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Border Report: Research Casts Doubt on Effectiveness of Zero Tolerance

Women chat inside a shelter for migrants in Tijuana, Mexico, part of a caravan of migrants from Central American who planned to seek asylum in the United States. / Photo by David Maung

In April, the Trump administration implemented a new policy in which it prosecutes all illegal border crossings, resulting in thousands of children being separated from their parents.

The administration’s intent was to deter thousands of migrants from Central America, but whether that strategy was ultimately successful is the subject of two recent reports.

The first was data released by the Transactional Records Access Clearinghouse [1], a nonpartisan research entity at Syracuse University, showing that the government has been disproportionally referring parents for immigration-related criminal prosecutions.

Under zero tolerance, the government said it would be referring everyone who crossed the border illegally, or between ports of entry, for criminal prosecution. But according to TRAC, while illegal entry prosecutions along the border generally increased, still only about 32 percent of total border apprehensions were criminally prosecuted in May.

While criminal prosecutions referred to federal prosecutors increased in all five federal judicial districts long the southwest border in April, not all of those cases made their way to a courtroom, TRAC found.

The most prosecutions during May occurred in the Southern District of Texas with nearly 4,000, or about twice as many as the previous month. The Southern District of California, which covers San Diego and Imperial counties, also recorded an increase. It had the lowest number of prosecutions among the five border districts in April, but surpassed the federal court district encompassing New Mexico the following month.

In western Texas, Arizona and New Mexico, the total number of prosecutions actually fell in May, weeks after zero-tolerance had gone into effect.

The TRAC report also questioned why officials were choosing to prosecute adults with children, instead of adults who came without children, since the government has only been prosecuting one in every three adults apprehended at the border.

Both the Trump and Obama administrations have had a particular focus on families and children coming to the border. While the number of families and children is small — they represent only about a third of total border apprehensions — they have been coming in increasing numbers to the U.S.-Mexico border.

The Trump administration’s focus on families can be seen through the practice of family separations, and the administration’s attempt to detain families indefinitely [2], which was shot down by a Los Angeles federal judge [3]. The Obama administration expanded the use of family detention [4]. When the secretary of Homeland Security opened the country’s largest detention center in 2014 [5], specially designed to hold women and children, it was touted as part of broader border security measures.

New research from University of California, San Diego political science professor Tom Wong also looks at the impact of zero tolerance. He published a report last week showing that family separation and family detention haven’t deterred families and children [6] from crossing the border.

“Policies that fail to address the motives of migrants have time and time again proven to be ineffective deterrents,” Wong told me in an e-mail. “Ask yourself, would the possibility of being detained and even being separated from your children keep you from doing whatever you can to keep your family safe?”

I explored why Central American migrants — and particularly women and children — are continuing to make their way to the U.S. border [7] earlier this month. What we’re witnessing is a result of the intertwined histories of the United States and Central America, the violence and impunity for crimes in El Salvador, Guatemala and Honduras and the fact that many migrants already have family in the United States.

Wong’s findings, which were first published by the progressive Center for American Progress, strongly suggest that the migration patterns of children and families — which start to increase in late winter, continue to grow throughout the spring and then drop in the summer — are seasonal year after year, rather than a response to deterrents like family detention and family separation.

Road Bumps in Reunifying Families

Here in San Diego, District Judge Dana Sabraw has been keeping an eye on government efforts to reunify thousands of children who were separated from their parents.

A couple times a week for the past few weeks, Sabraw has gathered in his courtroom with attorneys from the government and from the American Civil Liberties Union to discuss progress made on reunification and address new issues being brought to a head, like whether families that have been reunited should be given time before deportations to make decisions about their prospects.

On Friday, Sabraw heard arguments about delaying deportation after reunification and the fate of parents who the government said were “ineligible” for reunification before the deadline Sabraw set, including parents who have already been deported or who have criminal records. Sabraw indicated he’ll soon be addressing the deportation issue.

Attorneys Challenge Streamlined Immigration Prosecutions

Earlier this month, the Southern District of California began using a new program in a separate courtroom to expedite illegal entry criminal prosecutions.

This expedited program, commonly referred to as Operation Streamline, has been used in federal courts along the border since 2005, but this is the first time it’s been brought to the federal court district that covers California’s border with Mexico.

Defense attorneys from the Federal Defenders of San Diego, which handles the bulk of pro-bono federal criminal defense cases in the Southern District of California, filed an appeal [13] challenging the streamlined process last week for a person who was convicted on the very first day of Operation Streamline, July 9. It argues that Operation Streamline violates the equal protection and due process clauses of the Constitution because it treats people charged with illegal entry misdemeanors very differently than anyone else charged with other types of misdemeanors.

For example, in other misdemeanor prosecutions, defendants are almost always released on the day of their arrest and don’t need to set or pay bail, according to the filing. In contrast, migrants charged with illegal entry misdemeanors remain in government custody before their trial, unless they can make bail, which is sometimes set at more than $1,000 and often out of their reach.

Reports Detail Abuse in Facilities for Migrant Children

ProPublica detailed sexual abuse and misconduct in facilities for migrant minors [14]. One of the anecdotes from a facility in San Diego County describes a female employee who had been accused of kissing a juvenile.

A Los Angeles-based federal judge said Friday that she would appoint an independent monitor [15] to look into reports of neglect and abuse of children being held in facilities along the U.S.-Mexico border.

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