Wednesday, July 31, 2019

Children in Detention

I am a former Submissions Editor of the Georgetown Immigration Law Journal.
I've heard it said that parents who cross the border illegally deserve to be separated from their children, because they committed a crime. The logic is, if a U.S. Citizen commits a crime and is sent to prison she is separated from her children. Why should these "illegal" immigrants be treated any differently? Commit the crime, do the time. Right?
First, this is analogy is stupid because, if a U.S. citizen commits a crime, her children are not put in a detention center. They stay at home with other family or, worst case scenario, get put in a foster home. They have caring guardians, continue to go to school, and sleep in beds rather than on concrete floors.
Second, unauthorized entry (border crossing) is a misdemeanor crime. It's like a traffic violation. The penalty is generally a fine. I've never heard of anyone being separated from their children for speeding. And if they were, that would be very wrong. So the analogy makes no sense. The "punishment" of putting children in traumatizing conditions without their parents is not proportionate to the so-called "crime."
Third, this analogy makes no sense because, in the vast majority of immigration detention cases there is NO CRIME.
Subpart a: If you show up at the border seeking asylum, you are entitled to a hearing. You will be "paroled" into the country pending your hearing and may be held in detention. If this is your situation--and it is for a large number of the immigrants who were separated from their parents--then there has been no unauthorized entry and there is NO CRIME. To separate these law-abiding asylum seekers from their children is irredeemably cruel and abhorrent.
Subpart b: Immigrant detention is NOT a CRIMINAL punishment. It is temporary holding pending a CIVIL hearing. Removal proceedings are civil, not criminal hearings. In the vast majority of deportations, there are no criminal charges. So, even if it were a fitting punishment to separate children from parents, it would violate due process, because there is no criminal trial (with all of the attendant procedural rights, including right to a paid attorney and right to a jury). Under the U.S. Constitution, you cannot punish someone without giving them a full and fair trial. Punishing people without charging them with a crime or giving them a trial is what tyrants and dictators do. Here, in 99% of the cases, there is no criminal trial. There is only a civil hearing before an immigration judge. Most people do not understand this distinction, which seems to be intentional on the part of Trump and his allies who conflate removal proceedings with criminal proceedings and try to paint all immigrants as criminals.
Under Obama, children were only separated from parents pending a hearing if the parent was deemed to be a danger to the child (basically only if there was an abusive parent or the parent had a dangerous communicable disease). The child's welfare was always the priority. Even when children were separated from parents, they weren't held indefinitely in squalid, traumatizing detention centers. They were placed in a home--either with family members in the U.S. or a foster home.
Trump's policy was to separate all children from all parents. Then, rather than put them in homes, they were put into detention centers. The stated objective was "deterrence," i.e. cruelty to families was the whole point. The objective was to make it so painful that asylum seekers and other would-be migrants would not even attempt to go through the system. This is barbaric and wrong. I honestly believe Trump and his allies (Sessions) are going to Hell for their treatment of these little ones.
I'm disgusted with this administration and those who support unnecessary cruelty as a so-called "deterrent." (BTW, there is basically zero evidence that these policies produce any deterrent effect, so there is a good chance that the U.S. is straight-up torturing children for absolutely no reason.)