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Yes, There Are Smart, Effective and Humane Alternatives to Zero Tolerance and Family Separation

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No, Secretary Nielsen, Enforcing the Law Does Not Require Tearing Families Apart.

DHS Secretary Nielsen claims DHS is merely enforcing the law to secure the border when her Department separates children from parents.  She is wrong. The separation is the result of a series of draconian policy choices by the Trump Administration with no regard for detrimental consequences to children.  But there are smart, effective, and humane alternatives to enforce the law and manage the border.   

First, here are current policy choices and why they don’t work.

Policy Choice #1:  Prosecute everyone without regard to circumstance, severity of charge, and harm to children

The first policy choice — zero tolerance — aims to prosecute 100% of all who cross the border outside of official border checkpoints, thereby separating families, without considering the nature of the charge (often a misdemeanor), viable and successful alternatives and with no regard to the serious and lasting consequences to children.  A bipartisan group of 75 former federal prosecutors have stated, “Until now, every administration has chosen a path that has balanced the need for effective enforcement and deterrence with humanity and compassion.”

As Senator Lindsey Graham recently stated, “President Trump could stop this policy with a phone call….If you [Trump] don’t like families’ being separated, you can tell D.H.S. stop doing it.” In addition, a group of twelve Republican senators wrote to Attorney General Jeff Sessions demanding the policy be stopped while Congress works on legislation. These senators sent the letter: Orrin Hatch, John McCain, Pat Roberts, Susan Collins, Lisa Murkowski, Bob Corker, Lamar Alexander, John Boozman, Dean Heller, Cory Gardner, James Lankford, and Bill Cassidy.

Policy Choice #2:  Make no policy to reunite families after parents’ prosecution concludes

Even after parents are prosecuted and returned to the jurisdiction of DHS, usually within days, this Administration’s second policy choice is to have no mechanism in place to reunite children with parents. John Sandweg, the former head of U.S. Immigration and Customs Enforcement told NBC News that parents separated from their children at the border are sometimes unable to relocate their child and remain permanently separated. “You could easily end up in a situation where the gap between a parent’s deportation and a child’s deportation is years…You could be creating thousands of immigrant orphans in the U.S.”

Policy Choice #3:  Indefinite detention for all, including families, even with young children

The third policy choice is to continue detaining parents indefinitely after criminal misdemeanor prosecutions have concluded and parents are back in DHS custody. As called for in the Ryan immigration bill and supported by Trump, the federal government would indefinitely detain the entire family until they are able to deport the family, even asylum seekers whose cases can take years to conclude. By combining indefinite detention with the bill’s provisions to gut asylum standards, chances for securing protection in America would be low and chances that legitimate refugees would be deported to the danger they fled would be high.  

Smart, Effective and Humane Alternatives

Here are policy choices that do work. Taken in combination, they constitute a humane, workable alternative to the current crisis.

Release on Recognizance, Bond, and Alternatives to Detention (ATDs)

According to direct legal service providers who work with immigrants and refugees:

Asylum seekers and those with credible legal claims and family and community in the United States have strong incentives to appear in immigration court and comply with requirements. Consequently, for many, release on recognizance or a minimal bond is appropriate because they pose little flight risk or risk to the community.

Where there is flight risk, alternatives to detention (ATDs) are not only humane, they are successful and cost-effective.  According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day.  A 2014 GAO study found that the ATD daily rate was less than 7% of the daily cost in detention.

Depending on the facts in each case, there are multiple and effective ATDs to ensuring “high rates of compliance with immigration check-ins, hearings and — if ordered — removal.”  Some options include GPS monitoring devices, in-person reporting or telephonic check-ins.

