In this blog I’ll be correcting and explaing some of the mistakes in a recent National Review article about the families that are turning themselves in at the border and claiming asylum.

So, before I get too deep into this analysis, I want to be very clear.  There is a difference between undocumented families trying to sneak in illegally and stay without getting caught, and undocumented families revealing themselves to the authorities, availing themselves to our laws, and requesting asylum.  Until very, very recently, we have treated them differently.

Article:  “The Trump administration isn’t changing the rules that pertain to separating an adult from the child. Those remain the same. Separation happens only if officials find that the adult is falsely claiming to be the child’s parent, or is a threat to the child, or is put into criminal proceedings.”

They may not be changing the law, per se, but they have adopted a new policy that separates families crossing the border to claim asylum, and treating them like criminals who just want to sneak in.  Jeff Sessions has issued a directive that all non-port entries are to be treated as illegal entries, and all families processed alike.  However, we have laws that distinguish asylum seekers from those who try to sneak across illegally.  Our asylum laws are there to protect them from further inhumane treatment, and process their claims to see if they are eligible for asylum.  Asylum status and withholding of removal protection are based on provisions of the 1951 Convention relating to the Status of Refugees.  See United Nations Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137; United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.  The category for someone who may gain legal status based on humanitarian concerns is “asylee,” and is distinguishable from someone who has unlawfully entered the country with no basis to stay; the colloquial term for this category “illegal,” though, I prefer to refer to this category as “undocumented.”

Article:  “It’s the last that is operative here. The past practice had been to give a free pass to an adult who is part of a family unit. The new Trump policy is to prosecute all adults. The idea is to send a signal that we are serious about our laws and to create a deterrent against re-entry. (Illegal entry is a misdemeanor, illegal re-entry a felony.)”

We have not been giving free passes to families; we have, in the past, kept intact the family unit seeking asylum.  The current administration’s policy disregards asylum law, and instead treats all who cross the border as “illegals,” ignoring the fact that they may have valid asylum claims and that they are not trying to hide their presence.  The article mentions that the first entry is a misdemeanor, and illegal re-entry is a felony. While I agree we should be treating illegal re-entry (felonies) harshly, we should not be separating families over federal misdemeanors, which are relatively minor infractions.  Among other federal misdemeanors are: transporting fireworks to a state that prohibits their sale or use; impersonating Smokey the Bear; and pressing pennies into souvenirs at theme parks.  We, as a matter of policy, do not separate families when parents are caught breaking these kinds of laws with their children present.

Article:  “Where it becomes much more of an issue is if the adult files an asylum claim. In that scenario, the adults are almost certainly going to be detained longer than the government is allowed to hold their children.

That’s because of something called the Flores Consent Decree from 1997. It says that unaccompanied children can be held only 20 days. A ruling by the Ninth Circuit extended this 20-day limit to children who come as part of family units. So even if we want to hold a family unit together, we are forbidden from doing so.

The clock ticking on the time the government can hold a child will almost always run out before an asylum claim is settled. The migrant is allowed ten days to seek an attorney, and there may be continuances or other complications.

I could see using the Flores case where a family unit has entered illegally.  But as I’ve stated above, those seeking asylum are in a different category. Flores came out in 1997; we have not been separating asylee families since that decision, nor the 9th circuit extension.  This is new, hence the outrage.  There is no reason to separate children from asylum seeking families in this decision, and the “clock ticking” on how long they can hold the children is an artificially manufactured problem.  Like I said, we have not had any such policy or time constriction when this case first came down in ’97. This is because the administration has issued a policy to treat everyone entering the country outside a port of entry as a criminal.  Regardless of their valid asylum claims.

Article: “This creates the choice of either releasing the adults and children together into the country pending the ajudication [sic] of the asylum claim, or holding the adults and releasing the children.”

What this actually does is deter people from availing themselves of the laws we have created to protect them.  Cited above, we have laws made for asylees to enter by whatever means are available to them. Even if they are stowaways on a vessel or aircraft, who have been ordered removed previously, and have been denied an asylum claim, but still have not exhausted their appeals.  We have an exception even for them, however slim their chances are. 8 U.S.C.A. § 1231( c).  Historically, we have released the adults and children together into the country pending the adjudication of the asylum claim.

Article:  “Why try to hold adults at all? First of all, if an asylum-seeker is detained, it means that the claim goes through the process much more quickly, a couple of months or less rather than years. Second, if an adult is released while the claim is pending, the chances of ever finding that person again once he or she is in the country are dicey, to say the least. It is tantamount to allowing the migrant to live here, no matter what the merits of the case.”

