If you, like me, feel like you're barely treading water in the ocean of human horrors created by the Trump administration, it can feel like the zero tolerance immigration policy almost came out of nowhere. One day I was bemoaning the inaction on DACA, the next we have concentration camps full of innocent children. Given that I only started hearing about this in the month of June, I'd assumed this cruel and inhumane policy was announced very recently. But as I did some research, I realized that I'd become so overwhelmed with all the human rights abuses of the Trump administration that I'd missed the early days of this policy.
Back in March of 2017, John Kelly who was then the Secretary of Homeland Security discussed the idea of a policy to separate children from their parents when family crossed the border. Secretary Kelly specifically said he was considering this policy to deter people from crossing the border illegally. In April, the New York Times reported that around 700 children had been taken from their families, though at that point it wasn't clear that this was a formal policy. Then this May, Attorney General Jeff Sessions (human Confederate flag) announced a policy that said anyone crossing the border illegally would be prosecuted, and children would be separated from their parents.
And although family separations have been going on since October, it's only recently that Congress responded. Senator Dianne Feinstein (D-CA) introduced a bill to end family separations except in extreme cases, and while every Democrat is a co-sponsor, there are currently no Republican supporters of the bill. This means the bill is dead in the water in both the House and Senate.
And while Trump recently signed an executive order to end family separations, he made no moves to reunite children with the parents they were separated from. And children can only be held in federal custody for 20 days, according to a 2015 court case, which is going to pose challenges if the administration truly wants to prosecute everyone who crosses the border illegally.
Why is that going to be a challenge? Because our immigration courts are severely backlogged. Currently, there are only 334 immigration judges for 715,000 cases, which means each judge has over 2,000 cases. The National Association of Immigration Judges estimates that they would need a total of 1,000 judges to even address the backlog, a move that will require a lot of money. Without more judges, families are forced to wait up to 2 years for their case to be heard.
In those 2 years, the government has two options. They can choose to hold people in jail, or they can allow them to live in the United States if they promise to show up for their court date. Detaining people for so long is incredibly expensive so people are generally released into the United States, a practice the Trump administration would like to stop.
"But Bella," you ask, sounding surprisingly like my Republican uncle. "Why not just deport them immediately?"
Well, hypothetical Republican, because our Constitution grants all people a right to due process. Due process, which applies to anyone on United States soil, no matter their citizenship, allows people to exercise all legal rights and court processes afforded to them by American law. For undocumented immigrants, this means they can appeal deportations in the immigration courts (though they may have to wait 2 years to do so).
However, there is an expedited process for anyone caught within 100 miles of the border who has been in the country for less than 14 days. Immigrants can fight this by claiming asylum, if they have a fear that they will be persecuted if they return home. For many immigrants, there is enough violence back home to make a journey to the United States worthwhile, and create a credible asylum claim for a compassionate judge.
Now on top of all that, currently immigration is a civil process. But the Trump administration's new policy would also prosecute these cases in a federal criminal court, in addition to the immigration courts. Illegally crossing the border once is a federal misdemeanor, which puts this crime on the same level as the transportation of water hyacinths, using Smokey the Bear for commercial purposes, and mailing lottery tickets. Unless we plan to start putting children in foster care if their parents use an airplane to hunt wild horses, family separation is a disproportionate punishment for people who have committed the federal misdemeanor of crossing the border illegally.
If the Trump administration truly wants to hold people indefinitely in response to a misdemeanor, they are going to have to flout a court case and find a lot more space to house the 50,000 people who are caught crossing the border each year. That means the $3.2 billion the government spent last year on deportations and detaining undocumented immigrants will not be enough to carry out the Trump administration's plan. And finding more money will be hard too, given that the tax bill will decrease government revenue.
Like all things in the Trump administration, this wasn't well thought out. But because of that, and because this policy happened at the executive level, it's hard to find solutions people on the ground can support. RAICES in Texas is doing great work on the ground to try to reunite families and can use donations, Texas Civil Rights Project is looking for Spanish speaking volunteers, and the American Immigration Lawyers Association is looking for people who can volunteer their legal skills.
For the rest of us, there are protests happening this Saturday, and it's never a bad idea to call your elected officials and tell them to stand up and put an end to this inhumane (and poorly thought out) policy. And of course, the midterms are right around the corner, even though lately, ever week feels like a year.