Steve Bannon must be beaming with pride that his Donny Boy is closing the border and stopping  the people of color who dare to come into his country and dream his white dream. His most recent campaign to rip children of all ages, even suckling babies, from their parents has generated quite a whirlwind. But it is Jefferson Beauregard Sessions who deserves all the credit. He has fashioned his strategy at the DOJ over months to carry out his own mission to make America White Again, a deeply held belief from his early days as white supremacist. He was working the immigration shutdown issue during his days in the Senate, assisted by his staffer, like minded Steven Miller. Reportedly, it was a Sessions idea to arrest everyone without proper papers who crossed the border and as chief enforcer of the country’s laws, it must have made sense to presidential advisers. 

“Millions are pouring over our borders. Make America great by securing our borders”

The BullyPresident began building his case during his 2016 campaign when he sold his dark vision of a nation under siege from an onslaught of poor Mexican immigrants. In his vision, these unarmed people were like Attila the Hun who overran Europe, pillaging, raping. murdering and threatening citizens with lawlessness. That is, of course, a false narrative. Mexican border crossings have been falling over a decade and the origin of immigrants has shifted to Central Americans.

In his most recent statements, the RealityTV President has stealthy delivered his message in typical dog-whistle fashion. “They’re sending their worst” is one of his favorite tag-lines. Who’s the “they”? Of course, immigration is an individual decision without government involvement, if foreign governments are the “they” he’s talking about. But his supporters don’t ask any questions. His statement, “The US will not be a migrant camp or immigrant holding area”, is intended to evoke images of migrant camps in Lebanon and Turkey, teeming with brown and Black skinned Muslims and equally as important, terrorists that threaten the country’s national security. “The country is going to be overrun with millions of people,” Trump said later. Those words amplify his message in order to induce high national anxiety, like pressing a hot button to launch a nuke.

As a corollary, administration spokespersons and state-TV network Fox have continued to disparage asylum seekers as dishonest. Their “news” charges that unrelated adults use children to sneak into the country with nefarious intent, like child and drug trafficking or a range of unspeakable crimes against white people. They are given scripts from their “professional” lawyers (Trump’s term) to say what they need to get asylum. (It would be great if most immigrants, especially children, had attorneys to represent them in immigration courts but sadly, they don’t.) People are being rounded up by traffickers solely for financial gains.  The undertones always imply a white supremacist infused air of superiority to these immigrants who are just poor Mexicans (they don’t have time to distinguish countries of origin) who will suck resources out of this country that rightly belong to white Americans. One has to believe in these spokespersons sincerity; otherwise, they are simply hacks desperate to keep their faces on TV or videos to keep their pockets lined with huge amounts of cash and the attendant limelight that comes with it. To them, these are not people with a legitimate fear for their lives, threatened with murder, torture and rape; that’s the kind of threat that launches people on a perilous journey over hundreds of miles through inhospitable terrain as their only hope for survival, despite the huge odds against being granted asylum. For these people there is no choice.

The messages of Fox and like minded media jocks play well with the Trumpophants, if not the majority of Americans, at least we hope not. Still, Americans continue to prove their vulnerability to misinformation, happy to have their worldview shaped by Trump-state TV, which has tuned into the panorama of prejudices that have long plagued white citizens in this country. A lie off repeated becomes real.

For the record, there were a total of 300,00 thousand immigrants last year. There are currently about 400 asylum seekers per month. In the case of the Mexican border, there were 55% more border apprehensions, considered the best measure of immigration available; both March and April had 3 times more than comparable months last year. These numbers are low by historical standards. In 2000, there were 275,000, down to 160,000 in 2006, 60,000 in 2010 and 25,000 in 2016, an astounding 11 fold drop. Keep in mind that despite the fall in numbers, by 2013, the US was spending more on immigration enforcement than on the FBI, Secret Service, DEA and all other federal criminal law enforcement agencies combined. These efforts resulted in holding more people in immigration detention than those serving sentences in the federal prison system. This is why, ICE often leases space in underutilized federal prisons.

“zero-tolerance is just the latest step in anti-immigration policies being reinvented over the last 9 months.

