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United States Immigration Policy

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POSC 100: POLICY ESSAY (WINTER 2021)
I. FAMILY SEPARATION AT THE U.S.-MEXICO BORDER
May 6th, 2018
Trump administration announced a new ZERO TOLERANCE policy whereby DHS/DOJ would prosecute all individuals crossing the U.S.-MEXICO border illegally between Ports-of-Entry [POE’s].
The Charges…
A - 8 USC §1325 (Improper Entry by Alien) 0R
B - 8 USC §1326 (Reentry After Removal)
First Time Entering Without Inspection (EWI) – criminal misdemeanor
Second Time Entering Without Inspection (EWI) – felony class offense
II. UAC’s (unaccompanied alien children)
The practical consequence of zero tolerance policy meant that family groups crossing illegally together would be apprehended by CBP for unlawful entry but then children would summarily be designated as unaccompanied alien children (UAC’s) once the family had been forcibly separated by Customs Border Protection (CBP)/Immigration & Customs Enforcement (ICE).
III. FEDERAL CUSTODY
Children are separated from their parents, and placed into CBP/ICE detention (not to exceed 72 hrs), handed off to HEALTH & SOCIAL SERVICES (HSS’s) – followed by custody in shelters run directly by or under the supervision of Office of Refugee Resettlement (ORR).
IV. SEPARATION IS ABOUT DISCRETION…NOT THE LAW
Trump administration argued that because parents are arrested @ the border AND criminally charged with illegal entry, CBP protocol NOT STATUTORY LAW prohibits the child from being kept with the parent because the child is not being criminally prosecuted.
In other words – federal discretion is being used to separate immigrant children from parents to discourage them from coming to the U.S.
V. LAWS GOVERNING THE TREAMENT OF UAC’S IN FEDERAL CUSTODY
Statutory law AND case law governs the treatment of immigrant children once in federal custody.
A. Wilberforce Trafficking Act (2008) prohibits unaccompanied immigrant children from being promptly sent back to their nations of origin before being screened to see if they are trafficking victims.
B – Flores Settlement (Flores vs. Reno, 1985) – requires a child to be released from custody as soon as possible and given to a parent, relative, legal guardian, if that is not possible, then the government is required to hold the child in the “least restrictive setting” appropriate for the care and treatment of children.
In 2016, Obama admin asked for a “carve-out” whereby they could hold both children and parents together in immigration detention if they were apprehended as a cognizable family unit. 9th Circuit Federal Court of Appeals rejected this and ruled that the Flores settlement applied to both children accompanying parents and unaccompanied children. Subsequent to this ruling – federal courts have ruled that children cannot be detained more than 20 days before they must be released to a parent, relative or sponsoring organization except if there exists significant risk to a child (parent who has a criminal record).
VI. TRUMP ADMINISTRATION 2018
Flash forward 2018 – Trump administration has implemented its zero tolerance policy to begin detaining children – some as young as three months old (tender age facilities) – in ORR shelters, contracting shelters, hastily erected tent cities, and even military bases.
VII. ASYLUM
Asylum is a protected legal status in the U.S. Persons claiming asylum must convince an Asylum Officer (AO) from the United States Citizenship & Immigration Services (USCIS) that they possess a well-founded fear of persecution on account of their membership in one of five protected categories: race, religion, nationality, political opinion, or particular social group (LGTB etc.). Under the Trump administration’s more aggressive approach towards immigration enforcement, immigrant asylum seekers remain in detention until their asylum interview. Typically, the AO makes either a positive recommendation for asylum or a negative recommendation for asylum. If the immigrant detainee gets a positive recommendation, they might be eligible for parole (release to a sponsoring agent) yet must still go before an immigration judge (IJ) who is the only one authorized to award asylum. If the immigrant detainee is given a negative recommendation – they typically have two choices: 1) accept deportation or 2) continue to fight their case.
Trump Admin Policy – persons presenting themselves at POE’s asking for asylum will not be subject to criminal prosecution, only those persons crossing illegally between POE’s – but in practice, media outlets have reported that CBP has turned asylum seekers away from POE’s, or blocked them from coming to a POE (bridge from Mexico to Brownsville) so out of desperation, they cross between POE’s and are subject to criminal prosecution. Some media report that children of asylum seeking parents have also been taken from them.
VIII. ASYLUM LAW
Federal law does not require asylum seekers to present themselves @ a POE – they have up to a year from when they left their nation of origin to officially request asylum and can request asylum even if already in the U.S.
IX. OBAMA ADMINISTRATION
Prior to 2016, some separations took place but typically – families apprehended together would be held in detention while processed, given a “notice to appear” in immigration court, and then released together (aka “catch & release”). Family detentions under Obama ended in 2016 under U.S. Judge Dolly Gee and later the 9th circuit upholding Judge Gee’s ruling that migrant children could not be detained at length (no more than 20 days).
X. DID ZERO TOLERANCE WORK?
Recall – Trump admin logic was that expansive use of criminal charges and separating families would discourage families from crossing illegally into the U.S. from northern Mexico.
CBP’s own internal statistics strongly suggest that “zero tolerance” – expansive criminal prosecutions followed by family separations -- did not discourage illegal crossings because apprehensions actually increased -
A – May 2018 – CBP apprehended 50% more UAC’s/immigrant children than April 2018.
B – Numbers in May 2018 increased from May 2017 accordingly – 329% increase of UAC’s AND a 435% increase in the apprehension of immigrant children w/ parents.
XI. DELETERIOUS OUTCOMES RESULTING FROM FORCIBLE FAMILY SEPARATIONS
Forcibly separating children from their parents can have deleterious outcomes – including:
1. Emotional trauma (both parents and children) – PTSD, trust etc.
2. The loss of parental rights in some circumstances
3. Separation anxiety.
4. Degradation of Physical/Emotional Health etc.
_______________________________________________________________
Policy Essay Question: Do you agree with U.S. immigration policy that facilitates the separation of families crossing U.S. borders unlawfully? Why or Why Not?
Essay Criteria: 4 pages minimum, single space (not including a reference page), one inch margins, 12 pt font, numbered pages AND the following citation method (reference AND page number OR slide number where reference was sourced.) – OUTSIDE RESEARCH PERMITTED

