Originally published by The Washington Post
On Tuesday, Attorney General Jeff Sessions again defended the Trump administration’s inhumane policy of forcibly separating asylum-seeking immigrant children — including infants and toddlers — from their parents at the border.
His defense was that these parents are all committing crimes by sneaking over the border; the crimes need to be prosecuted; criminal prosecutions result in parents going to jail; and generally speaking, jails cannot legally house minor children. As Sessions told radio host and Post contributing columnist Hugh Hewitt:
… the law requires us to keep children in a different facility than we do for adults. And every time somebody, Hugh, gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children. We don’t want to do this at all. If people don’t want to be separated from their children, they should not bring them with them. We’ve got to get this message out. You’re not given immunity. You have to, you will be prosecuted if you bring, if you come illegally. And if you bring children, you’ll still be prosecuted.
Other Trump administration officials and apologists, such as Homeland Security Secretary Kirstjen Nielsenand former senator Rick Santorum (R-Pa.), have made similar arguments. They say that separating immigrant parents from their children via imprisonment is simply “no different” from separating parents who commit non-immigration-related crimes from their respective children.
“That’s no different than what we do every day in every part of the United States — when an adult of a family commits a crime,” Nielsen told NPR. “If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family.”
There are two enormous problems with this “it’s just like how we treat other criminals” claim.
First is that U.S. government is ripping immigrant children out of their parents’ arms even when the parents didn’t actually commit a crime (including the crime of crossing the border illegally).
Second, in some cases the government is refusing to return immigrant children to their parents even after the parents are released from jail. That is not something that happens when parents are released from prison for other, non-immigration-related crimes, unless those parents are otherwise accused of being unfit parents. Which is not happening here.
Let’s talk about the first issue: ripping immigrant families apart even when the parents didn’t commit a crime.
There are lots of asylum-seekers who are doing exactly what the U.S. government has instructed them to do if they wish to seek asylum and avoid breaking the law: They are presenting themselves at a port of entry at the border, and not actually crossing illegally.
And yet they are still being separated from their children.
One of the plaintiffs in the American Civil Liberties Union’s case challenging forced separations of asylum-seeking families is a woman listed as “Ms. L.” After fleeing political violence in Congo, she presented herself and her 7-year-old daughter at the San Ysidro, Calif., Port of Entry on Nov. 1, 2017. Ms. L. also passed a “credible fear interview,” the initial screening for asylum-seekers.
She did everything right. She did not unlawfully cross the border. Nonetheless, according to her ACLU attorney Lee Gelernt, her daughter was still taken from her. Ms. L. was sent to San Diego; her daughter, thousands of miles away to Chicago.
After a lawsuit, press coverage and great public outcry, they were finally reunited more than four months later.
The other named plaintiff in the ACLU’s case, Ms. C., was also seeking asylum with her 14-year-old son; they were fleeing domestic abuse in their home country of Brazil. In their case, though, they did actually cross into the United States. After entering a few feet, they openly presented themselves to a border guard and requested asylum. She didn’t “sneak in,” but they did cross the border without initial permission.
Ms. C. passed a “credible fear interview.” Before her asylum claim could be processed, however, the government charged her for the crime of illegally crossing the border, which is a misdemeanor. She was convicted and spent 25 days in jail. Because the jail could not accept children, her son was sent to a center for “unaccompanied children” in Chicago.
After she was released from prison, in September, she was first sent to an immigration detention center while her asylum claim proceeded. The government refused to release her son to her, even though there are detention centers that can accommodate families.
Then Ms. C was released to a nonprofit shelter for immigrants in El Paso, which was also willing to take her son. The government still refused to release him.
Government officials never alleged that she was an unfit parent or that her son would be in any danger if he were reunited with his mom. Authorities just refused to let them be reunited.
This was nine months after they’d first been forcibly separated; eight months after she was out of jail (Sessions’s and Nielsen’s stated rationale for why parents and kids needed to be apart); and six weeks after she’d been released from any sort of government custody. She had been out of federal custody for six weeks, and her son was still not allowed to see her. It’s unclear why the feds finally allowed them to reunite, but press coverage may have something to do with it.
Does this sound “no different” from how we treat any other misdemeanor?