The Trump administration’s policy of separating the children of asylum seekers from their parents came under renewed scrutiny amid reports of inhumane detention facilities.
The facilities operate largely in secrecy, though organizations such as the American Civil Liberties Union have issued reports on conditions inside the facilities. Senator Jeff Merkley (D-Ore.), in an attempt to tour the McAllen Border Station facility, in Texas, described the holding area for detainees as “kennels” holding hundreds of children. The Trump adminstration has denied this characterization of the facility.
Already the practice itself is controversial, though the administration claims it is intended to protect children from human trafficking. Most of the world follows international conventions on refugees and does not detain parents and children separately. Further reports that the federal government had lost track of up to 1,500 unaccompanied minors resettled into the United States also raised concerns about the government’s handling of minors.
Between May 6 and May 19, embattled Homeland Security chief Kirstjen Nielson ordered a crackdown on migrants crossing the U.S. border illegally. During that time, 658 children were seized and detained separately from their parents. U.S. Attorney General Jeff Sessions threatened migrants with child separation, noting that if parents did not want their children taken from them, they “should not bring them to the border.” Provisions and screening against human trafficking are now being used against parents, with devastating results.
Though the severity of the policy is uniquely that of the Trump administration, its relative unpopularity has led the president to criticize the policy and demand the Democrats “end the horrible law.” It is unclear which law he might be referencing.
The federal enforcement picture is complicated and moderated by a series of judicial precedents. Currently one such provision for the protection of immigrant children is the Flores Settlement Agreement, wherein the federal courts oversee detention facilities that house children. Under the agreement, the government is to expedite the release of children who are delayed and to place them with parents or adult relatives living in the United States. If no such guardian is available, they are placed into foster care. Part of the furor over the “missing” 1,500 children is that many were placed with relatives and the federal government is no longer required to keep track of them. Indeed, some immigration advocates have stated that they have no desire for resettled children (and their families) to be subject to monitoring.
That children and families with children receive these protections when being detained at the U.S. border forms one of the major aspects of a nebulous policy usually derisively called “Catch and Release.” Though unclear in its exact definition, the Trump administration has implied that border agents are forced (by law) to release the people they detain. In actuality, in addition to rules that protect children, asylum seekers, people with reasonable fear of persecution or violence, have protection under the law, including the right to a hearing in immigration court. For residents of many Central American countries, a spiraling crime rate and recent uptick in political violence validate their reasons for seeking asylum. The backlash against “catch and release” is intended to dismantle otherwise reasonable protections for children and asylum seekers to expedite their removal.
At the crux of the crackdown on immigrants and demands to end legal protections for them is a fundamental disagreement about those who choose to flee to America. For decades, most lawmakers were in agreement that children should be protected and free from indefinite detention and people seeking asylum were victims. That has changed in recent years, with the loudest voices in the debate branding them as criminals and invaders. This is obvious fiction painted on some of the hemisphere’s most desperate people. As Trump demands that any agreement on immigration forces the American taxpayer to pay for a border wall with Mexico – a non-starter for Democrats — immigration reform is not likely.
In reality, the Trump administration, like administrations before it, can exercise discretion when it applies to immigration law. So long as the Trump administration subscribes to a policy of “mass deportation,” children will continue to be “the enemy”.