Beginning of the End of Trump's Zero Border (In)Tolerance?

He seems to be backing away from criminally prosecuting all unauthorized border crosses


Yesterday, President Trump reversed his hideous policy of snatching kids from the breasts of migrant moms. But he swore he'd


continue his zero tolerance policy on border enforcement. He even wrote that into his executive order barring separations.

This meant that asylum-seeking parents caught crossing the border between ports of entry would still be criminally (instead of civilly) prosecuted and thrown into government cages with their kids—even though first time unauthorized entry is just a misdemeanor akin to a traffic violation.

What is particularly diabolical about criminal prosecutions is that border patrol agents have actually been going out of their way to entrap migrants. Robert Moore of the Texas Monthly found several instances when immigrants tried to surrender at a regular port of entry as required by law but were told that there was no holding space for them, a total lie evidently, and turned away, forcing these parents to find another route. One woman rebuffed was a badly sunburnt mother with a baby and a 16-year-old girl.

Once word got around that authorities were taking away children if they were caught between ports of entry, asylum seekers came up with creative work-arounds. One mom boarded a bus to Texas from Mexico. When a border agent asked her for her documents at the port of entry, she requested asylum. He could do nothing but process her request as required by law. Still, there must be some special place in hell for officials who act illegally in order to force vulnerable individuals into illegal actions in order to entrap them. Talk about disobeying the rule of law!

But the Washington Post reported today that the administration might in fact be backing away from its zero tolerance policy: "We're suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody," one official said. The Department of Justice (DOJ) is denying the Post's report. The DOJ insists that it is continuing to prosecute 100 percent of the cases referred to it by the Department of Homeland Security.

But that's totally misleading. What's happening is that the DHS is no longer referring everyone to the DOJ, allowing the DOJ to both claim that it is practicing zero tolerance while actually abandoning it. (It's possible that the administration totally botched its internal communication—but who'd have imagined that!) Indeed, why else would federal prosecutors unexpectedly drop charges against 17 immigrants due to be sentenced for improperly entering the country, as AP is reporting they just did in McAllen, Texas.

The DHS statement implies that its suspension is a temporary step to give ICE time to build more detention facilities—read prisons—to house families together. But the truth is that the administration also faces major legal problems if it replaces family separation with family internment.

Under the 1997 consent decree known as the Flores settlement, Uncle Sam can't keep children in immigration detention for more than 20 days. In 2016, a federal judge extended this rule to families as well. But if the administration continues to criminally charge the parents, then it cannot let them leave as required by Flores without running afoul of other laws. If it does not charge them, however, it can't put them in detention without running afoul of Flores. The House is considering legislation that would let it detain families for more than 20 days, effectively overruling Flores, but that is unlikely to pass. So the administration is somewhat stuck. There is something to be said for contradictory laws when they entangle the government in a web of its own making!

The Trump administration claims that its criminal prosecutions of illegal border crossers were meant to stop the practice of "catch and release" because once released, these asylum seekers don't return for their scheduled court hearing. But that might have something to do with just how onerous, fraught, and unfair the asylum process is. There is not a single migrant who would rather stay in the country illegally if they had the option of doing so legally.

The rational and humane response would be to streamline the process and give people a fair shot at getting asylum, not put impossible hurdles in their way. But Attorney General Jeff Sessions is doing the precise opposite: He has reversed long-standing precedent and stopped granting asylum to abused women escaping domestic violence, something that will make the problem of absconding asylum seekers illegally staying in the country only worse—setting the stage for a future amnesty battle. (As I've noted in the past, under Sessions' regime, even conservative darling Ayaan Hirsi Ali, whose Muslim family was trying to force her into an arranged marriage, would not have qualified for amnesty).

But if stopping catch-and-release is the administration's real motive instead of incarcerating these people to give the appearance of toughness, then there are other options short of warehousing families in government cages in abject conditions.

And make no mistake: These conditions are brutal, as CNN's pictures last week from a Customs and Border Protection detention facility in McAllen, Texas, showed. There were 1,100 people crammed in 30×30 wire-mesh, chain linked cages. It's a facility ripe for disease and mental breakdown.

There are far more cost-effective and humane methods short of erecting prison camps including electronic monitoring, periodic check-ins by caseworkers at homes where the migrants are staying and bonds. Indeed, about 83 percent of those released on bonds typically show up for their hearings, a rate that could be improved even more when combined with the other methods.

As I've noted before, zero tolerance policies have lead to monstrous results wherever and whenever they've been tried. So there was no reason to expect that the outcome would be any different when applied to the border. In fact, it would be much, much worse given that these policies were invoked by the most powerful administration against the most powerless and vulnerable people: fleeing migrants.

The administration's reversal on child separation was a small victory for good sense and humanity. Totally ditching zero tolerance will be the real victory.