Brief # 42—Civil Rights
On April 6, 2018, Attorney General Jeff Sessions informed the world, on behalf of the Trump administration, that the government will be adhering to a “Zero Tolerance Policy” with respect to illegal border entry. The policy requires criminal prosecution for every person caught entering the United States without proper inspection. It is a federal misdemeanor to illegally enter the United States; which, evidently, the Trump administration has “zero tolerance” for. The most relevant externality is that minors are being separated from their parents whom are undergoing federal prosecution, and placed into the custody of the Department of Health and Human Services Office of Refugee Resettlement (ORR). As the parents remain in custody awaiting an immigration hearing, the children are placed in the sponsorship of relatives, juvenile detention centers, or foster care awaiting an Immigration Court to determine their status. After much criticism and anticipation, on June 5, 2018, the Office of the U.N. High Commission for Human Rights informed the Administration that such policy “is an unlawful interference in family life, and a serious violation of the rights of the child.”
The Zero Tolerance Policy is very simple, and very “effective.” If you enter the United States’ border illegally between port entries you will be federally prosecuted. Adults are sent to the custody of the U.S. Marshals Service awaiting an immigration court judge to arbitrarily determine their privilege to remain in the country. With an infamously backlogged immigration processing system, such determinations can take months to years. Now, what happens when parents are apprehended with their child(ren)? Attorney General Sessions provided a simple answer: “If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child separated, then don’t bring them across the border illegally.”
If you ask President Trump, his self-proclaimed power and influence has been arm-barred, naturally, by the Democrats. “We have to break up families” claimed President Trump, “[t]he Democrats gave us that law. It’s a horrible thing, we have to break up families. That Democrats gave us that law and they don’t want to do anything about it.” However, this is fake news; no federal legislation or court ruling requires families to be separated.
Since commencement, an estimated 700 children have been taken from their parents, deemed unaccompanied minors, and thus placed in the custody of the ORR awaiting sponsorship. In 2017, roughly 1,500 unaccompanied minors placed into sponsorship through the ORR have remained completely unaccounted for. Their parents wouldn’t be able to find them; the court could not find them; the system could not save them. This is not fake news. But, according to Chief of Staff John Kelly, there is no need to worry because “[t]he children will be taken care of – put into foster care or whatever.” Oh, nothing eases the life-long psychological trauma to infants like the comfort of a “whatever.”
A core pillar of American jurisprudence with respect to minors is that rulings shall be in the best interest of the child. It is extremely difficult to comprehend – especially with an absence of justification from the government and the Trump administration – how inflicting such unnecessary psychological trauma on children is in their best interest.
The narrative would be different if unaccompanied minors were placed into the custody of an agency not violating their most basic human rights. Unfortunately, that is just not the case. After the U.N. requested the Trump administration to immediately stop the policy of separating families, Ravina Shamdasani, spokeswoman for the U.N. Human Rights Office, commented that: “The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles.”
Our current situation provokes the ever so common response: So, what now? To begin, we can find comfort in knowing that the outer boundaries of executive power are being identified and regulated due to the hubris of the Trump administration. Then follows social action. It is indisputable that enforcement of sound immigration policy is important and necessary. But, there is a vast different between individuals illegally crossing the border alone, and those seeking refuge or asylum for themselves and their minor children.
Should there be a contextual balance, where parents apprehended with their minor children are held together in administrative custody whereas adults without children are placed in criminal custody and federally prosecuted? Another option, although riddled with routes for legal challenge, would be lawsuits arguing that the policy of separating families is a constitutional violation which would hopefully result in a court-ordered injunction.
If all else fails, we can fall back on the system and continue voting! If we cannot welcome those in need via our current laws, we can change them. Persistence is key; let’s make it common practice to utilize the opportunities of our brilliant governmental structure.
- American Civil Liberties Union (ACLU) – Non-profit with a mission to defend and preserve the individual rights and liberties guaranteed to every person.
- UnitedWeDream The Largest immigrant youth-led network in the United States.
- FamiliesBelongTogether A Grassroots organization demanding an end to the harmful family separation policy.
This Brief was submitted by USRESIST NEWS Analyst J.R. Phillip: firstname.lastname@example.org
Image by Elias Castillo