Trump’s “Zero Tolerance” Crackdown Won’t Stop Border Crossings but It Could Break the Courts

A little over two months ago, Attorney General Jeff Sessions issued an order to U.S. prosecutors with the potential to break the core functions of the Department of Justice. The directive called on U.S. attorneys to criminally prosecute everybody arrested for crossing the U.S.-Mexico border between lawful ports of entry. The order made no exceptions for first-time offenders, asylum-seekers, or parents with small children. “You are the front lines of this battle,” Sessions told his attorneys, calling the new initiative a program of “zero tolerance.”

As far back as last year, the administration has signaled plans to target parents who illegally cross the border with the full force of the law and separate them from their children in the process. Through wrenching stories of what zero tolerance looks like in practice, many Americans have now seen, for the first time, dramatic representations of a phenomenon more than two decades in the making — the criminalization of unauthorized migration — colliding with the agenda of an administration inflicting as much punishment as possible on undocumented immigrants as a matter of strategy.

Hundreds of children are now being separated from their parents in courts along the border every week, with little to no system in place to reconnect those families as they pass through the criminal justice and immigration systems. With shelters for children separated from their parents rapidly hitting capacity, the Trump administration is actively exploring ways to lock up immigrant kids on U.S. military bases, including, according to a recent McClatchy report, through the use of “tent cities.” As for the adults caught in the zero tolerance push, Reuters reported last week that Immigration and Customs Enforcement was beginning the transfer of roughly 1,600 detainees to a handful of federal prisons across the country.

At the moment, the administration is operating nowhere near 100 percent zero tolerance. If it were to get there, the system would likely collapse. While referrals of migrants for prosecution are definitely on the rise — with 30,000 referrals from October to April, compared to 18,642 in all of fiscal year 2017 — “the current level is about one-fifth of all apprehended adult border-crossers,” Adam Isacson, director for defense oversight at the Washington Office on Latin America, noted in a column last month. By pushing to bring that level up to 100 percent, as Sessions has ordered, “the Trump administration is embarking on a course of action that could cause the federal government’s courts, ports of entry, and prisons to collapse,” Isacson argued. Hundreds of thousands of border crossers would be locked up annually in federal prisons under a fully enforced zero tolerance doctrine, he wrote, and the federal docket could be expected to balloon by 270 percent.

Doubling Down on Failure

Trumpian zero tolerance is a combination of policies new and old. The most critical new component is that, in its quest to prosecute 100 percent of all people who cross the border illegally, the administration is separating families in waves, pulling apart parents and kids who would have likely stayed together in years past. Virtually everything else the administration is doing on the border is the ramped-up version of a decadesold strategy that has consistently failed to achieve its stated objectives.

The administration’s evolving crackdown has critical implications for asylum-seekers in particular. On Monday, Sessions issued a decision overturning an Obama-era precedent that will now make it exceedingly difficult for migrants to seek asylum on the basis of domestic violence and gang violence. Both are particularly common claims among Central American asylum-seekers. “This just told thousands of battered women and children that the United States will not afford them protection under the law,” a senior Department of Homeland Security immigration official told The Intercept.

While Sessions and the administration take the position that most asylum-seekers are frauds undertaking perilous journeys in order to scam the government, they have said that migrants who present themselves at lawful ports of entry seeking asylum have nothing to worry about. More than a year’s worth of news stories and an ongoing class-action lawsuit suggest otherwise, with accounts from across the border describing immigration officials blocking or turning away asylum-seekers exercising their rights at U.S. ports. What’s more, as Isacson noted, if the tens of thousands of asylum-seekers who present themselves between ports of entry each year reversed course and began showing up at the nation’s 45 understaffed ports of entry, those ports would be quickly overwhelmed.

The American Civil Liberties Union is currently challenging the administration’s family separation practices as they pertain to asylum-seekers. The organization, in a class-action suit, points to the experiences of two mothers. The first, identified as Ms. L, is a citizen of the Democratic Republic of Congo who last year came to the U.S. following an exhaustive journey with her then-6-year-old daughter. According to the ACLU, Ms. L did exactly as the administration has prescribed: She presented herself at a lawful port of entry and said she was seeking asylum. Ms. L and her daughter were placed in detention, and after a few days, the two were “forcibly separated.” Ms. L’s daughter was sent to a shelter more than 1,000 miles away, where she remained for four months.

The second plaintiff in the suit, identified as Ms. C., did not present herself at a lawful port entry. Instead, she and her son crossed the border in Texas between ports, flagged down a Border Patrol agent, and then asked to apply for asylum. Ms. C. was arrested, prosecuted, and served 25 days in federal custody before being handed off to immigration authorities. Ms. C’s son was taken away following her arrest and moved to a shelter hundreds of miles away in Chicago. Ms. C completed her sentence in September of last year. She was moved into immigration custody, where she successfully began the asylum process. Still, the government kept Ms. C separated from her son. The pair were finally reunited last week.

