On April 6, 2018 Attorney General Jeff Sessions penned the Memorandum for Federal Prosecutors Along the Southwest Border. The memo called for zero-tolerance in regards to 8 U.S.C. 1325(a). Specifically, the document called for the federal prosecution of illegal entry into the United States under all circumstances. This included individuals who were seeking asylum in the United States. As some individuals were crossing with children, and these children could not be housed with adults in jail, the children were placed in Department of Health and Human Services shelters. Some reports listed the number of children separated from their parent to be above 2000. The act of separating families at the border as a result of illegal entry drew harsh criticism across the political spectrum. On June 20, President Trump signed an Executive Order preventing families from being separated. This article examines the origins and perceived intent of the “Zero-Tolerance” policy while also explaining its negative impact on asylum seekers. Additionally, it attempts to dispel the idea that the separation of families at the border was a prior existing law which bound the current administration.
What is Illegal Entry?
Physical presence in the US without proper authorization is a civil offense which can lead to the DHS instituting removal proceedings. However, if an individual enters the United States without permission he can be subject to criminal charges. 8 U.S.C. 1325 makes it a crime to unlawfully enter the United States. It applies to migrants who do not enter with proper inspection at a port of entry, such as those who enter between ports of entry, avoid examination or inspection, or who make false statements while entering or attempting to enter. A first offense is a misdemeanor punishable by a fine, up to six months in prison, or both.
The “Zero-Tolerance” policy ramped up the number of prosecutions that would be instituted for illegal entry by requiring each U.S. Attorney’s Office to prosecute all DHS referrals of illegal entry violations. Typically, entry related prosecutions flowed from a Department of Justice and DHS partnership under a program dubbed “Operation Streamline.” The initiative charges first time entrants for illegal entry regardless of prior criminal history and allows for group prosecutions of up to 80 people. Those criminally prosecuted for entry-related offenses are entitled to legal representation per the decision in Zadvydas v. David. However, this representation is typically provided by the U.S. government due to financial constraints. A lawyer’s ability to competently represent the individual is made incredibly difficult by the speed of the process and the practice of mass prosecutions, with some attorneys meeting their clients for the first time the day of trial. Due to the increased number of prosecutions under the Zero-Tolerance policy, it is estimated that a 19.5 percent increase will occur compared to FY 2017. This will make it even more difficult for those prosecuted for illegal entry to retain competent legal services.
Around 88 percent of individuals convicted of entry-related offense pled guilty in 2016. Critics argue that many guilty pleas are a result of a lack of time with counsel prior to the proceeding, the prospect of shorter sentences and a misunderstanding of the implications of a guilty plea. If an individual accepts a guilty plea they forego the right to assert defenses to the charges, the right to go to trial and the right to appeal. A guilty plea can also form the basis for placement in a removal proceeding. There have even been claims that guilty pleas can include “immigration waivers” which would require a defendant to forego claims for asylum or other immigrant protections. If true, these practices would subvert U.S. treaty obligations that disallow penalizing refugees for illegal entry or presence.
The Trump administration has claimed the purpose of this policy, which many now refer to as the “Zero-Tolerance” policy, is to deter future individuals from seeking to enter the United States without proper documentation. However, experts have argued that current policy does not deter migration as migration is typically driven by economic conditions and the level of violence in a country. Thus, high crime levels in places like El Salvador and Honduras, coupled with a strong U.S. economy, create a scenario in which people are willing to uproot their families for a better opportunity outside their country of origin. These individuals sometimes seek to reach the United States in order to claim asylum as refugees. To understand how the “Zero-Tolerance” policy has harmed those seeking asylum one must have at least a cursory understanding of the asylum process.
Seeking Asylum in the United States
Someone seeking asylum is essentially requesting protection from persecution. This prosecution may have occurred in the past or the individual may have a well-founded fear of being persecuted in the future on account of race, religion, nationality, membership to a particular social group or political opinion. Typically, the asylum applicant will also have to show the government in their home country either actively participated in said persecution or was unable to prevent it. The blueprint for asylum-based claims stem from the United Nations 1951 Convention and 1967 Protocol definitions of refugee, which were incorporated into U.S. immigration law by Congress in the Refugee Act of 1980.
The Refugee Act of 1980 created two routes for obtaining refugee status in the United States. One can either apply abroad as a resettled refugee or in the US as an asylum seeker. Those who arrive at the U.S. border seeking asylum are routinely subjected to expedited removal proceedings. However, they should be allowed a credible fear screening if they inform a Custom and Border Protection official that they fear persecution, torture, or returning to their country. Currently, asylum seekers face persecution for illegal entry when seeking to enter between ports of entry even if they present themselves directly to Border Patrol.
