More Noise than Light on 545 Children

A 'moral failing' or a parental choice? From Elian Gonzalez to zero tolerance

By Andrew R. Arthur on October 23, 2020

Finally, in Thursday's presidential debate, immigration was introduced as an issue. Amnesty was mentioned (the challenger, Joe Biden, said he was in favor of it but did not use the word), but the main focus was on the policy of zero tolerance (which ended more than two years ago), and the whereabouts of the parents of 545 children whose parents were subject to it. The issue has elicited more noise than light, raising the question whether the majority of those parents want reunification.

Biden pounced on the issue, asserting: "Parents were ripped — their kids were ripped from their arms and separated. And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go, nowhere to go. It's criminal. It's criminal." This echoed a statement his campaign released, which described the situation as a "moral failing".

Trump, for his part, asserted: "Children are brought here by coyotes and lots of bad people, cartels, and they're brought here and it's easy to use them to get into our country."

This is a deeply emotional subject, and one that is personal to me as a father. My son is now a man, but even now, if he were "lost", I would move heaven and earth to find him. But there are some parents who could choose to have their children remain in the United States than with them in their home countries, for a couple reasons I will describe below.

Some background is in order, though, both distant and more recent.

First, the distant. I was an associate general counsel at the former INS when the Elian Gonzalez issue was brewing, and saw it first-hand. The five-year-old Gonzalez was with his mother on a boat travelling from Cuba when the boat capsized. His mother drowned (as did 11 others), but Gonzalez, floating in an inner-tube, was saved by fishermen on Thanksgiving Day 1999 and brought to Fort Lauderdale, Fla.

He was released from the hospital the next day into the custody of his uncle, Lazaro Gonzalez, and other relatives in Miami. Gonzalez's father, Juan Miguel Gonzalez, (who lived in Cuba) and the Cuban government requested the boy's return, but an asylum claim was filed by his Miami relatives, and a court — and media — battle ensued.

His family in the United States did not want to let the boy leave, but his father was allowed to come to this country to retrieve his son. The decision was eventually resolved — in Juan Miguel Gonzalez's favor — by then-Attorney General Janet Reno. Elian Gonzalez was seized by INS agents from the home of his Florida relatives in a pre-dawn raid on April 22, 2000, but it still took two months for the boy and his father to be allowed to return to Cuba.

It was a case that sharply divided America. Many believed that young Elian should be with his father, regardless of where his father was. Many others, however, believed that he should remain in America instead of being sent to Castro's Cuba. Reno's actions — and those of the INS — are still a touchy issue.

Second, the more recent. Section 275 of the Immigration and Nationality Act (INA), which makes illegal entry is a crime, does not contain any exceptions for aliens who arrive in the United States with children, and the threat of criminal prosecution is a powerful deterrent to illegal entry (as I have previously explained). Despite these facts, the Department of Homeland Security (DHS) and Department of Justice (DOJ) have traditionally not prosecuted alien parents entering illegally with minors as a matter of policy.

Coupled with the 2016 decision in Flores v. Lynch (which mandates the release of all children from DHS custody within 20 days — meaning that the parents usually get released as well), that non-prosecution policy gives parents a powerful incentive to bring their children with them and travel as "family units" (FMU) on the hazardous journey to enter the United States illegally. Want proof? FMU entries increased 600 percent between FY 2017 and mid-FY 2019.

That journey is extremely dangerous, as I have explained in the past, and one bipartisan federal panel found in April 2019 that the trek is particularly damaging for the children involved:

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

As for Trump's point, the Texas Tribune reported in March 2019 that most migrants to the United States hire smugglers — known colloquially as "coyotes" — who "bribe cartels and corrupt cops and immigration agents along the way." According to a 2018 UN study, "smuggling is a big business with high profits" — specifically valued at $3.7 to $4.2 billion to North America from the southern border of Mexico in 2014-2015.

