Update on Administration’s “Zero Tolerance”/Family Separation Policy

Further update:  On June 26, 2018, a federal district court ordered the federal government to reunite the estimated 2600 minors in government custody who arrived with and were taken from their parents within 30 days of the order, or within 14 days for children under five years old.

On June 20, 2018, following widespread condemnation of the administration’s new “zero tolerance” policy and the separation of children from their asylum seeking parents at our country’s southern border, President Trump signed an executive order stopping the family separations.

However, the Executive Order was a fig leaf, and not a real commitment to honoring our legal and moral obligation to protect asylum seekers and to safeguard families.

Instead, the Executive Order:

  • Reaffirms the “zero tolerance” policy.   The U.S. will continue to prosecute all who cross the border seeking asylum for the misdemeanor offense of unauthorized entry, rather than using its discretion to simply process them in the civil, immigration court system, as has been the normal procedure for decades under Democrat and Republican administrations alike.
  • Orders that families be detained together, rather than separately, but states that they can be detained indefinitely.    This violates the government’s agreement in the 1997 Flores v. Reno settlement, reaffirmed by the federal court in 2015 and 2016, that detention, even when with a parent, is never healthy for a child, and that children must be released from immigration detention within 20 days to a responsible relative or guardian if unaccompanied, or together with her/his parent..
  • States that the administration will work to roll back the Flores v. Reno settlement to allow for indefinite detention of asylum seeking families and unaccompanied minors.
  • Again erroneously blames Congress for the family separation policy and states that the zero tolerance policy will continue “until and unless Congress directs otherwise”

Maine’s Congressional delegation needs to hear that this is not acceptable.   Congress must take the president up on his invitation, and direct an end to the “zero tolerance” policy that requires indiscriminate criminal prosecution of everyone crossing the border without permission, even asylum seekers.

Asylum seekers often have no ability to get passports from their home countries and so lack visas to enter the U.S. legally.   However, under U.S. and international law, people fleeing for their lives and safety have the right to apply for asylum regardless of their manner of entry.  The government should only criminally prosecute asylum seekers for unauthorized entry in extreme circumstances.

Even in those rare cases, Congress should pass legislation directing the government to always apply the “best interest of the child” standard and to uphold constitutional principles protecting the sanctity of family unity, and mandating a presumption in favor of alternatives to detention (such as frequent check-ins with ICE, with or without payment of a cash bond, or electronic monitoring), rather than detention. Family detention should only be used if warranted due to specific and articulated reasons, with an opportunity for any detention decision to be immediately appealed to a judge or other independent fact-finder.

How we treat the most vulnerable and those seeking protection speaks volumes about who we are as a country. In the 1930s, we turned away Jews seeking protection. In the 1940s, we interned Japanese American families and Alaskan Aleut natives. We regret those decisions now.   Urge Maine’s delegation to make sure that we do not in the future look back at this moment with regret as one where we forgot our values and jeopardized human lives and liberty.