As asylum seekers have been placed in removal proceedings upon committing an illegal entry, they must apply for asylum defensively. This means that their asylum claim is applied for as a defense against U.S. removal. The burden rests with the asylum seeker to prove that he meets the definition of a refugee by showing he was subject to past persecution or posseses a well-founded fear of future persecution. If successful, the individual is protected from returning to their home country and can enjoy benefits such as: working in the U.S., applying for a Social Security card, petitioning to bring family members to the U.S., and eventually applying for lawful permanent resident status.
Since asylum must be raised as a defense during an expedited removal proceeding, legal representation becomes imperative. As stated earlier, this legal representation is often lacking due to the speed of the process, language barriers and the sheer volume of work by public defendants. While these legal battles are playing out, the asylum seeker is subject to incarceration. Critics have argued that this practice violates international law, as the U.S. is a party to the 1951 Refugee Convention. The U.S. government has pushed back against these claims by maintaining that people can pursue their protection-based claims while serving their criminal sentences or upon release. This argument has been met with heavy skepticism by advocacy groups, who have reported cases of DHS officials allegedly denying people their right to pursue asylum and pressuring them to waive their fear-based claim as part of a plea agreement.
Families attempting to enter the U.S. without documentation are not immune from incarceration, even if they are seeking asylum. Adults are incarcerated while their children are placed with federal authorities at shelters or foster homes. In the past, there were exceptions made in situations where families entered the country without proper documentation. While family separation would sometimes occur, as explained below, these scenarios were the exception and not the rule. The implementation of the “Zero-Tolerance” policy created the inevitable issue of all families being separated at the border as the parents were detained and likely subjected to expedite removal proceedings. This and other policy changes by the Trump administration have placed parents in the predicament of remaining in their home country and exposing their family to violence and poverty or fleeing to the United States and risking long-term, or even permanent, separation from their children.
New Hurdles Faced by Asylum Seekers
The implementation of the “Zero-Tolerance” policy is not the only new development that is likely to harm those seeking asylum in the United States. Recently, the scope of credible asylum claims was narrowed, making it more difficult for those fleeing gang and domestic violence. Attorney General Jeff Sessions has overturned a Board of Immigration Appeals case, known as Matter of A-R-C-G, which clarified prior uncertainty by firmly establishing that survivors of domestic violence could be eligible for asylum under U.S. law. This development likely means that victims of gang and domestic violence generally will not qualify for asylum under federal law. Asylum officers and immigration judges may now deny asylum seeker claims if the claim is made based on fleeing gang or domestic violence. Those most likely to be impacted by this recent change are those currently going through the expedited removal processes who seek credible fear interviews. Typically, those individuals are from Central America’s Northern Triangle which includes Honduras, Guatemala and El Salvador.
Additionally, there have been reports claiming that asylum seekers are being turned away at the border when attempting to enter at ports of entry. This means the people seeking asylum in the United States must either wait to be allowed entry for an unknown period of time or try to enter between ports of entry and claim asylum. If they choose the latter they will almost certainly be detained and separated from their children even if they make a claim for asylum. These changes in immigration policy have created an even steeper mountain for those seeking asylum to climb. While the process has always been arduous it now can seem almost impossible. Asylum seekers now have to factor in the possibility of being separated from their children while their cases were adjudicated. Until recently, the Trump administration had argued that nothing could be done to fix this aside from Congressional action.
Is Family Separation a New Policy?
The “Zero-Tolerance” policy was instituted via a memorandum by the acting Attorney General. Therefore, it could have been rescinded at any time by the Attorney General and DHS. For example, in January of this year Jeff Sessions rescinded an Obama-era policy that directed the federal government to avoid prosecuting state-legalized marijuana. No current or prior law exists which requires DHS to separate families at the border when prosecuting a parent for illegal entry. Some have claimed that the policy of family separation stems from the decisions of prior administrations. This conclusion is likely based on a misunderstanding of U.S. immigration law.
As of August 2015 intact families arriving at the border were very rarely separated. In 2014, the Obama administration was forced to deal with a surge of unaccompanied minors from Latin America crossing into the United States. In most situations these minors traveled without their parents. For situations where the children did travel with their parents the Obama administration established large family detention centers to hold parents and children. However, this policy lost a legal challenge resulting in a 2016 decision that stopped families from being detained together. The end result of this decision was not the creation of a law that mandated children and parents be separated from one another at the border.
There have also been claims that the act of separating families stemmed from a 1997 settlement referred to as the Flores Deal. This settlement stated DHS could detain unaccompanied children for only twenty days before releasing them to foster families or shelters while their immigration cases were being adjudicated. Eventually the Flores Deal was expanded via additional court rulings to encompass both unaccompanied and accompanied children.
Another law that has been pointed to as the impetus for the separating of families stems from the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. This bill, which was approved by unanimous support and signed by President George W. Bush, merely required unaccompanied minors from countries other than Canada and Mexico be placed in the care of either the Office of Refugee Resettlement or relative in the U.S. while their removal proceeding was pending. Neither the Flores agreement nor the 2008 act require family separation.