With constant rhetorical infusions from Trump rallies and tweets, the administration has ratcheted up its game over the previous months. It has been laying the groundwork for “zero-tolerance” and child separations for months. In the winter of 2017, the administration eliminated a claim of abuse, and abandonment for adolescents 18-21 as the basis for asylum and rescinded previous approvals. In March 2018, when children turned 18, a new policy was begun of transferring them from the Office of Refugee Resettlement (ORR) to ICE custody where they would be held in adult prisons. In addition, Sessions began routing a number of cases to himself for personal review which included reconsidering old decisions by the Board of Immigration Appeals. He uniformly denied all cases.

In April 2018, ICE adopted a policy of background checks on potential sponsors of ORR children with the implications that undocumented parents or relatives would be detained. The old criteria had revolved around determining the safety of the home. This policy was instituted to make relatives fearful of volunteering to care for their own children, creating another dilemma for families with children in the US: risk being deported and being separated from your children here or leave your child in the care of others, or possibly ORR facilities. ORR historically has been responsible for older children, largely coming as unaccompanied minors. Their policy was to try to release minors to the care of a family member, preferably a parent. Children were held temporarily while finding an appropriate sponsor for the period during which they moved through the immigration process which could be years. Only a small proportion of ORR held minors remained in custody.

This spring also saw the Administration terminate the Central American Minors Program which had allowed children to apply for refugee status from their own countries before making the journey. When it was abruptly ended, the program, begun in 2014, left more than 4000 children already in the application process without even a chance for an interview.

In May 2018, Sessions ended administrative closure of cases by immigration court judges and limited adjudication on humanitarian grounds, restricting judges’ ability to use collegial review to ascertain elements of the child’s case. Under “administrative closure”, cases could be removed from a judge’s docket and the decision about deportation delayed. This practice allowed cases to be resolved at a later date while bringing new cases into the system for adjudication. Sessions is moving to open up what he sees as roadblocks in his deportation assembly line. These over 215,000 cases closed between October 2011 and September 2017, if reopened, would create a massive overload in already crowded immigration courts, so the logistics remain to be worked out. But Sessions has said that DHS could request specific cases to be placed on court calendars allowing them to target specific individuals.

Sessions also announced that domestic violence and abuse as well as gang violence were no longer acceptable bases for asylum claims. Recognizing domestic violence and abuse was a hard fought victory only 4 years ago. This is yet another step backward for women in an administration so infused with the rights of men to perpetrate violence on women. Could it be otherwise, when the Pussy-Grabber-in-Chief, a long time #MeToo perpetrator sits at its head? And if one lives in a location where gangs are the law, so strong that they can easily kill government officials, is that not a reason for asylum? Is that not the basis for Iraqis, particularly American collaborators and Syrian asylum seekers, substituting civilian militia, or local chieftains or terrorists? Oh, I forgot, those people are banned from immigrating because of their Muslim religion.

In May 2018, Kirstjen Nielsen announced all immigrants crossing the border would be charged criminally, requiring that children be separated as the parent was detained to face criminal proceedings and served their sentence. No criminal gets to take his child to jail; no one would wish that, Nielsen intoned. Parents are now being prosecuted for crossing the border without authorization. Crossing the border is a federal misdemeanor, as pointed out by Samantha B’s Full Frontal, similar to misusing the image of Smokey the Bear or wearing the American Flag as apparel, a law routinely violated by MAGA supporters. It is worth noting that immigrants illegally entering the country have only been charged, not convicted, as in innocent until proven guilty. Elsewhere in the criminal system, people charged with a minor misdemeanor are eligible for bail before trial if not simply released to pay a fine. Most of the immigrants do have a valid defense, i.e. seeking asylum from persecution at home. Seeking asylum is a legally protected right under US law. But in the past, illegal immigrants had been charged with civil rather than criminal violations. This, then, was the set up for operation “zero-tolerance”.

At this point, it is worth adding some background on policies governing detention of illegal immigrants under past administrations. The TVPRA (Trafficking Victims Protection Reauthorization Act of 2008) was meant to give safety to victims of human trafficking, provided that unaccompanied children “are exempt from prompt return to their home country” unless they come from Canada or Mexico. It is applicable to children from El Salvador, Guatemala and Honduras. Sessions has employed this law in his quest to discourage new asylum seekers; kids, once isolated from their parents, become reclassified as “unaccompanied” and thus subject to ORR custody.

