History of Migrant Family Detentions Pt. 2

Understanding The Administration’s Monstrous Immigration Policies by Brianna Rennix

Regular readers of Current Affairs will know that I usually have a lot to say about immigration. Regular readers of the news generally will know that a lot of bad stuff has happened with immigration over the past week or so. An article was inevitable! Here it is.

I will be taking several recent news items on immigration, putting them into a bit of context, and speculating about what future developments might arise from them. I want to stress, on the one hand, that this has been an especially bad few weeks in immigration policy. It represents, in my opinion, the culmination of a multi-prong strategy to completely choke off asylum-seeking at the border. No physical wall could possibly be more effective than the system the Trump administration is currently setting up, if everything works out according to their plans (though this is not yet a foregone conclusion).

On the other hand, many of the things that people are currently shocked by are not new. Separating mothers from children on a large scale is new. Separating children from fathers, or fathers from families, is not new: That has been going on for ages, and no one has ever given a damn. The heartwrenching, blood-boiling story of the Honduran father who killed himself after his child was ripped from his arms could have happened at any point over the past six years or so.

Important caveat: I am not an expert in immigration law, so what follows are purely my own impressions. I think they are sensible, but they are by no means authoritative. I have not been able to consult at any length with more knowledgeable immigration law folks, because they are all too goddamn busy right now. Technically, I myself am supposed to be studying for the bar exam—memorizing the rules of estate administration and corporations and all those really important areas of law—but I am too busy drinking about the gathering strength of the murderous immigration police state. (Don’t worry, I am doing fine! We all occasionally have those days when it feels as if one’s physical body is but the fragile carapace of a huge and terrible rage.)

  1. WHY IS THE GOVERNMENT SEPARATING FAMILIES AT THE BORDER? IS IT BECAUSE OF A “DEMOCRATIC LAW”?

Recently, Trump has dropped numerous cryptic references to a “Democratic law” that is supposedly forcing his hand on family separations. The other day he tweeted: “The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda.”

I have no idea what Trump’s referring to there—there is no existing law that requires Trump to separate families. It’s possible he’s just casually spreading disinformation. That said, there are a number of laws and legal holdings that, operating in conjunction, produced a situation on the border that the Trump administration has found extremely frustrating to their plans to reduce border crossings. The only way to get around this was to start separating families. I will explain.

Basically, between the time when the Refugee Act was passed in 1980 (implementing in our domestic law the commitments we agreed to when we signed the 1951 Refugee Convention) and the Clinton years, anybody who came to the U.S. and asked for asylum was entitled to a full hearing of their claim, either at the asylum office or before an immigration judge. Immigration detention was quite rare: It was certainly not a standard feature of the asylum-seeking process. Asylum-seekers had temporary permission to live and work in the U.S. while their cases were pending.

Then, in 1996, Congress passed, and Clinton signed into law, the “Illegal Immigration and Immigrant Responsibility Act,” which (among many other disastrous things) established a procedure known as “expedited removal.” This means that any person who cannot prove continuous presence in the United States for the past two years—including, by definition, all the people who come to our borders and ports of entry—may be snatched by CBP or ICE and summarily deported, without ever going in front of a judge.  The only way that an asylum-seeker can stop this from happening is by asserting that they are afraid to go back to their country. At this point, they are entitled to a brief interview with an asylum officer, whom they must convince that they have a substantial likelihood of winning their asylum case. If the asylum officer gives them a “no,” it is nearly impossible to get this decision reversed. Even when lawyers have access to asylum-seekers during this process, which is often not the case, they are very limited in what they can do to help their clients, and are usually engaged in a terrifying race against the clock. I cannot possibly over-emphasize how much expedited removal fucked up our asylum system. (Among the Democratic lawmakers who voted in favor of this bill were Dianne Feinstein, Patrick Leahy, and Harry Reid. Thanks, guys!)

Once the Department of Homeland Security was created and the militarization of the border increased post-9/11, a system of detention centers began to evolve as holding-places for immigrants who were caught at the border and couldn’t be immediately deported under expedited removal because they had raised a claim of fear. Still, however, detention was far from universal: Many people who claimed fear at the border were simply given a notice to appear in court and allowed to go free. In the Bush years, a special detention center, Hutto, was built to hold family units—i.e., women with children—who were caught at the border. Early in Obama’s presidency, the center was re-purposed as an adult-only center, presumably because locking up children felt, well, wrong.

