Immigrant and Child Detention: The History of How We Got Here, and Who to Blame

By Roger Sollenberger  |  June 8, 2018 | 11:39am
Photo courtesy of Getty Politics Features Immigration
Immigrant and Child Detention: The History of How We Got Here, and Who to Blame

No one wants the U.S. government to take children away from their parents at the border. This apparently includes President Trump, even though he’s enforcing a “zero-tolerance” policy that breaks up families who cross the border illegally. Trump has blamed the Democrats more than once for what his own Justice Department is doing:

This might come as a surprise, so hold on to your butts, but it’s not the Democrats’ fault.

This might also come as a surprise, so hold on to your butts, but it’s not all Donald Trump’s fault, either. Well, at least not the big picture of our immigration problem, which is a massive, Turner-size hellscape that makes what Trump’s doing possible. But the ripping kids from “there” parents part is all on Trump. He can stop that any time he wants. Truth is this is actually an intentional consequence of Trump administration policy, and because our immigration problems are so complicated and go back so far, the administration realized it can create plausible talking points that deflect blame onto the past and drag it into the present.

I hope you find this quick breakdown of U.S. immigration policy helpful. I’ll explain what’s behind the tragedy we’re witnessing today, as well as sketch out a bigger picture that shows us the path we’ve walked to this place where, according to what Senator Jeff Merkley saw on his recent visit to a detention center, we put kids in cages. Thing is, though, we’ve done that for years. (I’m using “we” and “our” wherever possible. This is everyone’s responsibility.) Trump’s just making the problem much worse. In other words the immigration system is screwed, but Trump is making it screwed-er.

And that’s actually the best place to start.

We put kids in cages

Senator Merkley got into the headlines when he and some of his staff made a surprise visit to an immigrant detention center in Texas, where they weren’t allowed inside. They even tried calling the police. But they did see some shit. According to Merkley, the center kept hundreds of kids in “big cages made out of fencing and then wire and nets stretched across the top of them so people can’t climb out of them.” He also reported that some of the facility is “just a concrete floor and people are being given these space blankets to sleep on.”

This is horrible and inhumane. The U.N. told us to cut it out. They also told us it’s illegal to separate children from their families. But White House Deputy Press Secretary Hogan Gidley responded to Merkley’s allegations in a written statement that said the senator was “irresponsibly spreading blatant lies” and “smearing hardworking, dedicated law enforcement officials.” Gidley also wrote that Senator Merkley’s policies “endanger children, empower human smugglers and drug cartels, and allow violent criminal aliens to flood into American communities.”

First, it’s easy to prove that Merkley wasn’t lying, as the Washington Post has already done. Immigration officials lock children in fenced-cages for up to 72 hours. They sleep on mats or on the ground, covered in “space blankets,” or emergency thermal blankets that look like tinfoil. But this isn’t new. Here’s a picture of a Republican representative inside a detention center in 2014 (ignore the incorrect caption):

The differences today, though, are in the number of kids we’re taking from their parents, and, to a great extent, our reasons for it.

Why are we putting kids in cages?

Put simply, the Trump administration is lying about nearly everything.

First, though, it’s true that for over a decade the Department of Homeland Security (DHS) policy has been to place the kids of immigrant parents charged with a federal misdemeanor in the custody of the Office of Refugee Resettlement. So this horrible act is nothing new. We’ve just ignored what it looks like. Largely that’s because the numbers of kids held looked nothing like they do today. Here’s what’s changed, and it involves two separate issues:

1. Kids who cross alone. We have a few different policies for minors who commit the “crime” (more on that definition later) of illegal entry. Today we send unaccompanied Mexican children straight back home) if they can’t convince Border Patrol they’re in danger of “persecution” or human trafficking. The language of this bill specifically says they need to provide Border Patrol with “credible evidence,” which gives agents a pretty wide berth in choosing whom to deport.

Trump has falsely called the policy that protects unaccompanied minors “a Democrat rule.” The policy is called the Trafficking Victims Protection Reauthorization Act of 2008, and it was passed by George W. Bush. It’s also part of the “catch and release” issue Trump mentions so much (and blames on the Democrats), which is another Bush-era policy that grew out of a response to a 2001 Supreme Court case. What Trump calls “catch and release” are a bunch of protections for vulnerable groups such as kids and families.

Unsurprisingly, a secret 2014 U.N. Human Rights Commission report found that this policy resulted in lots of Mexican kids being sent back to danger. The law’s guidance says that Border Patrol agents should presume Mexican children are in danger unless the screening process proves they’re safe. But the report found it was the opposite: Agents were assuming children weren’t in danger and had to prove otherwise. And some of the Border Patrol interviewers didn’t even speak passable Spanish. This isn’t to say the agents were cruel, because a majority of them have been reported as being kind to these kids. The policy says they had to move fast and by the book, and that policy ended up endangering many Mexican kids.

Today we don’t have the same policy for Central American kids, and that policy has put a major strain on our immigration system. There’s been a major influx of unaccompanied child immigrants from Central America, but we don’t send them straight back. Instead we detain them while we try to find ways to release them in the U.S. We’re now considering immediate deportation, though, in a new bill backed mostly by Democrats. This means that the policy that has failed who knows how many Mexican kids would now apply to even more kids. It’s worth noting that the language in the bill doesn’t necessarily include “crime” such as general gang violence as a legit reason for fleeing. Just “persecution.” In other words kids who speak only Spanish must have the composure to convince agents carrying guns, some of whom don’t speak much Spanish, in a ten-minute interview that they’re in immediate danger. Any other scenario and it’s back to the real home of MS-13.

