Anyone who has not been absent from Planet Earth for the past month is aware that, under a Trump administration policy aimed at curbing a surge in illegal immigration of family units, adults and children were being detained separately.
What has gotten less attention is the fact that the administration’s response to the border chaos was limited to two bad options. Nobody wants to see parents and children separated — although it is a very common consequence of law enforcement. But the only other option available under current law is allowing children to be used as Get Out of Jail Free cards for the entire family.
A 1993 Supreme Court ruling, Reno v. Flores, requires that unaccompanied minors be placed with a relative or a guardian whenever feasible, or that they be kept in the “least restrictive conditions” possible.
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A related 1997 consent decree, agreed to by then-President Bill Clinton’s administration, set standards for what constitutes humane detention of children. More recently, the 9th U. S. Circuit Court of Appeals in San Francisco ruled that Flores also applied to accompanied minors and that family units may be detained for a maximum of 20 days.
Twenty days is a woefully insufficient amount of time to determine whether they have a legitimate claim to enter the United States, or to establish that the adults and children are related and that the adult is the custodial parent.
A second law further ties the hands of immigration law enforcement. The Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 mandates that, with the exception of Mexican and Canadian nationals, we treat all minors who arrive at our borders as potential victims of human traffickers. They must be afforded a lengthy process to pursue a claim to remain in the United States, making it difficult to ever remove them once they set foot on American soil.
Congress has long known about the deficiencies in these laws and their unintended consequences. But Congress — particularly a unified Democratic caucus, which, for all intents and purposes, now supports completely open borders — has refused to act to fix these problems.
If the Trump administration’s ill-fated policy of separating children from parents has served any purpose, it is to call attention to the very limited range of bad options available to deal with illegal aliens who arrive in family units, or as unaccompanied minors.
It could also serve to shine a spotlight on members of Congress who have all but donned sackcloths and ashes over family separation if they obstruct legislation to provide other options to address the problem. If a bill co-sponsored by every Democratic member of the Senate is any indication, their real aim is to codify children as Get Out of Jail Free cards.
The administration has sought legislation that would allow them to detain families as a unit while a determination is made about whether they have a valid claim to pursue. Attorney General Jeff Sessions’ recent ruling eliminated fear of an abusive spouse or gang violence as a grounds for political asylum. Since the majority of credible fear claims are now based on these grounds, these cases could be quickly dismissed, and the adults quickly returned to their home countries.
But that still leaves the kids, whose cases take a lot longer to decide under the statutory protections guaranteed by the TVPRA. While there is no disagreement that minors who are victims of sex traffickers must be protected, it is utterly illogical to extend those protections to children who arrive here in the company of their parents.
The children’s claims to enter and remain in the United States should be inseparable from those of the parents who brought them. If the claim of the family as a unit has merit, they should all be admitted. If it is without merit, then adults and children alike should be sent home together.
President Donald Trump’s June 20 executive order prohibiting the separation of parents and children in most circumstances does not really resolve the mess. So long as we are operating within the constraints of a straitjacket of our own making, we will be forced to choose between Option A, which allows anyone who shows up with a child to enter, or Option B, which is to detain the adults and place the children in the care of relatives or the government.
There is no Option C at this time, although Congress could easily provide one. Option C would acknowledge the obvious: Children who arrive with their parents are not trafficking victims, and allow families to be detained as a unit while their case to remain in the U.S. is decided.
Anyone who would oppose such a fix isn’t really concerned about the sanctity of the family, but rather the continued cynical use of children as human shields.
Ira Mehlman is media relations director at Federation for American Immigration Reform (FAIR).
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