Senator Mazie Hirono told the Filipino Chronicle, “With his zero tolerance policy, the President of the United States and his administration are playing games with the lives of innocent children. Years from now, stories will be written about this dark moment in our nation’s history and what happened to these children. People will judge what we did and how we responded. I will continue to fight against this president’s reprehensible actions that dehumanize immigrants, tear families apart, and undermine our country’s moral leadership.”
Amid massive protests from the halls of Congress (by both political parties, mostly Democrats) to grassroots demonstrations in communities all across the U.S., President Donald Trump caved in (a first-ever) to pressure and issued an Executive Order on June 20, 2018, aimed to end the practice of separation of children from their parents, a process his Department of Justice initiated at a mass scale.
Prior to zero tolerance, separating families were used by previous administrations sporadically and usually only in cases where a threat to the child existed. Definitely, never in the scale that the nation has been witnessing.
Trump’s Executive Order Doesn’t End the Problem
Trump’s executive order has been signed but this doesn’t shut the door on the controversy, nor is the complex situation suddenly solved.
Lingering questions remain unanswered. If the zero tolerance policy continues, as Trump says he will still pursue, will his administration seek to challenge the “Flores settlement” that prohibits parents and children to be kept in immigration detention together while criminal prosecution proceeds?
How will the administration circumvent the federal law that limits parents and children to a maximum of 20 days in family detention? After the 20 days are up, will children be separated again?
How will the courts rush criminal prosecution proceedings? Will the administration go back to the process of “Catch and Release” – releasing migrants with children to show up in court at a later date for prosecution and deportation.
Will Trump come up with another strategy? What will Congress do?
There are some reports of children not being located to be reunited. How and when will the reunification process be completed?
Has a crime been committed? Was separating children from parents legal under international laws?
Trump’s executive order itself is problematic and misleading because it still separates children. The reunifying process is flawed. Senator Elizabeth Warren met with legal experts on the frontlines of the crisis – lawyers from the Texas Civil Rights Project, the Border Rights Center of the Texas ACLU, and federal public defenders.
She said, “the Trump administration may be ‘reunifying’ families, but their definition of a family is only a parent and a child. If, for example, a 9-year-old crosses with an 18-year-old sister – or an aunt or uncle, or a grandparent, or anyone who isn’t the child’s documented legal guardian – they are not counted as a family and they will be separated.
Contrary to popular opinion, children are still being separated and detained.
“In the process of ‘reunifying’ families, the government may possibly count a family as reunited by sending the child to a distant relative they’ve never met – not their parents. Some relatives may be unwilling to claim these children because it would be inviting ICE to investigate their own families,” she added.
Senator Warren wanted to emphasize a point: “There’s one thing that’s very clear: The crisis at our border isn’t over.”
Some people would like to believe that the crisis has been settled because an executive order was signed.
Jay Flores, a Physical Therapist from Waipahu, said, “President Trump just recently signed an executive order to stop the family separation policy he campaigned on. By doing this, he admitted that it is not acceptable for the U.S. government to separate children from their parents. The children are said to be treated humanely albeit separated from their parents. The US government has the sovereign right to protect its borders but needs to do it in a humane manner.”
U.S. Rep. Tulsi Gabbard believes there is much more work to be done on this issue. “The Trump Administration’s use of children as pawns in the immigration debate is despicable and must end now. While the President signed an Executive Order intended to end the policy of separating children from their parents, this will not solve the serious challenges we face and could create new ones. The fact is we need comprehensive immigration reform now. I joined my colleagues in introducing the Keep Families Together Act to prevent migrant children from being taken from their parents, and to begin to fix our highly broken immigration system. We must put politics aside, and come together to address this important issue,” said Gabbard.
Zero Tolerance – what is it and how did this policy get started?
Contrary to Trump and his handlers claim, immigration experts say there is no law that mandates the separation of families at the U.S. border.
Under the new zero tolerance policy, Trump’s Justice Department decided to call for the criminal prosecution of ALL adults who illegally cross into the U.S. That was the critical difference in the past few months.
