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Detained immigrant children bring scrutiny to Trump’s border policy

Why We Wrote This

Border security and humanitarian treatment of unauthorized immigrants are often portrayed as mutually exclusive. But, especially when it comes to the treatment of children, experts say there are solutions that can combine both.

J. Scott Applewhite/AP
Hawa Tembe, whose mother is from Mozambique, joins the applause as Sen. Kamala Harris (D) of California, top center, Hispanic Caucus Chair Rep. Michelle Lujan Grisham (D) of New Mexico, and Sen. Catherine Cortez Masto (D) of Nevada, protest against a Trump administration policy that separates children from their parents to deter migrants from crossing into the United States, at the Capitol in Washington, May 23.

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How do you lose 1,475 immigrant children? That’s what many have been wondering since a social media firestorm erupted over the weekend. But key details have been conflated. Last fall, the government tried to follow up with 7,635 minors who had arrived in the United States unaccompanied and had been placed with sponsors; of those, it was unable to reach 1,475, possibly because their sponsors are themselves here illegally and afraid to respond. Separately, under President Trump’s “zero-tolerance” policy on illegal immigration, this month his administration began criminally prosecuting all adults caught crossing the border unauthorized, including those seeking asylum, which has resulted in effectively separating all parents from their children. Previously, most families were allowed to remain intact pending resolution of their case. While Mr. Trump has not changed the law, his administration is using all the levers available to it – levers that many see as unduly harsh and possibly in contravention of international law. Some see a middle way, however, that embraces both security and humanity. “We can enforce our laws and treat human beings the right way, and those two things don’t have to be mutually exclusive,” says Kristie De Peña, director of immigration and senior counsel with the libertarian Niskanen Center in Washington.

A social media firestorm about 1,475 children “lost” by the federal government, together with a new policy that results in separating unauthorized immigrant children from their parents, has heightened scrutiny of President Trump’s zero-tolerance approach to illegal immigration.

Amid recent reports – some examining Obama-era enforcement – of children being beaten by government agents and in some cases released to human traffickers and forced to work in miserable conditions, ramped-up detention of minors has amplified human rights concerns.

Mr. Trump, who had already pushed for more stringent border enforcement in his first year in office, is cracking down in what many characterize as an unprecedented way. Supporters say that approach is necessary to stem illegal immigration, which compromises US border security and costs taxpayers as much as $116 billion per year. But critics say Trump’s policy is counterproductive and unduly harsh, and contravenes international law governing asylum seekers.

“The Trump administration is looking at the immigration law and saying: What are all of the enforcement levers that we’re allowed to use under the current law, and let’s use all of them,” says Theresa Cardinal Brown, who worked with former Secretary of Homeland Security Michael Chertoff under the Bush administration and is now director of immigration and cross-border policy for the Bipartisan Policy Center in Washington. She compares the approach to a get-tough-on-crime mayor who goes after graffiti artists as well as violent criminals, and says Trump’s policy may not have the desired effect of deterring would-be migrants.

But she and others see a middle way forward that embraces both security and humanity.

“We can enforce our laws and treat human beings the right way, and those two things don’t have to be mutually exclusive,” says Kristie De Peña, director of immigration and senior counsel with the libertarian Niskanen Center in Washington.

The firestorm, explained

Many have accused the government of separating 1,475 minors from their parents and then losing track of them. But that conflates two separate developments.

Last fall, the government tried to check in on the well-being of 7,635 minors who had arrived in the US unaccompanied and had been placed with sponsors; of those, it was unable to reach 1,475.

“If you call a friend and they don’t answer the phone, you don’t assume that they’ve been kidnapped,” said Steven Wagner of the Department of Health and Human Services in a telephone briefing with reporters May 29.

He said the lack of response was at least in part because some sponsors are unauthorized immigrants and afraid to answer calls from a federal official, something Obama administration official Cecilia Munoz also acknowledged.

The more recent development is a Trump administration policy enacted May 6. Under this policy, 100 percent of adults caught entering the country in violation of US law – even those seeking asylum – are referred to the Department of Justice for criminal prosecution, rather than allowing for prosecutorial discretion.

These individuals are then put in a facility run by the US Marshals Service or the Bureau of Prisons, which has resulted in effectively separating all parents from their children, since children are generally not criminally prosecuted and thus are not detained in the same facilities. This marks a stark departure from the previous practice of allowing most families, or at least mothers and children, to stay together while their cases were pending.

Critics have accused the government of taking custody of children without adequately ensuring their safety and well-being. A new ACLU report, based on government documents from 2009 to 2014, during which there was a spike in unaccompanied minors crossing illegally, depicts cruel treatment by Customs and Border Patrol officials – including running over a child with a vehicle, threatening sexual abuse, and calling minors “dogs” and other derogatory terms. There are also concerns about the process by which unaccompanied minors are placed with sponsors, after a PBS “Frontline” documentary detailed the plight of Guatemalan minors forced to work in awful conditions at an Ohio chicken farm. On Friday, immigrant advocates are planning events in more than 25 cities to protest the separation policy.