Essay Sample Content Preview:

U.S. immigration policy
Name:
Institution:
Introduction
In 2018, the United States announced the Zero-tolerance policy, which was aimed at facilitating criminal prosecution for individuals apprehended entering the country illegally. For example, between October 2017 and April 2018, there were more than 700 families that got separated. Soon afterward, there were reports that unauthorized immigrant parents caught traveling with their children were criminally prosecuted, and they were also separated from their children. It is approximated that thousands of young children were separated from their parents before the president signed an executive order to halt family separation. Further, the policy adopted by the United States government to separate families who seek asylum in the country by crossing the border illegally promotes the split-up of parents from their children. The minors are labeled as unaccompanied and taken to government custody, while parents are marked as criminals and taken to jail. Additionally, it is critical to comprehend that the family separation policy for families seized coming into the United States has generated public outrage because it is associated with serious human rights problems and has undesirable implications to families. The literature disagrees and challenges the United States immigration policy facilitating the separation of families to cross the country’s borders illegally.
When a family separates, there is always a lot of implications thereafter. Such implications are usually more pronounced when it comes to kids. Ideally, the separation of children from their parents is expected to have long-term implications for the families’ members. Ordinarily, the children are likely to suffer from psychological distress and lasting emotional damage. When young people are separated from their parents, they are disrupted from the early attachments they have with their parents, which can result in longstanding problems (Ellison, 2020). Besides, the seriousness of the damage caused to the children can also be influenced by the factors reading to the separation. For example, disunion may be voluntary or forced; in this case, parents are separated from their kids using force, and this would have detrimental implications to both parents and the youngsters. Furthermore, since the governments’ potential to facilitate placement with relatives is low, it means that children taken to care facilities and foster homes will grow without experiencing parental love.
Moreover, there are reports that children separated from their parents at the Mexico border have continued showing post-traumatic stress signs. Some children in government care centers are under the misconception that their parents had been killed, and some believe they were abandoned. It has been reported that the children who were forcefully taken away from their parents under the zero-tolerance policy are already distressed; they show feelings of abandonment and have PSTD symptoms that young people not separated from their parents. Such impacts are usually very negative when it comes to the psychological health of these young individuals, to an extent that they might have a very troubled adulthood later on. These children also...
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