A Malevolent Choice: Chronicling the Wandering Defense of Trump’s Immigration Policy

On Father’s Day, scores of Americans, office-holders and ordinary citizens alike, took to our nation’s streets to rail against the Trump Administration’s ratcheted-up immigration policy along the U.S.-Mexico border. While Attorney General Jeff Sessions implemented the president’s promised illegal immigration crackdown months ago, our introduction to its craven stratagem, the separation of migrant and asylum-seeking families, had only just begun. But it really wasn’t until photographer John Moore and ProPublica gave Trump’s “zero-tolerance” immigration policy a symbolic 2-year-old face and a terrified voice, that we were truly awakened to the depraved nature of this crisis.

As is the case with so many of the critically-important issues that we must address, an essential discussion devolved into mindless shouting. Time-and-again, we’ve seen the blatantly-objective summarily overruled and utterly drowned-out by the subjective. We’ve seen issues which are intrinsically black-and-white, right-or-wrong, injected with copious amounts of gray and doubt. Unfortunately, this tiresome excusatory charade appeared once more. And to view the virus-like proliferation of an almost overwhelming torrent of fallacy and obfuscation, one only needed to gaze upon social media, cable news, or the pernicious remarks delivered directly by political power brokers.

On cue, and almost immediately after the negative press reached the front door of the White House, the president himself trotted out the demonstrably false assertion that the practice of separating parents held for “improper entry” from their children as they transited the criminal prosecution process was due to the Democrats, a claim many supporters duly adopted. It was nothing more than a baseless attempt to obscure his policy’s history, and its well-understood implications, with a noxious cloud of partisanship, a predictably-reflexive unveiling of this policy’s outermost ring of defense.

Unsurprisingly, this sentiment circulated like dysentery amongst his most bombastic of public supporters. The truth is that the separation of families was a direct result of the administration’s actions, including the president’s order to end a process that he and his subordinates had deemed to be an epidemic, the so-called “catch and release” of those apprehended for illegal border crossings. The perpetuation of an inherently muddying moniker aside, “catch and release” is actually the release of those arrested for illegal immigration offenses prior to a judicial hearing. In short, it’s essentially the same process we refer to as “getting out on bail” or being released on your “own recognizance”, something we afford those accused of crimes such as murder and rape.

If one were to have accepted the popular arguments against granting a pre-court release to those arrested for a non-violent immigration offense, we’d have been led to believe that accused illegal immigrants constitute an unusually high flight-risk. Yet, an analysis conducted by Syracuse University found that 86 percent of individuals arrested for immigration violations and granted a pre-court release appeared for their judicial proceedings. Strangely enough, and according to a comprehensive study by the DOJ’s Bureau of Justice Statistics, only about 75 percent of Americans charged with a whole host of crimes actually show-up for their court proceedings. So if we were really worried about flight-risk, one has to wonder why we’ve long tolerated “catch and release” for everyone except those accused of illegally crossing the southwestern border. One also has to wonder why the Trump Administration decided to scuttle its predecessor’s Family Case Management Program, a supervised release framework which achieved a 100 percent attendance rate for court hearings by its enrollees.

Further journeying into the ever-widening rabbit hole of misinformation and sloppy rationalization, one inevitably encountered the haggard old line asking why there wasn’t any liberal outrage or attempted action on immigration reform in years gone by. It was a nefarious blame-game not too terribly dissimilar from the one the president had encouraged the masses to play. However, such facile arguments were nothing more than flailing deflections, hyper-partisan shrieks entirely devoid of merit. Convenient exhibitions in whataboutism quite forgetful of recent legislative efforts which were torpedoed by congressional and administration hardliners. Even more appallingly, such rhetorical inquiries didn’t merely aim to establish an equivalence of policy based on blatant misrepresentation, they sought to undermine moral objectivity itself by denying the very existence of justified outrage over prior enforcement practices.

But regardless of how many straw men or red herrings one tries to mobilize as a defensive bulwark, the attribution of guilt for this policy’s consequences indisputably rests at the feet of the Trump Administration. We must not permit ourselves to believe the numerous fictitious narratives which have suggested otherwise. The brazen state-sponsored inhumanity which occurred at the border was the demonstrable product of choice, the vile culmination of deliberate executive action.

It’s a matter of fact that Trump ordered the end of “catch and release”, and Sessions followed-up by mandating 100 percent prosecution of all illegal crossings along the southwestern border. Consequently, their voluntary policy shifts selectively discontinued the decades-old practice of prosecutorial discretion. So, when you abandon an enforcement model which differentiated and prioritized immigration offenses based on severity and adopt one which largely ceases to make such distinctions, subsequently mark all those accused of illegally crossing the border for criminal prosecution, and funnel parents into the criminal justice system while refusing to grant any form of release prior to adjudication, it turns out that you’ve guaranteed the separation of families.

