Immigrant fight heats up

The Trump administration on Tuesday amplified its charges that Democrats are to blame for the separation of immigrant children from their parents at the U.S.-Mexico border. 

Senior officials said legal “loopholes” championed by Democrats have tied the hands of the border authorities struggling to prosecute attempted illegal crossings, leaving them no choice but to separate kids from parents facing criminal charges.

“The child-smuggling trade would be shut down if we could close those loopholes,” Stephen Miller, a White House senior policy adviser, told reporters on a press call designed to refute
criticisms that the administration is tearing families apart unnecessarily.

{mosads}The family separations come as the Department of Homeland Security (DHS) prosecutes people who are caught crossing the border illegally for the first time, a crime that’s been on the books since 1986. Previous administrations had waived prosecution of first-time crossers for both practical and humanitarian reasons.

Democrats — who hammered the initial policy change when it was announced several weeks ago — are largely ignoring the recent accusations from the president, with some suggesting they’re loath to engage the charges out of a simple concern it would lend them more prominence. 

“We’re just more concerned about the policies than the attacks,” a Democratic aide said Tuesday. “No one believes them.” 

Immigration advocates rejected Miller’s claims, saying the administration is pushing a bogus legal argument to score political points with its conservative base. 

“You also have to consider the source. You’re talking about Steve Miller, who is an anti-immigrant extremist,” said David Leopold, the former president of the American Immigration Lawyers Association. “Unfortunately he’s a political person but he’s definitely not a legal scholar.”

The finger-pointing comes amid the intensifying debate over the Justice Department’s new “zero tolerance” policy governing illegal border crossings, which includes prosecuting people who illegally cross the border for the first time. 

DHS started referring first-time crossers to the Department of Justice in April, but Trump has instead placed blame on Democrats for the loopholes.

“Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border,” Trump tweeted on Saturday.  

The tougher enforcement strategy is designed to deter would-be migrants, and the attacks on Democrats appear to be aimed at energizing the president’s conservative base over an issue that marked the cornerstone of his successful 2016 campaign. 

“There is a current crisis on our borders with regard to illegal immigration,” said Jonathan Hoffman, a spokesman for DHS. “Our immigration system is clearly being gamed by those aware of loopholes.”

For the past two months, border authorities have caught over 50,000 illegal border crossers, reportedly enraging Trump. That’s a record high for the Trump administration, but it’s on par with seasonal averages seen in the later years of the Obama administration.

The administration has focused its appeal for immigration reform on those “loopholes,” which it views as bad policies that encourage migrants — particularly those from Central America — to attempt to enter the United States without prior authorization.

Administration officials pointed at a slew of anti-trafficking and migration laws and court decisions as the structural culprits for continued illegal immigration.

Hoffman listed the top loopholes as the 1997 Flores settlement agreement, a court decision that limits the amount of time children can be held in detention; the Trafficking Victims Protection Reauthorization Act, a 2008 anti-trafficking law that’s become a target of immigration hard-liners; the Zadvydas case, which bans indefinite detention of undeportable immigrants; and the asylum system.

Hoffman also expressed concern that authorities are not allowed to deem foreign citizens inadmissible based on gang affiliation.

“The bottom line is, if you break the law there will be consequences,”
Hoffman said. “If members of Congress do not like the laws they passed, they need to change them. They should not ask DHS to look the other way, they should not ask DHS to abdicate our oath to enforce the law.”

But immigration advocates say those policies are far from being loopholes.

“Asylum is not a loophole,” said
Michelle Brané, director of the
Migrant Rights and Justice program at the Women’s Refugee Commission. “Other loopholes are not loopholes but laws designed to protect children.”

As detained criminal defendants, people caught crossing the border illegally are put in jail while awaiting indictment and trial, and separated from any minors that they were traveling with.

Because first-time crossing is punishable by up to six months in jail and fines, it’s common for defendants to be sentenced to time served or otherwise quickly released.

Activists say the onus for long-term separation lies on the Trump administration because released parents aren’t being reunited with their children.

“The processes for reunifying or making communication possible are very, very difficult,” said Brané.

The American Civil Liberties Union (ACLU) is suing the administration to force reunification of families once parents are released from criminal detention.

Many of the people who get caught crossing the border illegally as family units willingly turn themselves in to the Border Patrol to make asylum claims.

Until criminal prosecution for first-time border crossings was mandated by Attorney General Jeff Sessions, U.S. authorities were in most cases forced to release those families to appear at later court dates to argue their case, a practice the president has scorned as “catch and release.”

Lee Gelernt, deputy director of the ACLU’s immigrant rights project, said that, for the purposes of the lawsuit, the group is assuming asylum seekers can be criminally prosecuted for crossing a border — the legality of which the ACLU generally contests.

“We do not believe that prosecuting asylum seekers is lawful except in the rarest situations that are not happening here,” said Gelernt. He added the assumption was necessary because children and parents are not being reunited once the parents leave criminal detention.

Some Republican lawmakers, meanwhile, are expressing an appetite for moving legislation to prevent DHS from separating children from their parents. Sen. Marco Rubio (R-Fla.) over the weekend said he’s “open to changing that law” — though he wants to prioritize tough border enforcement as a deterrent to would-be migrants — and Rep. Mark Meadows (R-N.C.), chairman of the far-right House Freedom Caucus, echoed that sentiment.

“There is real bipartisan support for changing that,” Meadows said Sunday on CBS’s “Face the Nation” program. “I can’t imagine that it’s the law that you have to separate these individuals.”