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A “zero tolerance” immigration primer

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MCALLEN, TX – JUNE 12: A two-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border on June 12, 2018 in McAllen, Texas. The asylum seekers had rafted across the Rio Grande from Mexico and were detained by U.S. Border Patrol agents before being sent to a processing center for possible separation. Customs and Border Protection (CBP) is executing the Trump administration’s “zero tolerance” policy towards undocumented immigrants. U.S. Attorney General Jeff Sessions also said that domestic and gang violence in immigrants’ country of origin would no longer qualify them for political asylum status. (Photo by John Moore/Getty Images)

This post is from an immigration lawyer, who put it on a University of Michigan sports board (There’s an interesting story about how almost all the Trump supporters/apologists who posted there ended up getting chased off by ceaseless mockery and insults — i.e, violations of their first amendment rights per the Palin/Weiss doctrine — which maybe I’ll tell at some point).

I think most know, but in case people don’t, I’m an immigration lawyer. Made the switch about 2 years ago after a career in which I mostly did patent and trademark litigation. I’m currently a solo practitioner in the DC area and the majority of my clients are asylum-seekers from El Salvador, Honduras and Guatemala. I’ve tried – and even won – asylum trials in immigration court, and have interviewed literally thousands of undocumented individuals to hear their stories and evaluate the merits of their cases.

Prior to zero tolerance (I’ll just use ZT to denote going forward), a mother and 2 sons leave El Salvador because of gang violence or domestic violence. They pay a “coyote” to take them and a bunch of other folks to the US border. These are mostly people with second grade educations, and they know fuck all about US immigration law. They cross the border and are apprehended. Pretty much 100% of border crossers in 2018 are apprehended, and it’s been that way since about 2010. All the “border security” measures that have gone into effect since 2005 when GWB proposed an amnesty have increased the number of border patrol and the technology they use to patrol. Of the thousands of undocumented individuals I have interacted with, literally not a single one entered the US after 2010 and was not apprehended at or near the border. The dirty little secret of immigration policy is that the border is already secure.

If this mother and 2 children were apprehended prior to ZT, they were taken to a detention center along the border. There are many such centers in southern Texas, southern AZ and southern CA. The parents and children were not separated for any appreciable length of time. Never. Anybody who says different is misinformed. Or lying. Your mileage may vary. If the parent stated that she wanted asylum, she was given what is called a Credible Fear Interview, in which she detailed the reasons for leaving El Salvador. The purpose of the CFI is not to finally adjudicate whether to grant asylum – that is done by an immigration judge or by USCIS. If the CFI states that there is no credible fear of return to your home country, you are deported. If after the interview, it is determined that you have a credible fear of returning to your country, then you are given a Notice to Appear that is the document that begins the immigration court process. It states that you are not a US Citizen or legal permanent resident, you are not here under a visa, you are a citizen of El Salvador, and you are removeable under the Immigration and Naturalization Act (INA). Asylum is a defense to removal in immigration court. An asylum-seeker files form I-589, along with as much evidence as she can obtain to support the asylum claim. The immigration judge determines whether to grant asylum or deny. Denial means removal, aka deportation. You can appeal a negative decision to the Board of Immigration Appeals, and after that to the federal appeals circuit that covers your area – 6th circuit for those in Michigan and Ohio, 4th circuit for Virginia and Maryland, 7th circuit for Illinois and Wisconsin, for example.

While in detention, the families would be kept together. ICE would determine whether to release on own recognizance or under a bond. Typically, they do not do so, and so the immigrant can ask the immigration judge to release them under bond. Bond rules in immigration court are the same as in regular court – if you are deemed a danger to the community or a flight risk, bond can be denied and you are detained throughout the pendency of your case. Rarely were parents with children denied bond altogether. They were usually released within anywhere from 2 days to 2 months. Again, when there are children, they would try and expedite their release so they’re not sitting in a detention center for months at a time.

Now, under ZT, the administration is criminally charging the parents and using that as the facade to separate the children from the parents. Obviously, if someone is arrested for suspicion of a crime, and he/she has children, that person is separated from the children. So that is how they are accomplishing the separations – by criminally indicting the parents. A first unlawful entry into the US is a misdemeanor, lesser penalty than possession of a small amount of marijuana for personal use. So no prior administration took the step of criminally prosecuting these people, and especially not for the express purpose of separating the families as a deterrent to future immigrants as the administration admits it is doing.

There is obviously a TON more information than this, but I think this at least lays out the current situation with family separation, why it’s happening, and how prior administrations dealt with it.

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