They fail to cite any source for how this quickens the process, except to exemplify how it has now become a much more emotionally grueling process, and perhaps a lot of people are opting to leave rather than sit in indefinite detention while their cases are getting handled.  When someone files for asylum in the U.S., typically they are given a work card if more than 150 days has passed and there has been no decision made, so they can support their families, get a taxpayer ID number, and start paying taxes. In many immigration courts (any immigration attorneys reading this who practiced under the recently retired Judge Pazar in Memphis can attest to this) the judges will ask you if you have been paying your taxes when looking to your moral character.  See “Permission to Work in the United States,”

Getting that work card and being able to work is usually a HUGE incentive to anyone who wants to come here, in my experience.  So many people come to my office asking if there is any way for them to get a work card. Getting their employment authorization means they don’t have to work under the table, and being in the system means they’re not constantly looking over their shoulder for ICE.  They are able to get valid IDs and function. I can’t see the incentive this article makes of a migrant family wanting to sneak off and live here illegally, to be honest. They also don’t cite to any numbers of this actually happening. This is a huge “what if,” and we shouldn’t be making law or policy based on an unknown.

Article:  “1) Family units can go home quickly. The option that both honors our laws and keeps family units together is a swift return home after prosecution. But immigrant advocates hate it because they want the migrants to stay in the United States. How you view this question will depend a lot on how you view the motivation of the migrants (and how seriously you take our laws and our border).”

… After prosecution.  Not everyone coming through needs to be prosecuted.  If they are making an asylum claim, they shouldn’t be prosecuted at all.  “But immigrant advocates hate it because they want the migrants to stay in the United States.”  — this is an unfounded criticism. I am an immigrant advocate, I am absolutely against dangerous offenders and multiple illegal re-entries, and those entering without a valid basis to stay.  However, as I’ve cited, we have laws made for and to protect asylees. Ignoring this, while applauding a totally unnecessary, recently instituted, and potentially expensive immigration policy (of separating asylee families), absolutely calls into question how seriously the author takes our immigration laws.

Article:  “2) There’s a better way to claim asylum.”

I went ahead and cut out the two following paragraphs because they don’t matter.  There are not “better” ways to claim asylum; there are multiple ways to claim asylum, and they are all legal.  Asylees have been stripped of their resources; to expect all of them to file an affirmative application at the port of entry is not reasonable.  Not all asylees are literate, have maps, know where the ports of entry are. That’s why we let them have *up to a year!* after they enter the United States – whatever way they enter – to file for asylum.  8 C.F.R. § 208.4.  As for picking a different country to apply to, okay, I get that point, but the migrants have to get there first.  If the violence or whatever is just as bad, they will keep moving. See the country condition reports I’ve posted below.

Article: “3) There is a significant moral cost to not enforcing the border. There is obviously a moral cost to separating a parent from a child and almost everyone would prefer not to do it. But, under current policy and with the current resources, the only practical alternative is letting family units who show up at the border live in the country for the duration. Not only does this make a mockery of our laws, it creates an incentive for people to keep bringing children with them.

Needless to say, children should not be making this journey that is fraught with peril. But there is now a premium on bringing children because of how we have handled these cases. They are considered chits.”

As stated above, if they live in the USA for the duration of their asylum cases, it is not any different than how we have been practicing asylum all along.  After 150 days they get work cards and start paying into the system. That is not making a mockery of our laws, but following our laws. Children shouldn’t make a journey fraught with peril, but some of the conditions of the countries they are escaping are unbelievable.  While they may be coming in through Mexico, many of the migrants are from Venezuela, El Salvador, Honduras, and other South American Countries. See some of the selected UN High Commissioner on Refugee reports, middle/bottom of this page:  See also  These are a couple of the sources immigration attorneys use when explaining country conditions in an asylum claim.

Article:  “According to, it is “common to have parents entrust their children to a smuggler as a favor or for profit.”

If someone is determined to come here illegally, the decent and safest thing would be to leave the child at home with a relative and send money back home. Because we favor family units over single adults, we are creating an incentive to do the opposite and use children to cut deals with smugglers.”

I read the article they cite, and I wonder why this author cites a source that criticizes his stance.  This small portion he quotes states that this happens in “many” instances but I couldn’t see where the AZ Central cited to a source.  Since this is anecdotal, I’ll be anecdotal. In my experience the “smugglers” are often grandparents or other relatives or family friends getting the children out of an unimaginable situation.  However, much of this AZ Central article goes on to criticize the Trump administration’s criminalizing those who seek asylum at the border, so it’s there if you want to see another take on what I’m talking about.

Article:  “4) Congress can fix this. Congress can change the rules so the Flores consent decree will no longer apply, and it can appropriate more money for family shelters at the border. This is an obvious thing to do that would eliminate the tension between enforcing our laws and keeping family units together. The Trump administration is throwing as many resources as it can at the border to expedite the process, and it desperately wants the Flores consent decree reversed. Despite some mixed messages, if the administration had its druthers, family units would be kept together and their cases settled quickly.

The missing piece here is Congress, but little outrage will be directed at it, and probably nothing will be done. And so our perverse system will remain in place and the crisis at the border will rumble on.”

Congress could fix this in a way that does not move for family detention at all, but the author doesn’t mention this.  The Trump administration, as I said above, has manufactured this urgency by their policy to treat asylees like they would illegals.  Their policy has caused this, not the law, and not enforcement of the law. As the sources I’ve posted outline, there is a distinction between asylees and those trying to sneak in, and they should be treated differently.  There is really little justification for implementation of this policy.