Donald Trump signs an executive order to stop family separations

By I.K. | WASHINGTON, DC

YOUNG children in cages, sleeping on thin mattresses and covered in foil blankets. Children crying for their mothers and fathers. A sobbing mother recounting how the daughter she was breastfeeding was was taken away. These are glimpses of the ongoing family separations at America’s southern border. Since May, soon after Jeff Sessions, the attorney-general, announced a new “zero-tolerance policy” for illegal immigrants, more than 2,300 children have been separated from adults and placed in government-run shelters. These shelters, which are now at 94% capacity, include a converted Walmart on the Mexican border housing 1,500 boys. To add space, officials were considering housing children of illegal immigrants on military bases. On June 20th, after a groundswell of moral outrage, President Donald Trump signed an executive order reversing the policy, a day after he had defended it.

This was a chaotic end to a chaotic plan. John Kelly, the president’s chief of staff, first suggested separating children from families to deter illegal immigration back in March 2017. Mr Sessions proudly announced his zero-tolerance policy in April. Kirstjen Nielsen, the homeland-security secretary, a job which involves overseeing border enforcement, later insisted that there was no such policy. “I say it’s very strongly the Democrats’ fault”, said Mr Trump, a statement even more bizarre and fact-lite than normal.

These rhetorical shifts were possible only because the immigration system is so poorly understood. The White House tried to portray the situation at the border as an uncontrollable catastrophe. The number of unaccompanied alien children increased by 331% from April 2017 to April 2018, it noted in a press release. Yet those months were cherry-picked to give the appearance of a flood of immigrants (see chart). Comparing January 2017 with January 2018 shows a 27% decrease, for example. Looking at the first eight months of the fiscal year, the numbers are up just 4%.

Mr Sessions’s zero-tolerance policy, which instigated the fiasco, aimed to prosecute all illegal immigrants on arrival and refer them to the criminal-justice system. Past administrations have typically restricted criminal proceedings to a narrower group: repeat immigration offenders, suspected smugglers and child-abusers. In those cases, children would be separated from their accompanying adults. First-time offenders were typically referred to civil judicial procedures. Mr Sessions declared: “Our goal is to prosecute every case that is brought to us.” That had not yet been fully implemented. If it had been, the number of family separations would double, the chief of the Border Patrol’s busiest station told the Washington Post. It is entirely within Mr Sessions’s prosecutorial discretion to try every illegal immigrant possible, but it is certainly not required by the law.

Ms Nielsen insisted that the festering crisis of family separation was “the exclusive product of loopholes in our federal immigration laws” that “create a functionally open border”. There are two controlling decisions for how to treat children who are detained by immigration authorities—neither of which requires family separation.

The first is the Flores settlement, a court-ordered decree which requires unaccompanied minors to be placed in the “least-restrictive setting” and released “without unnecessary delay”. “How you can call that a loophole is pretty hard to absorb,” says Doris Meissner, the former commissioner of the Immigration and Naturalisation Service, who signed the Flores decision when it was settled.

The second is the Trafficking Victims Protection Reauthorisation Act, which makes it easier for unaccompanied children from Central America to remain in the United States. As it was passed unanimously by Congress and signed by George W. Bush, it stretches credulity to blame it on Democrats. Because these so-called loopholes say that children cannot spend time in jail, Mr Sessions’ decision to prosecute more parents necessarily results in breaking up more families at the border. Hair-splitting aside, a policy of zero-tolerance prosecutions is one of family separation.

This result could not have come as a surprise to the Trump administration’s lawyers. The real reason for the family separations was to deter future illegal immigration. Ms Nielsen insisted that this was not the point of the policy, but was directly contradicted by Mr Sessions. “If you’re smuggling a child, we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” he said during a speech in May. “If you don’t want your child to be separated, then don’t bring them across the border illegally.”

It is unclear whether deterrence would have worked if the White House had left the policy in place. Data from the Customs and Border Protection show that the number of families arriving at the southern border barely budged from April to May. What is obvious is that the ability of the Border Patrol to arrest large numbers of people has run ahead of the justice system’s ability to process them. While the number of Border Patrol agents has quadrupled, the number of immigration-court judges has hardly budged, says Theresa Brown of the Bipartisan Policy Centre, a think-tank. “That’s like tripling the number of cops on the street and giving them all quotas for arrests, and not increasing the number of bench judges or district attorneys to prosecute them.”

Many incredible things have happened since Mr Trump became president. Witnessing the UN’s human-rights chief actually get something right when he chastised America’s “unconscionable” decision to inflict “abuse on children” is certainly one of them. Political commentators have compared the crèche-prisons near the border to the forced internment of Japanese citizens during the second world war and even, quite hysterically, to Nazi concentration camps. When this was put to Mr Sessions, on the friendly terrain of Fox News, he was hardly reassuring. “It’s a real exaggeration of course,” he said. “In Nazi Germany, they were keeping the Jews from leaving the country.”