Separating families isn’t ‘rule of law’

Enforce laws that protect children, asylum seekers

I teach and practice immigration law, and I am a mother. My teenage sons are my life, and they still need their mom to protect them. I am sick with worry when I think of the risks they face in adolescence.

With more reason, moms and dads fleeing violence in Central America are also frantically worried about the danger their children face in their home countries. They want to provide love and safety to their babies, toddlers and teens in the United States. Instead, they face forcible family separations and imprisonment at the hands of the U.S. government.

The administration has sought to erase our commonality with asylumseeking families, calling them invaders and frauds. Americans across the political spectrum have recoiled from this cruelty. In response, to justify its inhumane separation and detention policies, the administration has claimed that it just follows the law. White House adviser Kellyanne Conway insisted that “nobody likes seeing babies ripped from their mothers’ arms,” but “we have to make sure that DHS’s laws are understood.” White House Chief of Staff John Kelly said “the laws are the laws.”

However, Trump’s team is picking and choosing which laws to follow. The administration adopted a “zero tolerance” policy for prosecuting bordercrossers under misdemeanor criminal laws, in order to separate children from their parents, even though such prosecutions are discretionary. It has also sought to use immigration detention authority to jail parents and children across the board and for prolonged periods, either separately or together.

Yet the administration is not enforcing other laws that that impose obligations to protect children, families and asylum seekers. They include Immigration and Nationality Act provisions that require processing of all asylum requests, regardless of how the applicant arrived in the U.S., and decades-old immigration rules that prohibit locking up children for any significant length of time. These provisions require immi- gration officials to release children as quickly as possible to care-giving parents, like those who arrive with their children at the southern border.

There is also the constitutional law rule that immigration detention may not be used as a deterrent, but only as an administrative arrangement to ensure that individuals appear for their hearings and do not present a danger to the community. The law also includes the bedrock constitutional principle of family unity, which prevents the government from taking children or intervening in the parent-child relationship.

Reading all of these legal provisions together, it becomes clear what enforcing the law actually means. The government may hold asylum-seeking families in custody for a short period to allow for basic processing but then must release families together. Families must be allowed to live with relatives or in community-based shelters while their asylum claims proceed.

Not only is release from immigration custody for families the right legal result, it is the best policy response. It prevents life-long harm to traumatized children and parents resulting from immigration detention. It minimizes the burden on taxpayers resulting from massive detention bills. It also avoids the logistical nightmare created by splitting up families, including duplicative immigration proceedings and toddlers representing themselves in overwhelmed immigration courts.

And there exists no crisis at the border requiring a harsher response. Border crossings are at historic lows (1.6 million in 2000 compared to under 500,000 in each of the last five years), and the evidence does not show that release of families motivates increased migration. Families comply with U.S. law if released; they appear for their immigration court proceedings 96 percent of the time, according to a study by UCLA law professor Ingrid Eagly.

A rule-of-law response is needed at the border, but that response requires enforcement of all the laws. It does not require us to lose our humanity and ignore the very real plight of families seeking protection in this country.