Family Reunification Does Not Fix Trump’s Immigration Fiasco

Whether Republican, Democrat, independent or apolitical, it is hard not to feel heartache, outrage or, at the very least, a sense of unease when looking at images or hearing audio of crying children separated from their parents at the United States’ southern border. An Arizona judge recently expressed his embarrassment about asking the defendant — a one-year-old who was separated from his father, who is now in Honduras after being deported — if he understood the proceedings. President Trump’s zero-tolerance immigration policy didn’t have to look like this. The administration willingly chose this method and its repercussions will have lasting consequences in the lives of close to 3,000 children who are being held in government custody with little or no contact from their parents.

How Did We Get Here?

After running a campaign that made immigration a core issue, President Trump has taken numerous steps to stop immigration, both authorized and unauthorized. In the administration’s most recent move, on May 7, Attorney General Jeff Sessions and Thomas Homan, then the acting Director of Immigration and Customs Enforcement (ICE), announced a zero-tolerance policy that referred all unauthorized immigrants to the Department of Justice (DOJ) for criminal prosecution of their alleged illegal entry. Thus, when families are apprehended at the border by Border Patrol agents who are part of the Department of Homeland Security (DHS), parents are now referred to the DOJ. This forces their separation from their children since by law children can’t join them in criminal detention.

In addition, the DHS now considers the children in their custody to be “unaccompanied minors” — as if they had crossed the border by themselves like the Central American minors who migrated en masse to the U.S. in 2014-15. U.S. law guarantees certain legal protections to unaccompanied minors as individuals and as part of a family unit. Minors are treated as potential victims of human trafficking under the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, signed by President George W. Bush. As “unaccompanied minors,” the DHS must give custody of the children to the Department of Health and Human Services (HHS) within 72 hours of apprehension.

The Trump administration began to separate families entering the U.S. without authorization in summer 2017. Over the months that followed, family separations — which started as a test program — turned into a wide-scale operation that was publicized when the media caught wind of it. The president of the American Academy of Pediatricians, Colleen Kraft, has called it “government-sanctioned child abuse.”

To be clear, the zero-tolerance policy doesn’t call for families to be separated when entering the country unlawfully but it does call for the criminal prosecution of the adults who do. As a result, a federal judge decides if such immigrants serve time in a federal prison or are deported. Even asylum seekers in fear of their lives are taken into custody and separated from their children. Since minors cannot be held in jail, they are taken away from their parents.  As mentioned above, this places children in a completely different administrative track than their parents: children go to the HHS while their parents are transferred to the DHS or the DOJ.

On June 19, pressured by public opinion, civil society organizations, elected officials and religious leaders, Trump issued an executive order calling for children to be kept with their parents in immigration detention while the parents’ cases are adjudicated. However, this order is not viable. Under U.S. law, minors cannot be kept in immigration detention for more than 20 days. So unless a family is deported or its asylum claims are processed in that time period, the U.S. will be violating its own law. It’s also self-evident that if the adults are sentenced to prison for unlawful entry, authorities will have to separate children from their parents.

The Obama administration also had a zero-tolerance policy but it did not involve the separation of families or their criminal prosecution. Instead, a judicial process began after families crossing illegally were apprehended or turned themselves in to DHS. They were then released on immigration parole as they waited for their immigration hearing. Those with legitimate claims for asylum stayed in the U.S. as refugees and those without were deported. Critics of this policy say that once released on immigration parole, the majority of immigrants failed to appear at their hearings. However, according to DOJ data, around 60 to 75 percent do attend their court proceedings.

The Trump administration’s strategy to criminally prosecute illegal immigrants is meant to deter future undocumented immigration. The current policy is narrowly focused on enforcement —increasing detention, reducing asylum claims, etc. — as a means of deterrence. For the strategy to be effective, however, the threat of a U.S. prison sentence would have to be greater than the dangers faced by migrants in their home countries. Such might not be the case for Salvadorans, Guatemalans and Hondurans, for instance, who are fleeing the world’s highest murder rates, gang-related violence, extortion, and other brutal crimes. They also continue to face the traditional push factors of widespread poverty and the futility of hoping for a better life in their home countries.

Is There a Way Forward?

There is no easy solution to solving the challenges of the U.S. immigration system. Meeting the country’s enforcement and protection goals is especially challenging in the current political climate and with the current mix of immigrants — some with legitimate claims for humanitarian relief under current U.S. law and some who should be deported under current law. It is very difficult to design polices that effectively take care of both goals and both classes of immigrants.

John Sandweg, former acting director of ICE in the Obama administration, offers a possible approach: electronic ankle monitors that allow parents to remain with their children outside of detention while their case goes through the immigration courts. According to Sandweg, holding a person in detention costs an average of $350 per bed per night in contrast to the less than $20 a day it takes to monitor an ankle bracelet. The use of the ankle bracelet would keep families together, make sure everyone shows up at court and save taxpayers a significant amount of money, he points out. Furthermore, the court system is backlogged and it can take years before immigrants are called to appear before an immigration judge. Another important measure should increase the number of immigration judges and properly staff the overburdened courts. Several experts have made this suggestion and Texas Sen. Ted Cruz recently proposed it, but Trump has repeatedly expressed his opposition.

The management of migration flows is not a one-country challenge nor can it be resolved by one country alone. Its complexity requires domestic strategies such as those proposed by Sandweg as well as close collaboration and coordination among the other countries involved. The latter is illustrated by the steps taken in 2014 following the surge of unaccompanied minors from Central America: The U.S. established domestic protocols to better manage the problem and worked closely with Mexico (the transit country) and Central America’s Northern Triangle countries (the sending countries). Mexico improved enforcement efforts at its border with Guatemala, while the Northern Triangle Countries launched a comprehensive plan to encourage their citizens to stay in their homelands. The plan, called the Alliance for Prosperity of the Northern Triangle, increases economic development, strengthens the business sector, promotes infrastructure projects, invests in human capital, and improves citizen security, among other goals. All these strategies are crucial to address the conditions that drive out migrants. However, it will take years — perhaps decades — for circumstances to improve to the point that people will no longer feel the need to migrate to stay alive.

As a transit country, Mexico is key to U.S. efforts to help contain the flow of Central American migrants. Under President Peña Nieto and alleged pressure from the U.S., Mexico more than doubled its apprehensions at its southern border from 2013 before the surge in unaccompanied minors from Central America began to 2015. It also announced a strategy, “Plan Frontera Sur,” to deter unauthorized migration from its southern neighbors. But a new twist in the immigration saga came on July 1, when Mexico elected a populist president, Andrés Manuel López Obrador (known as AMLO), who has vowed to help Mexican migrants in the U.S. Under an AMLO administration and with a U.S. president like Trump, Mexico could stop cooperating with the U.S. and instead allow Central American and other migrants to freely pass to the U.S. border. The AMLO-Trump relationship will be another very important chapter in the highly complex immigration story. Although the Trump administration recently began reuniting children with their parents, the episode is far from over, as the social and humanitarian impact of the zero-tolerance policy will be felt for years to come.

Erika de la Garza is the program director of the Latin America Initiative at the Baker Institute. Her chief areas of interest include U.S.-Latin America relations and trade and business development in Latin America.

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