Nor are those coyotes simply innocent travel facilitators, as the Obama-Biden administration's National Security Council explained in July 2011:

The vast majority of people who are assisted in illegally entering the United States and other countries are smuggled, rather than trafficked. International human smuggling networks are linked to other trans-national crimes including drug trafficking and the corruption of government officials. They can move criminals, fugitives, terrorists, and trafficking victims, as well as economic migrants. They undermine the sovereignty of nations and often endanger the lives of those being smuggled.

That de facto non-prosecution policy ended on April 6, 2018, when Attorney General Jeff Sessions announced a "Zero-Tolerance Policy for Criminal Illegal Entry".

When migrant parents were criminally prosecuted, they passed into the custody of DOJ for what were reasonably brief trials.

Under the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), however, that meant that the minors with them in DHS custody became "unaccompanied alien children", and DHS was therefore required to send them to the custody of the Department of Health and Human Services (HHS) for placement in shelters until a sponsor could be found for them in the United States. I explained that process in length in February 2019 congressional testimony.

More than 2,500 minors were separated from their parents under the zero-tolerance policy before President Trump addressed it by executive order on June 20, 2018, directing DHS to maintain custody of those prosecuted through that process (unless the parent posed a danger to the child's welfare). Most have been reunited with their parents, but there were criticisms (to put it mildly) of the policy and the manner in which it was implemented.

One of those critics was the DHS Office of Inspector General, which released a report in September 2018, finding: "DHS ... struggled to identify, track, and reunify families separated under Zero Tolerance due to limitations with its information technology systems, including a lack of integration between systems."

Another critic is my colleague Mark Krikorian, who recently stated: "The resulting child-separation fiasco was amplified and distorted by a hostile media, but the original disarray could have been avoided with less haste and more planning."

Which brings me to the 545 children mentioned in Thursday's debate. On Tuesday, the American Civil Liberties Union (ACLU), in a court filing, said that "that they have been unable to contact parents of 545 children who were separated at the border by the Trump administration, leaving the children living with sponsors throughout the United States."

The Wall Street Journal reports that up to two-thirds of those parents — most of whom are from Central America — are believed to have been removed from this country.

DHS, for its part, has defended its efforts and pushed back on those claims. According to ABC News, DHS spokesperson Chase Jennings has said that his department and HHS "have 'taken every step to facilitate the reunification of these families where parents wanted such reunification to occur.'"

Note the last clause there. Jennings contended on Twitter:

So, needless to say, there are some discrepancies in this matter. Here are the questions to ask: How many parents have the federal government and/or the ACLU been unable to locate? The parents of 545 children, or some lesser number (such as the difference between 485 and 545 of 60, or any)? Are the 485 children referenced by Jennings included in the ACLU's number? If so, have their parents made the decision that Juan Miguel Gonzalez declined to make 20 years ago, and opted to have their children remain with family members in the United States?

The latter scenario is certainly more than plausible. The idea of bringing children illegally to the United States is to enter and remain with them in the United States. If the parents were unable to remain, perhaps they opted to have their children remain in this country without them.

There are two reasons I can think of for them to have done so: (1) To have their children live in the relative comfort, safety, and affluence of the United States (with free education, to boot). (2) The possibility that, if their children are allowed to remain in this country, those parents will be able to reenter this country at some point in the immediate future.

Another important question — even assuming that the parents of 545 children have not been located — is how many of those parents have been removed? The closer that number gets to zero, the likelier it is that they don't want to be located — by DHS, HHS, or anyone else. Because, if they are, they run the risk of being removed.

I am reminded of an anecdote (I have referenced before) told by Abraham Lincoln about a traveler who was out riding his horse when a furious storm came up, darkening the skies. A bolt of lightning shook the ground. The traveler fell on his knees, praying: "A little more light, Lord, and a little less noise."

As a father, when it comes to the welfare of children, I want as much light as possible. With less than two weeks before the 2020 general election, however, I am afraid that all that I am going to get is the noise.