While the lawsuit does not challenge the lawfulness of these prosecutions, Lee Gelernt, a veteran ACLU attorney arguing the case, says the government’s targeting of asylum-seekers who appear between ports of entry is a serious problem. “They should not be first prosecuting and then seeing whether you’re a bona fide asylum-seeker,” Gelernt told The Intercept recently. In the event that an asylum-seeker is prosecuted, however, the ACLU argues that they should be reunited with their child after their time is served, provided there is no evidence that they are unfit. “What we’re saying in the lawsuit is if you’re going to prosecute asylum-seekers and you’re going to take the children away, give the child back. You’ve got to give the child back.”

As Gelernt noted, the core question being considered in the ACLU’s case is somewhat narrow: the legality of the prolonged separation of parents from their children in immigration custody absent a determination that those parents are unfit. But the broader concerns raised in the case go to the heart of the zero tolerance campaign. In the case of Ms. C, the government arrested a mother seeking asylum because she did so between lawful ports of entry — in essence, she broke a law to exercise a right. According to the Washington Post, more than 20,000 migrants sought asylum by crossing the border illegally from October through December. In the past, cases like Ms. C’s were treated inconsistently. In some sectors, the Border Patrol would turn over asylum-seekers picked up between ports, particularly those with children, to immigration authorities, rather than referring them to the Department of Justice for prosecution.

Under zero tolerance, these acts of prosecutorial discretion are out. Those picked up between ports of entry, including parents and asylum-seekers, will appear in one of several courts along the border that feature mass prosecutions often facilitated through Operation Streamline, the U.S. government program designed to funnel bodies, as Border Patrol agents call them, through the criminal justice system, then out of the country, as quickly as possible. In its 13-year history, Streamline has been criticized as a ghastly example of conveyor belt justice, a mockery of due process that no decent American would ever accept for themselves, their loved ones, or their neighbors. The Trump administration sees it differently.

Theater of Cruelty

Sessions highlighted Streamline, specifically, as a model of success in his April directive. “Past prosecution initiatives in certain districts — such as Operation Streamline — led to a decrease in illegal activities in those districts,” he wrote. Streamline prosecutions in Southern Arizona have jumped 71 percent this fiscal year, with the chief district judge saying the courts can’t handle any more. Nationally, federal criminal prosecutions, Streamline or otherwise, of individuals accused of illegally crossing the border increased by 60 percent from January to April, according to government data obtained by the Transactional Records Access Clearinghouse at Syracuse University.

Administration officials say these ramped-up efforts are simply about enforcing the law, but the politics are obvious. Last year, Trump was able to brag about a historic drop in border apprehensions being a sign that he was living up to campaign promises. That’s not the case anymore. The administration line is that a “surge” in illegal crossings is to blame. That’s a misleading claim. In 2017, border apprehension levels did drop to record lows, and it’s true that apprehensions have risen in the last three months. But, as the Migration Policy Institute noted in an analysis last week, “What has been lost in the discussion is that the 2017 apprehensions are the outliers, and so measuring current activity at the border against that atypically low period ignores the fact that the current apprehensions picture largely mirrors earlier years.” MPI research assistant Jessica Bolter and Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service, observed that this year’s March, April, and May apprehension numbers “are largely comparable to the same months in 2013, 2014, and 2016,” adding that the “40,344 apprehensions recorded in May 2018 are continuing the downward trend that has emerged over the past 18 years.”

To the extent that there is any notable uptick regarding people crossing the border, Bolter and Meissner went on to say, it’s in “the proportion of migrants that are either traveling as unaccompanied children or as families consisting of both adults and children.” Those numbers have been going up the past few years, and those are the people now in the crosshairs of the administration’s shock and awe campaign. This is the population that Manuel Padilla Jr., former Border Patrol chief for the Tucson sector, now running operations in the Rio Grande Valley, calls “non-impactable traffic” — individuals for whom no level of enforcement will serve as a deterrence. Sessions appears set on proving the veteran Border Patrol chief wrong, by showing that everyone is impactable. Through zero tolerance, the administration intends to deter people considering crossing the border illegally by making an example of others. It seems tearing babies and toddlers from their parents and letting that idea marinate in the minds of would-be migrants is now part of that strategy.

Deterrence, broadly, has been the guiding strategy of U.S. border enforcement since the Clinton administration. It was in 1994 that a collection of Border Patrol chiefs and Pentagon planners drew up “Prevention Through Deterrence,” the national border strategy designed to funnel border crossers away from border cities and into remote areas like the Sonoran Desert. While the strategy has shifted migration flows away from urban centers, it has also fueled an explosion in migrant deaths across the border over the last two decades. Streamline, and now Sessions’s zero tolerance initiative, are an extension of the same line of thinking: that if the right combination of enforcement efforts is arrayed to make unlawful border crossing sufficiently risky or punishing, people will stop crossing.