But the shattering of families wasn’t merely unintentional happenstance. As the president’s own attorney general, senior advisor, and chief of staff indicated, separating families at the border, polite code for masking the willful infliction of trauma as a “deterrent”, was something new and of this administration’s own conscious invention. As such, this policy wasn’t a carryover tradition, nor were its tactics ever enshrined within the law. Rather, it was a national nightmare that the president could have permanently ended with a phone call if he had so chosen.

Yet on June 20th, he decided not to bring this travesty to a definite conclusion. With the flick of his wrist, the president unequivocally proved, despite a gamut of his administration’s prior denials, that the ability to initiate and discontinue the practice of separating migrant families was always firmly under his control. Instead of forever closing the door on one of modern America’s darkest chapters, he opted to leave it open. Sadly, the text of his executive order didn’t just reveal the administration’s dark intentions, it also distressingly telegraphed what’s to come.

Let’s not delude ourselves, the executive order wasn’t merciful, it was sinister. It was an unusually vague temporary reprieve with a built-in timer that has allowed the administration to use the separation of migrant families as a bargaining chip to legislatively attain its long-sought archaic reforms. Moreover, the release from government-sanctioned extortion was entirely predicated on two unlikely events, that congressional efforts at reform succeed, and the successful petitioning to amend a robust court order. Both half-hearted efforts subsequently failed. Given that the 20-day Flores-based timer has expired, pair it with reports that HHS’s Office of Refugee Resettlement appears to be planning for a surge in migrant child detentions, it seems clear that the separation of families is primed to resume.

Now if one managed to get beyond the floundering attempts of apologists to salvage the non-existent dignity of a briefly-halted policy now poised for a resurgence, you’ve likely heard the echoes of two related and equally bankrupt last-ditch rationalizations. The first takes the form of suggestions that migrants should simply enter the country legally if they don’t want their children to be taken away. The second manifests as a declaration that they’re simply “enforcing the law“.

What makes such pronouncements so unnerving is not that they’re radical over-simplifications, but that they also intentionally blur the line between migrant and asylum-seeker, hazardously painting everyone as an easily impugned illegal immigrant. It signals that the whole of the federal government’s law enforcement apparatus has advanced in its mission to hobble an altruistic system it views as broken and oft-abused. Instead of honestly upholding the obligations cemented within international treaties and domestic laws alike, the administration has elected to arbitrarily constrict the permissible issuance of mercy in order to arrest and prosecute not just migrants, but scores of would-be asylum-seekers for misdemeanor “improper entry“.

The reality is that over 97 percent of the families apprehended attempting to seek shelter in the United States by crossing the southwestern border are those fleeing the humanitarian crisis in the “Northern Triangle” of Central America. And yes, many do seek legal asylum through any and all available channels, including at our nation’s clogged ports of entry. However, that life-saving status is now virtually impossible to secure given Sessions single-handedly curbed the circumstances under which asylum could be granted. No longer is the threat of horrendous gang or domestic violence a sufficient reason for being granted refuge in the United States, even if they’re running from a criminal organization like MS-13, which the president has routinely labeled as “savage” and a national security threat.

Here lies the point in which the rigid “enforcing the law” justification, and its contentions of discretionary helplessness, starts to fray. However, If we want to view the breadth of this rationale’s vapidity, we need to dig a little bit below the generality-laden political surface. We need to examine one sizable side effect of the illness that Sessions and company have created, the prohibition of approving asylum claims predicated on gender-based forms of persecution including domestic violence—bearing in mind that nearly half of all those apprehended for illegally crossing the border are females. So let’s delve deeper into the statutory and precedential underpinnings which deflate the veracity of the attorney general’s position.

The Refugee Act of 1980, the domestic enshrinement of the UN’s 1967 Protocol Relating to the Status of Refugees, affords the executive great discretion in determining the eligibility criteria for refugees and asylees. Moreover, the United States Supreme Court has previously clarified the preferred source from which the aforementioned law’s interpretation should derive its guidance, the handbook of the United Nations High Commissioner for Refugees. To that end, the UNHCR has vocally-affirmed that gender constitutes an asylum-eligible particular social group. As has the United States Court of Appeals for the Ninth Circuit, and the DOJ’s Board of Immigration Appeals—the highest immigration tribunal in the country.

Yet the dutiful enforcement pretense’s cohesive impairment continues. We have a DHS secretary, for example, that is either unaware or doesn’t care that federal law not only requires asylum-seekers to be present in the United States when making their applications, but expressly permits filing asylum applications regardless of legal status or location within the nation’s borders. Even still, one would think that it would come as a shock that a federal court found that the government was separating asylum-seeking families which had lawfully presented themselves at ports of entry. On top of that, forms issued by ICE indicate that they’re effectively pressuring migrants to drop their asylum claims in-exchange for being reunited with their children. As such, there’s ample evidence demonstrating that the Trump Administration isn’t faithfully-executing the processes enumerated within federal statute.

