Legal Expert Explains Zero Tolerance Immigration Policy

June 22, 2018 04:17 PM

Before his arrival in Duluth Wednesday, President Donald Trump signed an executive order to end the family separation policy for immigrants caught crossing the border illegally.

5 EYEWITNESS NEWS took an in-depth look at why the policy was instituted in the first place, going to Ana Pottratz Acosta, a professor at the Mitchell Hamline School of Law, for clarification.


RELATED: President Signs Executive Order Ending Family Separation

Her responses were as follows:

Callan Gray: What is the zero tolerance policy?

Pottratz Acosta: In a nutshell, the zero tolerance policy means anyone apprehended after crossing the southern border will be prosecuted by the Dept. of Justice for a misdemeanor crime called unlawful entry.

Since it's a misdemeanor, it's punishable, I believe, by a maximum of six months in jail. But generally speaking, people who are prosecuted for unlawful entry are sentenced to time served.

It's really a minor infraction, equivalent to a petty misdemeanor in Minnesota.

Gray: What was happening before this policy, and what changed?

Pottratz Acosta: Prior to April 2018, what would happen is that, generally speaking, if an individual crossed the border into the United States, and they were crossing the border to seek asylum, they wouldn't be referred for criminal prosecution for unlawful entry.

They would instead be referred to immigration under the Deptartment of Homeland Security, and initial processing to determine whether or not they had a credible fear of returning home and an asylum claim.

Gray: What changed so now families are being separated?

Pottratz Acosta: Generally speaking, if a family unit was crossing the border to apply for asylum the general policy was to keep the kids together with at least one of the parents.

The family unit would be processed and undergo their initial asylum screening together and, assuming they passed the credible fear process and have a viable asylum claim, they were released with an ankle monitor while they're waiting for their hearing before an immigration judge.

Now what's happening is that they are taking the parent and separating them from the children and prosecuting the parents for unlawful entry. The children are taken away and placed in the custody of the Office of Refugee Resettlement, and then placed with a sponsor after they've been detained in an ORR facility for a number of days, or weeks, depending on capacity.

Gray: Was (zero tolerance policy) the decision that made it possible to separate children from their families?

Pottratz Acosta: The law for unlawful entry prosecution has been on the books since 1996. However, the Trump Administration is the first administration since 1996 that has taken the position that they're going to be prosecuting asylum seekers, including asylum seekers who come as a family unit.

Separating kids from their parents as a matter of policy is something new and exclusive to the Trump administration. No other administration has done this as a matter of policy.

Gray: Was there a policy in place before the decision in April that would have allowed for this interpretation?

Pottratz Acosta: It’s an interpretation of how they want to enforce the law.

The zero tolerance policy means everybody, regardless of the circumstances under which they crossed the border - if it was just because they were coming across the border to seek economic opportunity or if they've crossed multiple times or if they're seeking asylum - they’re treating everyone the same.

Everybody is going to get prosecuted. Previous administrations used more discretion as to who was prosecuted for unlawful entry and that discretion has been taken away. As a result, they're prosecuting everybody. Anyone who is here and crosses with their kids will be separated from them and prosecuted.

Gray: Has this (family separation) happened before? We just haven't known about it because the numbers weren't so high?

Pottratz Acosta: Yes, so actually the Trump administration has been using prosecution for unlawful entry as a back-door way to separate families and kids for at least a year.

It's only become a big issue now because of the zero tolerance policy. It was kind of occurring on an ad-hoc basis where Moms and kids were being separated from each other, or Dads and kids.

But since the zero tolerance policy, it's just exploded. The population of kids separated from their parents has grown exponentially over the past six to eight weeks.

Gray: Was this happening during the Obama Administration?

Pottratz Acosta: No, no. Generally speaking, family units were processed together. There were issues during the Obama Administration of long-term detention. The Obama Administration was sued over long-term detention of family units. But generally speaking, children were kept together with at least one of their parents while they were going through the removal proceedings.

Gray: What was the result of that lawsuit?

Pottratz Acosta: A judge in California determined that a settlement that had been reached with the federal government in 1997, pertaining to treatment of unaccompanied minors apprehended at the border, that it also applied to children being held in family detention.

In a nutshell, the results of that lawsuit - basically kids cannot be held for longer than 20 days in detention. And that’s true if they're unaccompanied minors, or if they're being held with at least one parent.

In an e-mail after the interview, Pottratz Acosta said the executive order signed by President Trump on Wednesday afternoon could modify that settlement.

Pottratz Acosta, via e-mail:  Under the executive order, the Attorney General would petition the court to modify the Flores settlement to allow children detained as family units to be held for longer than 20 days. 

This means that kids would be detained indefinitely with their parents while the parents are prosecuted for illegal entry and the family’s asylum claim is processed. 

It’s basically what the Obama Administration did in response to the Central American Migrant surge in 2014-2015, and led to the suit where a judge issued an order finding the Flores settlement prohibiting long term detention also applies to kids held in family detention.



Callan Gray

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