Editor’s Note: Shan Wu is a former federal prosecutor who also served as counsel to Attorney General Janet Reno. He practices law in Washington, where his recent representations include defending Rick Gates in the Russian probe. His Twitter handle is @ShanlonWu. The opinions expressed in this commentary are his own.
President Trump’s Immigration Executive Order purports to bring a humane solution to the inhumane practice of breaking up families at our borders. But in reality, the order simply furthers the Trump administration’s anti-immigrant policies by continuing to conflate immigration issues with criminal ones. This hidden goal is revealed once we examine how the current “zero tolerance” policy is limited by the 1997 settlement of the legal case Flores v. Reno.
The “zero tolerance” policy seeks to deter people from seeking to enter our country by imprisoning as many of these people as possible. The policy achieves this by looking for all possible criminal violations. Once a criminal charge can be found, then the person seeking entry can be detained on a criminal charge and their children separated from them due to an existing policy barring children from being detained in criminal detention centers.
Understanding the insidious nature of this plan starts with knowing that immigration proceedings are civil in nature and not criminal. For example, asylum-seekers are not criminal defendants and therefore not processed in criminal courts. For this reason, asylum families would not normally be separated at the border unless prosecutors can find a criminal charge to use against the asylum-seeker.
Indeed, prior to the zero tolerance policy, thousands of people in civil deportation proceedings would not have been in the criminal court process either. But the zero tolerance policy has been used to change the status of thousands of non-criminal immigration cases into criminal cases simply by charging “illegal entry” and busing them from deportation facilities to criminal courts to plead guilty to minor misdemeanors. The punishment often has been nothing more than a fine and time served.
This deliberate conversion of non-criminal cases into criminal cases is what triggered the separating of thousands of children from their families at the border and what led to President Trump signing his executive order stopping this practice. But what the executive Ooder really does is to expand the ability of Trump administration to incarcerate people seeking entry into our country by directing DOJ to re-negotiate the settlement in Flores v. Reno.
The Flores case requires that children be held in the least restrictive conditions possible. It established minimum standards of care and limited the detention of children to no more than 20 days when accompanied by parents.
If successful, this re-negotiation could mean that whole families could stay incarcerated for whatever amount of time it may take to resolve the various cases of the parents. So by pretending to do a good thing – ending the separation of children from their families – Trump’s order really could just put more people in jail over immigration issues.
Trump’s latest tweets about immigration policy shed further light:
This then is the juvenile immigration fantasy of Donald Trump and Jeff Sessions in which they do away with any need for immigration judges or courts of any kind and rule immigration by edict. Sessions recently inserted himself into an asylum case involving a battered woman so that he could do away with the ability of domestic violence victims to claim asylum. While numerous lawsuits and courts will likely check Trump and Sessions, that will do little to solve real immigration policy issues.
Real solutions require thoughtfulness and proper allocation of resources – neither of which is evident in the current administration. Session’s criminalization of immigration through zero-tolerance ignores the geo-political and socio-economic realities behind immigration and refugee patterns in favor of a one-size fits all “law & order” posture. Even in non-criminal immigration matters, Sessions seeks to convert immigration proceedings from adjudications into deportation factories by imposing quotas on immigration judges. This kind of thinking and approach dooms efforts at immigration reform and improvement.
Ultimately, the test of a society’s greatness is how it treats the less fortunate. We will need to do a lot better to pass this test.