Asylum, Border Control, Chy Lung v. Freeman, Commerce Clause, Coyote Smugglers, DACA, Deferred Action for Childhood Arrivals, Flores Consent Decree, Health and Human Services, Human Rights Watch, Human Trafficking, Immigration and Naturalization Service, Kristen Nielsen, Ports of Entry, Unaccompanied Children
Unaccompanied children (UACs) will be housed in temporary quarters at the border even in the wake of President Trump’s new executive order intended to end family separations. That order began the process of reuniting children and parents that were separated under the Administration’s earlier effort to discourage the recent deluge of illegal immigrants claiming asylum. But UACs were the original subject of the so-called Flores Consent Decree in 1997, which limited the length of a minor’s stay in a holding facility to 20 days before placement with a relative, other guardian, or foster shelter. Soon after, the decree was extended to accompanied children by a federal court.
There is no doubt that all of these minors are much safer in holding facilities than during their dangerous attempts to cross the border through rough, arid country, and perhaps over the Rio Grande. That seems rather obvious, and the geography isn’t the worst of it: UAC’s are highly likely to become victims of human trafficking, which runs rampant along the U.S.-Mexican border.
UACs have already separated from their families, deliberately or otherwise, before their journey north. But a family embarking on such an odyssey is likewise exposed to tremendous danger from physical hazards and criminal predation, and the children are more likely to be young. If detained by U.S. border security, they might be about as safe or safer in custody than they’ve ever been, given the lawlessness at many points of departure in Central America.
For these and other reasons, whether children should ever be separated from parent(s), or someone claiming to be a parent(s), is not as straightforward as many have suggested. The recent outrage over the treatment of immigrant children at the border is based on a number of misapprehensions. I attempt to address some of these in the points below:
>>Prior to President Trump’s executive order last week ending family separations, 10,000 (more than 80%) of the children housed by the U.S. government at the border were actually UACs, separated from their families before their journeys ever began, not after apprehension at the border. Most but not all of these kids are teenagers delivered into the hands of smugglers, who sometimes collect a premium on their charges via misuse and sexual abuse. Here is part of a statement from Kristjen Nielsen, Secretary of Homeland Security:
“The vast, vast majority of children who are in the care of HHS right now, 10,000 of the 12,000, were sent here alone by their parents. That’s when they were separated. So somehow we’ve conflated everything but there’s two separate issues. 10,000 of those currently in custody were sent by their parents with strangers to undertake a completely dangerous and deadly travel alone.“
>>2,000 (less than 20%) of the children housed by HHS were separated from their parents when the parents claimed asylum after attempting to cross illegally. However, a consequential share of those children were not biologically related to the supposed parents after all; some UACs are used by coyotes to pose as the children of adult immigrants, and vice versa, so that they all gain more favorable treatment if apprehended.
>>The ranks of “asylum seekers” have swollen by attempts to migrate for economic reasons. A preference for an illegal crossing is presumptive evidence that this is the case. Here is more from Nielsen:
“… in the last three months we’ve seen illegal immigration on our southern border exceed 50,000 people each month, multiples over each month last year. Since this time last year, there has been a 325 percent increase in unaccompanied alien children and a 435 percent increase in family units entering the country illegally. …Over the last ten years, there has been a 1700 percent increase in asylum claims, resulting in asylum backlog of 600,000 cases.“
>>Enforcing the Flores Consent Decree makes it almost impossible to meet the goals of 1) properly adjudicating an asylum claim by a parent detained after an illegal crossing, and 2) keeping the family together. As a result, before April of this year, prior to the Trump Administration’s effort to discourage frivolous claims, the reality was that most “credible fear” asylum claims at the border resulted in the immediate release of families.
>>Many of the separated children arrived with single parents, including female children with fathers. In fact, most illegal immigrants are male and mostly unaccompanied by children. Ensuring the safety of children is a challenge in any detention environment. Here is what Human Rights Watch‘s 1999 Report on Children’s Rights had to say on the matter:
“Despite the directive of Article 37(c) of the Convention on the Rights of the Child that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so,” children continued to be held with adults in many parts of the world. Human Rights Watch opposed the commingling of children and adults in detention because contact with adults was almost never in the children’s best interest. Children in adult facilities rarely received educational and vocational training appropriate to their needs. detention because contact with adults was almost never in the children’s best interest. Children in adult facilities rarely received educational and vocational training appropriate to their needs.”
None of this is easy. It is arguably prudent and in a child’s best interest to keep them housed separately from adults. The unfortunate reality is that the recent surge of illegal entrants cited by HSA Secretary Nielsen has placed a strain on existing facilities. However, assuming that family relationships can be verified, the designation of facilities for families-only would offer an alternative that has been lacking.
>>Ultimately, the border control separated detained “parents” from children at the volition of the parents. The parents were offered the opportunity to take their children back across the border, where they could head to an official port-of-entry to claim asylum. Of course, an asylum claim after an illegal crossing involves a lengthy delay. (And an attempt to re-enter illegally is a felony, which would all but guarantee separation.) Under Trump’s policy, if the parents refused to go back in the first instance, claiming asylum immediately, they were separated from their children until their cases were adjudicated. But after 20 days, the children must be transferred to a foster shelter, relative, or family friend in the U.S.
>>Legitimate asylum-seekers have alternatives to risky illegal crossings. They should go to a port of entry to claim asylum, not expose their children to a long, hazardous slog through the marchland. And many do, as this article makes clear. There are 50 ports-of-entry along the U.S. Mexican border.
>>The claim that UACs and children separated from their apparent guardians were mistreated has been accepted uncritically by the media. The shelters run by the Department of Health and Human Services (HHS) are not Auschitz, but you’d ever know it from listening to many news sources. The immigrants are provided with food, medical care and sanitary conditions far better than they may have ever experienced. References to Nazi Germany and the Holocaust are so shockingly off-base as to constitute a denial of the seriousness of the Holocaust.
>>The U.S. government is within its powers to regulate immigration, according to the Supreme Court’s ruling in Chy Lung v. Freeman (1875). That decision turned on the Article 1 Commerce Clause, which gives Congress the power to regulate commerce with foreign nations. The Court ruled that this applies to immigration, a practical solution to the conflicting and sometimes highly restrictive state regulations on immigration in place at the time.
My position is that U.S. citizens hold the right to freedom of association, which includes the right to exclude. In that sense, citizenship is a “club good”. Yes, such legal exclusions are binding on citizens who disagree, like most other laws, unless they emigrate, but such a policy does not prohibit travel abroad, foreign travelers, and guest workers. Immigration controls should be calibrated such that inflows meet the country’s economic needs and do not place an undue burden on public finances. I also support generous allowances for legitimate asylum seekers, subject to vetting. As for the surge in the number of immigrant families detained by border control, more facilities that are specifically designed to house families may be required. Finally, Congress must find a compromise to the issues of Deferred Action on Childhood Arrivals (DACA), border security, and eliminating the Flores Decree. There are avenues for a compromise solution, but raw political motives seem to be keeping Democrats away from the table.