Too Late To Ask: Zero Tolerance Policy

An HPR column about things you don’t really understand, and it’s just too late to ask.

Trump administration family immigration policy edition

The What:

In April of this year, Attorney General Jeff Sessions announced his “zero tolerance” immigration plan. By this he meant that the United States would aim to prosecute every person who crosses the border illegally, and particularly those who cross the U.S. border with Mexico. As a result of this plan, adults caught entering the country illegally were put in federal criminal detention centers while awaiting prosecution. Because it is illegal for kids to be held in these facilities, the government instead separated children from their parents. They then put the children in permanent shelters and temporary overflow holding facilities around the country. The news media has closely covered the roll out and partial rollback of this policy following articles showing how the policy affected families and detailing a converted Walmart holding over 1,400 immigrant boys.

The Political Climate:

Before this year, when families who illegally crossed into the United States were apprehended, the policy was either “catch and release” or family detention. The catch and release policy allows families to live freely in the United States while the parent or parents await an immigration hearing. Family detention was used during the Obama administration. Even this practice of holding immigrant families together in low security, prison-like conditions while awaiting clearance to live and work in the United States under refugee status was widely considered inhumane.

In 2015, more than 150 House Democrats signed a letter to the Homeland Security Secretary calling for families to be released. That same year the courts upheld a 20 day limit on the amount of time migrant children could be detained, which had been agreed upon in the settlement of the 1997 court case Reno v. Flores, after the Obama administration asked for an extension of the limit. The limit does not apply to children separated from their families this year because, once separated from their families, the government treats them as if they had entered the country alone.

The new policy announced by Sessions came at a time when Americans were relatively divided about illegal immigration. In a 2017 Gallup poll, 38 percent of those questioned wanted immigration to be “kept at its present level,” 35 percent wanted immigration to decrease, and 24 percent wanted immigration to increase.  In September of 2017, Trump announced that he would be phasing out the Obama-era DACA program which allowed people illegally brought into the United States as children to remain in the country to study or work.  Then, in April of this year, a federal judge ruled that the program should continue without hindrance. As further evidence of the country’s split interests, the Supreme Court later upheld Trump’s travel ban; a federal appeals court had ruled a previous version of the ban unconstitutional.

The Reason:

Throughout his campaign and into his presidency, Trump has called for and worked towards stronger border control. The resulting crackdown, which led to family separation, is the latest installment of his overall immigration policy, which has included the travel ban and plans for a border wall.

The Players:

The backlash in response to this policy’s implementation was immediate, harsh, and bipartisan. Political figures around the country, including Sen. Mitch McConnell (R-Ky.), Sen. John McCain (R-Ariz.), Mitt Romney (R-Utah), Rep. Nancy Pelosi (D-Calif.), and all five living first ladies called for the reunification of families. Trump denounced the practice in interviews and called for Democrats to change “their” law, but separating families at the border is a policy implementation decision made by the Trump administration and is not mandated by law.

The Now:

On June 20, Trump signed an executive order to keep families together. The order replaced the policy of separating families with the Obama-era practice of family detention. Without releasing families, detaining the children for more than 20 days will violate the Flores settlement. Trump has expressed a desire to request, as Obama did in 2015, the extension of the limit so that the government can detain families together throughout the duration of immigration proceedings, which usually last over 2.5 years.

A California federal judge ruled on June 27 that families who have already been separated must be reunited within thirty days. As of August 18, however, 565 children had yet to be reunited with their parents. Those parents who are allowed to stay can sponsor their children through the immigration process. If the government deports the parents, these adults must then make the difficult decision of either taking their children back to their home country or leaving them in the United States as unaccompanied minors. Already more than 150 parents have made the unthinkably difficult choice to remain separated from their children indefinitely as the kids make their way through the immigration process alone.

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