The U.S. crackdown on migrants arriving at the border has reached a new level with Attorney General Jeff Sessions announcing a “zero tolerance policy” in San Diego on May 7 that will have serious ramifications for asylum-seeking families who do not present themselves at a legal port of entry.

From this point onward, Sessions explained, all adults crossing the border without authorization will be referred for criminal prosecution. Parents will be detained separately from their children until the criminal process is complete.

The U.S. attorney general said that families seeking asylum must wait their turn to be processed at U.S. ports of entry.

The formalized policy eliminates the discretion Department of Homeland Security has customarily exercised with families that crossed the border illegally when seeking asylum. In this Register interview, Patricia Zapor, communications director for the Catholic Legal Immigration Network (CLINIC) explains what is happening with the new changes, and what may be at stake for certain migrant families.

 

Attorney General Jeff Sessions and ICE acting director Thomas Homan claim that DHS does not have a policy of separating migrant families as a deterrent -- rather they are following the law and separating children if they a) suspect trafficking, and b) if the parents are being prosecuted for a crime. Is this policy true, or accurate in practice?

They’re not “just following the law,” because the law allows for discretion, which our federal government should be exercising over who to prosecute and to not separate children from their parents. We know they are treating families in this way.

The attorney general and ICE are making a choice to separate families. They are not required to do so and it is a mistake in our view. Separating children from their parents is extreme and traumatic. Entering the country illegally is a misdemeanor, and there is discretion as to whether to prosecute those cases. By prosecuting families, the government also is making it less likely that they can obtain any kind of legal status, such as asylum, or a family-based visa, for which they otherwise may be eligible.

Many of the people who will be affected by this come to our border to protect themselves and their children from harmful situations in their home countries. Often, they come to the border and immediately ask for asylum.

 

What do you make of the new ‘zero tolerance’ policy?

The policy ignores the reality of the situation. If you turn around people who are seeking asylum, they are not going to go back home to the place where they fear for their lives. They will try to enter the U.S. to protect themselves and their children any way that they can.

By turning away asylum seekers, the U.S. is not following the law. There are international laws and protocols that the U.S. has subscribed to that require our agencies to keep families who are seeking asylum together. This is just another example of how this administration has said that they are following “the law,” but have demonstrated their policies and practices are in flagrant violation of the agreements we made following the atrocities of [World War II].

If our federal prosecutors would instead focus their energies on the drug smugglers and professional human traffickers that would actually make people in the United States safer.

 

Is it clear to you whether migrant parents will be separated from children if they face criminal prosecution?

Being undocumented in the United States is a civil offense. Unauthorized entry, referred to as “entry without inspection,” may be a misdemeanor. It appears that the new policy will mean prosecuting everyone who crosses the border, even if their entire purpose is to seek out a law enforcement agent and ask for asylum.

Even if the government intends to prosecute every person encountered at the border, that still does not mean children have to be taken away from their parents. It is entirely possible to release people on their own recognizance, under bond, or with ankle monitors, for example. Each of those options would cost far, far less to taxpayers than detaining adults and putting children into a foster care system.

 

Sessions also appeared to indicate he regards most asylum claims as fraudulent and cited an 80% denial rate by federal judges as proof. Why do you think there is an increase of asylum claims since 2000, and the rejection rate so high? 

The denial rate overall in 2017 was 61.8%. The denial rate for those who have legal representation is lower, 54.4%, versus the 90% denial rate for those who are not represented. The bar for being approved for asylum is very high and may involve requirements such as providing documentation that many people — who may have fled impossible circumstances and/or who are deeply traumatized by the situations they left behind — may not be able to provide to a court. This does not mean that asylum claims are fraudulent, just that they did not meet the legal standard. It also means that that without legal representation, many applicants were unable to present their cases sufficiently.

A new CLINIC report talks about some of these problems and how they affect families.

 

Anything about the zero tolerance policy's impact on migrant families that we haven't discussed that you think would be critical to mention?

CLINIC and our network or 330 affiliated nonprofit agencies that provide immigration legal services to low income people are working with other organizations to seek changes in our federal laws to protect the millions of people affected by these decisions. Among other efforts, CLINIC’s affiliates are actively encouraging people whose legal status puts them at risk of deportation to seek assistance from a qualified legal services provider.

This situation is just another example of the federal government using criminal courts in extreme ways to punish people — in this case, for trying to get their children to a place where they will be safe from bad situations in home countries. It will be traumatic for children and their parents and expensive for taxpayers. Our immigration courts already have years-long backlogs. This will only worsen that.

For an administration that touts itself as “pro-life” and “pro-family” this is an extraordinarily harsh way to treat families.


This interview has been lightly edited for clarity and content. 

In lieu of comments, please offer a prayer for migrant families seeking asylum.