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The situation roiling around illegal aliens, particularly the separation of children from their families, is shining a bright light on a few issues that make me want to hit things with a bat.
Actually, it’s not so much the issues themselves, as the cynically deceitful opportunism of all the politicians spouting off about them.
Right off the top, I’m fascinated by the terminology being used. There’s a range of phrases and words used to describe the exact same people. Which one is correct? Is it illegal alien? Or illegal immigrant? Or undocumented alien? Or undocumented immigrant? Or undocumented migrant? Or just plain migrant? I’ve read and heard all of the above.
The term used depends on whether the speaker or writer is a supporter of the hard-heartedly cynical Trump administration and the Republicans, or a supporter of the astonishingly deceitful Democrats. Or would that be the tough on crime Republicans and the compassionate Democrats focused on the fair and ethical treatment of all? Hmmmmm…
In any case, those on both sides are blatantly opportunistic; never missing a chance to boost their own team and/or bash the other. As will become clear, boosting and bashing is a far higher priority than figuring out what to do about… let’s call them “folks” …coming into the country.
Breaking it all down into three set of issues puts things into a perspective that we can get our brains around:
- Separating Children From Their Parents
- Immigration Law
- Prosecutorial Discretion
Let’s consider them one at time. And let’s remember that the political class is gleefully ignoring their legislative responsibility, and remaining focused on the boosting and bashing of their opponents using clever, cynical, deceitful rhetorical nuance..
Separating a child from caring, loving parents who have broken no law is morally, ethically wrong. PERIOD! It’s not something that should ever, EVER happen in the U.S. Separating a child from caring, loving parents who have broken no law other than entering the U.S. illegally is equally wrong.
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On the other hand, separating a child from an abusive single parent is a morally essential action. Separating a child from a murderous drug dealer and his heroin-addicted wife who sneaked in the U.S. illegally is an act of kindness.
The point is, separating a child from a parent can be horrific. Or it can be a moral mandate. Or it can be something in between.
Another critical point is that it happens all the time in the U.S., has been happening for a long, long time, and has been done by both Democrats and Republicans. The child of a native born American citizen who is sentenced to prison for any offense is separated from that parent. That’s been going on for centuries!
Yes, the Trump Administration has taken separation of illegal, undocumented, alien, immigrant, migrant parents from their children to a whole new level, but the Obama, Bush, Clinton, etc. Administrations also did the exact same thing. (If one were to speak tongue-in-cheek, one might refer to how Clinton and Obama arrested only nefarious “illegal aliens,” while Bush and especially Trump are rounding up every single innocent “migrant” in sight!)
Put these thoughts on hold for a bit, and let’s consider the relevant immigration law. First, the Immigration and Nationality Act of 1952, among other things, establishes that the first illegal entry into the U.S. is a misdemeanor offense that carries fines and no more than six months in prison. In other words, illegal entry into the country is …ummmm, illegal. It’s a crime. You’ll get arrested and detained for doing it. It’s the law of the land. Congress passed this law. The Judicial Branch has upheld it and made rulings to clarify it. The Executive Branch is duty-bound to enforce it. And then there’s “prosecutorial discretion” which I’ll come back to shortly.
Next, the “Flores Settlement,” a 1997 Federal Consent Decree, requires the government to release children from custody within 20 days – whether they came into the country with their parents or not – to one of several specific individuals or groups following a specific priority sequence.
Finally, the United States Court of Appeals for the Ninth Circuit issued a decision in 2016 regarding the Flores Settlement. Here’s the operative phrase from that decision: “We hold that the Settlement applies to accompanied minors but does not require the release of accompanying parents.”
So bottom line, by law, the Executive Branch is required to:
- Arrest and detain anyone who enters the country illegally
- Release children from custody within 20 days
- Release or detain parents of those children based on “prosecutorial discretion.”
“Prosecutorial Discretion.” There’s that phrase again, so let’s dive into it.
“Prosecutorial Discretion” is the authority of a government agency, or an individual officer of that agency, to decide what charges to bring and how to pursue each case. This authority to exercise discretion in deciding when to prosecute and when not to prosecute is a long-recognized, critical part of U.S. law. It is in fact, an inherent part of our system.
Both Clinton and Bush were pretty much hands-off regarding the application of Prosecutorial Discretion. They left those decisions to the enforcement personnel directly dealing with illegal border crossings. The Obama administration was considerably more aggressive in applying discretion, prosecuting only about 21% of illegal border crossings. The Trump administration instituted a zero-tolerance policy, prosecuting 100% of cases.
Obama – at his discretion – opened up the floodgates and chose not to prosecute any but the most egregious individuals who illegally entered the country. Trump – at his discretion – slammed the gates totally shut.
There is an inevitable consequence of following the letter of the immigration law after an arrest under both the Obama and Trump policies. That is, given the Immigration and Nationality Act, the Flores Settlement, the 9th Circuit’s ruling and not applying discretion, the inevitable consequence is the separation of families.