Much has been made of the Flores settlement  from 1997, a legal agreement under the Clinton administration that requires the federal government to release rather than detain undocumented immigrant children, first to their parent if possible, or to other adult relatives. If no relatives are available, they could be placed in licensed programs willing to accept custody. As a last resort, US officials must place children in the “least restrictive” setting available. A federal judge in California ruled in 2015 that Flores covered all children in the custody of immigration officials, regardless of whether they were captured at the border alone or with family members and further, that it applied to any accompanying parents. But the application of the rule to parents was later  reversed, meaning that government is required to keep immigrant children and parents together only for a limited time but can’t since the children can not be held for more than 20 days by court decision. So children were released with their parents, the optimal caregivers from ORR’s perspective and told to return for court dates. Individuals returned to court with varying degrees of compliance.

The “zero tolerance” policy brought changes to an already overburdened immigration system. There was a more than one year backlog of asylum cases. The judges were under orders to rapidly turn over cases. The vast majority of petitioners in immigration courts have no attorney; that includes children of all ages even toddlers who have no court appointed guardian or an adult accompanying them. Children are left to adjudicate their asylum cases on their own; some are too young to speak, but most can’t explain the political basis of their asylum claim. Even infants can be sent back to their home country and turned over to officials there. Basically, the judge asks a couple of questions in English, translated into Spanish. Questions are answered with the kind of limited exposition elementary school aged children can muster and five minutes later the judge rejects the petition and the child is on their own on the other side of the border.

But the advent of mandatory prosecutions has layered thousands of immigrants onto an already beleaguered court system. Parents must serve out their criminal sentences before being turned over to ICE custody. In a video of a recently conducted mass criminal trial of 85 defendants, processed under the recently begun Operation Streamline, 85 men and women were sentenced to time served, generally a day or two. Some were scheduled for deportation. Parents had not been told where their children are or how to communicate with them. Because ICE and ORR have no communication system set up, there is no way to track the whereabouts of separated children systematically.   

Because of the increased number of children now in custody, the Border Patrol is holding  them for several days before transfer to ORR in what is commonly known as iceboxes (hieleras), overly air conditioned holding rooms, crowded and without beds, showers or anything to do. These rooms were designed for brief, less than 24 hour detentions of adults. The media has been full of stories showing children in “cages”, large empty concrete floored areas separated by chain-linked fences where children are moved from the hieleras. ICE has been disturbed by the cage designation; maybe fenced pens like those used for animals is more to their liking.

One other consequence of the limited number of facilities is that border guards are refusing to allow entry to those crossing at points of entry seeking asylum. “The inn’s all full up”. This, too, is a violation of international laws. Often, those asylum seekers then decide to cross the border in areas adjacent to ports of entry, taking the chance that they will be able to submit their claims once they are on US soil. Instead, as they surrender to the nearest border patrol person, they are summarily arrested, charged with illegal entry, whisked off to detention centers and separated from their children. It should be noted that by ICE statistics, only about 80% of cases are currently being prosecuted, but the stated goal is 100%.

Thus far, nothing in these circumstances requires the separation policy or prosecution. It is not, as the administration wants us to believe, a question of enforcing the law. Throughout the criminal justice system, prosecution of all laws is at the discretion of the prosecutor, just as enforcement is the purview of law enforcement officials. Prosecutors are the sole determiners of the pursuit of any given case; they are not required to provide an explanation for decisions and generally don’t. It is almost impossible to hold them accountable for their actions, because the public does not have access to the information unless the information is disclosed in indictments. Similarly, targeted enforcement of speed limits is the rule, as almost every driver knows about speeding or driving after a drink. Most of us are lucky enough not to get caught. 

Trump has shown that he is devoid of empathy, exemplified in one instance by tossing rolls of paper towels at Puerto Ricans struggling to rebuild following the devastating Hurricane Maria. His self aggrandizing remarks praising the US emergency response in his infamous “saying it is will make it so” style ignored the woeful inadequacy of FEMA and military efforts. A normal president would have extended his sympathy, apologized for the delayed response and vowed to speed up recovery efforts.

45’s announced doctrine of international relations to ignore human rights issues,  was put to use in his failure to mention or discuss them with international leaders and supported in his lavish praise of dictators who employ police brutality, prison camps and murder to maintain their regimes. He’s implemented that doctrine at home in the administration’s wanton disregard for civil rights in ICE raids, lack of due process in immigration proceedings, continuing support of discriminatory policing policies and judicial practices and the assault on transgender personnel in the armed forces. But, this “zero tolerance” policy at the border has broken new ground in cruelty, resembling the policies of 45’s dictator idols. His most recent step, delivered undercover of the media furor over child separations, is the withdrawal of the US from the UN Council on Human Rights apply demonstrating 45’s attempts to disrupt international institutions and chart a course for American isolation from the global community.

