That view of immigrants coming to the United States — latent criminals sneaking across the border to plunder — intentionally ignores a more accurate depiction of migrants: people driven from their home countries seeking a better life in the United States.
Most migrants face a much more nuanced set of decisions than the one Trump presents. They aren’t “sent” by their home countries, and they are not seeking to enter the United States simply for the thrill of it. We spoke with two immigration experts — both of whom are critical of Trump’s handling of immigration — to get a sense of the decisions that go into a trip that all sides agree is dangerous. Wendy Young is president of Kids in Need of Defense, which provides legal services to unaccompanied minors and children separated from their parents. David Leopold is an immigration attorney who was the past general counsel for the American Immigration Lawyers Association.
Here are decisions that many migrants make.
Should I leave?
The central consideration for a migrant is, of course, whether to leave their home countries. Traditionally, economic considerations have motivated migrants. In recent years, though, there has been a surge in migration from Honduras, El Salvador and Guatemala as a result of spiking crime in those countries. Many have chosen to flee.
In some cases, it’s an entire family. In others, only the children.
“There’s no choice that’s there — it’s a decision that’s made out of desperation,” she said. “It usually happens when the child is being targeted for targeting and persecution by the gangs. The parents are sending them out to save their lives.”
If the family can’t afford to make the journey together, a child may be sent by him or herself. It’s not the case, Young said, that children are generally pawns for adults seeking entry to the United States.
“All of these comments coming out of the administration imply that there’s some kind of cynical manipulation by families using their children for immigration means,” Young said. “We’ve worked with over 16,000 of these children; I’ve never seen any indication of that.”
If so: How should I go?
Migrants often hire smugglers to help them navigate the path to the United States. Sometimes migrants travel with extended family or neighbors, particularly in cases such as those above, in which children are sent by their families. Trump was incensed this year by a large caravan of migrants that made its way north through Mexico to the border near San Diego.
There are other dangers along the way, of course, from smugglers themselves or from other criminals who prey on migrants. Eventually, though, most migrants reach the U.S.-Mexico border.
The decisions suddenly shift focus: How can my family earn legal admission to the United States?
Should I seek asylum?
Last week, Attorney General Jeff Sessions scaled back the conditions under which migrants could seek asylum in the United States. There is a backlog of hundreds of thousands of cases in the immigration court system that Sessions cited as part of his rationale for ending the ability of those fleeing domestic abuse or gang violence to make asylum claims.
Asylum had been extended to people facing those forms of violence under a legal interpretation from the Justice Department that considered victims of domestic abuse and gang violence “members in a particular social group,” one of the five categories of persecution that can earn a migrant asylum. The other categories are race, religion, nationality and political opinion.
It’s not clear, though, that Sessions’s edict immediately disqualifies those fleeing gang or domestic violence. An expert who reviewed a memo obtained by Vox suggested that the precedent of past asylum determinations could be used over the short term to grant asylum to migrants.
To seek asylum, though, you must be inside the United States or arriving at the border. That is newly tricky.
If so: Should I cross at a port of entry?
The administration’s defense of its family separation policy has included insistence that those who properly seek asylum won’t have their children removed to separate detention facilities. But the administration — specifically, Homeland Security Secretary Kirstjen Nielsen — also insists that proper asylum claims can be made only at “ports of entry,” designated border crossing points such as San Ysidro, Calif., near San Diego.
“The problem we’re having right now,” Leopold said, “is that the port of entry — and we’ve seen this, we’ve seen videotapes of it and photos — there’s a lot of evidence that at the ports of entry, number one, it’s taking days to even get to see an officer to cross over, and number two, we also have seen evidence that, at least at El Paso, they’ve been turning people and pushing them back. They’re not letting them even come through, or they’re dissuading them from coming through.”
There’s another consideration noted by Young: A port of entry might not be near the point at which migrants reach the border.
The alternative to entering at a port of entry, of course, is to cross the border somewhere else. These are the crossings on which Trump focuses.
If not: Should I turn myself over to Border Patrol agents?
It’s not the case, though, that everyone crossing the border outside a port of entry is then making his or her way farther into the United States.
“The vast majority of Central Americans have been presenting themselves and requesting asylum,” Young said. “It’s not a picking-somebody-up-if-they’re-sneaking-across-the-border situation. When they encounter the Border Patrol, they’re saying they need protection.”
In other words, migrants are arriving at the border, finding Border Patrol agents and then making claims of asylum to those agents.
Leopold argues that this manner of seeking asylum is perfectly legal but notes that it hasn’t been tested in the courts (mostly because first-time illegal border crossing is only a misdemeanor). Because asylum claims necessarily have to happen from within the United States — and can be made up to a year after entry — Leopold argues that migrants turning themselves in to Border Patrol agents is valid.
Or it was until recently. Earlier this year, the Trump administration revamped its approach to immigrants in three ways, Leopold said. First, a zero-tolerance policy, meaning that every illegal border crossing would be prosecuted, including asylum seekers who weren’t making asylum claims at ports of entry. Second, granting no bond to those detained for illegal border crossings. Third, citing a legal settlement from two decades ago to argue that children can’t be detained with their parents, so children are moved to other detention facilities.
That second change makes this question moot:
Do I return for my immigration hearing?
In the past, people being prosecuted for illegal border crossings were often granted bond and allowed to go free until their case could be heard in an immigration court. Trump and his team have argued that this was the equivalent of allowing the migrants to go free.
“You never get them out because they take their name, they bring the name down, they file it, then they let the person go. They say show back up to court in one year from now,” Trump said during a speech Tuesday. “One year. But here’s the thing: That in itself is ridiculous. Like 3 percent come back.”
That’s not true. In fiscal 2015, 14 percent of those granted bond failed to return for their hearings, according to data from TRAC at Syracuse University.
There’s another important consideration, too:
Do I get an attorney?
“Like 3 percent come back,” Trump said, then continued: “The other thing they have is they have professional lawyers. Some are for good. Others are do-gooders, and others are bad people.”
Those professional lawyers include pro bono counsel from groups such as KIND.
“In terms of people appearing for their proceedings, one of the factors that is by far the most important is whether they have a lawyer or not,” she said, “because the lawyers will advise them, ‘You have to appear at your proceedings.’ ”
What’s more, TRAC data shows that nearly 9 in 10 of those who appear at immigration hearings without an attorney have their claims denied. Only about half of those who appear with an attorney do.
From this point on, the decisions of the migrants are essentially over, and their fates are in the hands of the government. So, too, are the fates of the children they brought with them — but in the hands of a different government agency. Adults are processed through the Department of Homeland Security; the children, not under arrest, are processed through Health and Human Services’ Office of Refugee Resettlement.
As The Post reported Tuesday, that offers its own problems. The system for splitting up parents and children is in place. The system for reuniting them seems to be much less developed.
“It’s conceivable that a parent may never see their kid again. Ever,” Leopold said. (A former ICE director under President Barack Obama told NBC that this was certainly possible.)
“There are kids who are in those shelters,” he said, “who probably don’t know enough to say they’re from Guatemala or Honduras or El Salvador or someplace — and may not even know their parents’ names.”
It’s the belief of a number of administration officials that the implementation of family separation could be a possible deterrent to migrants. In other words, they hope to influence the very first decision migrants make: whether to head to the United States.
Young thinks that it may influence the second decision: How to get there?
“This policy could have the consequence of driving people further underground,” she said, “fueling smuggling and human trafficking.” Those people, Young said, should be the targets of the policy.
The administration, we will note, claims that smugglers are the target. Their data, though, doesn’t entirely back that up.