Trump and the Republicans – wanting to beef up their credentials as tough guys regarding illegal immigration (or whatever you prefer to call it) were and are cynical enough to opportunistically exploit the fact that the ruling by the left-leaning 9th Circuit made family separation inevitable. The phrase, “We’re enforcing the law put in place by Obama!” is technically true. The cynicism comes from the fact that Trump assumes we’re all too stupid to know that prosecutorial discretion could be applied on a case-by-case basis.
The Democrats – wanting to bash Trump and the Republicans as heartless SOBs who could care less about helpless children – were and are deceitful enough to endlessly repeat the mantra that “There is no law or court ruling that mandates family separations.” True enough, BUT… They know damn well that the combination of a law, a consent decree, a court ruling and suspension of prosecutorial discretion DOES require it. It takes some deceitful rhetorical skill to make a true, and also truly misleading, statement.
So let’s blow away the smoke and recognize that it all boils down to prosecutorial discretion and the failure of the politicians in Congress to do their duty.
Congress has shirked its responsibility to pass legislation that spells out how to handle immigration issues. Both Republicans and Democrats in Congress continue not only to shirk, but to actively avoid doing their duty. They’re all too busy hurling slurs and insults at each other, and mugging for the media who revel in throwing gas on the fire and demonizing the other side.
I repeat. Congress has and continues to shirk its duty to pass appropriate immigration legislation. Individual Congress People have and continue to rhetorically and opportunistically exploit immigration issues in attempts to make the other side look bad.
Democrats LOVE prosecutorial discretion when their guy is calling the shots. Republicans LOVE prosecutorial discretion when their guy is calling the shots.
So in conclusion here’s my message to Congress: Shut the hell up, stop shirking your duty, stop hiding behind prosecutorial discretion thus abdicating power to the executive branch, put re-election and the bashing and boosting aside and focus on passing immigration legislation that we the people will be proud of.
Join the discussion 3 Comments
No. Read something. Several sites have clarified this, and the people repeating it are feeding the bears. The 20 days is specifically the *average* target time families with children must be processed in. Whether or not you separate them does not matter. The limit does not apply to any individual case. None of this makes any sense. It is drama to scare off potential immigrants. Enforcing the stated goal can never, in any way, be made easier by separations. It goes out of it’s way to say that it is about turnaround from the time of arrival, and not elapsed days in detention. The whole framing is a lie.
The exact interpretation of the “20 day” issue is very much still up in the air. Judicial rulings on the actual legislation – specifically the Flores Settlement – are ambiguous. Most notable are:
First: The ruling by Judge Dolly M. Gee of the United States District Court for the Central District of California on August 21, 2015. She clarified the “without unnecessary delay” and “promptly” language in the Flores settlement, ruling that holding parents and children for up to 20 days “may fall within the parameters” of the settlement. In other words, she ruled that under Flores “MAYBE” kids could be held only 20 days. She punted the issue back to Congress.
Second: On June 20 of this year, the DOJ requested “modification” of Flores to allow for keeping families together for more than 20 days on military bases. In other words, please clarify what you meant by “MAY fall within the parameters” in your 2015 ruling. We think it means kids can be held for only 20 days. What do you think?
In any case, the core point of my article is that Congress has done ZERO to pass legislation to address this very pressing issue, because they – on both the left and the right – would rather have a very public pissing contest than do their job.
This author speaks of Congress shirking and actively avoiding doing their duty related to immigration. It is also true that Congress doesn’t just shirk their duty, but, by their very actions/inactions, they actively aid and abet this literal invasion of illegal aliens. And, yes, they are illegal aliens, not immigrants in any way. Real immigrants respect our nation’s sovereignity and right to decide who is allowed to come here. Immigrants follow our laws and rules to apply for PERMISSION to come to America. Illegal aliens respect nothing except what they want. They have no respect for, nor gratitude for, the enormous cost they are to American citizens and care not one bit about the negative impact their numbers and attitudes are having on every aspect of our nation and our citizens. These people are simply financial opportunists, migrants who, along with their complicit countries, are simply exploiting and using the USA for their own selfish personal gain. They are here simply to get everything they possibly can, but not our freedoms/rule of law/religious freedom, etc. They don’t come for those intangibles, but fir material wealth. The politicians may want the foreign illegals to be citizens and vote, but truth is they care nothing about USA citizenship. As the Mexican woman living here for many years said, “I am NOT American. I will NEVER be American. I am, and will always be Mexican.” That describes their attitudes in a nutshell. And before you accuse me of fabricating this, please know this is a quote of her journalist husband. The only reason the DACA illegals want ammesty is that it guarantees no deportation and that is all they care about. I harbor no ill will against anyone of any of any race, skin color, or nation, but I am angry at watching corrupt Mexico and its citizens so blatantly exploit my country. But I am disgusted beyond anger that all of this is okay with my congress/government and that they actually HELP Mexico in its effort to move its poorest/uneducated/unskilled citizens into our nation where our own Congress FORCES we taxpayers to take care of them and their anchor babies forevermore while they send billions of OUR dollars back home. Not only do the illegals, refugees and asylees cost us billions annually, but they cost us the additional billions in their remittances home, money that is a total deficit for us because we get NO benefit from those billions. But, then, we do not brrnefit from any of the costs of illegals in our nation. They and their countries are the only beneficiaries of their being here.