Here are some facts that support the use of community-support ATD models:

  • ICE’s now terminated Family Case Management Program (FCMP), for
    example, had compliance rates of 99% with immigration requirements such as court hearings and immigration appointments (including at least a dozen families who were ultimately deported), at a cost of only $36 per day per family.
  • Two national ATD programs – one run by the Lutheran Immigration and Refugee Service (LIRS) at $7-24 a day per individual and another run by the U.S. Catholic Conference of Bishops (USCCB) – produced a 97% appearance rate.   
  • A 1999 INS-LIRS ATD program for 25 Chinese asylum seekers produced a 96% appearance rate at 3% of the cost of detention.
  • An INS-Catholic Charities program run from 1999-2002, at a cost of only $1,430 per year per person, resulted in a 97% appearance rate for 39 asylum seekers and 64 “indefinite detainees” who could not be removed from the U.S.  
  • A Vera Institute of Justice report on a supervised release and assistance program run from 1997-2000 found that, of over 500 asylum seekers, non-citizens with criminal convictions facing removal, and undocumented workers, 91% appeared for required hearings (93% for asylum seekers).
  • A 2015 family detention alternative run by LIRS cost only $50 a day for an entire family to receive housing for families without support, orientations on compliance, access to legal representation and wrap-around case management (just 6% of the cost of family detention).

Strong, independent, well-resourced, and fair immigration courts

This administration should stop its systemic assault on an already weak immigration court system so that people seeking asylum may have their cases fairly and timely heard by impartial and independent judges with the tools they need to legally and appropriately address asylum claims.  

The ABA found that:

Without question the most serious issue facing the immigration courts, and the one with the most significant impact on the speed and quality of case processing, is the lack of resources throughout the entire system.

Among other recommendations, the ABA recommended:

…[H]iring enough immigration judges to bring the immigration judges’ caseloads down to a level roughly on par with the number of cases decided each year by judges in other federal administrative adjudicatory systems, and providing one law clerk per judge;

increasing access to counsel and legal information though various measures such as the Legal Orientation Program and the BIA Pro Bono Project; and

recognizing priorities and implementing smart procedures such as greater use of prosecutorial authority and prehearing conferences.

Instead, this Administration has done the opposite.  Attorney General Sessions is more focused on quotas with no regard to quality, fairness or due process.  He is banning the use of tools by judges to appropriately address and reduce overwhelming workload, undermining judicial independence by reviewing and re-deciding cases he disagrees with on policy and with little to no legal analysis, and attempting to end the critical legal orientation program (LOP) that not only ensures basic due process, humanity, and transparency in our immigration system, it is also cost-effective for the government.   

In-country processing of refugees and other improvements to refugee resettlement

Mistakenly, the Trump administration ended the in-country refugee processing program for citizens of El Salvador, Guatemala, and Honduras. The program offered a “safe and orderly alternative to the dangerous, irregular journey that some children are currently undertaking to reach the United States.” The Trump Administration should instead revive, strengthen and improve this terminated program.

Address root causes

Over time, the factors compelling refugee and migration flows must be addressed. To do so, the Trump Administration needs to get serious about addressing root causes — violence, weak governance, and poverty. Instead of a budget proposal to “cut tens of millions of dollars from State Department support to El Salvador, Honduras, Guatemala and the region writ large” and ending TPS programs that will exacerbate problems in sending countries and stimulate increased out-migration, the Trump Administration should support citizen security and sustainable economic development efforts by governments and NGOs in Honduras, El Salvador and Guatemala. The Center for American Progress (CAP) proposes a series of measures, with a priority to bolster effective rule-of-law institutions. For example, a serious strategy

[s]hould assist in creating and fortifying the professional police forces, credible judiciaries, and effective penal institutions needed to establish accountability and the rule of law in the Northern Triangle countries….

  • Police reform efforts must focus on building police forces rooted in communities from the bottom up. Judiciaries should outsource their most vexing prosecutions through extradition and supranational support for national rule-of-law institutions, at least in the short term.
  • With prisons across the region filled beyond capacity, the United States must work with other international actors—particularly the European Union and the United Nations—that have the resources and capacity to engage on prison reform and management issues in the region.
  • Too often, femicides and domestic violence go unpunished in the Northern Triangle countries. These nations must prioritize the prosecution of these crimes in order to make the countries safe for women and girls.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: 

There are smart, effective and humane alternatives to the morally and operationally unsustainable reliance on zero tolerance and family separation. A combination of root cause mitigation, in-country refugee processing, case management strategies that result in compliance and enhanced resources for the adjudication process would move us towards a safe, legal and orderly process and away from the chaos and cruelty of zero tolerance and family separation.