The US joins North Korea, Iraq and Eritrea as the only other non-participatory countries in the UN Council on Human Rights. A staunch representative of Trump-speak, Nikki Haley couldn’t resist an uncivil rant against a bit of fictionalized history on the way out. Accusing the Council of being anti-Israel after 5 recent votes, Haley characterized it’s hostility toward Israel as “clear proof that the council is motivated by political bias, not by human rights.” She went on to say, “If the Human Rights Council is going to attack countries that uphold human rights and shield countries that abuse human rights, then America should not provide it with any credibility.” Hogwash! Israel, a country known to ruthlessly attack and kill Palestinians as well as use torture and commit assassinations and commando raids in other’s sovereign territory, is hardly a bastion of human rights. But even Israel has not yet to jump ship, albeit, a less significant move on the world stage.

But unlike those he emulates, the Fox-and-Friends President has been reticent to own his policy in an uncharacteristic break from his braggadocio. This is clearly a part of his propaganda campaign to use the plight of separated children as a political bargaining chip to force Democrats into compromising with Republicans to pass legislation that will fund his border wall (he is less concerned about immigration policy except a Sessions-Stephen Miller desire to reduce overall immigration by 50% and “shut the southern border down”).  The Dealmaker-in-Chief is known to play hard ball, at least in verbiage, in his public approach to the negotiating table. He’s said that it’s everyone’s fault but his. It’s the Democrats fault; we have to follow the imaginary laws that the Democrats made; the Democrats have obstructed legislation that would solve the immigration issues, etc. Make no mistake: the same party controls the House, Senate, and chief executive branch of the government, the historic configuration that gets things done. 45, through his attorney general, changed the enforcement policies, yet he is now too flaccid to insert a change. In truth, he didn’t actually need to sign anything.

Then poof, by proclamation on June 20th, 45 proclaimed an end to a policy of separation of children from their parents that he himself initiated. With the stroke of a pen, he fixed a problem that hadn’t existed before he created it. We must be leery of his intentions here. Is this an action to demonstrate his power, in the “I alone can fix it” tradition?

However, in the process, he has certainly tripped up his spokespeople like Kirstjen Nielsen who maintained that Homeland has no new policy, it is simply enforcing the law, because this is a nation of laws, even while her boss has frequently envisioned himself as someone above the law. There was no choice unless America wanted open borders. She chimed in that only Congress could fix the problem by changing the law. She, of course, was out of step with Jefferson Beauregard, who insisted he was breaking new ground in resolving the problem of immigration, and others like John Kelley who insisted that the purpose of separation of families was to act as a deterrent to future immigration.

Certainly, the BullyPresident will use his executive action in his midterm electioneering as a sledgehammer against an impotent Congress. “Vote out those bastards who interfere with my reign!” Is that threat enough to kick Congress to act as an independent second branch of government without worrying about passing legislation that is acceptable to the Oval office?

Congress itself was reeling from surprise over the president’s action, just as they were caucusing to come up with some legislation to deal with child separations, appropriations for the Wall, DACA, and restricting legal immigration, a potpourri that can only stir up a slurry of clashing beliefs unlikely to result in a passable piece of legislation for Ryan to call up for a vote in the House. Trump said he would be working through Congress for a comprehensive immigration bill but his record of success with Congress has been pretty dismal, except in the case of the windfall tax cut bill for businesses and the wealthy. The cruelty inherent in the use of innocent, traumatized children as a political tool is akin to that of ISIS fighters using children to shield themselves from attacking forces.

But that is the executive action as propaganda weapon. Trump’s executive orders are always great as talking points, but generally short on action. What will this order do? First, it will keep “zero tolerance” at the border in place. The plan will allow families to be detained together while awaiting prosecution, although this may run afoul of the 1997 court rulings on the 20 day duration of child detentions. One possible response would be to fast track hearings on cases, which would then be done for the whole family rather than each member individually. But unless there are wholesale denials of asylum requests, not out of the question, given the narrowing of qualification criteria, some disposition would have to be formulated for the already backlogged asylum process before the launch of “zero-tolerance”.