Even this fairly pedestrian and uncontroversial moral stand, however, was soon sacrificed to some twisted form of political expediency. Obama presided over a massive expansion of ICE’s budget and operational capacity. In 2013, when Central Americans started appearing at the border in larger numbers than usual, the Obama administration decided that it had a “crisis” on its hands. Rather than, you know, figuring out whether some of the incoming migrants might be refugees, and, say, coordinating with UNHCR to set up reception centers on the border, the government instead decided to build more family detention centers, where mothers and children could be locked up pending their “credible fear interviews” and then rapidly deported.

Unfortunately for the government, some lawyers showed up at these centers eventually, and then the women started passing their credible fear interviews in pretty large numbers, because the women now actually understood what the hell was going on, and it turns out that most of them had real asylum claims. Now, if the women had crossed the border alone, without children, the government would have been within its legal rights to keep them detained until the date of their final court hearing. (Many adult asylum-seekers are detained in this way, over periods of months and months, even when they pose no conceivable danger to the public, and even though there are non-detention options, like ankle monitors, that would make it near-impossible for them to flee.) But since these women crossed with children, things were different. Per a 1997 legal consent decree called the “Flores Settlement,” kids can’t be kept in more restrictive custody than is absolutely necessary, and there are (at least on paper) all kinds of restrictions on the kinds of facilities they can be housed in. In 2015, a federal judge in California made an additional ruling specifying that the Flores Settlement also applied to children who crossed with their mothers, and that if such a child were released from detention, the mother must be released too if their cases were linked. In other words: If a mother could pass her credible fear interview, she and her child were legally required to be released.

Meeting Trump considerably more than halfway, I would say that maybe he is thinking, in some garbled way, of a combination of expedited removal and the Flores Settlement when he speaks of a Democratic “legislative agenda” that is “forcing” family separations. The expedited removal system is indeed the primary reason why family detention has evolved in the way it has: It has been necessary to confine people close to the border so that, if they fail their credible fear interviews, the expedited removal process can resume with all due haste. The whole problem here for the Trump administration is that if a mother passes her interview, her child, per Flores, acts as her ticket out of detention. If the child and the mother are detained together, the mother goes free when the child goes free. The Trump administration does not want to have to let the mothers go. The only way to get around this inconvenience (other than revoking the Flores Settlement, which Republicans have repeatedly tried to do in immigration bills before Congress this year) is by not detaining the mothers and children together. So Trump was “forced” to separate moms and kids, if we understand “forced” in the sense of “it was the only way to accomplish the result I wanted.”

The Trump administration is a cesspit of racists, sadists, and domestic abusers. What they are doing on the border right now is immoral on the scale of, I don’t know, the Trail of Tears? Nazi Germany, in the pre-death camp phase of its career? I don’t intend to diminish Republicans’ culpability for these atrocities one iota by pointing out—as a separate and additional matter—that Democrats have also been deeply complicit in the terrifying developments we are now seeing. Without the expedited removal procedures established under Clinton, and the vast expansion of the immigration detention and deportation apparatus under Obama, none of what the Trump administration is doing now would be possible. Maybe Obama can create a Netflix series about how Democrats normalized the practice of detaining infants!

  1. SO WHAT IS THE TRUMP ADMINISTRATION TRYING TO ACCOMPLISH WITH THESE SEPARATIONS?

Recently, the New York Times published a list of things you can do to help fight the family separations on the border. (Stay tuned for a forthcoming Current Affairs list, which will provide additional suggestions for people who have some time on their hands and are tired of calling ineffectual congresspeople.) I honestly do not mean to pick on the New York Times, because I am glad they are now giving more coverage to border issues, and I hope they will make it their top reporting priority from here on out. But there was a seemingly-innocuous sentence in their appeal that struck a wrong note with me, and I want to explain why. The sentence was: “This spring, the administration ordered that everyone caught crossing illegally into the United States be prosecuted. And since children cannot accompany grown-ups to jail, people who had crossed illegally with children had their children taken away.”

Now, the distinction I am about to draw may seem a finicky one, but I think it’s important. Children are NOT being taken from their parents simply because the government wishes to prosecute their parents for illegal entry and the children cannot accompany them to jail. That makes it sound like these separations are simply incidental to a separate enforcement policy that the government decided to pursue.

