What are the new border policies? A CNA explainer

Washington D.C., Jun 18, 2018 / 03:57 pm (CNA).- In recent weeks, changes to the U.S. enforcement of immigration policy have made headlines, as an effort to pursue criminal prosecution has led to family separations.

What exactly are the new policies? How did the changes come about? And how have Church leaders responded?

In May 2018, Attorney General Jeff Sessions announced a “zero tolerance” policy that seeks to criminally prosecute 100 percent of immigrants who are caught crossing the border illegally.

Until that policy was announced, people caught crossing the border illegally were sent to an immigration judge, who would determine whether they would be deported. While waiting for a hearing, they would be held in immigration detention centers, or – due to lack of resources or legal limits on how long certain types of immigrants could be detained – be given a court date and released.

The Trump administration’s decision to pursue criminal prosecution means that immigrants are held in a federal jail until they go before a federal judge, who must determine whether immigrants will receive prison sentences for crossing the border illegally.  

This shift to the criminal justice system is what leads to family separation, because children cannot be held legally in a federal jail with their parents.

The family separation policy has been described by Sessions as a deterrent to illegal immigration. “If you don’t like that, then don’t smuggle children over our border,” he said May 7.

Once the children are separated from their parents, they are classified as unaccompanied minors and placed in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement. The children are kept in government facilities while arrangements are made to release them to a relative in the country, if one can be identified, or to place them in foster care, while their parents’ immigration case moves forward.

According to the Department of Homeland Security, some 2,000 immigrant children have been separated from their parents in recent months. They are held along with detained minors who crossed the border unaccompanied by an adult.

In total, it is estimated that upwards of 10,000 migrant children are currently being held in over 100 shelters, which are at 95 percent capacity, according to a McClatchyDC report. The Department of Health and Human Services is reportedly considering the construction of “tent cities” to hold the children.

The Bush administration had enacted a similar “zero tolerance” policy to criminally prosecute illegal border crossings. However, it made an exception for unaccompanied minors or families with children. The Obama administration enacted zero tolerance for a short period, but did not separate families as a matter of policy.

Critics of previous administrations warned that legal exceptions for families, children, and asylum seekers created loopholes that could be abused by immigrants to cross the border without facing criminal prosecution, for example, that would-be migrants might travel with children unrelated to them and falsely claim to be a family. Critics also said that family loopholes could enable, or even encourage, child trafficking. President Donald Trump has said that he wants to close these loopholes.

However, immigration and human rights advocates say they are concerned that, like other families illegally crossing the border, asylum-seeking families are also being separated.  

The right to claim asylum is recognized by international law. To claim asylum in the U.S., one must show a well-founded fear of persecution in his home country, on the grounds of race, religion, nationality, political opinion, or particular social group.

An individual can make an asylum claim at a U.S. port of entry. A judge will then determine whether to accept the asylum claim.

However, reports indicate that some people attempting to claim asylum legally at the border are turned away repeatedly, told that the system is unable to accept new applications to be processed. While prohibiting someone from making an asylum appeal is illegal under international law, delaying a claim, which essentially denies that it be made, is a legal grey area.

People can also claim asylum by crossing the border illegally and then turning themselves in to officials. While the act of crossing the border in this case is illegal, the right to claim asylum is still valid, under international law.

Immigration advocates and human rights groups say that legitimate asylum applicants are forced to cross the border illegally in order to make their claims, and are then separated from their children for breaking the law.

The United Nations has condemned the practice of family separation as “a serious violation of the rights of the child,” which “amounts to arbitrary and unlawful interference in family life.”

The U.S. bishops have been vocally opposed to the new policy, as well as a recent move to remove gang violence and domestic abuse from the list of asylum claims that will be accepted as valid.

Bishop Joe S. Vásquez of Austin, chair of the U.S. bishops’ committee on migration, has stressed that “Rupturing the bond between parent and child causes scientifically-proven trauma that often leads to irreparable emotional scarring.”

Cardinal Daniel DiNardo of Galveston-Houston stressed that the U.S. government “has the discretion in our laws to ensure that young children are not separated from their parents and exposed to irreparable harm and trauma.”

Because families are “the foundational element of our society,” they “must be able to stay together,” he said. “While protecting our borders is important, we can and must do better as a government, and as a society, to find other ways to ensure that safety.”