully seek asylum in the US without any risk of being charged with illegal entry. It is to appear at a US port of entry and declare your intent to seek asylum. Ironically, if you sneak into the US and you are not caught for illegal entry, you may also apply at any immigration office. And, I should add, even after being caught sneaking into the US illegally and charged for that crime, you can still seek asylum, which may explain the mixed up incentives driving people illegally over our borders.
You cannot seek Asylum at an embassy or consulate. I was mistaken on that, as I read it quickly and did not realize that all you can do at an embassy or consulate in your home country is seek guidance to apply for refugee status … which of course has many of the same elements of Asylum.
Before illegally crossing the American border, those detained could have stopped at the US Embassy or one of our 8 consulates in Mexico to lawfully ask for guidance on and seek refugee status. This you can and should do before breaking our laws and illegally entering the country. It would also be safer for travel with young children, and it would reduce the risk of separation.
As I noted above, one you are apprehended illegally entering, you may still seek asylum, but that does not eliminate the charge for illegal entry. That is why they are being held. As one might imagine, if we let the request for Asylum eliminate the charge for illegal entry, then every illegal entrant would request asylum … vitiating the law and destroying the timeline and disposition of legitimate asylum cases.
What is Asylum, and Can Every Immigrant Get It?
This is not meant to be a legal treatise, but it is critical to understand that asylum is completely different than mere immigration. An asylum-seeker must prove that his country’s government, either on its own or through action it directs, is persecuting an individual based on his or her religion, race, or national origin. He or she may also make a claim of political persecution, or persecution belonging to a particular societal group.
The number of these legitimate cases arising from countries in South America is quite small. Right now, the overwhelming majority of immigrants are economic immigrants seeking a better life and more opportunity, and indeed in some case simply fleeing violence that results from the breakdown of social order and economic opportunity. Still, as they are apprehended on the border, many are claiming asylum. This is creating a huge backlog as this country works hard to adjudicate these claims, even if meritless.
What Can President Trump do To End Family Separation at the Border?
As discussed, his options are quite limited. Certainly, if Congress acts and passes a bill on the issue, the President can sign it. The Republicans have offered a bill, but at least initially, the Democrats have rejected any bill that would address family reunification.
The only thing the President can do to stop separations is to either not charge the crime of illegal entry, a decision that has led in some years to up to 1 million illegal immigrants crossing our border each year. Or, he can charge the offense, but release the charged illegal immigrant into our country with the functional equivalent of a ticket. He would then have to hope the charged individual returns, which they almost never do. This same practice is why, again, immigrants come without fear of being caught.
Are Conditions Really Inhumane and Horrible at the Detention Centers?
This is mostly political propaganda. Make no mistake, the detention centers, like our country, are over-run. In some instances, during processing, kids, families, and young adults are held in cramped quarters. And, yes, these conditions are not great. Inhumane? That’s silly and offensive. Conditions are cramped because since April alone, over 50,000 illegal entrants were caught. These are just the people caught. Nearly 30,000 are from the Rio Grande corridor, resulting in overflow conditions at the detention centers. However, the same professionals working in this administration are the same from the last. Each is working to process detainees and put them, as the law requires, in the least restrictive environment.
What Adds to the Problems at the Detention Centers, and How are Kids Treated?
Nearly 70% of children taken into custody are taken in without the presence of an adult family member. That’s remarkable. Moreover, many “families” can’t prove that they are related. In fact, many families come without ID because ID would show, first and foremost, that they are here illegally. ICE must establish a familial connection, which is not a simple process. This slows movement in the detention center from “holding areas” you see on propaganda pics to actual quarters where many kids ultimately land, which often have much nicer food, sleeping quarters, and recreation areas.
Let’s not lose sight of the fact that all the detainees and the children they brought with them are in those positions because the detainees broke our laws and were apprehended. If you broke the law with your children and were taken into custody, the jurisdiction would likewise have to account for your kids. They can likely do that far more easily than they can with a foreign alien without ID, who may not have a legal relative to whom the children can be released.
If illegal Entry is Just a Misdemeanor, Why Hold These Aliens?
This is the question and narrative of some legitimate people and other open-border’s advocates. Illegal entry is a misdemeanor, punishable by up to 6 months in jail. If this were a misdemeanor for an American, such as drunk in public, yes, then you might be held in the drunk tank and then released. Why? You are an American, with ID, and address and our system understands how to find you and hold you to account if you do not appear for your appointed date.
In this instance, the crime is illegal entry into the US. Releasing a foreign national into the US when he or she violated the law by entering illegally and planned to assume an identity in an address unknown, release becomes a reward, rather than a punishment. Trying to equate the two by using the same word, misdemeanor is misleading at best, and dishonest at worst. The facts matter, as do the type of violation and the ability of the jurisdiction to hold someone to account if released.
As noted above, issuing a court date for the violation is the functional equivalent of catch and release.
Isn’t Enforcing Illegal Entry Just a Political Tactic by the President to Get his Wall and Other Concessions on Immigration Reform?
That’s a political question. Here is what we can say. A federal court previously enjoined the Obama administration because it tried to justify detaining unaccompanied minors by saying that it was a deterrent. The DOJ under Obama withdrew that “guidance.”
Enforcing laws on the books, such as charging all caught with illegal entry can’t be enjoined. The government has the right to enforce its laws. Is enforcing its laws a deterrent, I am sure it hopes so. Is there a political element to the decision to enforce the law, probably? However, let’s not forget that for 50 years, the decision to either not enforce the law or selectively enforce it, was the ultimate political choice. Ironically, blanket enforcement of the law is the fairest application of the law, and thus the least political.
There is no “policy to separate children.” It’s the law. When people tell you it is not, hit the link I provided in this article and send them the case.
There is a policy to enforce the law of illegal entry without regard to favoritism, and that results in an even application of the law against all those who enter illegally.
Asylum seekers have legal means to seek asylum, and even those caught here illegal may still seek asylum, it just doesn’t negate the charge they face for illegal entry.
If Americans want families held together pending these charges, they need to ask Congress to change the law and permit ICE to do so pending charges.
In a normal world, we would laud the effort to apply the law evenly. We would celebrate that law is finally being enforced. We would commend ICE, working under horrific conditions, for doing the best it can given the number of illegal entrants. We would recognize that the border surge has been created by decades of non-enforcement and the expectation of immigrants that it will be the same.
As for families, we would ask the two parties to work together responsibly to ensure that there is a sensible, workable, verifiable method to keep real families together, when and where possible, even if they broke the law. Just recognize, that not everyone thinks that is a good idea. That is to say, I know no one without sympathy for young children separated from their parents as a result of parental crime, be it drugs, larceny, or illegal entry. However, we don’t give that same break to Americans.
In fact, we do what the Flores decree envisioned. We hold for as short a time as possible. We hold in the least restrictive environment. We look immediately for a relative and absent that, we protect minors the best we can in a state system. If we change that for foreigners who break our laws, we provide illegal aliens something we don’t do for Americans on our own criminal justice system. I am not sure that is a sound public policy or the right set of incentives. But, I allow for Congress to make the call based on the demand of its constituents.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of the new book on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
Before returning to private practice, Rich taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.