Still, the order qualifies keeping families together “to the extent permitted by law and subject to the availability of appropriations”, a giant loophole, given the total capacity for ICE family detention centers is about 3000, 2600 of which were occupied on June 9th. A Washington Post story cites an administrative official who says the administration is preparing for court cases in hopes of overturning the Flores settlement and removing the limitation on duration of child detentions, a solution they feel is easier than getting a Congressional solution. Flores has long been a target of immigration hardliners since the ruling’s application to children. In fact, this may be the motivation for the executive order, to precipitate a new round of suits challenging the Flores restrictions on internment.

So where will “zero tolerance” warehousing of all these families lead? One alternative could be family internment camps, similar to those that held Japanese Americans during WWII, a practice Trump has hinted he supported. The idea for detention centers or tent cities may also have been inspired by one of Trump’s heroes, Sheriff Joe Arpaio, a recent recipient of a Trump pardon for ignoring a federal mandate to cease and desist racial profiling. There seems to be some administration movement in using military bases for internment. If the cost of transportation weren’t so high, Guantanamo could prove useful. The government is paying to maintain it anyway. . . Just kidding, in case it gives Homeland any ideas.

The Trump executive action is only another reason to keep fighting against his administration. Detention for what could be years as families fight for asylum is not better, even if it were in the Plaza Hotel. It is nothing but inhumane. And what will happen to those already separated, estimated to be over 2000 young lives. There was no planning on unification of families; in many cases, judges deciding adult cases in mass hearings, are unaware that some adults brought children with them. There is no tracking of child placements; in some cases they are already in different states. For the youngest, it may even be difficult to determine who their parents are. One reporter, after visiting a facility for infants and toddlers saw 2 babies, dressed identically in orange suits who would be difficult to differentiate by anyone except parents or relatives. There is little interagency communication between ICE and ORR or to parents about their children’s whereabouts. The logistics of reunification are fraught with pitfalls, not the least of which is the time allotted to a parent before deportation. Mothers and fathers have been at least as traumatized as their children and swamped with despair.

It is imperative to keep a vigilant eye on the implementation phase of the executive order as well as new potentially surreptitious moves by these agencies in an administration that feels the obligation to be as opaque as gold coin. We can not rest in our demands that Congress and the administration become accountable for this most recent turn in US policy toward the dark side.

The news on this story is breaking almost faster any one can keep up with. On June 21,

-HHS asked the Pentagon to develop plans to house as many as 20,000 unaccompanied minors, e.g., those now separated from their parents. At the same time, Pentagon officials are assessing whether military bases can be used to house families as well in facilities in Texas and Arkansas. Potential sites are Fort Bliss, Goodfellow Air Force Base and Dyess Air Force Base, all in Texas and Little Rock Air Force Base in Arkansas. Defense Secretary Mattis has said that military bases have served to house people made homeless by earthquakes and hurricanes. The caveat here is that those were American citizens and in this government where noncitizens are considered both criminal and subhuman, it is difficult to conceive what their treatment will look like. Unlike the earthquake and hurricane victims, I’ll bet their confinement will come with barbed wire fences. And you thought the invocation of WWII Japanese-American internment camps was a bit over the top. I guess 45 misspoke when he said that the US will not become a migrant camp or immigrant holding area; it was just a bit of rhetorical flourish.

-The House delayed a vote on one of the other pending immigration bills as the hard-line bill  was defeated.

-The Justice Department has formally requested a federal judge to change the rules in detaining families caught at the border. This was step one in preparation for long term intermentment of immigrant families.

-Administration officials have made contradictory statements about suspension of prosecution of immigrants crossing the border. On the one hand the US Border Patrol said they would not be referring adults crossing the border for prosecution. Very quickly, Justice Department officials said the policy hasn’t changed. The question of prosecutorial discretion seems to be popping up. But a senior Border Patrol official shot back that their agents would not be referring immigrants traveling with children for prosecution until they could increase capacity at their holding facilities. Looks like they are waiting on the military bases.

-During the day, there have been sporadic reports from Texas that prosecutors unexpectedly dropped misdemeanor charges against 17 adults who crossed the border with their children. They are likely going to be placed in detention, but if and when they will be reunited with their children is unclear.

Washington and 8 other states announced that they will sue the Trump administration over the policy of separating immigrant families entering the US without proper documentation. New York had already announced a separate suit.