Senators from both sides of the aisle have proposed legislation to end the separation of illegal immigrant families, prompting a new battle over how to ensure children's safety and family integrity while also enforcing the law.
The bills are prompted by the ongoing controversy surrounding the separation of children and their parents at the southwestern border, a consequence of President Donald Trump's ordered crackdown on immigration.
Under current law and preexisting DHS policy, children who have crossed the border illegally are separated from adults facing criminal charges, or who are suspected of trafficking. The adults are held pending their criminal hearing, while the children are given to the Department of Health and Human Services, which either places them with a guardian in the United States or, if none can be identified, houses them in a shelter under the auspices of the Office of Refugee Resettlement.
What has changed is whether or not the average adult crossing the border is subject to criminal charges. Strictly speaking, illegally crossing the border is a federal crime. However, previous administrations have at various times chosen not to prosecute all offenders, instead opting for other removal or deportation procedures.
Attorney General Jeff Sessions announced a "zero tolerance" policy for U.S. Attorneys' offices along the southern border in April, mandating that 100 percent of illegal border crossers be prosecuted.
The number of prosecutions rose, according to one analysis. As a result, law enforcement began to separate children from the parents or guardians with whom they traveled to the United States. Almost two thousand minors were separated from 1,940 adults between April 19 and May 31, according to the Associated Press. The administration expects it may hold up to 30,000 minors by the end of the summer, the Washington Examiner reported.
Sen. Orrin Hatch (R., Utah) announced Tuesday morning that he would call on Sessions's office to temporarily halt separation until a congressional fix could be imposed.
At least two such proposals are already on the table: one led by Sen. Dianne Feinstein (D., Calif.), and another authored by Sen. Ted Cruz (R., Texas).
The Feinstein bill, called the "Keep Families Together Act" and co-signed by 31 of her Democratic caucus colleagues, allows the separation of children "only in the event they are being trafficked or abused by their parents." Concretely, this means that no child may be separated except upon a judge's order, if a child welfare expert determines that the child is being abused or neglected, or if the CBP officer in charge determines that the child is at risk of trafficking or abuse.
The bill further explicitly stipulates that separation cannot be carried out "for the policy goal of deterring individuals from migrating to the United States or for the policy goal of promoting compliance with civil immigration laws." It also requires DHS to issue guidance on parent-child reunification, for which there is currently no legal protection.
Conspicuously, the bill does not make clear what it would have law enforcement officials do with the children of otherwise-charged adults. It also does not apply exclusively to children of illegal immigrants, which, attorney Gabriel Malor noted, means that many federal law enforcement agents are prohibited from separating children from their parents for any crime whatsoever, even non-immigration ones.
"If enacted, this bill would turn federal law enforcement upside down in the name of protecting relatively few unlawful border crossers from being prosecuted," Malor wrote at the Federalist. "This sloppiness is a prime example of why Democrats are unserious about outcomes and unfit to govern when the emotional stakes get high."
Feinstein's bill erects an aggressively high barrier for separating a child/adult couple, meaning that the number of child traffickers or individuals using children as "chits" to cross the border is likely to increase. This likelihood attracted the criticism of Sen. Tom Cotton (R., Ark.).
"Dems' Keep Families Together Act is better called the Child Trafficking Encouragement Act," tweeted Cotton. "Show up at border with a minor & call him your child, then you get released into the US! Children will be abducted & sold to drug cartels & slave-traders as a free ticket into US."
The alternative bill, announced by Sen. Cruz, is designed to simultaneously stop family separation and address some of the concerns that prompted the Trump administration's zero tolerance policy. Although the text has not yet been released, Cruz's announcement specified that it would mandate the keeping together of illegal immigrant families, "absent aggravated criminal conduct or threat of harm to the children."
In addition, the bill would double the number of federal immigration judges and authorize new detention facilities for illegal immigrants to be held at pending criminal and deportation proceedings.
The bill would also require asylum claims to take no more than two weeks to process. This matters because many individuals crossing the border claim a "credible fear" of persecution in their home countries, immediately qualifying them for consideration for asylum.
Eighty percent of these claims ultimately are rejected, suggesting that many would-be immigrants are coached to make an asylum claim, which in previous years would allow them to be released pending a hearing—a hearing which they may never attend, instead fading into the interior. Cruz's expedited asylum proposal would address this issue, while at the same time reducing the amount of time families spend in detention before release or deportation.