Trump, Congress have options on the table to prevent family separation

Attorney General Jeff Sessions’ “zero-tolerance policy” for illegal entries has caused widespread outrage, but he has just modified a similar zero-tolerance policy that was already in effect.

President George Bush initiated Operation Streamline in 2005, which required criminal prosecution of all unlawful border crossers in certain sectors. Magistrate judges conducted en masse hearings. As many as 80 defendants at a time pled guilty.

The program continued when Barack Obama became the president.

This graph depicts the number of illegal entry prosecutions from April 2007 – April 2018.

With Operation Streamline, however, deference was given to limits in judicial and detention capacity, which resulted in daily caps on the number of aliens who were charged.

Executive Order.

President Donald Trump has issued an executive order stopping DHS from separating children from their parents while they are being detained.

{mosads}But the Settlement Agreement in Flores v. Sessions requires the release of detained alien children “without unnecessary delay,” which has been interpreted to be no more than 20 days.

If the children can’t be separated from their parents, their parents will arguably have to be released too. According to Brandon Judd, president of the National Border Patrol Council, this would bring back the catch and release policy, which encourages more illegal entries.

Apparently, Trump’s alternative if the Flores Settlement can’t be modified is to deport undocumented aliens immediately without due process.

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents…

— Donald J. Trump (@realDonaldTrump) June 24, 2018

This might work for undocumented aliens apprehended near the border. The only due process they are entitled to is expedited removal proceedings with a credible fear determination if they are seeking asylum. The “credible fear determination” requirement could be satisfied by transferring them to a refugee processing center abroad, such as the one in Costa Rica.

Also, establishing an expanded version of Obama’s Central American Minors (CAM) refugee program would make in-country processing of refugee applications available to adults as well as to children. And they could ask for a credible fear determination at one of the 24 ports of entry on the Mexican border.

Bills that would prohibit the separation of children from their parents.  

1. Sen. Dianne Feinstein’s (D-Calif.) Keep Families Together Act. This bill provides that an agency may not remove a child from his parents solely to deter individuals from migrating to the United States or to promote compliance with civil immigration laws.

2. Rep. Jerrold Nadler (D-N.Y.) introduced a House companion to the Keep Families Together Act. Nadler’s version also would create an affirmative defense against an illegal entry charge for aliens who have expressed a credible or reasonable fear of persecution, expressed an intent to file such an application, or stated that such an application is pending.

Convictions typically result in being sentenced to time spent in detention and a $10.00 fine. If the alien raises Nadler’s affirmative defense instead of entering a guilty plea, there would have to be a trial and a loss probably would result in jail time for up to six months for a single offense and for up to two years for multiple entries.

3. Sen. Ted Cruz’s (R-Texas) Protect Kids and Parents Act would mandate keeping undocumented alien families together, and require expedited processing of the cases of aliens here with children so that an asylum decision can be made in 14 days.

Deadlines are not a good idea when care is needed to avoid mistakes, which certainly is true of evaluating asylum applications.

4. Rep. Mark Meadows’ (R-N.C.) Equal Protection of Unaccompanied Minors Act would prevent minors from being separated from their parents while in custody; ban aliens from entering if they have made false or disputable claims on their asylum application; and facilitate deporting gang members.

Aliens who have sought to procure a benefit of any kind under the Immigration and Nationality Act by fraud or willful misrepresentation of a material fact are inadmissible.

5. Rep. Bob Goodlatte’s (R-Va.) Border Security and Immigration Reform Act of 2018 would provide $25 billion for a border wall, make other reforms, and modify the Flores Settlement to ensure that children who are apprehended at the border are not separated from their parents.

Perhaps Trump’s “no due process” approach is the best solution if persecution claims can be considered outside of the United States.

Letting them apply here isn’t working well.

As of April 2017, the average wait for a hearing was 670 days, and the immigration court backlog has increased since then. It was 714,067 cases in May 2018.

It isn’t possible to enforce the immigration laws if deportable aliens can’t be put in removal proceedings, and the judges are being pressed to spend less time on cases, which puts due process in jeopardy.

Relatively few asylum applications are granted, and even fewer will be granted in the future.

We need a politically acceptable way to reduce the number of asylum applicants to a manageable level.

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.