By Ola Szczesna, Policy Director, Massachusetts Parents United
(Ola and her family immigrated to the United States from Poland when she was just 12 years old. We love you, Ola!)
The Trump administration’s “zero tolerance” immigration policy has exploded with criticism all over the world in the last several weeks, where as many as 2,300 children have been separated from their migrant parents seeking asylum at the border. Like with any issue, it can be difficult to understand the circumstances that led to the policy. My goal is to explain the timeline of our nation’s immigration policy as it relates to and led to Trump’s zero tolerance.
First, some background information: In the last decade, the immigration flow to the U.S. from El Salvador, Guatemala, and Honduras has increased by approximately 25%, whereas the number of migrants from Mexico decreased by 6%. This coincides with the fact that a majority of the migrants coming to the U.S. border in recent months have come from El Salvador and Honduras, increasingly dangerous countries experiencing corruption, gang violence, kidnappings, gun violence, and homicides on a daily basis.
It should come as no surprise that families with children are looking for an escape, seeking asylum in the United States. In order to seek asylum, families are legally allowed to present themselves at a port of entry; however, legal asylum seekers are generally taken into detention while their cases are processed, a process which can take months. Alternatively, many families enter illegally and request asylum once they have been caught.
Historically, the U.S. has treated immigration violations as civil offenses where families stay together. The difference in Trump’s new zero-tolerance policy is that his administration has treated every individual as a criminal offender if they have entered the U.S. illegally. Charging adults with a criminal offense mandates that they are placed in the custody of the criminal court system, where children are not allowed to stay with their parents. This part of the policy, separation children from their parents, has received immense criticism and called on the Trump administration to end this practice.
Before I further explain Trump’s zero tolerance policy, below is a timeline of our nation’s immigration policies over the last decades:
1996 – The Illegal Reform and Immigrant Responsibility Act established the expedited removal process, where immigrants who have been in the country illegally for less than two years and are arrested within 100 miles of the border can be deported almost immediately, without going a court hearing. Asylum seekers are the exception to this rule, where they must be granted a hearing.
1997 – The Flores settlement (of Reno v. Flores, 1993 Supreme Court case) ordered that unaccompanied migrant children in the U.S. are to be held in immigration detention in “the least restrictive environment” depending on their age or special needs, or be sent to live with family members or licensed programs willing to accept custody. The settlement also limited how long families with children can be detained, which courts have interpreted as a 20 day limit.
2005 – President George W. Bush launches Operation Streamline, the start of a zero-tolerance program along the Texas border to criminally prosecute all illegal immigrants. These migrants would be imprisoned and their trials expedited in the form of mass trails, geared towards deportation. The exceptions to Bush’s zero-tolerance policy was for adults traveling with minor children, children themselves, and people who were ill.
2014 – President Barack Obama declares a humanitarian crisis at the southwest border, using the catch and release approach in which illegal immigrants caught within the border are released in the U.S. to await the processing of their cases. Under the Obama administration, illegal immigrants were held in administrative detention, not criminal detention, and allowed to stay or deported after trial.
2015 – A federal judge orders that the Flores settlement applied to children, applies to families as well, requiring that children and families be released within 20 days. Families were then released, some with GPS ankle bracelets, and asked to return to a future court date. The order also mandates that the Obama administration stop detaining Central American mothers and children who are seeking asylum as a deterrent for other refugees in the region from coming to the United States.
May 2018 – The Trump Administration begins its zero tolerance policy, where any individual that entered the country illegally was criminally prosecuted, and minors caught at the border were detained and separated from their parents. The Trump administration’s policy itself does not state that children must be separated from their parents, it is rather the law of the federal criminal system where children are not allowed to stay with their parents while their parents are held in custody. The federal government has registered each child with their identification numbers and set up hotlines for parents to call; however, parents are having trouble getting through. The Trump administration’s goal was to end the “catch and release” practice, where illegal immigrants caught at the border would be released into the U.S. as they awaited their immigration hearing rather than kept in detention centers.
June 2018 – In light of nationwide criticism, Trump signs the executive order to stop the separation of migrant and refugee families at the border, unless parents had a criminal history or the child’s welfare was in question. The executive order, however, did not give any direction as to how the Trump administration planned on reuniting the current 2,300 children separated from their parents. Under the law, children could only be detained with their families for 20 days, whereas the Trump administration sought to detain families together indefinitely. Officials say the family separations can last four months or longer, as the parent and children cases proceed separately. There have been cases of parents deported without their children.
June 2018 – U.S. District Judge Dana Sabraw in San Diego sets a hard deadline for children to be reunited with their parents within 30 days, and within 14 days if the child is under five years old. The order also stated that the government needs to provide phone contact between parents and their children within 10 days, given that parents were having a difficult time getting through the 1-800 number set by the government.
On top of the heartbreaking stories on mothers being separated from their children, the issue of due process has also come to light. The 5th Amendment, or the right to due process, states “no person…shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
The fact that many basic rights of our nation apply to both citizens and noncitizens was confirmed by Justice Antonin Scalia when he wrote “it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings” (Reno v. Flores, 1993). However, in some cases, immigrants are not granted hearings and instead they are pushed through “expedited removal” as established by the IIRAIR Act of 1996, listed in the timeline above.
The bottom line, is that immigration policy is not easy and we are living in a time where society can be as divided as ever on this issue. However, I know that seeking asylum from the dangerous and life-threatening conditions of a home country is not a crime, but turning our backs on families coming to us in search of safety is inhumane.
No, we cannot just send families “back where they came from” and allow for mothers, fathers, and their children to suffer when we have the power to allow for them to create a home in our nation with us, and become a productive member of our society. We are, afterall, a melting pot.