The Fix solicited questions in our afternoon politics newsletter, The 5-Minute Fix. And we got A LOT.
I picked out the most commonly asked ones and called up Kathleen Walker, an immigration law expert who has also lived on the U.S.-Mexico border for more than 30 years, to guide us.
She gave me an up-close look at what was happening at the border over the past six weeks that created so much controversy, and what could happen next — both there and in Washington — in the still-unsolved migrant and humanitarian crisis. Her answers have been edited for length and clarity.
Fix readers: Is there a big difference between asylum and illegal immigration?
Walker: Yes, absolutely. Asylum is based on a humanitarian core belief that is ingrained in our Constitution and who we are as a nation. Asylum applies both with the illegal entry and legal application trying to get into a port of entry.
There are two ways to get into the country. Option A is, I go to a port of entry in the U.S. If I try to cross between the ports of entry, that's when we get into illegal entry.
So if I'm entering the U.S. illegally and I get picked up, how does asylum play into it? Let's take an example: I'm coming from Central America, I'm fleeing horrible violence that has happened in Guatemala, and I've heard stories of waiting in tents for days at ports of entry. So I apply out of port, presenting myself to a border officer, knowing I don't have a visa to get into the U.S., but explaining that I'm fleeing my home country. I'm now in the realm of criminal law. If I enter the U.S. between ports of entry, that makes it a misdemeanor subject to incarceration.
But we have a humanitarian overlay to our immigration laws. Even if somebody enters the U.S. illegally, the question is supposed to be asked: Do you fear returning to your home country? We're supposed to have this question asked because we are a humanitarian nation.
So why was the Trump administration separating families seeking asylum that entered illegally?
Walker: Let's say a child and a parent are illegally entering the U.S. The government is typically not going to charge the child with illegal entry because there was no intent with a 6-year-old child to enter. They are just doing what their parent tells them to do.
At the same time, the child doesn't have a legal right to enter the U.S. And the parent is now on the criminal path. That's how we get into separation, because Trump's zero-tolerance policy is forcing that adult parent to be incarcerated, and they won't put children in a county jail.
Why do we hold people who cross illegally rather than turn them around?
Walker: When it comes to asylum, a person seeking it may have entered the U.S. illegally, but they are not committing a criminal action by seeking asylum. They are asking for humanitarian relief. So the argument is: “If I'm seeking humanitarian relief legitimately, why would I be locked up?” Normally you lock up people because they committed a crime or because you believe they are a flight risk or a risk to public safety.
What the Trump administration had done is a re-review of what we as a nation consider acceptable actions to take regarding asylum seekers. It's an extremely sensitive and compelling situation for us to address properly.
Does Trump's executive order stop all separations?
Walker: The zero-tolerance policy is not changed by this executive order. It's basically lipstick on a pig. They are trying to keep the family together “depending on law and family resources.” That gives them a lot of wiggle room.
If crossing illegally is a misdemeanor, why didn't the Bush or Obama administration lock up people caught illegally crossing the border to the degree the Trump administration is?
Walker: What we've done in the past is decide if somebody is a flight risk. If not, they might post a bond and we'll make people wear an ankle bracelet. There are all sorts of things that are an alternative to incarceration. It's less expensive to the taxpayer because we are not providing housing and food and other needs in a federal facility.
Do we know what happens to separated children now?
Walker: I don't see any process yet about how those 2,000-plus children are being reunited with parents who are seeking asylum. The executive order stops separating families who cross the border after Trump signed it, but it does not address people who have already pleaded guilty to illegally entering the U.S. and been separated from their children. (Editor's note: The Trump administration told the Associated Press that about 500 children have been reunited with their families since May.)
Are there any laws Congress could make that would ease this crisis?
Walker: Well, you've got several different moving things that create this. People fleeing gangs in Central America is a big one. If we just focus alone on the port of entry, you need to have more staffing at the ports just to deal with those seeking asylum.
And when you claim asylum, you have to get through what's called a credible fear interview. We need a lot of assistance so we can conduct legitimate credible-fear interviews that are conducted in a consistent way and are subject to oversight.
There won't be space at ports of entry for all this, so you may have to make a decision on whether you detain a person for more than 20 days (per a court ruling) while you figure out when to do the interview.
Should we be talking more about the root conditions in these Central American countries that lead to such mass migrations?
Walker: Yeah, absolutely we need more discussion about this. Think about all the resources that get triggered in an illegal entry, especially assuming we will continue this zero-tolerance policy.
Can't we figure out some mechanism for an assessment for a cost-benefit analysis of continuing to fail to address the root cause of the problem — which is the failed states who can't protect their citizenry — vs. prosecuting asylum seekers as they come in?
It's a diplomatic issue and it's a very political issue.