Washington Wednesday: Border issues

MARY REICHARD, HOST: Coming up next on The World and Everything in It: Washington Wednesday.

NICK EICHER, HOST: These days, immigration is the dominant topic in Washington. And specifically the issue of separating families.

Separating fact from fiction hasn’t been easy, given political passions.

So today, I’ll try to provide some factual background and for that we’ve reached out to Sarah Pierce of the Migration Policy Institute. She’s practiced immigration law, and she’s now a policy analyst at MPI. She joins me now via Facetime Audio, and Ms. Pierce, thanks for your time.

SARAH PIERCE, GUEST: Yeah, thank you for having me.

I want to ask what you know about the president’s executive order in just a moment, but let’s begin with some foundational issues, some of the basics, and let’s go back in time before the zero-tolerance policy took effect. And I want to talk about families, let’s say one single adult with one minor child together attempting to cross the border illegally. So, back then, Sarah, how did American border officials deal with families apprehended at the border? What would happen?

PIERCE: Sure. So, for the most part, any families apprehended coming into the country that didn’t have authorization to come into the country were placed into expedited removal proceedings. In those proceedings individuals are detained for maybe a few days and then deported from the country. It’s a very quick and rather seamless proceeding. During those proceedings, if individuals express a fear to return home, they’re given the opportunity to speak to an asylum officer and go through a credible fear interview. During those interviews, the asylum officer determines if that individual has a credible claim at applying for asylum. And if they do, they’re transferred from expedited removal proceedings instead into immigration deportation proceedings. The ones we always hear about with our very, very backlogged court system. So, that’s kind of the broad overview of how it worked. The only families who were permitted to enter the country were those who were placed into those long-term removal proceedings. They were permitted to enter just during the pendency of those proceedings.

Okay, well, then describe the difference that the zero-tolerance policy, which included family separation, what difference did the new policy make in practical terms?

PIERCE: Sure. So, Attorney General Jeff Sessions, his zero-tolerance policy states that anyone who’s crossing the border illegally, who doesn’t have authorization to enter, should be prosecuted for the crime of illegal entry. And he included everyone in that, including parents. However, children can’t follow their parents into criminal custody for those proceedings and any jail time that’s associated with it. So, instead, when families were apprehended after this policy went into place, the parents were brought into federal custody for those prosecutions and the children, instead, were reclassified as unaccompanied child migrants, which is a special type of migrant that we have a special legal structure for. And they were put into that legal structure and the family was effectively separated.

Okay, and so the president signed an executive order, in effect, to keep the families intact. And, I’m not looking for an opinion here, right, wrong, or indifferent, but in a nutshell, can you describe what the executive order does and what the executive order doesn’t do? I mean, I understand there’s policy and then there’s practice, but what do you know about it at this point?

PIERCE: Sure. So, in theory, the executive order ends that rather practical concern that I went over earlier in which children can’t follow their parents into criminal custody for those prosecution proceedings. So this order changes that and says that any prosecutions that the parents are going to go through—they have to go through it while in family immigration detention. So the idea, in theory, is that families who do not have authorization to enter the country, who are apprehended at the border, would be placed into family immigration detention. That would still enable the zero-tolerance policy to go into effect. They could still be prosecuted but at that location. They wouldn’t have to leave the family immigration detention center. So, that’s how it’s supposed to work, in theory at least.

Okay, and you say “in theory” so let’s talk “in practice.” Or do we have enough information at this point really to say what the practice is?

PIERCE: Right. We definitely don’t have enough information to say what the practice is. We can definitely talk about what the challenges are, though. I mean, first, how do you create a mobile prosecution unit that would go into family detention centers, essentially, room from room, prosecuting individuals. There’s no infrastructure in place for that. So that’s one challenge. The second challenge, and I think the bigger challenge that’s going to get a lot more attention, is just where you house all these families. So, our Immigration and Customs Enforcement agency, ICE, they have some family detention space, but I think it’s only slightly over 3,000 beds, and as of June 20th they only had maybe 1,000 or less beds left. So that’s going to be a major issue. Finally, there’s also a major legal issue. We had a series of court cases that came down in 2015 and 2016 saying that under a 1997 settlement that the government engaged in, accompanied children—so children who are in families—cannot be held in immigration detention. And, if they need to be held in immigration detention, effectively, the government has a 20-day limit on that. So, they’re going through a major legal barrier to this happening. It’s something the administration is trying to push back against, but I don’t think a lot of people expect them to have success with that.

I had mentioned, Sarah, that you’d practiced immigration law before you became a policy analyst there, so put those two experiences together and talk with me a bit about the immigration court backlog that you had described a few minutes ago. I understand it’s two or three years? Where does it stand now, and tell me whether that long delay itself is something maybe that’s incentive for illegal border crossing knowing that nothing is likely to happen for a long time.

PIERCE: Yeah. It’s a major problem for both the concerns that individuals have that people are coming in and filing frivolous claims, but it also is a major concern for individuals who have legitimate claims at applying for different immigration benefits, including asylum. It’s not good for them to be held in any sort of limbo as this immigration backlog is going on. So, yeah, as you said, and you were right on, the cases are scheduled for two, three years out. Maybe even as far as five years out depending on the jurisdiction, because there are very different backlogs across the United States. In all, we have over 700,000 immigration court cases that are in this giant backlog right now…  

I appreciate how crisply you’re moving through these questions for me, Sarah. Now, I have shied away from asking for opinions, but I am curious, before I let you go, it’s pretty easy to criticize a policy, but do you think there are proposals that A) have a chance of passing, that B) would have a good chance of improving what everybody seems to agree is a crisis with immigration policy?

PIERCE: Sure. So, we’ve seen a lot of proposals coming out of Congress to address this issue and, to be quite frank, I don’t have a lot of hope. But we have some ideas out there, and I think there are a lot of good ones. So, we have some Democrats who have introduced legislation that would just have a kind of blanket mandate that you can’t separate families at the border unless there’s a concern about trafficking. Then we have the more moderate proposals that are just focusing on the reunification of the at least 2,000 families who have been separated. And then we have other proposals from conservatives that would increase family detention. So this would enable the president’s executive order to go into effect by increasing our capacity to hold families in detention. Some of them also provide for expedited processing of asylum applications within 15 days. Personally, I think 15 days is too short. You want to make sure you’re giving people due process and the opportunity to fairly go through the system and present their case, but at the same time, we definitely agree that timely processing of asylum applications would solve a lot of the issues at the border because you would only be then permitting people to come in if they had legitimate claims at asylum and kind of be weeding out the frivolous applications. So there actually are some good ideas before Congress right now, but I’m personally still a cynic and I just don’t think that it’s very likely we’re going to see something go forward. And hopefully I’m wrong.

Well, on that hopeful note: Sarah Pierce, policy analyst at the Migration Policy Institute. Sarah, thanks so much for whittling this down for us. Thanks for your point of view.

PIERCE: Of course. Anytime. Thank you for having me.

(Tom Fox/The Dallas Morning News via AP) Ingrid Yanet Lopez Hernandez, 32, center back, her children Jazmine, 7, from left, Christian, 5, and Cristle Ordonez, 2, and pregnant mother Meregilda Mejilla, 27, and her daughter Maricelda Mejilla, 6, wait after being processed by the U.S. Border Patrol and then dropped off at the Central Station bus terminal in downtown McAllen, Texas, Sunday, June 24, 2018. 

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