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'Enforcing the Law' Doesn't Justify Separating Migrant Children from their Parents

by | Jun 21, 2018

'Enforcing the Law' Doesn't Justify Separating Migrant Children from their Parents

by | Jun 21, 2018

The Trump administration recently adopted a “zero tolerance” policy under which undocumented immigrants apprehended by federal officials are forcibly separated from their children. In April and May alone, almost 2000 children were torn from their parents and detained separately, often under cruel conditions likely to cause trauma and inflict longterm developmental damage. Attorney General Jeff Sessions claims that separation of families is justified by the need to enforce the law, and even asserts that the administration’s policy is supported by the Bible. I will leave the Biblical issues to theologians and cardinals, who have addressed them far better than I could. But Sessions’ secular argument is no better than his religious one. There is no law requiring family separation at the border. And even if there was, that still would not be enough to justify the administration’s cruel policy.
The federal law criminalizing “improper entry” by aliens does not require family separation. The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both. Until the administration’s recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations. The use of civil proceedings generally does not require pretrial detention, and therefore obviates the need to detain either parents or children; some civil defendants were detained, nonetheless, but in facilities where families can stay together. The Trump administration, by contrast, has sometimes even forcibly separated children from migrants who have not violated any law, but instead have legally crossed the border to petition for asylum in the United States.
The Trump administration claims that their policy is required by the 1997 Flores court settlement. But that settlement in no way mandates family separation and detention of children away from their parents. To the contrary, it instructs federal officials to “place each detained minor in the least restrictive setting appropriate” and to release them to the custody of family or guardians “without unnecessary delay.” The settlement also mandates that federal immigration officials must “treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors.” Detaining children under harsh conditions, separated from their parents, is pretty obviously not “the least restrictive setting” possible, and it most definitely doesn’t qualify as treating children with “dignity, respect and special concern for their particular vulnerability.”
Read the rest at reason.com.

Ilya Somin

Ilya Somin

Ilya Somin is a Professor of Law at George Mason University. He is the author of Democracy and Political Ignorance: Why Smaller Government Is Smarter and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and coauthor of A Conspiracy against Obamacare: The Volokh Conspiracy and the Health Care Case. Somin is widely published in both the scholarly and popular press, including the Yale Law Journal, the Stanford Law Review, the Northwestern University Law Review, and also the New York Times, Wall Street Journal, LA Times, and USA Today.

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