Posted in reply to the post by Shepherd:
What can be done to stop this I don't know, but I do know that this should not stand.
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Jump to the bottom to see the two questions in bold if this is TLDNR, and please correct my understanding if my review of the judges' discussion isn't correct. What can be done depends on how you answer the questions.
I just heard an immigration judge explain the details. As I understand it (and apparently as he adjudicates it):
1) If undocumented families arrive at a "port" (border crossing) and apply to enter without proper documentation, but claim asylum, the entire family is detained and housed in DHS (depart. of homeland security) family housing until they are either granted asylum or deported. In this case the family is not separated.
1a) due to lack of resources and family housing units, the border is closed many days to people legally seeking asylum and they must wait in Mexico until a family housing unit opens up. That is, their asylum request is not accepted. There are a very limited number of openings so they must wait days or weeks in Mexico.
1b) Speculation: I think, but didn't hear, that in the past the border was not closed, but legal asylum seekers were given "appearance notices" and allowed to enter the interior. A large percentage fail to appeared (37%), likely because a large percentage (57%) of asylum requests were denied...but in fact the judge did not mention this aspect.
2a) If undocumented families cross the border in any other way, it is a misdemeanor and they are liable for prosecution and up to 6 months in jail. This law was passed back in the Bush days by a democratic congress.
2b) As a result of several lawsuits, it was agreed by the Obama admin that the children would not be held by DHS but MUST be remanded to HHS (Health and Human Services). I believe this was a result of some children who were trafficked for the purpose of entry, and this was to prevent such trafficking. Thus the current law REQUIRES children of parents arrested for the crime in 2a to be removed from their custody (in DHS) and remanded to HHS.
--side note: the judge recommended and both current bills going through congress change the law to allow parents charged with 2a to be housed together in DHS until the legal conclusion of the case...if found guilty and given jail time in the US I believe the children at that time would be remanded to HHS
The Obama administration ordered DHS to NOT prosecute the crime in 2a. He had this authority to not prosecute as the law gives "prosecutorial discretion in certain cases" and he used this clause to never prosecute. Instead the parents were given citations to appear, which many never appeared for trial. This is the "catch and release" and led to the widespread belief that if one could just get across the border, one would always be released and then remain hidden in the interior unless caught by ICE. The big change with Trump was to enforce the law as written. And to not provide "appearance notices" to legal asylum seekers. His reasoning is that too few appeared to make that process an effective control of immigration.
The two arguments are:1) it is inhumane to separate children from their family, so "catch and release" is the only humane option, under the law
or
2) protecting the border means not doing "catch and release" and the current law requires the separation of children. Without enforcement, it encourages people to make attempt to cross.
One solution, which does enforce border security, is to allow illegal entries to be housed in family housing until the misdemeanor case is resolved. This requires a change in the law.
Another solution is to fully open the borders, this also requires a change in the law. And is opposed by a large majority of Americans (for some legitimate and some illegitimate reasons, IMHO)
Further, the law on what constitutes an asylum claim is not entirely clear: for example a woman living in southern Mexico applied for asylum due to spousal abuse, this was determined to not satisfy the requirements, as that judge indicated there was the whole of Mexico for her to move to. Asylum typically has to be avoiding a systematic State or Statelike action of abuse, as I understand it. Thus economic refuges are typically refused asylum. Changes here would also require change in law or interpretation of the law.
Finally note: in the last 10 years there have been times that the both parties control both houses of congress and the presidency, and yet nothing was done to clarify or resolve anything in this area. Pox on both their houses.
So the question is: Can you have secure borders (which 79% agree the US should have) and have the "catch and release" policy?
Or, are you part of the 21% who believe the borders should be essentially open between our country and others, as it is between our state and others?