Prior to zero tolerance, criminal prosecution wasn’t always sought after in addition to the simpler administrative proceedings of deportation.
This critical change suddenly meant thousands of families needed to be separated while awaiting criminal prosecution. Why? Under the “Flores settlement” ruling of 1997 that is existing U.S. immigration procedure, when a parent is referred to prosecution, the adult is sent to a federal jail and any children are placed in the care of another adult sponsor. If no close family can be found, they are sent to a shelter.
Added to this complexity is a federal law that prohibits family detention to not exceed 20 days.
Because Trump’s zero tolerance policy is to criminally prosecute ALL illegal entrants, other existing federal rules set up make it almost impossible to finish the proceedings within 20 days (when families can still be kept together legally). So Trump and his Justice Department came up with the idea of separate detentions for children to allow zero tolerance (meaning every illegal entrant is criminally prosecuted) to run its course.
From April 8, 2018 when zero tolerance became policy up until June 20, 2018 when Trump signed his executive order, the Department of Homeland Security (DHS) had separated over 2,000 children from their parents or guardians.
Serafin Colmenares Jr, PhD, MPH, said: “First of all, seeking asylum is not illegal - in fact, asylum seekers and refugees have rights under international law - so the government could not really consider the parents as having committed a crime. Each applicant has to be processed and go through a hearing to determine if they qualify or not. Secondly, there is no law that requires the separation of families at the border; in fact, in the past, the adjudication process does not require the separation of children from their parents. They stay together while waiting for the results of the adjudication process. The new policy is a radical departure from what was done in the past. It is cruel, inhumane, and even unnatural. While the government claims that separation of families would serve as a deterrent for undocumented immigrants to come in, it is immoral to use young and innocent children as pawns in order to achieve their policy objective.”
Jo Farina, a Hawaii resident, claims based on her own research, “it is clearly in the best interest of any migrant parent to avoid subjecting their children to separation by legitimately claiming asylum through any of the 10 American Consulates in Mexico, rather than attempting to cross the border into the U.S.” She doesn’t believe zero tolerance is an overreach of power.
“Mere adherence to previously-passed laws does not constitute an overreach of power,” said Farina.
Colmenares Jr. not only views zero tolerance as an overreach of power but says, “It is comparable to, if not worse than, the ill-advised forcible separation and detention of Japanese Americans in internment camps during WWII.”
What are the real reasons behind this policy?
Political leverage. Others see zero tolerance as a future bargaining chip by Trump to force Democrats into taking up immigration reform and for Democrats to fund Trump’s southern border wall. Political analysts see this as yet another hardball move that uses children as pawns so the president could get what he wants on immigration. Some believe it’s a trick he has tried to do in the past using DREAMERS as leverage in getting a previous immigration reform bill that included ending family reunification, but that failed.
Deterrence. Immigrant advocates believe the massive separation of families had more to do with sending a message of deterrence: that if you cross illegally, you will have your children taken away.
People who believe in the deterrence ploy point out: Why didn’t Trump originally pursue what he is doing now -- the more humane and less costly approach -- by lifting the 20-days family detention limit to enable sufficient time for criminal prosecution and keep families together?
In March 2017, when the DHS was discussing this possibility of implementing a policy that separates children from their parents, then-DHS Secretary John Kelly said, “Yes, I’m considering, in order to deter more movement along this terribly dangerous network. I am considering exactly that.”
He, and later the new DHS Secretary Kirstjen Neilsen, deny deterrence as a reason for the separations after being hit with a barrage of criticisms that separating families was a cruel means of deterrence.
Appeal to Xenophobic Base. Some believe zero tolerance just fits in with Trump’s overall xenophobic platform he uses to feed his anti-immigrant base. It is yet another branch on his tree intent on planting into the psyche of Americans that immigrants are to blame for all the country’s woes. It is scapegoating. It’s a political game he believes he can win with in the midterm- and his re-election..
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