The reality is actually just the opposite. The Trump administration’s decision to prosecute parents for illegal entry was taken in order to create an excuse to separate mothers from children. As I’ve said, the irritating problem the Trump administration has been struggling to overcome, with reference to the many thousands of bona fide asylum seekers that come to the border, is that a) lots of them are moms with kids, b) kids can’t legally be kept in more restrictive custody than absolutely necessary, and c) there is a federal court decision, legally binding on Trump administration, that states that when you release children from detention who are detained alongside their mothers, the mothers have to be released too.

This is what Trump and Sessions have meant when they have talked cryptically about “loopholes” that are “forcing” them to release asylum-seekers into the interior. There are lots of asylum-seeking moms that the government would otherwise have preferred to have kept locked up in hidden border facilities, without any meaningful ability to recruit counsel, for the entire duration of their cases. But because these moms had a child detained with them, they couldn’t do this.

Separating kids from moms thus serves two purposes. One is deterrence. It’s designed to send a gruesome message to women contemplating fleeing Guatemala, Honduras, El Salvador, and Mexico: If you come here looking for protection, we will take your child away from you. As a deterrence tactic, this is likely to be extremely effective. Even if you were trapped in a house with someone you thought might murder you and your child, would you readily run for help to a next-door neighbor who happens to be a notorious child kidnapper? That alternative is so horrific that you would teeter a long while before you chose it. You might think to yourself that trying to placate the would-be murderer is a better bet than throwing yourself on the mercy of the kidnapper. A lot of women are going to get murdered as they hesitate over this monstrous ultimatum. (Jeff Sessions, who is apparently a Christian, had better hope that Christianity turns out to be bunk, because otherwise he is going to burn for eternity. I myself am rooting strongly for Christianity to be real!)

The second and perhaps even more critical purpose of family separation is to ensure that moms who are still brave enough and desperate enough to come here will lose their cases. There are not nearly enough competent immigration lawyers along the border to meet the needs of all the people who come to ask for asylum. In the past, when the government was forced to release moms with kids, these families could go settle anywhere in the country they chose, and have their case adjudicated in the local immigration court in their new place of residence. Because they weren’t detained, they had the ability to actually recruit a lawyer to help them. And a lot of them settled in parts of the country, like California or New York, where the immigration judges actually, you know, sort of care about people not being murdered, as opposed to border judges, who are mostly looking for any colorable reason to say “no” to a case. Now that the government is starting to separate moms from kids on a large scale, it is possible we will start to see moms detained in border facilities for the entire duration of their cases. They will be unrepresented and facing unfriendly judges. They will lose.

I think it is important to understand that these family separations are not just a byproduct of brute over-prosecution of “illegal” entry. Rather, they are part of a concerted strategy to allow the government to avoid granting people asylum, and to circumvent the courts’ few, limited attempts to legally impose humane limits on their treatment of asylum-seekers.

  1. IS ASYLUM FOR DOMESTIC VIOLENCE “OVER”? IT’S A LITTLE TOO EARLY TO SAY, BUT THINGS ARE LIKELY TO TAKE A NASTY TURN.

Last week—and it is no accident that this decision was released hard on the heels of this ramping-up of family separations—Jeff Sessions personally decided an asylum case on appeal, Matter of A-B-, and in so doing, revoked a precedential 2014 decision (i.e., binding on immigration judges all across the country) defining certain limited circumstances under which women fleeing domestic violence might qualify for asylum. (Specifically, you had to prove that you were in “a domestic relationship you were unable to leave.” This was better than nothing, certainly, but left out a lot of people. If you were being stalked or threatened by someone who was trying to force you into a relationship, for example, you were shit out of luck. Women who are raped or threatened with rape by a man they have never lived with often do not have an asylum claim. I regularly think about a nine-year-old child whose case I worked on at the border, who was repeatedly molested by a gang member, but was never in a “relationship” with him. She was deported. We are a country of monsters and will one day pay for our crimes. But I digress.)

Many journalists have suggested that Sessions’ decision has effectively “ended” asylum for women fleeing domestic violence, and that the terms on which he argued the issue have also effectively “ended” asylum for people fleeing gang violence. This is slightly premature. As an initial matter, it’s very hard to say with precision what the effect of this decision will be. Asylum cases based on domestic violence were granted by immigration judges in various parts of the country before the 2014 precedential decision was issued. Judges who want to grant these cases can still find ways to do so: it’s just a lot harder now to force a judge to do so when they don’t otherwise feel like it.