There were instances where family separation occurred under the Obama Administration. However, these situations were rare as the prior administration generally refrained from prosecuting case involving adults who crossed with children. This was in line with the “Operation Streamline” policy which made exceptions for adults traveling with children. The current “Zero-Tolerance” policy requires every person caught crossing the border without documentation to be referred for federal prosecution. Those crossing with children were detained while their kids were placed in HHS shelters. The number of children separated prior to the recent Executive Order by President Trump was around 2000.
As the “Zero-Tolerance” policy requires DHS to refer every apprehended migrant crossing the border for criminal prosecution there are no longer exceptions for people traveling with children. As a result, families attempting to enter the United States without documentation were separated at the border as the adults were prosecuted with illegal entirely. Thus, while the Zero-Tolerance policy does not explicitly call for family separation, it does create a de-facto policy in which family separation is a logical result.
On June 20, 2018 President Trump signed an Executive Order which required an end to the separation of undocumented immigrant families at the border. The President’s decision ran contrary to prior claims that his administration was unable to remedy the controversial issue absent Congressional action. The order calls for other federal agencies to assist in locating housing for family units. The order does have an exception that migrants who enter the US with children will not be kept together if there is a fear of the child’s welfare. Arguably, an Executive Order was not necessary, as the President could have requested his Attorney General rescind or clarify the memorandum to eliminate family separations.
There are already rumblings that Executive Order will face legal action challenging the Trump administration’s ability to keep families detained for an extended period of time. As the Flores settlement requires children be released from custody after twenty days it is unclear how the Trump administration will justify long-term detention of parents with children. Whether or not legal action is taken as of now parents and children will still be detained and prosecuted for illegal entry, even when seeking asylum.
Immigrant rights advocates have called for adults to be released along with children, particularly when the families are seeking asylum. This request is predicated on the belief that the correct way to handle asylum seekers is to release them following apprehension to allow for competent legal assistance before their hearing. Those who agree with this line of though argue that the fear of persecution upon return to their home country of origin is a strong factor in predisposing asylum seekers to comply with the law. However, supporters of the “Zero-Tolerance” policy claim that allowing asylum seekers to be released after their credible fear detention is the wrong course of action. They believe the majority of people released while awaiting interviews, a term some call “catch and release” do not show up for their court dates. The Justice Department’s Executive Office for Immigration Review report for FY 2016 indicates the number of in absentia cases, immigration cases for which there are no defendants, at twenty-five percent.
As immigration reform bills continue to stall in the House of Representatives, it is unlikely that Congress will enact meaningful change to the process of seeking asylum in the near future. Doing so would likely require difficult decisions to be made that would almost certainly anger one end of the political spectrum or the other. Nevertheless, it is impossible to deny that the actions of the current administration have made it more difficult for those with valid asylum claims to find relief in America. Any meaningful change will likely come from the courts as lawsuits are filed against Trump’s Executive Order. In the meantime, the families that are currently detained will wait for a decision.
- Customs and Border Protection is Breaking the Law by Refusing Entry to the Migrant Caravan Members by Katie Shepherd. Immigration Impact. April 30, 2018. http://immigrationimpact.com/2018/04/30/customs-and-border-protection-is-breaking-the-law-by-refusing-entry-to-migrant-caravan-members/
- Asylum Seekers Fleeing Domestic Violence and Gangs Now Face Even Higher Hurdles to Protection. June 13, 2018. Immigration Impact. http://immigrationimpact.com/2018/06/13/asylum-seekers-domestic-violence-gangs-hurdles-protection/
- The Trump Administration Is Choosing to Separate Children From Their Parents Every Day by Joshua Breisblatt. Immigration Impact. June 19, 2018. http://immigrationimpact.com/2018/06/19/trump-administration-choosing-separate-children-parents/
- Asylum in the United States. May 14, 2018. American Immigration Council. https://www.americanimmigrationcouncil.org/research/asylum-united-states
- A Humane Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers. American Immigration Council. July 22, 2015. https://americanimmigrationcouncil.org/research/humane-approach-can-work-effectiveness-alternatives-detention-asylum-seekers
- Legal battle looms over Trump’s new plan to detain immigrant families by Josh Gerstein. June 20, 2018. Politico. https://www.politico.com/story/2018/06/20/white-house-separated-families-legal-battles-659010
- Trump reverses course, signs order to keep families together by Stephen Collinson, Sarah Westwood, Laura Jarett and Tal Kopan. June 20, 2018. CNN. https://www.cnn.com/2018/06/20/politics/trump-separation-action-immigration/index.html
- S. Department of Justice Executive Office for Immigration Review FY 2016 Statistics Yearbook. https://www.justice.gov/eoir/page/file/fysb16/download
- Zadvydas v. David, 533 US 678 (2001).
By Justin Rivera
Justin is an associate attorney at Reddy and Neumann. He practices immigration law with an emphasis on H-1B visas.