Family Separation and Criminal Prosecution and Lack of Due Process, Oh My!

Immigration LawRecent images of children caged in holding cells without parents forced the Trump administration to re-think its “Zero Tolerance” policy and family separation policy at the border. The Zero Tolerance policy was implemented in April of 2018 and mandated that all individuals apprehended at the border, including asylum seekers, be prosecuted for the federal criminal offense of illegal entry. As families were apprehended at the border, children were stripped away from their parents. While parents were sent to federal custody to face prosecution, their children were first held by Immigration and Customs Enforcement (ICE) and processed for removal or “deportation” proceedings and then placed under the care of the Office of Refugee Resettlement (ORR). Under the family separation policy, there was no indication that children would be returned to parents once they served their sentence for the illegal entry. What’s interesting is that once a child is taken into ORR care, the agency must try to reunify the child with a relative or family friend in the United States. This relative or friend ensures ORR that he or she will take the child to all of the removal hearings in immigration court and will care for the child. If the child cannot be reunified, then the child remains in ORR care. The Zero Tolerance and family separation policy created a strange system in which the government took a child away from his parents and then tried to “reunify” the child with someone else.

President Trump, in his June 20, 2018, Executive Order (EO), decided to quit separating children from parents, but there was no guidance as to how to reunify families who were previously separated. Now, if a family is apprehended at the border, the family is detained in a family detention center. This was the prior practice under the Obama administration, which caused a huge expansion in family detention centers in Texas. However, the whole family usually is not kept intact. In practice, what we saw during the Obama administration was that fathers were sent to a male detention center while mothers and children were housed together in family detention. Also, children over the age of eighteen were separated from the family and placed into adult detention.

Once the family is apprehended and detained, the family may qualify for an immigration bond to be released from detention while they await their immigration court dates. The minimum bond is $1,500 and it has no upward limit. Under the Obama Administration and into the Trump Administration, we saw prohibitively high bonds set to keep families detained. The thought was that keeping families detained would have a deterrent effect on border crossings. RAICES, a local Texas non-profit, partnered with other non-profits to provide legal counsel to detained families and also helped families pay their bonds. Setting high bonds and keeping families detained was not a deterrent for border crossers, many of whom flee persecution and violence in their home countries. This caused detention centers to fill and slowly bonds crept downward. Eventually, we saw families be released under detention alternatives such as ankle monitors. Now, thanks to President Trump’s former family separation policy, this issue is in the limelight and RAICES has received millions to continue serving and helping families and children currently held in immigration detention or recently released from immigration detention.

Looking back, studies show that the Zero Tolerance policy on the border is unlikely to have a deterrent effect on unlawful border crossings. Back in 2005, Operation Streamline was launched on the Southwest border of the United States and was in effect until 2014. Much like the Zero Tolerance policy, Operation Streamline mandated, in most cases, the criminal prosecution of all unauthorized border crossers in hopes of deterring unlawful border crossings. The Department of Homeland Security (DHS) claims the program has been effective, citing statistics that show decreases in border apprehensions under the program. Other studies find no evidence that Operation Streamline deterred unauthorized border crossings or was even taken into account by immigrants who planned to cross the border without inspection. Instead, research consistently demonstrates that the social, economic and political conditions in Mexico and Central America are the primary culprits for unlawful border crossings along our Southern border.

Operation Streamline, the current Zero Tolerance policy, and the numerous restrictions Attorney General Sessions has placed on immigration judges also opens the door for severe due process violations. These policies and restrictions limit or even eliminate prosecutorial discretion. This causes resources to be stretched to the max as dockets fill, jails fill, and immigration detention centers fill. Prosecuting all unauthorized border crossers limits the ability of federal prosecutors to focus on serious immigration offenses. In addition, the Sixth Amendment requires that all immigrants facing federal criminal charges receive counsel. The vast majority of immigrants cannot afford counsel, leaving federal public defenders with more work than they can handle. Most immigrants criminally prosecuted for illegal entry (a misdemeanor offense) or illegal reentry (a felony offense) plead guilty. Additionally, under Operation Streamline, judges were forced to hold group hearings as the only means to process the mass influx of cases.

Once an immigrant serves his or her sentence for illegal entry or illegal reentry, he or she is then transferred back to ICE custody for removal proceedings. Now, the question most often asked is “what happens to the children when mom or dad is sent off for federal prosecution?” ICE is only allowed to hold a child for twenty hours before it must transfer the child to ORR care, which leads to family separation. This is why there is a push to reform the law to allow ICE to hold children longer so their parents can face prosecution. The idea is, once prosecution is over and they serve their sentence, the parent will be reunified with the child and housed in detention while the family faces removal proceedings. The problem there is that history and lawsuits show that ICE is underequipped to humanely handle adult detainees, much less child detainees.

Even if a family is not separated and is detained together and then bonds out of detention, the family must now apply for a defense from being removed from the country. Most families apprehended at the border have no relief from removal other than asylum due to violence they faced or suffered in their home countries. Most of the time, such violence is perpetrated by criminal gangs that run rampant in Central America. With the 5th circuit refusing recognize asylum claims based on forced gang recruitment or extortion threats and with Attorney General Session’s recent decision in Matter of A-B-, stating that individuals subject to private acts of violence, including severe domestic violence, are not eligible for asylum, a family released from family detention usually faces an uphill battle to stay in the country.