The second was ending the policy of catch-and-release, whereby asylum seekers are released with court dates but some fail to show up. The Departments of Justice and Homeland Security recently ordered zero-tolerance prosecution of all illegal border crossers, which guarantees that they’ll be detained, and to start separating families if they entered illegally. Separating families is a choice; it is not required by law.
Turning asylum seekers back at the border and limiting their application options has incentivized some of them to cross into the United States unlawfully to ask for asylum. The government’s response is to prosecute asylum seekers who entered unlawfully for violating immigration law and, in many cases, ignoring their asylum claims. No previous administration has prioritized criminal immigration prosecutions over asylum claims.
These actions are supposed to deter illegal entry, but — while it’s admittedly early — haven’t. According to Border Patrol, border crossings have jumped 5 percent since the policy was put into effect in April.
CNN reports that, according to internal Homeland Security documents, officials expected the deterrence to work: “The full impact of policy initiatives are not fully realized for 2–3 weeks following public messaging — however, some migrants already underway may temporarily halt to determine the effects of the new policy,” one document reads.
But deterrence can only work if the cost imposed on asylum seekers is great enough to make them stay in their home countries or settle in another one. Economist Michael Clemens found that the high murder rate and gang violence in Central America is driving the exodus. No matter how painful family separation is, the violence many of these migrants are escaping from their home countries makes it worth the risk of separation.
Yet officials should’ve known this wouldn’t deter migrants. Last year, the administration experimented with mandatory prosecution and family separation in the El Paso border sector but it didn’t deter families from entering. As noted by Dara Lind at Vox, the number of families apprehended actually increased by 64 percent over the course of the experiment. Three other border sectors — which didn’t take the zero-tolerance approach — had a lower rate of increase during that time than El Paso did.
But even if President Trump doesn’t want to go back to catch-and-release, there are three things that can be done to end family separations for asylum seekers. The first is to allow Central American asylum seekers to make their claims at a port of entry on the Southwest border, instead of telling many of them to postpone their asylum applications, as is the current Border Patrol practice. This will keep families together and incentivize them to enter legally rather than illegally.
The second is to extend the Family Case Management Program to all asylum seekers. This program, which the government recently closed, kept families together in shelters, not separated in cages, while they awaited their asylum hearings. Furthermore, 100 percent of the people in that program attended their court appearances, and only 2 percent disappeared into the US after their hearing — addressing Sessions’ concern of skipping hearings.
The third option is to allow those fleeing gang violence to apply for asylum. This will take some of the pressure off the border by removing the fear that the government could shut down the entire asylum system in the near future.
These three policies aren’t a panacea, but they end catch-and-release while preserving the asylum system and curtailing child separation. Violations of immigration law by themselves are not a good enough reason to separate families, but these three policy changes are preferable to the current administration-made border tragedy.