Jeff Sessions and the Board of Immigration Appeals are also not the final arbiters of all points of asylum law. Cases can be appealed from the Board of Immigration Appeals up to the federal circuit courts. This means that federal judges in, for example, the Ninth Circuit (California) and the First Circuit (New England) could issue rulings more favorable to women fleeing domestic violence, which would then be good law within those circuits. Getting these rulings will take some time, however, and it is always dangerous to repose too much trust in judges, even in parts of the country where the judiciary seems disposed to resist Trump.

The place where the effects of Jeff Sessions’ recent decision will be most keenly felt is on the border. People seeking asylum on the border, thanks to Bill Clinton (see above), are in danger of being summarily deported if they can’t pass a “credible fear interview” showing that they would have a substantial likelihood of proving their asylum cases in a full hearing. The good news about these credible fear interviews, which are conducted by the Asylum Office, is that when they assess whether someone has a “substantial likelihood” of proving their case, their own agency regulations obligate them to consider circuit law from all over the country. So, if the Ninth Circuit decides a case granting asylum to (for example) a woman fleeing domestic violence who wasn’t able to get any help from the police in her country, the asylum officers assessing a person for “credible fear” haveto treat this as good case law, even if other circuits have ruled differently. A lot of gang-related cases, for example, have historically survived the credible fear hurdle, even though such cases are near-impossible to win in many parts of the country, because there are some parts of the country where they sometimes win.

So the important questions are: In the absence of that precedential decision (Matter of A-R-C-G-) that unambiguously established certain domestic violence situations as grounds for asylum, is there enough good case law on gender-based claims to require the asylum office to find that people fleeing domestic violence have a “credible fear”? Will asylum officers basically start treating domestic violence cases as if they are presumptively barred from asylum, or will they actually do the fine-grained case-by-case analysis they are technically required to do? Most importantly, will the government start purging asylum officers who try to issue positive credible fear determinations for people fleeing domestic violence?

If the asylum office starts rejecting all the domestic violence claims, it’s hard to know what the next step would be. You can submit agency decisions for review by an immigration judge, of course, but the judges who review these cases are Texas judges. Not only are they not well-disposed towards asylum-seekers, they consistently only apply Fifth Circuit (Texas) case law in their reviews. This makes no sense, of course—if you were reviewing an agency’s decision for error, you’d want to use the same criteria that they used in making the decision, right? Well, evidently not. (Lawyers also aren’t allowed to speak during these “reviews,” and you can’t appeal them any further, because they are not technically “hearings,” which is some bullshit.)

It seems fairly likely that gang cases are going to start losing at the credible fear stage en masse, but I think that would have happened even without Sessions’ decision: There is not much binding case law that strongly supports the fact pattern of the most common gang cases, so it was simply a matter of instructing asylum officers to start treating those cases more harshly. The domestic violence cases perhaps have a slightly better chance of still surviving the credible fear stage, but it’s very far from certain. In any case, there are two very bad scenarios that could happen here:

a) Domestic violence cases are rejected en masse at the credible fear stage, and everyone is summarily deported.

b) Some domestic violence cases continue to survive the credible fear stage, but the women (who are now separated from their children) are all kept in detention on the border until their final court date. They are unable to get lawyers, and go in front of Fifth Circuit judges, who reject their cases on the basis of Sessions’s Matter of A-B- decision. Then the women are deported.

You can see how the various pieces of the Trump administration’s strategy fit neatly together. You deter some people from fleeing to the U.S. by threatening to take away their children. You deter some more people by putting them in long-term detention (made legally possible by the separation of mothers and children). And then, finally, you purport to take away, at a stroke, the accepted legal theory on which thousands of these cases have been granted, so that even women who are willing to wait out the separation and the detention will still lose their cases. Who would risk coming here to face all that?

When I wrote about family detention last year, I made this rather gloomy prediction: “Inhumane asylum proceedings and unforgiving enforcement policies may well, over time, have a deterrent effect on border-crossings. When those border numbers drop, we can expect to hear the figures cited at press briefings. It will be hailed as a major policy victory. But we mustn’t forget what those numbers mean. They mean women trapped in violent homes, in violent cities, with no means of escape.”

I believe that this is now what we may start to see. And this is where the true viciousness of Trump’s policy shows itself. Unlike the Nazis, say, the Trump administration doesn’t want to do its torture and killing in-house. From the detention facilities here, the undesirables will be sent beyond our borders to meet their fates, unseen by us. We need dispose of no bodies. The fact that this looks different from the systematic state atrocities that are most familiar to us does not alter the reality of what is occurring here. Our government is a government that murders women and children.

More from Brianna Rennix on immigration:

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