When vindication efforts buttressed by righteous enforcement crumble, proponents of the administration’s policy choices and its enforcement priorities work tirelessly to peddle fear-mongering as correlated justificatory substance. If one were to heed the aging cataclysmic warnings of administration officials and supportive pundits alike, we’d be led to believe that our southwestern border, and our nation at-large, is on the verge of collapse due to a supposed wave of illegal crossings. Yet the Border Patrol’s own statistics beg to differ. According to them, FY 2017 (the most recent complete data set available) saw illegal alien apprehension levels along the southwestern border sink to the lowest they’ve been since 2000. On a national scale, the same year saw the lowest number of nationwide illegal alien apprehensions since 1971, a figure which was less than one-third of 1954’s total.

When the installation of threatening visions of foreign invasions don’t adequately scare, you’ll likely have a fabricated correlation between undocumented immigrants and an increase in crime rates thrust upon you. Thankfully, a bevy of studies have very clearly indicated that not only does no such connection exist, but that undocumented immigrants are actually less prone to committing crimes than are Americans. More fantastically, you’re also likely to see numerous comparisons drawn between would-be asylum-seekers and gang members, veritable war cries alerting the public that intolerable levels of gang members are hiding amongst the proverbial incoming sheep.

Once again, such outlandish claims are fiction, not fact. According to the most comprehensive datasets available from the DOJ and U.S. Customs and Border Protection, when held against readily-available population data for the former, we can see that one gang member is identified out of roughly every 504 illegal aliens apprehended. However, within the general populace, we have one gang member for roughly every 222 residents. So for the back row, the prevalence of gang members among the “native” population is over two-times higher than that of the incoming illegal alien community. When considering the supposed existential threat posed by those crossing our southern border, remember that in a given year you’re up to 660-times more likely to cross paths with a serial killer than a recently-arrived illegal alien with a criminal conviction for murder or manslaughter.

To be clear, those who object to the administration’s policies aren’t calling for the dissolution of America’s borders. Nor are they questioning the validity of American sovereignty, or even the president’s authority to enforce the law. Instead, they argue that policy, like the law, need not be categorically iron-fisted and menacing, that both are most effective when applied judiciously. What we’re saying is that the Trump Administration is narrowly interpreting statute and upending precedent so that it can shroud its selective enforcement prerogatives with the seemingly innocent cloak of maintaining law and order.

After reading all of this, you may still be asking yourself why these many distinctions matter. They matter because they vividly demonstrate our acknowledgment, through the issuance of flimsy denials and evolving rationales, that we don’t have to do this, but we choose to. They matter because in turning our backs on those in urgent danger—by punishing their hopelessness, we ourselves have decided to dim a renowned beacon of liberty and justice, replacing a tradition of opportunity with the depravity of indifference and callousness. Through this gleeful transaction, we continue to witness the very tenets of American morality descend into the necrotic abyss of relativism.

In real-time, we’re watching our society’s empathetic calcification, its terrifying march toward the open embrace of dehumanization. Those with the loudest voices and the highest pulpits enthusiastically implant the specter of fear into an anxious audience. They speak of infestations and liberation, promising our deliverance from a meticulously-prepared apparition. They warn against an incursion by legions of murderers, rapists, and drug dealers. They prove that in thought we delight in dismantling their dignity, and in deed we encourage their misfortune. With nary a consultation of our past’s dark recesses, we elatedly resuscitate the afflictions of old, steering ourselves ever-closer to the precipice of barbarism.

Throughout our imperfect history, our core values have always rested upon the unflinching belief in America’s promise. The hope that we could do better, tempered by the knowledge that we could be better. This intuitive hybrid of individual fallibility and societal optimism was once the foundation of the American conscience, a shared virtuous essence we’re now feverishly working to forfeit.

There’s no question that this punitive policy has always been immoral, absent of compassion, entirely unnecessary, and rife with legal and logical inconsistencies. Yet what’s perhaps even more egregious than the policy itself, are the persisting feeble attempts to champion something so cruel, something so fundamentally un-American and without empathy. One can only sit and wonder if we’ve reached the heartbreaking moment when we gaze into our nation’s collective mirror and find ourselves unable to recognize the fiendish reflection staring back.

So when pondering the viability of this policy’s wandering defense, I’d also encourage you to contemplate its sordid history and its irreversible ramifications. But more importantly, as you reflect on our path forward in the face of this policy’s potential resurrection, I have but one more provocation to offer. I challenge all of you to envision a scenario in which your fortunes were reversed, a scenario in which you had to walk a mile in the shoes of these desperate souls.

Convince me that if you were a parent dangling on the edge of destruction, generating merely 1/26th of the income earned by the average American, and living in a war-crippled country possessing a murder rate exponentially higher than that of the United States, that you wouldn’t attempt to save your child by emigrating. Express to me that you’d condemn your child to a future of inescapable and unimaginable suffering. Persuade me that if you were caught crossing the border into a country which offered the promise of survival, an escape from victimization, that you’d find it humane to have your child ripped from you as a means of sending a fearsome message. Explain to me that you’d find it moral if your pain was exploited solely for political gain.

Now tell me that we can’t find a better path.

(Featured image “Contemplation of Justice Statue Atop Steps of the Supreme Court“, by Smallbones, used under CC0 1.0 Universal Public Domain Dedication/ cropped from original.)