It all begins with President Trump’s assessment of the nature of immigrants crossing the border illegally from Mexico.
To Trump, those immigrants by fault constitute an “infestation” (as he put it on Twitter this week), the criminals and rapists he excoriated at the launch of his presidential campaign with a sprinkling, he assumes, of good people. Even though his administration’s data shows that more than 99 percent of families detained at the border are parents and children — who, experts tell us, are often fleeing violence in their home countries — Trump and Homeland Security Secretary Kirstjen Nielsen have focused on the other 0.6 percent who might be smugglers or criminals. We’ve all mostly internalized this, but it bears repeating: Trump sees immigrants as a threat by default.
Before his administration’s institution of a “zero tolerance” policy on immigration earlier this year, the process for those immigrants looked something like this.
An adult immigrant and her family would cross the border and be detained by Border Patrol agents. Many would ask for asylum, initiating a formulaic process within the government. It begins with a “credible fear” interview meant to determine whether the request for asylum was obviously fraudulent. If not, about 3 in 10 asylum seekers (according to data from TRAC at Syracuse University) were granted bond in the first 10 months of fiscal year 2016. Of that 30 percent, more than eight in 10 would later return for a hearing to determine whether asylum was granted.
Trump’s decision to change the system is heavily dependent on the granting of bond. Zero tolerance, in the Trump administration, means everyone is detained and no one is granted bond. He calls the process above “catch and release,” implying that bonding someone out of detention — at an average bond of $8,000 in 2016 — is the equivalent of letting them go free.
“They take their name, they bring the name down, they file it, then they let the person go,” Trump said during a speech on Tuesday. “They say, ‘Show back up to court in one year from now.’ One year. But here’s the thing: That in itself is ridiculous. Like 3 percent come back.”
He was off by 80 percentage points. But since his default position is distrust, it’s not surprising that he’s skeptical of bond.
Family separation comes in one step further down the line. If a 15-year-old arrives at the border by himself, he is processed as an “unaccompanied minor,” cared for by the Department of Health and Human Services’ Office of Refugee Resettlement until the legal process is complete or a home can be found. If an adult arrives at the border by herself, she is detained while her asylum claim is processed. But if she has children with her, there was a problem. A 1997 settlement in the case of Flores v. Reno, later bolstered with legislation, meant that her kids couldn’t be held in a detention facility operated by Homeland Security. Instead, as of earlier this week, they were moved into the same system as if they’d arrived by themselves, treated as unaccompanied minors and processed by ORR.
What Trump’s executive order does, it seems — details are not available — has nothing to do with the granting of bond. Instead, he will probably ignore the Flores settlement and allow children to be held with their parents in adult detention facilities.
The political effects of this remain to be seen. It is obviously better for children to be with their parents, but they will still be held in jail-like surroundings while asylum claims are being hashed out. The political fallout of that is to be determined.
Steve Kornacki of MSNBC notes that polling shows broad disapproval for separating children from their parents, but plurality support for detaining everyone who is arrested for crossing the border illegally — a crime that, for a first offense, is a misdemeanor. Immigration attorney David Leopold, who helped us develop the charts above, noted in a conversation this week that certain aspects of immigration law hadn’t been tested by the courts because it was easier to simply plead guilty to a misdemeanor, which involves no jail time as punishment, than to fight it through the appeals process.
In fact, it seems likely that Trump would be happy to have a court fight over whether the stipulations of the Flores settlement must be adhered to. In 2015 under President Barack Obama, a court found that children could not be held in prisonlike facilities, according to Flores. If a court now rules that children can be held in detention facilities over the long term, Trump gets what he wants: No one bonded to freedom, and no recordings of children wailing for their parents published in the media.
Whether that’s the best solution for migrants fleeing violence in their home country is another question. For an administration that was looking at separating children from their parents as a deterrent, though, that cudgel is gone.