The Hill (Op-Ed)
By TODD ROSENBLUM
June 20, 2018
The Trump administration’s decision to forcibly separate more than 2,000 children from parents requesting asylum or illegally crossing the nation’s southern border is morally reprehensible. It is nothing like the Obama administration’s decision in 2014 to place unaccompanied minors in closed housing units until they could be transferred to family in the United States while they awaited court proceedings.
I was the senior civilian defense official at the Pentagon overseeing defense policy on this matter during the 2014 crisis. The first core fallacy of President Trump is to equate former President Obama’s policy of temporarily holding unaccompanied children in closed centers with its decision to forcibly separate accompanied children from their parents upon surrender to U.S. authorities. In 2014, the government’s action was to temporarily hold the children pending determinations of their legal status.
The surge of 2014 was a real spike and compelled a firm but humane response. It was not hyped to be a national security or existential threat to the country, but our immigration laws had to have integrity. We agreed deterrence had to be a large part of the solution. The overwhelming percentage of unaccompanied minors coming to our southwest border were from Central America. Citizen insecurity, poverty and violence was, and still is, tragic in much of the region. But levels of poverty and violence were constant, so why the surge?
The surge was driven by a misinterpretation of Obama’s decision to provide legal status for the children of persons already living in the United States. These are the “Dreamers.” Fueled by traffickers and violence, families in Central America sent their children to the border, incorrectly believing their children too would get legal status if they could request asylum directly. Other rumors circulated that the U.S. program would soon end. At the height of the crisis, 68,500 unaccompanied children crossed into the United States either seeking asylum or illegal entry along the southwest border in 2014, up from 16,000 in 2011.
The broad consensus in our White House meetings was that we had to stem the flow, both at the source and at the border. We were deeply concerned about the psychological impact on the children. Humanity for the children was at the fore in our analysis of the way forward. The initial triage location for the children and adults seeking asylum was harsh holding facilities proximate to the border.
These were cold and dehumanizing pens, much like the ones the Trump administration is using today for longer term detention. It was difficult walking through these pens, seeing open toilets in the middle of group cells housing 20 or more asylum seekers and illegal entrants at a time. The policy was to safely process all people in these facilities as quickly as possible, making sure there was biometric accountability, safety, health checks, food and initial intake depositions taken. Families were kept together unless there was a deemed reason for not doing so.
After processing, the unaccompanied minors were transferred to custody of the Department of Health and Human Services. This was a critical event, as the children moved from legal processing centers to administrative detention built around the controlled welfare and care of noncriminal persons. Trump’s policy to treat all entrants as presumed criminals, at least those from Central America, is profoundly unfair. Border Patrol agents told me repeatedly that the vast majority of entrants were economic migrants.
This is a second core difference between today and 2014. At no point did any of us suggest traumatizing children to be an appropriate deterrent or negotiating chit. Trying to suggest the Obama administration did something similar in 2014 is a third Trump administration’s fallacy in trying to assert parallel response. The Obama administration prioritized unaccompanied children and nondetained families above other cases in the immigration courts and on the same level as detained aliens.
Cases were expedited, but a significant percentage of minors and nondetained families remained in the United States because our legal system is overwhelmed by volume, and far too many illegal entrants fail to show up for their court proceedings. We do need major new investments to increase immigration court proceeding capacity. Our solution was not perfect as trial absentia rates were unacceptably high, but it did balance our national security with our character.
If the goal is to prevent all new non-status persons from burrowing into the homeland, then the government will need to hold all entrants in controlled locations until their legal status is finalized. Nations have the right to decide who can enter and stay, but they are equally under the legal and moral obligation to treat such persons humanely during that period of determination. The unilateral decision to forcibly separate children from their parents and presume they are criminals is wrong. It is nothing like what we did in 2014.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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