What’s more, the new bill would change language that gives Border Patrol agents a degree of humane discretion, from saying they “may” send kids home under these circumstances to they “shall” send kids home. And as if the GOP authors aren’t being clear enough, the new bill takes the extra step of changing the section title to purposefully dehumanize immigrants: “Special rules for children from contiguous countries” to “Rules for unaccompanied alien children.”

The year-over-year rise of child immigrants from Central America is part of the reason we lock up so many kids are in those awful centers. But the alternative we’re considering is sending many back to the same dangers that the GOP claims to abhor here in the U.S. This is one of the concessions Democrats would make in order to get a path to citizenship for millions of immigrants already here, but it’s also a White House talking point and a policy that Trump has in recent months been pushing to Congress. It might help free up space in detention centers, but we’d free up that space in order to fill it with, you guessed it, more kids. Which brings us to the second category.

2. Kids who cross with families

Until recently we didn’t prosecute hardly any of the families, or people, coming across our borders. Instead DHS officials would put them in family detention centers to await hearing in an immigrant court, the results of which which might entail “supervised release” or possible deportation. But the Trump administration’s new “zero-tolerance” policy enforces prosecution of all families who cross illegally. It just so happens that this longstanding DHS policy means the kids get taken away and put in different detention centers, and, eventually, into the custody of a family member or surrogate. And somehow this is the Democrats’ fault.

But that’s the whole point of zero-tolerance: It’s a deterrent. And the White House lies about this.

Reuters reported that government officials have said specifically that the policy is a deterrent, though Thomas Homan, deputy director and acting head of U.S. Immigration and Customs Enforcement (ICE), pushed back: “I want to be clear, DHS does not have a blanket policy on separating families as a deterrent.”

But according to an official memo published by Jeff Sessions last year, it is a deterrent. Whoops!

In regard to illegal border crossings, that memo orders attorneys to consider felony prosecution of illegal entrants with specific prior violations or a history of gang affiliation:

Screen Shot 2018-06-07 at 2.17.42 PM.png

In that section, Sessions goes on to add that a more aggressive prosecution policy is supposed to serve as a deterrent not just to those with criminal records, but to first-time entrants as well. Sessions instructed border states and any “appropriate agency to develop a set of guidelines for prosecuting such violations. These guidelines should aim to accomplish the goal of deterring first-time improper entrants.”

A year later Sessions was apparently unhappy with these guidelines, so he created his own this April in a new memo that makes prosecutions even more aggressive, but conveniently omits the word “deterrent.” Homan also conceded the administration was fully aware of the consequences of this policy: “Now you will see more prosecutions because [of] the attorney general’s commitment to ‘zero tolerance.’” More prosecutions means more family separations.

But this wasn’t even a recent reaction to insufficient guidelines. It was planned from the beginning of the Trump administration. In March 2017 John Kelly said they were considering this “proposal” and called the practice a deterrent on television.

Whose fault is it?

Bottom line: The child/parent separations are all on Donald Trump and his Attorney General Jeff Sessions. The new policy — which Sessions announced April 6 of this year — resulted in more families being separated. Sessions acknowledged this was happening in a radio interview with Hugh Hewitt: “Those children are being well taken care of. Within 72 hours they’re taken to the Health and Human Services to be sure they’re properly cared for.”

Trump, however, as mentioned at the beginning of this piece, blames Democrats. He even said this to Homeland Security chief Kirstjen Nielsen: “I know what you’re going through right now with families is very tough, but those are the bad laws that the Democrats gave us. We have to break up families.”

“We have to break up families.” And the blame lies with Democrats. Is there any truth to this?

First, no law requires us to separate children from their parents. But we do separate them when their parents are prosecuted. This is not because of a Democrat law, but because, obviously, children can’t go to jail, though immigration in some cases sends them to juvenile detention centers. Most of the children Trump is taking away, however, aren’t locked up in juvie, but separate from their parents in immigrant detention centers where they await release to a relative or foster care while their parents are sentenced and likely deported. This scars people for life.

But again, the Obama and Bush administrations also detained children, though for different reasons. And regardless of who’s running the country, our detention centers have always been awful places where no one deserves to be locked up just for crossing the border. Our wretched immigration system is not, and I want to be very clear here, a Trump issue. It wasn’t much better under Obama or Bush. After all, here are some pictures from Obama-era detention sites. But Trump’s policies, which are totally optional, are incontrovertibly making the problem worse.

But logic hasn’t stopped the Trump crowd before. White House deputy press secretary Hogan Gidley told Politifact that “the cruel and inhumane open borders policies of the Democratic Party are responsible for encouraging mass illegal migration, enabling horrendous child smuggling, and releasing violent MS-13 gang members into American communities.”

This brings us to the simple question at the heart of the immigration debate: How cruel is too cruel?

Is separating kids from their parents a humane, proportionate punishment suitable for use as a deterrent? Well, we could simply shoot people. That’d be a deterrent. But the U.N. has just told us we’ve crossed the line between callous and cruel. “The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles,” said Ravina Shamdasani, a spokeswoman for the U.N. High Commission for Human Rights.

She added there is “nothing normal about detaining children.”

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