#FamiliesBelongTogether: The “Zero-Tolerance” Policy Dilemma and Family Border Separation

By: Indira Bhattacharjee

In May 2018, the Trump administration released its “zero-tolerance” policy wherein immigration and border security officials were to utilize stringent – arguably inhumane – tactics targeted at mass detention and deportation of individuals crossing the U.S. Southwest border.  Controversy over the policy began in the early summer of 2018 when pro-immigrant organizations like the ACLU and KIND were entrenched in advocacy for children in cases like Ms. L vs. ICE   and other daily child court hearings.

The topic gained public attention after the release of a heart-wrenching clip, of crying detained undocumented migrant children separated from their parents. This sparked a flurry of investigations conducted by the Government Accountability Office (GAO) and the Department of Homeland Security’s Office of the Inspector General (DHS OIG). GAO released a testimony in April 2018 describing failures in the Department of Health and Human Services and Department of Homeland Security’s internal tracking of undocumented detained migrants and children. The report showed startling results that children were going “missing” and were subject to potential trafficking due to lax standards of adoption by both agencies. However, these struggles were known. The testimony itself pooled from pre-existing investigations conducted in 2015 and 2016. However, budgetary restrictions and lack of interagency cohesion has allowed this problem to persist. While the agencies appear to be underway with building better processes, public outcry and advocacy groups are calling on the agencies to end the practice of family separation all together through petitions and protests for the rights of undocumented detainees.

DHS internal directives state that family border separation is a security measure instilled so that unaccompanied alien children (UAC) are not trafficked into U.S. borders. Upon apprehension, parents/guardians are temporarily separated from minors to ascertain familial ties and parenthood. While the safety measures in place are founded – Polaris estimates 25% of trafficking victims are children – the current means appear inefficient and counterproductive. A major contributor to the inefficiency of the institution is the magnitude of the problem. Due to the influx of undocumented migrants and their children late this spring, the current system was unable to process these families in a timely manner. In addition, this has caused some undocumented migrant children to be put up for adoption because of parental deportation and poor internal process. The lack of resources and unclear internal processes, however, do not excuse the federal government creating greater barriers to reunification.

Another, more critical, aspect of this dilemma lies in the fact many individuals are coming seeking asylum. Under the “zero-tolerance” policy, unless the individual has sought measures within their country of origin to obtain the necessary justification for U.S. asylum-status, they will be rejected. This is against U.N. defined terms of asylum processes, as dictated in its charter. Under current USCIS regulations, anyone is eligible to apply for asylum at a port of entry as long as they do so within one year of their arrival (barring certain extenuating circumstances). Rejecting asylees pre-entry to U.S., as the “zero-tolerance” policy dictates, directly violates this key aspect of U.S. asylum laws. Concurrently, USCIS is undergoing a purge of individuals previously assigned asylum status and citizenship. This change in open borders policy will continue to negatively affect individuals seeking asylum to the U.S. and more crucially further disenfranchise undocumented families escaping persecution.

 

To tackle this issue, we must take a multi-prong approach. Here are some recommendations:

  • DHS and HHS should increase hiring to account for the increasing number of undocumented migrants crossing the border.
    1. Allocate dedicated funds for hiring and training (both job competency and sensitivity).
    2. Learn from mistakes in other related components, like CBP, regarding hiring.
  • More family housing centers need to be built to disallow parents from being separated from their children during detention.
    1. Provide more access to local nonprofits to provide temporary housing and shelter during adjudication.
    2. Disallow children to be able to represent themselves in court without the explicit permission of their guardian or parent.
  • DHS and HHS need better internal controls and processes.
    1. Create a uniform, digitized system for processing undocumented migrants for both agencies.
    2. Determine if a child has parental guardians, even if deported, before providing the child up for adoption.
    3. Create a better vetting process for potential adopters.
    4. Create more oversight and checks throughout the process.
  • Provide a fair adjudication process before deportation including petitions for asylum.

While this list is not exhaustive, measures like those mentioned above can make the processing of undocumented migrants less cumbersome and ultimately more humane. According to UNHCR, by the end of 2017, 68.5 million people were displaced with 3.1 million of them listed as asylum seekers. These staggering statistics are trending upward and we must act. It should not fall on deaf ears that our founding fathers wrote, “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  As the Trump administration moves forward with its immigration agenda, we all must bear in mind that these children and parents – regardless of immigrant status – deserve better. Because #FamiliesBelongTogether.

Picture Source: Reuters – Samantha Sais

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