Since he announced his candidacy in June 2015, President Trump has managed to rattle American socio-political discourse with his unhinged policies and actions. Globally, people were still preoccupied with his misogynist “locker-room” tapes, anti-abortion agenda, and the Muslim travel ban, when the issue of separating families at the border took center stage. As the world rediscovered that the symbol of global democracy had not ratified the UN Convention on the Rights of the Child, Mr. Trump pulled America out of the UN Human Rights Council – a day after questions and criticism on his ‘Zero Tolerance’ border policy began.
Despite the perceptible collapse of America’s commitment to due process, the strong avocation for human rights among America’s civil society and mainstream media brought the issue at the forefront of public discourse, in no time. But for all its strengths, the outrage was germinating on the question of ‘how come in the United States..?’ rather than ‘how can human beings be deprived of..?’ Perhaps this is why families are still being separated in the US, and more numerously so.
“Give me your tired, your poor,
Your huddled masses yearning to be free”
These lines from Emma Lazarus’ ‘The New Colossus’ have long been invoked to demonstrate America’s position as the land of immigrants. Mounted at the foot of the Statue of Liberty, the words seem out of place in today’s America. It was in 2005 that the US started to strategically deter immigration from Central American and African nations. Prior to this, the immigration policy was geared towards prioritising the identification of criminal actors – particularly those involved in drug and human trafficking. The Bush Administration clubbed all potential undocumented immigrants together and divided them in two categories – those entering through a port of entry and surrendering to authorities – asylum-seekers – while those using under the radar points of entry became “illegal” immigrants.
Derivately, this Operation Streamline bifurcated the course of action as well. Border Patrol began sending the former category to Department of Homeland Security’s custody, while the latter were sent to the Justice Department for prosecution. When a family or a parent with minors were apprehended, however, there were exceptions and separation was not carried out. The reasoning behind this new policy was a perceived, yet unverified surge in immigration. However, Republican “family values” and the image of a “compassionate conservative” ensured that Mr. Bush did not allow the sort of separations being witnessed today. Thus, there was only mild criticism on grounds of inhumane treatment, increased incarceration, deaths of migrants and burden on the justice system particularly in terms of resources.
The Obama administration did not do away with Operation Streamline altogether, but, made two significant changes – it prioritized conviction of criminal actors, and initiated a ‘Catch and Release’ policy. Catch and Release was used when families, especially with children were apprehended while crossing the border, or at a legal point of entry. It was decided that if a preliminary examination did not yield a threat of the individual absconding from a court hearing, they would not be detained. These people were allowed to enter the US, often with ankle bracelets – thus the name ‘Catch and Release’ – while courts heard their pleas and finally decided on their status. Those ill-suited for Catch and Release were detained while awaiting court hearings on their asylum requests.
Catch and Release has been a longstanding grudge of the American far-right who view enforcement of a constitutional requirement available to non-citizens – the due process clause in the Fourteenth Amendment – as unnecessary. Trump embraced this position during the campaign and even pledged to simply send immigrants back, something that would have been illegal given that the right to be heard by a judge is a constitutional requirement. The next best alternative therefore, was ending Catch and Release through Attorney General Jeff Sessions’ ‘Zero-Tolerance Policy for Criminal Illegal Entry’, a euphemism for bringing back incarceration. But unlike pre-Obama era regulations, the insidious intent was to deter people from coming in by taking their children away. In his memorandum, Sessions justified the initiatives by citing the success of Operation Streamline in decreasing illegal activities, conveniently ignoring the exceptions made for adults traveling with minors. The memorandum addressed to the US Attorney’s Offices along the Southwest border, while instructing the adoption of a zero-tolerance policy, tries to evoke a sense of nationalism in the “battle” against immigration.
Another alarming aspect of this renewed zero-tolerance policy is that the bifurcation which the Bush administration had created, and the prioritization which the Obama administration set forth, have all collapsed. Thus, while those entering “illegally” are sent to the Justice Department through the Department of Homeland Security, even those who arrive at ports of entry as asylum-seekers and surrender, are prosecuted by the Justice Department. As detection of criminal actors is once again not a priority – since everyone is viewed as a criminal now – the DHS can deport first-time offenders, after completion of some time in prison – depending on their criminal history. This is solely meant for adults, and is where the problem becomes horrifying. Unlike adults, children, are transferred to the Office of Refugee Resettlement, Department of Health and Human Services. The HHS reports that children spend around 51 days at an ORR shelter before they are handed over to a sponsor (relative/family-friend) in the US – if however, a sponsor cannot be traced, the child is sent into foster care. While the children are being routed to someone in the country, the parents are prosecuted and eventually deported, potentially losing the child forever.
What caught the world’s attention was that many children were separated from their parents at the border under false pretense, and those who were not separated, were threatened. While parents were deported in mass hearings, the status and custody of the child remained vague. At one point, the understanding was that parents and children would be reunited at a camp at the border. Soon, however, people realized that this was not the case. Many families were never reunited, and about 1500 children were “lost” in the process. Further, due to the limited space in government facilities, military bases were being used to keep children. Altogether, this issue became a serious human rights violation, besides a violation of international immigration law, sparking considerable outrage around the world, including the UN Human Rights Council, which the country ended up quitting – albeit on the pretense of a protest in favor of Israel.
But more than party politics or American values it is an issue of basic human rights and experiences. Debates on the issue need to be centered on understanding if immigrants are becoming a dehumanized entity, who are putting their lives and families in danger in search of a better home. Central American countries, such as El Salvador, Honduras and Guatemala are facing high rates of violence due to the presence of gangs, and this is the primary force driving people towards the US.
Another problematic aspect, especially in the current political scenario is the obfuscation of facts to pander to public opinion. Both the Bush and Trump administration used the threat of a “surge” of immigrants to justify their crackdown. However, several reports have shown that migration has trends, and there is no consistent increase in illegal migration to the US. Further, deterrence measures such as Operation Streamline and the renewed zero-tolerance policy have no impact on these trends, because in the current political landscape of Latin America, push factors for migration have a far greater impact than any threat leveled by Washington.
Over the last few months, a picture of an anti-immigration US is being painted, however, upon looking closely, it is apparent that the US is not anti-immigration as such, but the rhetoric is one against people of color. The crackdown measures are an effort to achieve just that. This is also not a ‘un-American’ feature or one drummed up by the Trump administration – families have been separated by the American state apparatus for centuries. For nearly 250 years, African families brought in as slaves were separated, whil Native American children were often forcibly separated and made to attend “Indian schools”.
Shaun King of The Intercept notes that due to mass incarceration, several adults and children of color are in jails – a phenomenon exacerbated by the Industrial Prision Complex. There have been several instances in history where families of color have been separated by the US. Hence, the question ‘how come in the United States..?’ is rather ignorant, and potentially perpetuates the same prejudiced discourse. We should rather be questioning ‘how can human beings be deprived of..?’ to once again focus on humans – their rights and experiences. While Mr. Trump was forced to rescind his policy in a largely flawed Executive Order and a Californian court has directed re-unification of families, it is only when we treat undocumented immigrants as humans and remember history that perhaps families will be saved from such inhumane separations.
Comments and suggestions are welcome.
About The Author
Reeya Rao has been India's representative at the 2016 G20 Youth Summit held in China. She is currently pursuing her Master's in Social Policy and Development from the London School of Economics and Political Science, and holds a graduate degree in Sociology from the Lady Shri Ram College, Delhi University. A former President of her college's National Service Scheme, Reeya's research interests include Education, Gender, Migration and Youth Affairs. A binge watcher of television sitcoms, Reeya also has a penchant for Modern Calligraphy.