While the logic is straightforward, years of research strongly suggests that various enforcement strategies have little effect on migration flows. In 2015, a report published by the Office of the Inspector General for the Department of Homeland Security found that in the case of Streamline specifically, the Border Patrol did “not fully and accurately” measure the program’s “effect on deterring aliens from entering and re-entering the country illegally.” Additionally, the OIG’s office found that the Border Patrol lacked consistent guidance on whether to refer asylum-seekers to the DOJ under the program, with different sectors operating under different guidelines. In response to the OIG’s 2015 findings, the Border Patrol said it would “develop and implement guidance in all Border Patrol sectors that use Streamline to ensure consistency in all aspects of administrative and criminal processing, particularly with regard to claims of fear of persecution or return.” On Monday, The Intercept asked Customs and Border Protection, which oversees the Border Patrol, about whether the agency had followed up on that commitment and current guidance on referrals to the DOJ. CBP did not provide an answer by publication.

Leading migration scholars tend to agree that so-called push and pull factors, such as the 2008 economic crash or rising violence directed at Central American women and kids, have a much closer link to rising or falling migration levels. A 2015 survey published in the Journal on Migration and Human Security, based on a random sample survey of 1,100 recently deported migrants in six Mexican cities, found that so-called consequence delivery systems such as Operation Streamline “do not have a strong deterrent effect” on illegal border crossing. “Instead,” the report said, “immigration enforcement has led to a ‘caging effect’ over the past two decades which has disrupted seasonal migration flows, increased familial and social ties to the United States, and decreased the probability of returning to Mexico once in the United States.”

Half of the participants in the survey had a U.S. citizen family member, and roughly 1 in 5 had a U.S. citizen child. More than half — 55 percent — said that even after experiencing enforcement firsthand, they intended to return to the U.S. In a report published last week, the Vera Institute of Justice, a nonprofit research and policy organization, took an updated look at Streamline’s relationship to deterrence. Teaming up with researchers at the University of New Haven, Vera performed a statistical analysis of Customs and Border Protection data going back to 1992 designed to isolate “the effects of an intervention” — in this case, Operation Streamline — “from other short- and long-term variations in the data.” The analysis found that “contrary to DHS’s premise, there is no evidence to support the conclusion that Operation Streamline succeeded in deterring unauthorized border crossings, nor that it had any effect whatsoever on immigrants’ decisions to come to the United States.”

Vera’s report found that despite having no demonstrable impact on migration levels, “Operation Streamline had massive effects on immigrants and the federal judicial system.” In the last decade, Streamline has contributed to a flood of cases “reaching a high in 2013 of 47 percent of all federal cases completed,” Vera noted. Those prosecutions require resources that have to be pulled away from other cases that come before federal courts. Streamline’s impact on due process has been similarly severe. “In particularly busy courts, a single attorney might meet with up to 80 Streamline clients per day for only a few minutes each,” the report said. “These limitations placed significant constraints on the ability of attorneys to effectively represent their clients. In the yearlong period ending September 30, 2016, for example, 16,577 defendants in federal district court were charged with unauthorized re-entry; 98 percent were convicted upon entering a guilty plea.”

Given Streamline’s long record of gumming up the courts, and its lack of demonstrable impact on actual migration, it’s reasonable to ask why administrations would continue to run such hard-line programs. In answering this question, Vera points to the “political theater” that followed the September 11 attacks and “measures that provided the illusion of security while doing nothing to actually increase or ensure security.”

“Similarly, Operation Streamline’s lack of any demonstrable deterrent effect arguably makes it ‘deterrence theater,’” the report said. “The mass criminal prosecution and incarceration of immigrants provides the illusion of reducing unauthorized immigration, but statistical analysis provides no evidence of any deterrent effect.”

Tearing kids from their parents, of course, turns some people off, politically. The Trump administration has experienced some of that backlash in recent weeks. But the president also has his supporters: Americans who believe that these parents having their babies and toddlers taken from them, with no word of when they will be reunited, are facing rational and reasonable consequences for their actions, even if they came to the U.S. seeking asylum, which is not against the law. In those corners, this is all long overdue.

With midterm elections approaching and a hungry anti-immigrant base to feed, there’s little sign that the Trump government will willingly pull back on this crackdown. Last month, Stephen Miller, a senior White House adviser, former Sessions aide, and anti-immigrant hawk, signaled to the right-wing website Breitbart that in the next few months, the administration will approach a reduction in unauthorized immigration levels at the border as a “vital necessity.” Six days after Miller’s interview, Sessions sent a letter to all Department of Justice immigration court staff directing them to make themselves available for three two-week postings to border courts between July and the beginning of next year. They were told to expect work involving “mass migration emergencies,” “enforcement initiatives,” and responses to staffing shortages.

While it may score political points with some, Gelernt, the ACLU attorney, believes that the administration may have overplayed its hand with this one. “It doesn’t feel like the administration was prepared for this sort of blowback,” he said. As for the asylum-seekers, he added, they will keep coming. “All you’re doing is just giving them two evils,” Gelernt said. “A mother is not going to stay behind and let a gang kill her and certainly not her kid. And so they’re going to come no matter what. And if the horror of family separation happens, they’re going to be saying, ‘Well, I didn’t really have a choice.’”