The High Cost of Non-Enforcement

A "catch and release" tale

By Andrew R. Arthur on July 18, 2018

Three parents from Central America are suing immigration authorities in order to have more communication with the children from whom they were separated after crossing the border illegally. A separate lawsuit was filed by a civil rights group "to order the U.S. government to provide mental health counseling for the around 2,000 immigrant children separated from their parents by officials at the U.S.-Mexican border." These suits, and other litigation brought on behalf of parents who were separated as a result of the Trump administration's "zero-tolerance" policy, are part of the high cost of years of non-enforcement of U.S. immigration laws.

A June 2018 Rasmussen poll asked 1,000 likely voters: "When families are arrested and separated after attempting to enter the United States illegally, who is more to blame — the parents for breaking the law or the federal government for enforcing the law?" The results revealed that 54 percent blamed the parents of the separated children. Despite this fact, nationwide protests have arisen over the policy.

I previously explained the mechanics of those family separations in a post titled "District Court Sets Up Catch and Release Dilemma". Simply put, before the president issued his June 20, 2018, executive order "Affording Congress an Opportunity to Address Family Separation" (which ended family separations), if parents were referred for criminal prosecution for illegal entry they went into the custody of the U.S. Marshals Service. This resulted in the children being referred to the Department of Health and Human Services as "unaccompanied alien children" (or UACs) under the Trafficking Victims Protection Reauthorization Act of 2008.

Section 275 of the Immigration and Nationality Act, the provision of the law of that criminalizes illegal entry, does not contain any exceptions for aliens who arrive in the United States with children. Despite this fact, the Departments of Homeland Security and Justice have traditionally not prosecuted alien parents entering illegally with minors as a matter of policy. That de facto policy ended on April 6, 2018, when Attorney General Jeff Sessions announced a "Zero-Tolerance Policy for Criminal Illegal Entry".

Those previous policies, coupled with the lack of detention space for alien families (and the Flores settlement agreement, which bars DHS from detaining accompanied and unaccompanied alien children for more than 20 days) have given a veritable "green light" to foreign nationals to undertake the perilous journey to the United States with their children in the expectation that they will be allowed to enter and remain in the United States indefinitely.

In any other criminal context, lawsuits filed on behalf of the children of defendants for separation from their incarcerated parents would be baseless. It is only because the immigration laws have not been enforced vigorously over the years that such lawsuits would be considered at all.