Very similar to a New York Post article written last week, The Washington Post published a pseudo-fact check on the Trump administration’s claims that child separation is due to a class action settlement and more recent court rulings. Both papers said the Trump administration was incorrect and both papers are dead wrong.
The Post begins its article with a set of quotes from the Trump administration on child separation attributing the actions to a court settlement and inaction by Congress. It then goes into activist mode and dishonestly fact-checks the quotes.
The president and top administration officials say U.S. laws or court rulings are forcing them to separate families who are caught trying to cross the southern border.
These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This “zero-tolerance policy” applies to all adults, regardless of whether they cross alone or with their children.
The president can have a zero-tolerance policy on illegal immigration and not be forced to separate minors from adults who are being prosecuted, but it would require changes to immigration law or authorization for additional resources that only Congress can deliver. What the Post is advocating for is “catch-and-release”, or basically ignoring the law and releasing illegal aliens into the United States.
The New York Times article’s final statement erroneously places the blame on the White House while ignoring Congress’ required role:
Under Flores, the government has three options: releasing families together, passing a law that would allow for family detention or breaking up the families. The Trump administration has so far chosen the third option.
The president didn’t “choose the third option.” He chose to prosecute those who would break the laws that Congress wrote and passed. Unfortunately, due to the Flores Consent Decree of 1997 and a follow-up set of court cases, the government can only hold the children for a very short period of time.
It says that unaccompanied children can be held only 20 days. A ruling by the Ninth Circuit extended this 20-day limit to children who come as part of family units. So even if we want to hold a family unit together, we are forbidden from doing so.
The clock ticking on the time the government can hold a child will almost always run out before an asylum claim is settled. The migrant is allowed ten days to seek an attorney, and there may be continuances or other complications.
This creates the choice of either releasing the adults and children together into the country pending the ajudication of the asylum claim, or holding the adults and releasing the children. If the adult is held, HHS places the child with a responsible party in the U.S., ideally a relative (migrants are likely to have family and friends here).
Only Congress writes laws, not the president. And this one that would have to increase family detention space by authorizing funding (Congressional authority) and/or vastly increase the number of immigration judges to expedite asylum hearings to meet the Flores decree requirements. That would also require the Congressional authorization of funds. The president can take neither of these actions on his own because it requires Congress to authorize the spending at a minimum and write laws guiding the application of those funds.
The other two options come from poorly-written and/or non-existent laws that only Congress can remedy.
First, releasing families together into the United States is the loophole that the president has repeatedly mentioned. It comes when the adult alien(s) claim asylum, are granted a hearing at a future date and are released with their children into the United States – almost always resulting in them failing to return for their hearing and never being seen again. Once those wishing to illegally enter the United States learned that having children with them would guarantee their release into the country, the number of illegal aliens crossing the border with children skyrocketed. This creates a situation where small children are dragged through Central America, thrown on trains, exposed to rapists, thieves and sex traffickers – often multiple times. It is not a trip any child should ever take. Releasing illegal alien families into the United States is not a responsible answer and it aids those who would break U.S. immigration laws.
Second, the president didn’t choose to break-up families. He chose to enforce immigration law.
The Trump administration isn’t changing the rules that pertain to separating an adult from the child. Those remain the same. Separation happens only if officials find that the adult is falsely claiming to be the child’s parent, or is a threat to the child, or is put into criminal proceedings.
It’s the last that is operative here. The past practice had been to give a free pass to an adult who is part of a family unit. The new Trump policy is to prosecute all adults. The idea is to send a signal that we are serious about our laws and to create a deterrent against re-entry. (Illegal entry is a misdemeanor, illegal re-entry a felony.)
Both The New York Times and Washington Post are advocating for open borders via “catch-and-release” – nothing more. Their feigned outrage at the separation of children from illegal aliens would more correctly be aimed at the parents who chose to break U.S. law after dragging a small child into the horror show that is a 1,000-mile trek through hell. Honestly, if the separation was really the concern of the parents, all they have to do is plead guilty to a misdemeanor and they’ll be released quickly and taken back to their home country as a family.
The criminal proceedings are exceptionally short, assuming there is no aggravating factor such as a prior illegal entity or another crime. The migrants generally plead guilty, and they are then sentenced to time served, typically all in the same day, although practices vary along the border. After this, they are returned to the custody of ICE.
If the adult then wants to go home, in keeping with the expedited order of removal that is issued as a matter of course, it’s relatively simple. The adult should be reunited quickly with his or her child, and the family returned home as a unit. In this scenario, there’s only a very brief separation.
But that’s not really what the left is worried about is it? Nope, this is about open borders and having an emotionally-charged issue with which to beat-up Republicans ahead of the 2018 midterm elections – nothing else.