Signpost at the US-Mexican border. / Shutterstock

It is an all-too-familiar trope in the endless immigration wars: Those who enter or remain in the United States from a foreign country must comply with our laws; if not, they must be administratively deported or, depending on the circumstances, face criminal sanctions. Regularizing such persons by means of immigration reform legislation has been criticized as “amnesty” and an encouragement to overstay visas or enter without authorization. Those who have obtained citizenship or other resident status take offense at amnesty recipients “jumping the line.” Amnesty has been used most recently as a basis to criticize (and end) the DACA program by which persons brought to this country at a young age by their parents, during a limited period of time, could apply for and receive work and resident status during good conduct, military service, education or other conditions.

Efforts by current and past administrations to tighten immigration also are justified by the need to enforce existing immigration law. The basic premise is unassailable.

However, there is at least one other equally unassailable rule: The government must itself follow the law. That principle, enforced by our judicial system, is most recently illustrated by the decision of U.S. District Judge Mark L. Wolf (a Reagan appointee) in a class action in the District of Massachusetts, Calderon Jimenez v. Cronen, No. 18-1037, 2018 U.S. Dist. LEXIS 97593 (D. Mass. Jun. 11, 2018). The case concerned individuals (married to US citizens) caught up in a sting operation when they appeared at an immigration office as required to verify or obtain resident status. The lengthy opinion, issued after detailed evidentiary hearings, recounts instances of immigration officials detaining plaintiffs longer than permitted without a hearing, failing to provide required notice to the plaintiffs, sending letters that misrepresented the process and then lying to the court in affidavits on a motion for habeas corpus. The transcript of the hearings is an embarrassment to read—and, as the court found, evidenced that the government violated the rule of law and due process. Two plaintiffs were released; the court indicated that other persons had been treated similarly and either were released voluntarily by the government or would be subject to further court proceedings regarding the class.

The government’s duty to follow the law applies to the current crisis regarding parents and their children seeking asylum on the U.S. Southern border. At least one court has found valid claims arising from the government’s “alleged practice of separating migrant parents and children held in immigration detention without a showing that the parent is unfit or presents a danger to the minor child.” Mrs. L. v. Immigration and Customs Enforcement, No. 18-0428, 2018 U.S. Dist. LEXIS 97993 (S.D. Ca. Jun. 6, 2018). Mrs. L sought asylum at a port of entry, as required, and was housed together with her 6-year old daughter for about four days, after which the parent and child allegedly were “forcibly separated” by ICE. Four months later, after filing a complaint and request for preliminary injunction, Mrs. L was released with her child. Other plaintiffs, including some who sought asylum when they entered the U.S. between ports of entry, joined in the action but had not yet been reunited with their children. The June 6 opinion held that the complaint properly stated a claim under the Constitution for “family integrity” as had been found in the Ninth Circuit. The case was permitted to go forward for class certification on the basis that the government had violated plaintiffs’ due process rights.

First, we note the extraordinary efforts undertaken by counsel for plaintiffs in these cases; immigration proceedings do not necessarily give rise to a right to appointed counsel, and results such as these often require outside pro bono counsel—in these cases nationally-recognized firms and the ACLU. New Jersey lawyers should join the effort.

The current border crisis presents similar competing claims regarding the rule of law. Persons seeking asylum at ports of entry are processed administratively and generally are not subjected to the forced separation of parents and children. There are a complex set of court settlements, regulations and statutes that govern such processes; none permit forced separations. Entry at other points may be a misdemeanor under 8 U.S.C. § 1325, though, and the current administration has decided to “enforce the law” on a “zero tolerance” basis. Rather than note the asylum claims and release these families with a scheduled hearing date, the border officials turn the adults over to the criminal authorities, i.e., the local federal prosecutors, who have been instructed by the U.S. Department of Justice and Attorney General to take a tough line. The children were then deemed unaccompanied minors and sent to separate facilities in places as far away as New York and (possibly) New Jersey. Criminal defendants have not traditionally been housed in family units. Prior administrations refused to separate families in these situations but, rather, released them with directions for the adults to appear for appropriate court hearings. Under the current administration’s initial zero tolerance policy, though, all members of the family were locked up—separately and often in different cities without a reasonable ability to maintain family contact. There are reports of families being unable to reunite. Bureaucracy seems to have run amok.

Without more, one might conclude that families seeking asylum know (or are deemed to know) that crossing at unauthorized points gives rise to criminal penalties and thus are either deterred or accept the risk of family separation.

Either intentionally or because of incompetent planning by the government, families seeking asylum currently are backed up at the legal points for days and (reportedly) more. Some report that asylum seekers are slow-walked through these points of entry in order to minimize lawful, administrative claims and maximize the number of families who will—out of fear from local gangs or the need for food, water and protection from the elements—leave the end of the line and turn themselves in at other locations. Thus, the government may have created the conditions that maximize the likelihood that families will become subject to criminal proceedings and separation. That violation of due process should give rise to relief to the families. The U.N. Human Rights Council has criticized the policy as a violation of the International Convention on the Rights of the Child (which the U.S. sponsored and signed but has not ratified).

We suggest that it is worse. As with the DACA crisis, by which the president unilaterally terminated the program in an (unsuccessful) attempt to force Congress to agree to immigration legislation that Congress otherwise would have found unpalatable, he may have forced this zero tolerance policy in a renewed effort to strong-arm Congress to accept changes in the immigration laws that it would not otherwise approve. He is thus cynically creating hostages of children and families. That these families are seeking asylum from gangs, abuse and similar conditions in their home countries makes the zero tolerance ploy even more despicable.

We welcome the executive order issued June 20 ending the separation of children from their families in misdemeanor situations where the parents seek asylum not at a port of entry. Unfortunately, this change in policy does not resolve the inhumane treatment of children before June 20. Immigration authorities should immediately redirect resources to identify all such parents and separated children, and reunite them in appropriate facilities or release them. An additional problem arises, though, under current law, including the so-called “Flores Settlement” and its implementing regulations, which limit the number of days minors and/or families may be detained. The backlog of persons being processed because of the new zero tolerance policy makes compliance with the settlement unlikely. Rather than attempt to vacate the settlement, as is suggested by the executive order, the administration should end zero tolerance, or at least suspend it until these logistical problems are resolved in a manner that respects due process and the families’ human rights.