Tuesday, June 26, 2018

How to Fix the Border Crisis—Without Congress

Sergio Flores/Bloomberg via Getty Images
The Flores settlement forces a choice between enforcing immigration law inhumanely or not at all. There is a third way.
An ugly conundrum lies at the heart of the border crisis dominating our news coverage and social media feeds, complete with the sights and sounds of children separated from their parents: Under a 1997 settlement between the federal government and immigration activists, the government must choose between enforcing the law inhumanely and not enforcing it at all. The consent decree, known as the Flores agreement, was the product of nine years of litigation over the detention of unaccompanied minors apprehended crossing the border. It requires detained minors to be released as expeditiously as possible.
In 2015, the 9th Circuit interpreted Flores' requirement that minors be released “without unnecessary delay” to mean that all minors—including those traveling with their families—must be released within 20 days. Therefore, if a family is apprehended at the border and claims asylum, Immigration and Customs Enforcement (ICE) must either: 1) detain the parents pending their asylum hearing and separate the children, or 2) release everyone and hope they show up for their hearing (many do not). In other words, the administration must choose between a policy that separates families and a policy that effectively opens the border.
The Obama administration willingly, perhaps happily, chose non-enforcement. The Trump administration originally did, too, but it shifted to what it described as a “zero-tolerance” approach in April, nominally to pressure Congress to enact a viable alternative. Congress, however, did what it does best and simply punted on the issue. (More accurately, Sen. Chuck Schumer refused to consider fixes offered by the GOP because he “wanted to keep the focus on Trump.”) Trump relented and signed an executive order Wednesday that ostensibly solves the problem by authorizing families to be housed together pending their asylum claims. In reality, his order will almost certainly be blocked by the courts, and we will revert to non-enforcement.
Read the rest from James Hasson HERE.

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