Photo Credit: Nicholas Garcia via UC Davis Humanities Institute

There have been a lot of stories about the plight of children being separated from their parents after they are caught crossing the border illegally. Most, if not all of the mainstream news coverage, has been abysmal primarily emotion-driven and not fact-based. The situation on the border has even been used to take shots at Christians, because of Attorney General Jeff Sessions’ reference to Romans 13, as well as pro-lifers as seen in a New York Times op/ed by Charles Camosy who is a board member of Democrats for Life.

Last fall, I wrote an article on the Bible and Immigration addressing the immigration debate in general. I’d like to refer you to that for a better understanding of my theological framework on the issue.

I’ve seen brothers and sisters in Christ on both sides of this issue, some of whom defend President Trump’s enforcement without reservation, and some who say that the Gospel compels Christians to speak out for these children.  Two thoughts:

  1. Christians should have compassion and empathy, and show concern towards kids separated from their families. It is an awful situation. We should call for action, but action that also respects the rule of law. I don’t think it needs to be one or the other, more on that later, again I’d like to refer you to my article on the Bible and Immigration.
  2. Poor theology should never be the basis of our appeals. The Gospel is about God reconciling sinners to HImself through the death, burial, and resurrection of Jesus, period. Don’t confuse the law with the Gospel. We don’t do the Gospel. Also, addressing Jeff Sessions’ use of Romans 13 yes we are to respect those in authority, but that does not mean we shouldn’t protest laws that are unjust. We can and we should whether they are laws related to abortion, laws that don’t respect the right of conscience, or laws and policies that separate children from their families.

Some pertinent facts about the situation and then I will discuss what can be done:

A Growing Problem.

We have seen an explosion of family units and unaccompanied minors present at the border.

The growth started in 2012 after President Barack Obama ordered deferred action for childhood arrivals. or DACA. That isn’t to say there were no family units or unaccompanied minors before, but there were significantly fewer.

In FY 13, U.S. Customs and Border Protection (CBP) reports there were 38,759 unaccompanied alien children (0-17) detained at the border. In FY 14, there was a 77 percent increase to 68,541. In FY 13, there were 14,855 family units detained. There was a 361 percent increase in FY 14 to 68,455.

The increase in unaccompanied minors are primarily due to a rise in children coming from Central American countries as you can see in the chart below:

In FY15, CBP reports, thankfully, 42 percent decrease among unaccompanied minors (39,970) and family units (39,838), most family units still came from Central America. In FY16, the number of unaccompanied children rose by 49 percent (59,692). The number of family unit apprehensions rose by 95 percent (77,674). In FY17, saw a 31 percent decrease in apprehensions of unaccompanied minors (41,435) and a three percent decrease in family unit apprehensions (75,622).

You can see the FYTD 18 stats ending on May 31, 2018, here, we are about two-thirds of the way through this fiscal year.

What Courts Require.

The Flores Consent Degree in 1997 in Flores v. Reno places several obligations on immigration officials. Human Rights First summarizes them in three broad categories:

  1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  2. If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
  3. The government must implement standards relating to the care and treatment of children in immigration detention.

The Ninth Circuit Court of Appeals in Flores v. Lynch in 2016 ruled, that the settlement, “unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents.”

Flores does not require families to be separated but requires accompanied minors to be released from custody after 20 days. In Flores, the Ninth Circuit Court of Appeals noted, that the accompanying parent is to be released with the child, “unless the parent is subject to mandatory detention or poses a safety risk or a significant flight risk.”

What has changed?

Illegal entry into the United States is a misdemeanor for a first-time offense. It is a felony if someone who has already been deported attempts to re-enter. Attorney General Jeff Sessions announced a zero-tolerance policy and prosecution of illegal entry on April 6th.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest—that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” Sessions said. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws—and as a result, our nation—are respected.”

Rich Lowry at National Review explains the process when a migrant is caught at the border:

When a migrant is prosecuted for illegal entry, he or she is taken into custody by the U.S. Marshals. In no circumstance anywhere in the U.S. do the marshals care for the children of people they take into custody. The child is taken into the custody of HHS, who cares for them at temporary shelters.

The criminal proceedings are exceptionally short, assuming there is no aggravating factor such as a prior illegal entity or another crime. The migrants generally plead guilty, and they are then sentenced to time served, typically all in the same day, although practices vary along the border. After this, they are returned to the custody of ICE.

If the adult then wants to go home, in keeping with the expedited order of removal that is issued as a matter of course, it’s relatively simple. The adult should be reunited quickly with his or her child, and the family returned home as a unit. In this scenario, there’s only a very brief separation.

Where it becomes much more of an issue is if the adult files an asylum claim. In that scenario, the adults are almost certainly going to be detained longer than the government is allowed to hold their children.

Applying for asylum is complicated.

Those who seek protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion can apply for asylum in the United States.

According to U.S. Citizenship and Immigration Services (USCIS), “the Immigration and Nationality Act (INA) states that the initial interview should take place within 45 days after the date the application is filed. A decision should be made on the asylum application within 180 days after the date the application is filed, unless there are exceptional circumstances.”

“Should” being the operative word. This process is for those outside of the United States, or those already in the United States provided they apply within a year of their last entry into the United States regardless of immigration status, exceptions are made if they can show circumstances have changed and they apply within a reasonable time after those changes took place. This falls under Affirmative Asylum Processing.

However, those who have been detained by ICE at the border who ask for asylum are placed into defensive asylum process as they are requesting it as a defense from deportation. Immigration judges will hear their case to determine if they are eligible for asylum.

USCIS then states, “If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed.”

In the long-run, it would be better for migrants to apply for asylum at a U.S. embassy, consulate, or at a port of entry with appropriate documents.

What can be done?

We have gone from one presidential administration who was lax at enforcing the law to one who has a zero-tolerance policy along with a growing number of families migrating to the United States.

Right now with the current law and the relevant consent decree, it seems as though the choice is between not enforcing the law or enforcing it lacking resources to address asylum seekers and keep families together.

Congress has allowed the executive branch to not just enforce the law, but, along with this consent decree, make the law. This is untenable.

Congress should act immediately.

To that end, U.S. Senator Ted Cruz (R-TX) offered a common-sense bill on Monday, the Protect Kids and Parents Act, that would provide relief. It does four things:

  • Double the number of federal immigration judges, from roughly 375 to 750.
  • Authorize new temporary shelters, with accommodations to keep families together.
  • Mandate that illegal immigrant families must be kept together, absent aggravated criminal conduct or threat of harm to the children.
  • Provide for expedited processing and review of asylum cases, so that—within 14 days—those who meet the legal standards will be granted asylum and those who do not will be immediately returned to their home countries.

“Repeatedly, I have visited detention facilities tragically housing young children.  For far too long, children have been the greatest victims of our broken immigration system, with tens of thousands of children who were detained under the Obama Administration and continuing through today, and with far too many of those children facing horrific physical or sexual assault from criminal human traffickers,” Cruz said.

“The answer is not what congressional Democrats are proposing: simply releasing illegal aliens and returning to the failed policy of ‘catch and release.’ Rather, we should fix the backlog in immigration cases, remove the legal barriers to swift processing, and resolve asylum cases on an expedited basis,” he said.

“While these cases are pending, families should stay together. Children belong with their mothers and fathers. Once their cases have been adjudicated – under my legislation, in no longer than 14 days – those who meet the legal standard should be granted asylum and those who don’t should be immediately returned to their home country,” Cruz added. “We can fix this. If my Democratic colleagues will join me, not play politics but work to solve the problem, we can start to end family separation this week. And, we can honor the rule of law.”

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