Even before the new policy was implemented, the nonpartisan group Human Rights First issued a report asserting that the Trump administration was violating US and international law in its treatment of asylum seekers. It cited the United Nations 1951 Refugee Convention, which stipulates that, “subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.” The original convention was limited in geographic scope, but the US is a signatory to a 1967 protocol that removed those geographic limitations.

Why so many families are crossing illegally

Many of the migrants crossing illegally into the United States are coming from El Salvador and Honduras – ranked second and fourth in the world for violent deaths per capita, above countries at war like Afghanistan and Iraq.

Osman, a carpenter from Honduras, never intended to enter the US illegally. Sometimes his family didn’t have much to eat, he says, and he thought about the US. But the dangers and risks associated with an illegal border crossing weren’t for him. Instead he tried to gain a more solid economic footing, putting everything he owned into a small carpentry business in his town.

But one day in November 2016, when he was almost ready to open his shop, three men appeared at his business, robbed him, and threatened to kill him and his family.

They asked for 30,000 lempiras ($1,255) and said that he had 24 hours to produce it. “I told them I didn’t have that money. They said they didn’t care, that they were going to go after me.”

He fled to his aunt’s house on his motorbike, taking his wife and young son. She helped them organize illegal passage to the US for the following day. The journey took 25 days, and he had to pay $6,000 – for him and his son – with money his extended family pooled together. They didn’t have enough for his wife, so she stayed behind.

“I was afraid. I had never done anything like this before. But I was more afraid of what would happen to me if I stayed home,” he says.

He made his way to Massachusetts, where his cousins live, and applied for asylum in a drawn-out process that he says he barely understands. His next meeting isn’t until December 2019, a reflection of America’s backlogged immigration system. There are more than 650,000 pending cases, with an average wait time of nearly two years, according to a database maintained by Syracuse University in New York.

In the meantime, Osman’s lawyer has been unable to get him permission to work in the US legally, so he is working under the table as a carpenter. He was able to bring his wife here in November 2017, his son is happy, and he says he feels safe and grateful to the US.

But Osman says the new policy to separate children from their parents could prevent many from the safety he was able to find in the US system. “I left to save my son. If you take my son away from me, you are taking a part of me away. It is the worst thing they can do.”

The case for legal entry

Kim Veinberg, a mother who lives just outside of New York in the New Jersey suburbs, says it’s heartbreaking to hear stories of parents being separated from their children.

But as someone who spent the better part of a decade and considerable funds chugging her way through the US immigration system to help her Russian husband secure US citizenship, she is strongly in favor of requiring would-be immigrants to go through legal channels.

“When it comes down to looking at a family, I don’t know how hard-nosed I could be,” says Ms. Veinberg, who supports the Trump administration’s policy. “But when you ask me in theory what I think – their parents created the situation by not doing it the right way.”

“There has to be a limit at which you say – my heart is breaking for you, but this just isn’t working for our country,” she adds, citing the economic burden on America.

Possible solutions

Tom Jawetz, vice president of immigration policy at the progressive Center for American Progress, says taking children into government custody, and prosecuting, detaining, and deporting their parents, is not a cost-savings approach.

There are now more than 10,000 unaccompanied minors in government custody at a cost to taxpayers of $1 billion per year, according to Mr. Wagner from HHS – far more than the system was designed to hold. The Trump administration blames the border crisis on “loopholes” that Democrats refuse to close, but critics say those provisions were made to protect minors and should be kept in place. Mr. Jawetz says the Trump administration is ignoring a genuine refugee crisis and he and others are concerned that the government will make it more difficult for asylum seekers and unaccompanied minors to find protection in the US.

“None of this is solutions-based,” says Jawetz. “It’s all counterproductive and being driven not by someone who has serious policy solutions in mind but is trying to drive an ideological agenda about what America should look like now and in the future.”

A major problem is the backlog in the immigration system, says Ms. Brown of the Bipartisan Policy Center.

“When the process is working efficiently, then we are able to treat people with respect and dignity … but we’re still maintaining the integrity of our immigration system,” says Brown, who previously worked with US Customs and Border Protection. “What happened is we didn’t plan for the numbers that we saw.”

Ms. De Peña, who recently visited and interviewed asylum seekers in a detention facility in Texas, says that one solution is educating potential migrants about the asylum process. Most of those she interviewed said the reason they crossed over illegally is because they were intercepted by someone in Mexico who told them they needed to pay for safe passage or else they were going to be shot by a border agent. “They had no idea or understanding what a port of entry is,” she says.

Additionally, she says, restoring prosecutorial discretion would help those with the most information make expedient decisions rather than following an order from Washington to refer every individual for criminal prosecution.

“I know the Attorney General [Jeff Sessions] is very well acquainted with these laws. I would bet a lot of money that he knows exactly what he’s doing,” says De Peña. “As a rule of law proponent, he should be able to figure out a way to do this better.”

“Many of our laws are rooted in compassion. You can’t distance law from humanity,” she adds. “The law is meant to protect human beings.”

Monitor staff writer Sara Miller Llana contributed to this report.

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