Ok, one pretty hot topic right now is the detention of people at the U.S. illegally, and the separation of them from their kids. I had my opinions on that, but a couple friends of mine challenged me on actual Federal law, and why the families are being separated.
It was worth the effort to actually read the law and extrapolate from there. I have not changed my opinion on how they are currently dealing with illegals at the border, but I am more informed than I was.
Anyhow, here’s what I found.
First, there is no federal law that says if someone requests asylum they must be separated from their children. My bad. What is law, is that in 1997, regulations were put in place regarding (mostly) unaccompanied children showing up at the border. It’s called the Flores Settlement, and springs from a Supreme Court decision in 1993 in Reno v. Flores (https://en.wikipedia.org/wiki/Reno_v._Flores). Bottom line in this is that non-citizen minors can be held by the Federal Government, but only for 20 days. They are then required to be released into some less restrictive environment (roughly in order, family, friends, foster). And, it is called an agreement or settlement because although it mandates requirements on Immigration and Naturalization Services (INS), it was intended to be temporary until Congress passed appropriate law to address this situation. However, since this has not happened since 1997, the Flores Agreement is still in effect. Here is the “meat” of the Flores Agreement from the wiki page:
“The Flores Settlement Agreement … imposed several obligations on the immigration authorities, which fall into three broad categories:
- The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
- If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
- The government must implement standards relating to the care and treatment of children in immigration detention.”
The law that President Trump is following is found in Title V, Subsection E, section 462 (6 USC 279, sec. 462), roughly page 71 of the government document (https://www.gpo.gov/fdsys/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf). Regarding the current debate, the essentials of this section, dealing with kids, is found under (g) Definitions:
“the term ‘‘placement’’ means the placement of an unaccompanied alien child in either a detention facility or an alternative to such a facility; and (2) the term ‘‘unaccompanied alien child’’ means a child who— (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom— (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”
The above was all pulled from legal statutes and is pretty much U.S, Law. Follows is more my interpretation of current events and my opinion.
Ok, first there is no argument or doubt that the parents of the children that are detained and separated are not legally in the U.S. The question is, “what do we do with them?” I want to stress here that no one with whom I associate and/or call friends, has any problem with non-citizens coming to the U.S. as long as it is done legally. My problem with illegal aliens in the U.S. is contained within the word “illegal.” Personally, I don’t see them as “immigrants,” they are aliens by definition, have no “rights” within the Constitution, and no right to expect anything other than basic human rights. Their only expectation should be that if caught, they will either be jailed and then deported, or in mercy, just deported. Period. No amnesty, no citizenship. Deported. I don’t care if it’s their first day in the US or if they have been here for 20 years. Oh, and at the risk of being stoned at the gates, I don’t believe in anchor babies, either. A child born to illegals in the US is not automatically a citizen. They have a saying in the South (you have to read it in a Southern accent, too) that I am using for my own purposes here: “Just because a cat has kittens in the oven, don’t make them biscuits.”
Back to the main topic.
Under Immigration law, any individual who comes to the US without a Visa and/or passport, is here illegally. Period. No ifs, ands, or buts. They are illegal. And in those cases, if they bring their kids with them, those kids are here illegally as well. Even with strict interpretation of the law, under normal circumstances, the families are simply deported, with this exception. INS can look at the situation of an illegal and his family trying to get into the US illegally as the adult “smuggling” the child into our country, and can be prosecuted for that. I don’t have fully formed opinions on that, but I’m not going to argue against it. It is the law, and if the choice is made to strictly enforce it, well then so be it. As a cop, I hated writing traffic tickets. But some guys loved it. I couldn’t argue the fact, if someone rolled through a stop sign and got written for it, well, you did what you did. I can’t help much. It wasn’t my thing, but it was the law. Same here. Come here illegally you don’t stay. Come here with kids and get prosecuted for human smuggling, so be it. You did what you did. Don’t wanna risk it? Don’t come here illegally.
Now the proverbial sticky part comes when the adult requests asylum. Again though, this comes to strict interpretation of the law. I was wrong, there is no Federal law that requires separation of families under those circumstances. However. We are dealing with people that have come to the U.S. illegally, and then ask for asylum. As I said at the very beginning, the question is, “What do we do with them?” All Presidential administrations have detained people in those circumstances. The more lenient administrations have detained them together, in less “detention-like” settings (I think. I have not confirmed this). But strict interpretation of the law does not require such. The adult is put in detention, the child is separated from the parent(s) and placed in a juvenile detention setting, which is worlds different. All lawful and justifiable under the law (hold on to the moral outrage, you can address that in a bit. I wanna get through this first). Given this interpretation and approach, that separation is mandatory. Under the U.S. law that I cited above, the children are “unaccompanied,” and must be detained. However, the authorities are required to find something less “detention-ish” for the kids within 20 days under the Flores Agreement. And this is all law, not administration policy, not procedure. This is adhering to the law.
What I found is that the left is as ambiguous as the right in citing precedence, law, and policy in this situation. Two sources in particular stand out. Snopes addressed this topic (https://www.snopes.com/fact-check/was-law-separate-families-passed-1997/), and not unexpectedly, in my opinion, slanted left. It seemed to me that they focused on one area of this issue (separation of families), but not the entire situation. They are correct, there is no Federal law mandating separation of families. The second, (https://www.texastribune.org/2018/06/18/separated-immigrant-children-families-border-mexico/) is perhaps more balanced in explaining what is going on with the detainees, but also does not address the entire situation.
Here’s why I don’t have a problem with what is going on.
