New ‘Zero Tolerance’ Policy on Unlawful Immigration Raises Objections

Critics of the Trump administration’s new crackdown on illegal immigration claim the policy needlessly tears migrant families apart and won’t deter future attempts at migration.

Attorney General Jeff Sessions speaks during a news conference near the border with Tijuana, Mexico, Monday, May 7 in San Diego. Sessions discussed immigration enforcement during his southern California visit.
Attorney General Jeff Sessions speaks during a news conference near the border with Tijuana, Mexico, Monday, May 7 in San Diego. Sessions discussed immigration enforcement during his southern California visit. (photo: AP Photo/Gregory Bull)

SAN DIEGO — With the national spotlight on a caravan of refugees seeking asylum in the U.S., Attorney General Jeff Sessions traveled to San Diego and announced May 7 the federal government would put in place a “zero tolerance policy” on unlawful immigration.

Any adult migrant who enters the U.S. at the Mexican border without legal authorization will be detained and prosecuted, and those who are parents will be separated from their children.

“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” Sessions said at a news conference. The attorney general said families that wish to remain intact and present legitimate claims of asylum must do so only at legal ports of entry.

Previously, the Department of Homeland Security would generally determine family asylum claims first before deciding to refer people to federal prosecutors for immigration offenses. Federal case law required detained families with asylum claims to be released within 20 days.

That exercise of discretion ends under the new “zero tolerance” policy — all cases of illegal entry will be referred to the Department of Justice. In the case of parents who cross the border illegally with their children, the parents will be handed over to the custody of the U.S. marshals for criminal prosecution. Their children will be treated the same as “unaccompanied minors” and placed in the custody of the Department of Health and Human Services.

“Our goal is to have the whole world know this border is not open,” Sessions said.

Thomas Holman, the acting director of Immigration and Customs Enforcement (ICE), told reporters that ICE separates parents from children for one of two purposes: first, to make sure that the alleged parent is in fact the parent, and the child is not a trafficking victim; second, when parents are being charged with a crime — in this case, misdemeanor and felony violations related to immigration.

“We aren’t making any laws up — we’re enforcing the laws enacted by Congress,” he said. Homan said the U.S. would see more children taken away from their parents, due to the implementation of the new “zero tolerance policy.”


Catholic Criticism

However, migrant advocates and some Catholic organizations and contend the Trump administration is unnecessarily breaking up families — violating the natural order by separating parents from their children — by abandoning the discretion it has under the law.

“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,” Patricia Zapor, communications director for the Catholic Legal Immigration Network (CLINIC), told the Register. “The attorney general and ICE are making a choice to separate families. Separating children from their parents is extreme and traumatic.”

The New York Times has reported approximately 700 children were separated from their parents since October, including 100 children under 4 years old. The government did not dispute the report in oral arguments before a federal court in San Diego. The case Ms. L v. Immigration and Customs Enforcement is a national class action suit against the practice that seeks a ruling to reunite all separated families. The case began when ICE separated a woman seeking asylum from the Democratic Republic of Congo from her 7-year old daughter in November. The woman lacked sufficient documentation proving their relationship, and ICE put the little girl in a facility 2,000 miles away from her mother. After several months, ICE was ordered by U.S. District Judge Dana Sabraw of the Southern District of California to conduct a DNA test to prove the mother-child relationship, and reunited the family.

At a May 4 hearing, Judge Sabraw questioned why ICE had not taken this simple step, and said he would rule soon on the request to end the family separation of asylum seekers.

Sessions maintained that parents charged with immigration crimes would still have due process for their asylum claims. But he also expressed skepticism on the validity of asylum claims, since most cases are denied.

But Zapor said proving asylum in the U.S. involves meeting a high legal bar, and legal representation makes a huge difference in the results of an asylum claim. The average denial rate was 90% for migrants without legal aid versus 54.4% for migrants who had an attorney. The denial of asylum signifies the legal standard was not met, not that the claim was fraudulent.

And Zapor noted first-time illegal entry is a misdemeanor, and prosecutors have discretion as to whether to prosecute those cases. Prosecuted families will be much less likely to “obtain any kind of legal status, such as asylum or a family-based visa, for which they otherwise may be eligible.”


Waiting at the Border

Trump has taken a tough approach to the border, but Catholic immigration advocates say the harsh treatment of families at the border will not deter parents and children from coming to the U.S. who believe the risks of staying home are too great.

Vanessa Ceceña, director of Immigrant Services at Catholic Charities San Diego, told the Register that most of the caravan that arrived at the border were women and children from Honduras, a country wracked by horrific levels of gang violence and political instability since a 2009 military coup.

They had encamped at the border for more than a week to enter legally to submit their asylum claims.

The administration has been sending most families who arrived in the caravan to the family detention centers in Texas. Ceceña said Catholic Charities discovered some asylum-seekers have been released on humanitarian parole, with GPS anklets.

Ceceña said drastic poverty is certainly a motivating factor for some who come to the U.S. But the overwhelming reality is “people are really scared for their lives and want to escape all that.”

Ashley Feasley, director of policy for Migration and Refugee Services at the U.S. Conference of Catholic Bishops, told the Register that migrant parents are choosing life for their children. Risking the treacherous journey to the U.S. through Mexico outweighs watching their sons and daughters conscripted into gangs, raped, tortured or murdered.

The caravan that arrived in San Diego was “not a new thing,” Feasley added. Caravans organized for migrants allow them to find safety in greater numbers from the abuses and human rights violations inflicted on migrants traveling in small groups.

“It is not chaos at the border,” she said, referring to the San Ysidro port of entry. “People are waiting respectfully as the Department of Homeland Security has asked.”

Feasley said separating parents from their children — when the relationship is established and there is no danger to the child — is morally offensive. As the Catholic Church teaches, she said, “family units are the building blocks of society.”

While ICE’s Homan stated they had seen cases of children being trafficked into the country by migrants posing as parents, the government has a lackluster record of care for unaccompanied minors. A 2016 report showed Health and Human Services lost track of 1,500 unaccompanied minors — some of whom it actually handed over to human traffickers — even though it is supposed to do home study visits and 30-day welfare checks on them.


Exploring Alternatives

However, David Inserra, a policy analyst specializing in immigration and homeland security at the D.C.-based Heritage Foundation, explained to the Register the Trump administration believes too many people are making invalid asylum claims in order to gain entry to the U.S.

The immigration courts face a record backlog of 700,000 cases, with average wait times exceeding two years for a person’s case to be heard. Approximately 39% of migrants in 2016  who were not detained did not show up for their court hearing.

Inserra said there are alternatives to family detention that Congress could explore, such as expanding funding for the immigration court system, GPS-tracking bracelets, and allowing migrants to apply for asylum and have their “credible fear interview” at U.S. consulates in Mexico, as opposed to trekking all the way to San Diego. 

At the same time, he said, the U.S. government needs to recognize also the “push factors” behind the mass migration toward its borders. The best way to reduce the pressure on the southern border, he said, would be to help Central American governments achieve stability and provide the conditions for prosperity: security and economic freedom.

Said Inserra, “We can and should do more in those areas.”

Peter Jesserer Smith is a Register staff writer.