An alternative to Trump’s family separation policy

On April 6, 2018, Attorney General Jeff Sessions notified the U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” towards illegal entries into the United States. According to Sessions, the situation at the border had become unacceptable. Illegal border crossings had increased by 203 percent from March 2017 to March 2018. 

He directed the U.S. attorneys in those offices to prosecute all referrals of offenses for an illegal entry, to the extent practicable.

{mosads}Entry without inspection is a serious crime. For the first commission of such an offense, the punishment is a fine or imprisoned for not more than 6 months, or both, and, for a subsequent offense, a fine or imprisoned for not more than 2 years, or both.

Sessions’ zero-tolerance policy has resulted in the separation of children from parents who are prosecuted for an illegal entry. DHS officials recently reported that 1,995 children had been separated from their parents over the six-week period from April 19 to May 31.

All four living former first ladies — Rosalynn Carter, Hillary Clinton, Laura Bush, and Michelle Obama — have condemned the Trump administration’s practice of separating parents and children at the border.

Even President Trump’s first lady, Melania Trump, has said that she hates to see children separated from their families. Her communications director, Stephanie Grisham, told CNN on Sunday. “She believes we need to be a country that follows all laws, but also a country that governs with heart.”

What happens to the child of a parent who has been referred for criminal prosecution for making an illegal entry?

The child is classified as an “unaccompanied alien child,” and the Trafficking Victims Protection Reauthorization Act of 2008 requires such children (other than those from contiguous countries) to be transferred to the Department of Health and Human Services within 72 hours.

This never has to happen. Asylum seekers can avoid prosecution for an illegal entry by making their asylum requests at a port of entry.

Nevertheless, the administration should be taking steps to find a better way to deter illegal entries instead of doubling down on an enforcement policy that has produced widespread outrage.  

Possible solution.

I wrote an article in July 2014 suggesting a way to deter unaccompanied alien children 

from making the perilous journey from Central America to seek asylum in the United States.  More than 50,000 of them had made that perilous journey and the number was growing.

Then-DHS Secretary Jeh C. Johnson posted an open letter to Central American parents on June 23, 2014, in which he advised them that:

“The criminal smuggling networks that you pay to deliver your child to the United States have no regard for his or her safety and well-being. …. In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals.”

I observed that the United States did not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala, and Honduras. Their plight was an international problem. The United Nations High Commissioner for Refugees (UNHCR) should be involved in finding a way to help them. UNHCR was established to safeguard the rights and well-being of refugees.

I proposed working with UNHCR to set up refugee centers in Central America for these children to make it unnecessary for them to travel to the United States.

A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program that would provide in-country refugee processing for qualified children in El Salvador, Guatemala, and Honduras.

Ordinarily, the term “refugee” refers to aliens who are outside of their country of nationality and can’t return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

But section 101(a)(42)(B) of the Immigration and Nationality Act authorizes the president to include aliens who are still in their own countries when he thinks circumstances warrant it.

The CAM program was phased out in FY 2008 because very few of the children were establishing eligibility for refugee resettlement. See page 43 of the Proposed Refugee Admissions Report for FY 2018. But that does not mean that it was a bad idea.

Trump could establish an expanded version of Obama’s CAM program now that would make it possible for adults as well as children in Central America to apply for refugee status without having to travel to the United States.

This should significantly reduce the number of asylum-seeking aliens who come here from Central America and make illegal entries that result in the separation of children from their parents.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.