Emotionally charged imagery and audio, taken out of context, has whipped many into a lather. The parroted phrase of the day is, “children being ripped out of their mother’s arms.” There has been a sudden surge in media coverage of something that has been taking place for over 40 years, albeit with minor tweaks along the way, due, in most-part, to rulings from the courts.
How to handle the processing of illegal families and children crossing our border is complex and to believe otherwise reveals a strong bit of naivete. First, we used to be able to house confirmed families together, at least until 2014. That’s when the Obama administration closed the largest family detention center in Texas, due to a court ruling. A couple of smaller facilities exist, but they are no where close to the size of the one closed in 2014 and are incapable of handling the current numbers along our southern border.
Ending “zero-tolerance” would certainly seem like an easy answer, until you go back and look at what was reported in 2016 about the Obama administration letting kids go with their “parents” only to find that thousands of those kids were in reality kidnapped or willingly placed in the hands of human traffickers. Based on how the current laws are structured, to avoid “ripping kids out of their mother’s arms,” border patrol agents would have to give what amounts to a speeding ticket with a date to show up in court. 80-90% never do and disappear. Do we risk allowing kids to disappear with adults claiming to be their parents when we already know drug cartels and other human smuggling organizations willfully exploit that loophole in our existing immigration laws?
Catch and Release is not the answer.
So, what happens today to a family caught illegally crossing the border? If it’s their first time crossing illegally (considered a misdemeanor), there will be a brief separation to establish three things: Are the adults actual parents to the child/children? Are they seeking asylum? Or, are they going to agree to deportation? Once parentage is confirmed and if the parents agree to deportation, they are reunited and processed in a short period of time, often that very day.
However, if the adults declare asylum, thanks to an overwhelmed court system and lack of enough ICE agents, according to Immigration and Nationality Act (I.N.A.) § 208(d)(5), the asylum interview should take place within 45 days after the date the application is filed and a decision should be made on the asylum application within 180 days after the date the application is filed, unless there are exceptional circumstances. This means the court hearing for asylum will take far more than 20 days to occur. Why is “20” an important number? Because, thanks to the Flores ruling (initially in 1997), and supported by the 9th circuit of California recently (2016), no minor can be kept more than that. So, the government, by law, must place the children somewhere within those 20 days — either with a confirmed relative or into a foster care system.
That’s the law.
And before you “fact check” folks freak out, here is exactly what the updated 2016 ruling by the 9th Circuit Court of Appeals says are the options under Flores ruling: releasing families together (catch and release), passing a law that would allow for family detention or breaking up the families.
NOW…if the family is caught crossing illegally a second time (making it a felony), the children will be separated from the parent(s) and the parent(s) will be charged accordingly. This will mean children will be placed with a confirmed relative or into a foster care system. Again, this is the law.
YES…there needs to be an appropriately sized Family Facility that allows border patrol agents to keep confirmed families together. This requires legislation thanks to prior court rulings.
YES…confirmed families need to have the ability to be kept together regardless of the time it takes to get their asylum date in court. This requires legislation, thanks to prior court rulings.
YES…catch and release would also keep families together, but even President Obama got caught in a bad light when it was found his administration did not confirm the adults were the actual parents and not drug or human traffickers. This is a process problem and could be temporarily fixed with an Executive Order. However, an EO is not law. Because of existing law, any Executive Order can be challenged (and will be by activist groups bent on full, open borders and amnesty) in the courts and a single judge could put a stop to it. Sure, this might take a few weeks to a few months, depending on how long someone waits to file a suit. But, even while it is in effect, it will not prevent a temporary separation until the identities of the parents can be confirmed.
Lastly, what should be done with the children found to be with smugglers or human traffickers? Where do we house children coming alone? They cannot be kept in an adult detention center. They cannot be shuffled off to no one. Many of the images we are seeing are children who (as of this writing, 10,000 of 12,000 processed were sent unaccompanied) fall into these two categories and the government has to work through a foster care system and our existing laws and while that process is taking place, where are the children supposed to be kept?
This is a complex issue and there is no real easy answer because Congress and prior administrations have been ignoring the problem for decades, both Republicans and Democrats alike. Yes, something can be done, but to ignore how we got here and why, is to miss a big piece of this issue and most of this is going to fall on the Legislative Branch to fix.
Regardless of what legislation is crafted, though, thanks to the current filibuster rules in the Senate, will enough Democrats play nice to help fix this issue and give the bill at least 60 votes?