By Guy Page
A resolution introduced into the Vermont House of Representatives on Tuesday condemns the separation of immigrant children from their parents. A protest rally against family separation will gather at the Vermont State House June 25. As of this afternoon, 312 Facebookers plan to attend the rally, another 1,300 say they are interested.
The resolution and the planned rally follow white-hot social and traditional media traffic over the weekend, especially after President Trump Saturday morning said a Democrat-led law makes the separations necessary. Vermont’s elected officials are riding the wave of outrage. While inspecting the Texas-Mexican border Sunday afternoon, Congressman Peter Welch told Vermont Public Radio the separations are “appalling” and “un-American… . We can have debates about border security, but we can’t hold hostage the fate of innocent children.”
This column attempts to move past rhetoric, pro and con, and provide factual, historical background explaining what’s happening, and why.
What does immigration law say about detaining children, and what are the government’s options?
Illegal entry by adults into the United States, even for the first attempt, is a federal crime. U.S. Code Title 8, Section 1325(a) says the guilty “shall be” either fined or imprisoned. Whenever the law uses the word “shall,” citizens, legislators, police and judges cannot ignore what the law says “shall” happen. It’s not optional. It’s the law. When an immigrant adult with accompanied child is arrested for the crime of illegal entry, Department of Homeland Security (DHS) has at least five child custody options:
- Release immigrant adult and child together in the United States, with an “order to appear” at a hearing: AKA “catch and release.” More than a third never appear. Especially in its last two years, “catch and release” was the predominant policy of the Obama administration.
- Detain both adult and child, in separate facilities, because children do not belong in federal lockups with adult offenders. That’s what’s the Trump administration often does now. Separate detention was practiced intermittently by presidents Bush (Operation Streamline, 2005) and Obama.
For example, in June 2014, facing a heavy wave of immigration, President Obama announced detention of immigrant families and asked Congress for $2.9 billion for detention, including caring for unaccompanied children. He also announced “an aggressive deterrence strategy focused on the removal and repatriation of recent border crossers.”
- Detain one offending parent but release the other (if present) to care for the child. This policy assumes that if (for example) a father is detained, the mother and child are more likely to appear at a required immigration hearing.
- Offer to send the entire family home. The government will immediately send home any asylum-seekers who volunteer to return to their country of origin. “Don’t be blaming the government for detaining people when they can leave anytime they want,” one Vermont legislator said Tuesday, June 19. The U.S. government will fly them home within 24 hours.
- Detain families together in DHS custody, pending criminal sentencing/deportation of the adult. DHS family detainment has a checkered history. Before 2006 the U.S. government routinely separated immigrant families. Responding to humanitarian concerns, that year it established several immigrant family detention centers – which were then closed in 2009 (first year of the Obama administration) when the Women’s Refugee Commission said the centers too closely resembled prisons. Then “family-friendly” detention facilities were built, and are now operated by a private contractor under government supervision. However the 1997 Flores settlement says the government cannot hold unaccompanied immigrant children beyond 21 days. The Trump administration wants Congress to lift this cap, enabling families to stay together in custody until the parent’s case is settled.
Why “zero tolerance”?
It’s true that the Trump administration policy of “zero tolerance” of illegal immigration has led directly to increased separate detentions. Zero tolerance appears to be, at least in part, an administration response to organized challenges to U.S. border security.
Immigrant caravan prompts presidential tweets, zero tolerance policy
Border security has of course been a mainstay of Donald Trump’s campaign promises and administration policy. However, the spark for the current crisis seems to have been an immigration march from Honduras through Mexico to the U.S. border.
For 15 years, an organization named “Pueblo Sine Fronteras” (People Without Borders) has organized groups of immigrants to enter the United States. On April 9, 2017 it announced – amid plenty of anti-Trump rhetoric – a Refugee Caravan of hundreds of immigrants from Guatemala and Honduras would cross Mexico and enter the United States.
The Trump administration responded swiftly. Attorney General Jeff Sessions announced April 11 2017 a memorandum to all federal prosecutors prioritizing the prosecution of criminal immigration offenses. About 100 people, including 48 children, eventually sought asylum, according to the San Diego Times-Tribune. About half of this group was detained. This spring, the persistent Pueblo Sine Fronteras staged a bigger caravan and earned far more publicity – some of it catching the attention of Pres. Trump, who responded on April 1, 2018 with a critical tweet. Five days later, on April 6, Sessions enacted the zero tolerance policy:
“Those seeking to further an illegal goal constantly alter their tactics to take advantage of weak points. That means we must effectively respond with smart changes also. The recent increase in aliens illegally crossing our Southwest Border requires an updated approach. Accordingly, I direct each United States Attorney’s Office along the Southwest Border to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).”
Separating children from parents has always been part of the zero-tolerance plan, for deterrence but also for humanitarian reasons: Last March, then-DHS Secretary John Kelly explained to Wolf Blitzer of CNN why DHS could and should separately detain children and place them into custody of U.S. Agency of Health and Human Services (HHS): “Yes I’m considering (detaining children separately), in order to deter more movement along this terribly dangerous network. They will be well cared for as we deal with their parents. … It’s more important to me, Wolf, to try to keep people off of this awful network.”
Just how awful is this immigrant smuggling network?
In recent years, the network moving immigrants across the southern border has been taken over by the Mexican drug cartels. In “Our 50 State Border Crisis,” philanthropist/author/rancher/policeman Howard Buffett (son of billionaire Warren) describes how cartel “coyotes” (human smugglers) routinely rape young women as a final, unannounced fee of crossing the border. Other children are forced to carry drugs across the border, again as a “fee” or under threat of harm to family members. (Buffett says America can increase border security by helping Central American countries uphold their own laws against the gang activities of MS-13 and its less well-known but equally vicious rival, 18th Street.)
What Democrat law requiring detention was President Trump referring to? Most observers believe it is the “William Wilberforce” TVPRA human-trafficking law passed unanimously by both houses of the Democrat-led Congress and signed by President George Bush in 2008. While it does not require separate detention, it does seem to prompt it in the context of zero-tolerance.
“Wilberforce law” supported by Leahy, Sanders, Welch
Once a parent is arrested for illegal entry, the child becomes “unaccompanied” and must be taken into custody immediately, according to the “Wilberforce” law. DHS must turn them over to HHS within 72 hours. Unanimously-approved “Wilberforce” obviously was unopposed by our 2008 Vermont delegation: Sens. Patrick Leahy and Bernie Sanders, and Rep. Peter Welch. Thus a well-intentioned human-trafficking bill named after the great 19th century anti-slavery and child labor crusader, and approved by every current member of Vermont’s federal delegation, in practice requires the government to take into custody immigrant youth separated from their parents at the border.
Immigration has been a near-constant “hot button” issue in North America since colonial days, when the British Crown allowed only Protestant immigrants. President Trump says he is eager to sign comprehensive immigration legislation that provides true border security. Time will tell if the outrage over detention of children moves America forward to just, legal immigration reform or becomes a forgotten skirmish in a Beltway battle that seemingly has no end.
Statehouse Headliners is intended primarily to educate, not advocate. It is e-mailed to an ever-growing list of interested Vermonters, public officials and media. Guy Page is affiliated with the Vermont Energy Partnership; the Vermont Alliance for Ethical Healthcare; and Physicians, Families and Friends for a Better Vermont.