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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, June 21, 2018

Amid public outcry, GOP scrambles to counter Trump policy of separating children from parents

USA Today
By Deirdre Shesgreen and Eliza Collins
June 20, 2018

WASHINGTON – Buffeted by public outrage on one side and an unyielding president on the other, Republicans walked a legislative tightrope Tuesday they said would allow the Trump administration to keep enforcing its “zero tolerance” immigration crackdown while stopping the heart-wrenching practice of separating children from their parents.

Senate Majority Leader Mitch McConnell, R-Ky., and other GOP lawmakers said they would move quickly on a proposal to expand the government’s power to detain parents and children together, as the parents await prosecution for crossing the border illegally.

“We’ve got a problem, we need to fix it,” McConnell told reporters after a closed-door Senate GOP lunch Tuesday. “And we’re going to work on that.”

The GOP consensus was forged quickly amid fears that Republicans will face a political backlash in the 2018 elections, as voters see emotional images and hear the heartbreaking audio of children crying for their parents as families are split up.

The only dissonance in the GOP response was on the question of whether the Trump administration should halt the zero-tolerance policy until Congress can pass legislation to expand detention capacity and unravel court rulings that limit how long children can be detained.

Utah’s Orrin Hatch, the longest-serving Senate Republican, pressed his GOP colleagues to sign a letter asking the Department of Homeland Security to pause the criminal prosecutions while lawmakers finished their proposal.

“The way it’s being handled right now isn’t acceptable,” Hatch said Monday. Thirteen senators signed on to his letter as of Tuesday evening.

But other Republicans said they did not support any suspension of the prosecutions.

“If I were king for a day … I would continue to do what Jeff Sessions is doing and prosecute people who are coming into our country illegally,” Louisiana Sen. John Kennedy told reporters. But, he added, “I would allow their children to stay with them in the detention facilities.”

Currently, children cannot be detained for longer than 20 days. Under the new “zero tolerance” policy, any immigrant who crosses the southern border illegally is being sent to jail or another federal detention facility while they await criminal proceedings. Since children cannot be held in an adult facility or for extended an period of time, they’re placed into the custody of the federal Office of Refugee Resettlement.

More than 2,000 children have been separated from their parents since the policy was begun, according to the Department of Homeland Security.

During the Obama and George W. Bush administrations, immigrants who came to the U.S. illegally were deported but not charged criminally. The new “zero tolerance” policy, outlined by Sessions in May, has sparked widespread condemnation from religious and political leaders across the country.

“We’ve got people from across the political spectrum demanding the president change his mind,” said Sen. Jeff Merkley, D-Ore. “We could talk about legislation, but we should solve this problem now. We shouldn’t have another family separated, and it’s in the president’s power to do it.”

Merkley and other Democrats recently visited the border to see firsthand how immigrants were being treated.

Merkley said parents are having great difficulty communicating with their children. Those who are detained have no idea how their legal cases will unfold.

Sen. Chris Van Hollen, D-Md., said the border trip confirmed his “worst fears.” He said guards were stationed on an international bridge blocking asylum seekers who were trying to come in legally.

Democrats on Tuesday rejected the GOP’s push for a legislative fix, saying the president could reverse the policy in an instant.

“The president alone can fix it,” said Senate Democratic leader Charles Schumer of New York. “Mr. President, you started it. You can stop it.”

He and other Democrats declined to answer questions about the substance of the GOP proposal.

But immigration-rights advocates said the GOP bills would not fully the solve the problem and could even make a terrible situation worse. Critics also said it was folly to think Congress could pass an immigration bill in this charged political climate.

“The idea that Congress is going to pass immigration legislation during an election year is ridiculous,” said Frank Sharry, the executive director of immigration advocacy organization America’s Voice. “There is going to be an ongoing immigration crisis unless President Trump picks up the phone.”

The GOP legislation is a work in progress, with Texas Sens. Ted Cruz and John Cornyn, two border-state Republicans, taking the lead. Cruz’s bill would authorize new “temporary shelters” so that parents and children can be detained together, and it would increase the number of immigration judges to expedite the legal proceedings.

Cornyn said his bill would also nix the rules against keeping immigrant children in custody longer than 20 days, part of a court case known as Flores. In an effort to minimize their time in custody, families would be brought to the front of the immigration line to process their claims. He said he was open to Cruz’s call for additional judges.

House conservatives were crafting a similar bill in the House tailored to address the family separations, although it also included controversial asylum provisions.

“I think everybody has seen these terrible scenes of children being separated from their parents and wants to try to come up with a solution,” Cornyn said.

Sen. Ron Johnson, R-Wis., chairman of the Senate Homeland Security and Governmental Affairs Committee, said he hoped to hold a hearing and a vote on legislation as soon as next week.

“We’re looking at a pretty narrow piece of legislation that would, I think, solve this problem without creating the incentives” to attract more illegal immigration, Johnson said.

Democrats have legislation of their own that would prohibit family separations within 100 miles of the U.S. border except special circumstances, such as abuse or neglect of the children. That bill does not call for detaining families; instead it would release them with a requirement they return for their court hearings.

No Republicans have signed onto that legislation. GOP lawmakers blast that policy as “catch and release,” because some immigrants fail to show up for their hearings and simply stay in the U.S. illegally.

“There’s certainly a consensus that we’re not going to codify ‘catch and release,’ which is what 49 Democrats want to do,” said GOP Sen. Tom Cotton of Arkansas, an immigration hard-liner. Cotton said the Democrats’ bill would encourage human smuggling.

Trump said Tuesday he would support Congress giving his administration explicit authority to “detain and promptly remove families together as a unit.”

“All we need is good legislation and we get it taken care of. We have to get the Democrats to go ahead and work with us,” the president said.

To pass the Senate, any bill would need 60 votes – and therefore bipartisan support. Republicans have a narrow 51-49 majority, and Sen. John McCain has been absent amid a struggle with brain cancer.

It’s unlikely that 10 Democrats would sign onto any piece of GOP-sponsored legislation that allowed the Trump administration to keep prosecuting parents for illegal crossings.

The battle over family separations comes as the House is set to consider two broader GOP-immigration bills, one supported by immigration hard-liners and another crafted by House Speaker Paul Ryan and designed to appeal to the GOP’s moderate wing.

Both of those bills would also eliminate the 20-day cap on child detentions and take $7 billion allotted to border technology and repurpose those funds to expand family detention centers. The more moderate GOP bill would also require families to be kept together in detention after first-time illegal border crossings.

The president met with House Republicans at the Capitol Tuesday evening to discuss the two bills. It’s not clear if either proposal can pass the lower chamber.

Democrats are likely to oppose both, and Republicans are not unified around either.

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