Reports of more than 2,000 children who have been separated from their parents while trying to cross the border between April and May have captivated the nation's attention. It is happening as a result of a "zero tolerance" policy created by the Trump administration, which eliminates all legal leniency toward first-time offenders, asylum-seekers, and parents with small children. Defenders of the "zero tolerance" policy argue that migrants who cross the border illegally, or in between official U.S. ports of entry, are criminals who have broken the law, and therefore must be prosecuted. That begs the question: Why do people cross the border illegally? The truth of the matter is, sometimes they don't have a choice.
Seeking asylum means someone is asking for political protection from another country — in this case, the U.S. — because they cannot return to their own country. To be granted asylum, you must prove that you face persecution in your home country due to race, religion, nationality, membership in a particular social group, or political opinions. Immigration hardliners have taken issue with the way asylum-seekers have been processed by the government in past administrations — they were typically admitted into the U.S. and ordered to prove the validity of their asylum claim at a later date, according to The New York Times, though many would never return to court once inside the U.S. Part of the idea behind the Trump administration's "zero tolerance" policy was to end this practice, often called “catch and release."
As Vox reporter Dara Lind reported, there are two ways to come to the U.S. to claim asylum without having papers: Either approach the U.S. at an official port of entry and present yourself to agents of Customs and Border Protection (CBP), or cross over the border (and in doing so, commit a federal misdemeanor) and indicate to CBP agents that you’re seeking asylum.
The Trump administration says there's no reason to cross the border illegally. The reality is more complicated.
Secretary of Homeland Security Kirstjen Nielsen, in a heated press conference on Monday, June 18, deftly evaded the nuance of the varied reasons that migrants — largely fleeing violence in Central America — are so desperate to get to the U.S. to seek asylum.
"If you're seeking asylum, go to a port of entry," Nielsen said defiantly. "You do not need to break the law of the United States to seek asylum."
Let's unpack that claim.
Nielsen is essentially saying here that the law is the law — you won't be split up from your families if you make it to a designated port along the southern border. But some who try to seek asylum the “right way” have been turned away, per Vox and per Nielsen herself. There’s also evidence that CBP agents are reportedly physically blocking some asylum seekers from setting foot on U.S. soil (and therefore, they cannot surrender to agents and seek asylum legally).
"We have seen an active effort to deter asylum seekers legally crossing the border to get to the inspection where they can actually petition for asylum or refugee status,” Fernando Garcia, the executive director and founder of the Border Network for Human Rights, told AZCentral in a story published June 18. His group has documented several cases of asylum seekers turned away from border crossings linking El Paso, Texas to Ciudad Juarez, Mexico.
We have limited resources. We have multiple missions at CBP, and what we do is based on the very high standards we have — if we do not have enough bed space, if we do not have enough medical personnel on staff, if we do not have enough caretakers on staff — then we will tell people that come to the border, they need to come back. We are not turning them away. We are saying, 'We want to take care of you in the right way. Right now we do not have the resources at this particular moment in time. Come back.'
That sounds reasonable. What she leaves out is that the reason CBP is overwhelmed is also a direct result of the Trump administration "zero tolerance" policy. The Appeal reporter Max Rivlin-Nadler reported that public defenders are experiencing their clients being detained in remote facilities, and therefore can't consult with defense attorneys before appearing in court. Many are reportedly being coerced into accepting plea deals just to get out of jail in the chaos.
Even aside from the court's stress, though, the suggestion that migrants can just "come back" to the border is absurd. After a dangerous journey from Central American countries like El Salvador, Guatemala, and Nicaragua, AZCentral reported that migrants will face up to a 13-day waiting period just to speak to an officer to present their asylum claim once they've arrived at ports of entry. According to advocacy organizers on the ground interviewed by AZCentral, this backlog is expected to further increase illegal crossings along the border, which would then result in additional prosecutions and family separations. AZCentral also reported that this backlog of asylum-seekers waiting at the border puts unaccompanied children at risk of being recruited by gangs and human traffickers — effectively contributing to the dangers the "zero tolerance" policy is claiming to prevent.
Attorney General Jeff Sessions claims many asylum-seekers are drug traffickers and gang members abusing the process, among other racist assumptions.
In October 2017, U.S. Attorney General Jeff Sessions seemed to acknowledge the burden of processing the validity of asylum claims on the justice system.
"Unfortunately, this system is currently subject to rampant abuse and fraud. And as this system becomes overloaded with fake claims, it cannot deal effectively with just claims. The surge in trials, hearings, appeals, bond proceedings has been overwhelming," Session said in speech to the Executive Office For Immigration Review, per CBS.
There is very little information to confirm or reject Sessions' claim that there is "rampant abuse and fraud" in the asylum claims process. Fact-checking website PolitiFact reported in February that the reports of gang affiliations of asylum seekers was exaggerated, and that experts mostly agree that these people are fleeing violence associated with gangs like MS-13 in these Central American countries.
Part of the impetus for Sessions' April implementation of the "zero tolerance" policy was to make it easier for the Justice Department to adjudicate these claims of asylum. Namely, if you've crossed the border illegally, you've committed a crime and you'll be prosecuted — period, end of story. Unlike the Obama administration, the Trump administration is treating all people who have illegally crossed the border as criminals — even if they make an asylum claim and whether or not they have their children in tow.
“Having children does not give you immunity from arrest and prosecution,” Attorney General Jeff Sessions said in a speech on Thursday, June 14, in Fort Wayne, Indiana, per The New York Times.
Clearly, the reality is much more complicated than any brief press conference by U.S. officials can encompass. The immigration system is almost certainly broken, but the "zero tolerance" policy is worsening the problem by straining the government's already limited resources. Just by the numbers, it is demonstrably heaping more suffering on people who have already suffered.