"If you cross this border unlawfully, then we will prosecute you. It's that simple," stated Attorney General Jeff Sessions earlier this month.
Sessions' speech outlined the the Trump Administration's new, zero-tolerance policy on immigration misdemeanor crimes - such as crossing into the U.S. between ports of entry.
"If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you, and that child will be separated from you as required by law. If you don't like that, then don't smuggle children over our border."
The Administration's hard-line stance on border crossings has been raising eyebrows and, in some cases, creating a social media backlash.
In April, the New York Times reported that more than seven hundred families had been separated since October. According to reports, children of all ages have been taken from their parents upon arrival in the U.S., including more than 100 children under the age of 4. Now that the Administration has made it clear that this is indeed an official policy, lobbyists, researchers and citizens alike are lashing out.
As cruel as the separation policies may seem, they're actually not inventions of the Trump Administration. Children have always been placed in foster care when their parents were criminally charged with an immigration violation. It's due to the "zero tolerance" policies that the country is seeing more and more separations happening. As White House senior policy adviser Stephen Miller put it, "The underlying policies ... have not changed."
In fact, the policies about placing unaccompanied minors with sponsors and separating children from their families were already in place during the Obama Administration - their origins date back to President George W. Bush’s Administration.
The severity and use of the policies, however, have definitely increased under the current Administration.
Many civil liberty proponents worry that family separations have gotten out of hand, and are being wrongly used in cases where a migrant has a legal right to claim asylum in the country.
Such was the case with a Congolese mother and her seven-year-old daughter who arrived in San Diego seeking asylum. According to reports, they were separated for more than three months - the mother was held in California, while her daughter was sent to Chicago. The Department of Homeland Security responded by claiming that it had doubts about whether the woman was truly the child’s mother - even though it waited four months to administer a DNA test, which could give results in minutes.
Anyone entering the U.S. - at a port of entry or not - is legally allowed to claim asylum. The UN Refugee Convention clearly states that asylum-seekers should not be penalized for entering a country illegally.
Due to the current Administration's desire to limit or shutdown immigration into the country, however, it's becoming more frequent for on-site agents to deny asylum claims and treat the cases as criminal. This leads to more children being separated from their families, and more legal asylum seekers being arrested and tried as criminals.
In February, the A.C.L.U. sued the government on behalf of the Congolese woman and other immigrant families who lawfully presented themselves at ports of entry seeking asylum, and who ultimately had their children taken from them. A federal judge is is reviewing whether these separations violate federal best-interest-of-the-child safeguards. There is likely to be a ruling in the coming weeks.
"Forcibly separating a child from their parent is nothing short of overwhelming and deleterious to their well-being — emotionally, physically and spiritually," child psychologist Lee Carter wrote in an ACLU affidavit challenging the practice.
Carter's statement echoes multiple psychological research studies, which have repeatedly shown that removing a young child from his or her her primary caregivers for even a short period can cause long-term psychological harm.
"In the immigration context, the government has never taken a stand against the protection of kids in this country,” said Muzaffar Chishti, an immigration expert at the Migration Policy Institute in an interview with the New Yorker. “For the first time, it is now formally taking a position that explicitly goes against the best interests of kids.”
The Trump Administration's rhetoric isn't buckling however.
A government spokesperson responded that they were in fact, acting in the best interest of the children. “D.H.S. must protect the best interests of minor children crossing our borders, and occasionally this results in separating children from an adult they are traveling with.”
Administration officials claim that they are trying to rectify immigration loopholes that allow for child smuggling.
"The children smuggling trade would be shut down if we could close these loopholes," Miller said. "We need to change the law so that families arriving illegally can be sent home swiftly."
What he's referring to is the Trump Administration officials desire to change the laws to ensure for quicker deportation policies that would allow families to stay together and, essentially, be immediately deported upon entry.
In lieu of law being changed in Trump's favor, the Administration decided to adopt the family separation policies, in the hopes that it would deter immigrants from trying to enter the country.
According to political science PhD candidate Anna Oltman writing for The Washington Post, "The effectiveness of deterrence is notoriously difficult to measure; it is hard to isolate its effects from the other factors that drive migration. But researchers increasingly find that deterrence policies only have a weak effect on reducing unauthorized immigration."
Overall, said Oltman, detention practices do seem to reduce asylum-seeking. However, using family separation as a means of preventing unauthorized border crossings does not have a clear record of success.
Vox reported this month that a 2017 family separation program in El Paso, Texas was actually followed by an increase in the number of family crossings in the same area.
"Research on border control has shown that efforts to obstruct or deter border crossings by constructing physical barriers or intercepting migrants have primarily redirected migration flows toward increasingly dangerous alternative routes," explains Oltman in her piece. "Such policies actually appear to encourage migrants to hire human traffickers to guide them through."
Many opposed to the Administration's family separation policies have come forward with alternatives that could prevent separations from happening. Suggestions have included processing asylum requests ahead of criminal prosecutions, which would avoid the need for separation.
Alternatively, criminal prosecution for the misdemeanor of illegal border crossing could take place without delay, and, following a short sentence, parents and children could be quickly reunited rather than spending months apart as they currently do. If a plea for asylum follows the misdemeanor conviction for border crossing — as it often does — the families would be released together, with the adults wearing ankle bracelets or being enrolled in a family management program to ensure they show up in court.
Remedies short of wrenching a child from a parent are readily available. But family separation is meant to be punitive, and, for an Administration that has made no secret of its hostility to immigration, punishing unauthorized migrants may be exactly what they're going for - it just isn’t clear that it is an effective policy tool.
If you have questions about asylum claims, border crossings or family immigration, please contact us and we'll be happy to help you.</em