Children should not be human shields against immigration enforcement

The Trump administration seems determined to end the leniency accorded to border infiltrators who bring children with them. This week’s executive order “Affording Congress an Opportunity to Address Family Separation“, far from a retreat, actually represents the next step in that effort.

You wouldn’t know it from the “concentration camp” hysteria, but the policy of prosecuting all border-jumpers — including those bringing children with them — is a much-needed deterrent. The strategy does not target illegals bringing children; instead, it seeks to remove the special exemption from the law that they have enjoyed. That exemption has meant that 80 percent of parents and kids arriving from Central America who are not detained do not show up for their hearings in immigration court, according toThomas D. Homan, deputy director of U.S. Immigration and Customs Enforcement (ICE).

{mosads}Treating children as a get-out-of-jail-free card for illegal border-crossers may have been defensible when it applied to only a handful of people, but it has caused the problem to mushroom. Releasing anyone who brings his or her child into the U.S. has incentivized the smuggling of children and enabled an increasingly large share of new illegal aliens to get past the border and embed themselves in our society.

Before 2013, illegal aliens bringing children with them — which the Border Patrol labels as “family units”— were so rare that no statistics were published on them. By that year the numbers had grown so much that they were pulled out and reported separately; about 15,000 people in family units were arrested in 2013, representing 3 percent of border apprehensions. Just four years later, in 2017, the number of border infiltrators arrested in family units quintupled, to 75,000, representing about 18 percent of total apprehensions. In May of this year, family units represented 24 percent of total apprehensions.

This rapid increase in the share of illegal aliens bringing children is not a coincidence; it is the result of the U.S. policy of releasing instead of prosecuting them and/or detaining them pending an asylum hearing. The illegal aliens themselves said as much to the New York Times:

“Some migrants have admitted they brought their children not only to remove them from danger in such places as Central America and Africa, but because they believed it would cause the authorities to release them from custody sooner.

“Others have admitted to posing falsely with children who are not their own, and Border Patrol officials say that such instances of fraud are increasing.”

In 2014, when the flow of Central American families and “unaccompanied” minors broke into the news, Pulitzer Prize-winning journalist Jerry Kammer went to South Texas to investigate. He spoke to several single mothers and found the same thing the Times did years later: The immunity from prosecution and detention enjoyed by border-jumpers with children was a powerful draw.

As one of them told Kammer, “Our understanding is that if you come with children they will let you through.” Another said, “We were watching CNN, and they were saying that the United States was giving opportunities to women with children. And since some neighbors of ours had come, we decided to try it.”

The separation of families that caused the recent uproar was a consequence of ending catch-and-release for family units, not the strategy itself. Current law prohibits holding a minor in immigration detention for more than 20 days, so the administration faced the choice of either continuing the Obama administration policy of releasing anyone bringing a child, or detaining the adults and delivering the children to the Department of Health and Human Services, which places them with relatives, foster homes, or shelters.

For some time now, the Trump administration and Republicans in Congress have been trying to change the law that requires a Hobson’s choice between catch-and-release or family separation. Provisions to fix this problem have been included in broader immigration bills, but the recent uproar has usefully focused lawmakers’ attention on the issue (despite the falsity of much of the coverage, such as the crying little girl who was not, in fact, separated from her mother).

The response from the two parties has been telling. Republicans are crafting a narrow fix for the problem to allow parents and children to be detained together, separating it from other immigration issues like a “Dreamer” amnesty or wall funding. The Democrats, on the other hand, have introduced legislation sponsored by Sen. Dianne Feinstein (D-Calif.) which would codify catch-and-release, mandating the release of all border infiltrators bringing children with them, with only narrow exceptions.

The president’s executive order represents another approach to change the rules. It instructs the Justice Department to seek a change to the federal District Court ruling that prohibits holding minors in immigration detention for more than 20 days, and will likely appeal the expected refusal.

What’s more, it appears that ICE will maintain custody of border infiltrators who are being prosecuted, rather than hand them over to the Marshals Service as is customary; that would eliminate the requirement to hand the children over to HHS. But if the illegal adults request asylum, it’s still unclear what will happen, since asylum cases take longer than 20 days to resolve.

President Ulysses Grant once said “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” The prohibition against detaining illegal-alien minors with their illegal-alien parents for longer than 20 days is just such a bad law. The spectacle of the last couple of weeks looks like it might just secure its repeal.

Mark Krikorian is the executive director of the Center for Immigration Studies. Follow him on Twitter @MarkSKrikorian. He is the author of “The New Case Against Immigration, Both Legal and Illegal”.