Trump’s child separation policy is immoral and illegal. Can the ACLU make it stop?

A young boy is detained along with his family members in Texas. (Carolyn Cole/Los Angeles Times/TNS)
A young boy is detained along with his family members in Texas. (Carolyn Cole/Los Angeles Times/TNS)

Any time I think that the Trump administration cannot get more extreme or more inhumane, I am surprised by something even worse, most recently a newly created policy of separating parents and children at the border. No prior administration has done this and it is illegal and morally wrong.

Previously, people apprehended while crossing illegally were simply bused back over the border without any charges. When people were apprehended, border agents attempted to keep families together at the same detention site.

When the officers separated them in San Diego, the woman seeking asylum could hear her daughter in the next room frantically screaming that she wanted to remain with her mother. They now have been apart for months.

But Attorney General Jeff Sessions announced a new “zero tolerance” policy meant to deter families from trying to cross the border illegally. All those caught trying to cross the border illegally are to be criminally prosecuted. If a mother or father is with a child when apprehended for the crime of illegal entry, the child must be taken from the parent. “If you don’t want your child separated, then don’t bring them across the border illegally,” Sessions said.

On May 4, Kirstjen Nielsen, the Secretary of Homeland Security, ordered federal prosecution against any individual caught crossing the border illegally. Nielsen defended the policy and said, “In the United States if you break the law, you go to jail and you're separated from your family. It shouldn't be any different for illegal immigrants.”

Under the Trump administration’s policy, undocumented adult immigrants stopped by the Border Patrol or customs officers are sent to a federal detention center to await a trial. Children, no matter how young, are placed in the custody of Health and Human Services’ Office of Refugee Resettlement.

Between May 6 and May 19, 638 adults were referred for prosecution. Those adults brought with them a total of 658 children, all of whom were separated from the adults they traveled with.

When this awful new policy came to light, President Donald Trump astoundingly falsely blamed Democrats for a “horrible law” separating immigrant children from their parents. No such law exists. In fact, it was his own administration that created and announced this policy.

There is no doubt that the policy is illegal under international law. The UN Refugee Convention, to which the United States is a party, clearly states that asylum-seekers should not be penalized for entering a country illegally. In fact, virtually every democratic nation in the world, including the United States, has signed agreements promising not to send away potential refugees without first finding out whether they need protection and are seeking asylum from harm.

Separating children from their parents is offensive to basic human decency. The American Academy of Pediatrics has written to the Secretary of the Department of Homeland Security on at least five occasions opposing the forced separation of parents and children at the border. The American Academy wrote: “We fear these actions will have significant and long-lasting consequences for the safety, health, development, and well-being of children, and urgently request that the Administration reverse course on any policies that would separate families.” More than 200 child welfare, juvenile justice and child development organizations signed a letter urging Nielsen to abandon the policy of systematically separating children from their families.

So far these efforts have fallen on deaf ears. The hope is that the federal courts will put an end to this practice. The American Civil Liberties Union filed a lawsuit, Ms. L. v. ICE, to challenge this policy and reunite a mother and her daughter.

Fearing death in the Congo, the plaintiff, “Ms. L,” escaped with her daughter, eventually arriving at a port of entry near San Diego. An asylum officer did a screening interview and determined that the fear of persecution in her home country was credible and that she had a significant possibility of receiving full asylum following immigration proceedings.

Nonetheless, the mother has been incarcerated in a detention facility in San Diego while her daughter was sent to a facility in Chicago. When the officers separated them, “Ms. L” could hear her daughter in the next room frantically screaming that she wanted to remain with her mother. They now have been apart for months.

It is hard to comprehend the horror for a child of being taken and placed in an institution with no knowledge of when or whether the parents will be seen again. As a parent, I cannot imagine how awful it would be to have my children taken and moved hundreds or thousands of miles away. And I simply cannot fathom how human beings with any shred of decency could devise and implement such a policy.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

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