I have always been a bit hard hearted with this stuff. You guys are probably too young to remember the “Vietnamese Boat People.” After we left Vietnam, we left behind many, many people that were allies of the U.S. but were stuck in a Communist takeover that was, shall we say, not sympathetic to them. Many people tried to get away from Vietnam in little more than skiffs, risking open seas to get away from the oppression they knew was coming. I have no problem with them doing that. Where my hard heartedness comes in is when people do that and expect the U.S. to rescue them. Nope. You get found, you get rescued. But if not, well, you made your choice. Similarly, you wanna live on the side of Mount St. Helens when you know it’s gonna blow, well, whatever. When it does blow, see ya, wouldn’t wanna be ya. You want to take pictures of lava flowing toward you in Hawaii? Good for you, but if you trip and fall and start screaming for rescue, not gonna happen. Sucks to be you. Heroin addict (defined as someone stupid enough to inject something that is illegal and potentially fatal in a number of ways into their veins for a kick, and then get to where you gotta have it) that OD’s? Want Narcan? Hold on, I’ll run back to the office and get some; oh, look a kitten!
So yeah, heartless. But you know what? I’m ok with that.
In the movie Jurassic Park, the computer guy way underbid himself and was complaining about it. The owner says to him, ” I don’t blame people for their mistakes. But I do ask that they pay for them.” You choose to stick a needle in your arm, well, better be ready for worst case scenario. You live on the edge of an active volcano that is going to rupture, that’s you call. But you made your bed, you gotta lie in it. You come to this country illegally, you have to face the consequences of breaking U.S. law. To me, it is a question of being accountable for your actions, for your choices. Sometimes one gets lucky and escapes the consequences. But if not, don’t boo de hoo all over the place.
I was always tall. In High School, I was the second tallest kid in my class (and as coordinated as a brick). I have always done stuff that my parents (and now my long-suffering wife) would call stupid. I prefer the term “funny,” but whatever. And I always got caught and had to suffer punishment for it. But did my other friends have to suffer the same punishment as I did? Oh, no, they did not. I would complain to the teacher, and they invariably said, “Well, I didn’t see them do it. I did see you.” Not fair! Being tall definitely had it’s disadvantages. But you know what? it was fair. I deserved the punishments I got. I broke the rules, I got caught, and I paid the penalty. Not always with grace and aplomb, but…
Now, in any of the above situations can grace or mercy be extended? Sure! Someone shoves off a mainland in a rickety open boat into open ocean, and you decided to risk yourself to rescue them, that is awesome! I applaud your heroism. An idiot lives on a volcano and it ruptures, and someone drives like a maniac to rescue them, wow! Is that amazing or what! You come to this country illegally and are detained with all the comforts of (my) home, well, I am not so understanding. Look, I understand why you want to get out of the situation you are running from. I sympathize with that, and I understand. But that does not mean I am obligated to take you in, support you, show you mercy beyond the absolute basic necessities. And that goes for anyone else that you brought with you. I believe they should be treated kindly, not molested, not harmed, fed and housed. But beyond that, I’m not very compassionate.
Best current estimates are that there are around 2000 kids or a bit more that have been separated from their families. I believe this is almost entirely due to the asylum question, but I can’t guarantee that. My best understanding is that the vast majority of the kids being held were “unaccompanied.” This could be “shading” by the Trump administration. If the decision is made to detain the adult that is here illegally, then the minor doesn’t have a parent in the U.S. that they can lawfully stay with. So, it is possible that the children are “unaccompanied” because the parent has been placed in detention prior to prosecution/deportation/review of asylum. It is also possible that the “unaccompanied” kids are here because their parents put their kids in the trust of someone else in order to get them into the U.S. I’m not sure there’s any way of determining the correct circumstances of this. To me it is largely irrelevant. The child is in the situation because of the actions of the parent(s). We are not obligated to extend more than the bare minimum.
And, once the decision is made to put the adult into a detention facility, it is the law that kids cannot be put into detention with the adult. That is no different than a citizen committing a crime in the U.S. and having their kid(s) put into the care of Health and Human Services. You can’t “jail” families.
Finally, I want to again stress that the key word here is “illegal.” If a citizen in the U.S. breaks the law, they face prosecution and incarceration, and that includes being separated from their children. Like the old saying goes, “If you can’t do the time, don’t pull the crime.” If someone comes to the country illegally, well by definition they have broken the law. And in my opinion, the reason does not matter. Especially when they have been warned repeatedly that they would be prosecuted. If someone is repeatedly warned to not do something, and they do it anyhow, either they are stupid or they have an agenda. And neither one gets my sympathy.
I remember a bank robbery in the City of Erie, PA some years back, around Christmastime. The guy was quickly caught, and his was a sad case to me. From all accounts, he was a decent guy, worked hard, provided for his family. But sometime before the Christmas season, he lost his job. As I recall, his unemployment ran out, he couldn’t find work, and he had no prospects for taking care of his family or for providing them a Christmas. He simply felt he had no options left, so he robbed a bank. To me, this was heartbreaking. He wasn’t greedy, he wasn’t an addict, he just felt he had no other options. However, he was arrested for breaking the law, and properly prosecuted and jailed for his actions. The “why,” although important in understanding, is not as important as the “what.” He did what he did. And he was required to face the consequences of his actions.
People at the border that are here illegally, and then separated from their kids, is a sad situation, maybe even heartbreaking. But the separation is on them, not on those enforcing the laws. Don’t like the law? Do what Trump suggests. Get the law changed. But don’t blame anyone except the adults bringing the kids. And Congress. You can blame Congress. They could change the law today and make it more favorable to families. And that’s who I blame. Not the one(s) enforcing current law.