How Trump Could Get Around The Current Immigration Crisis’ Legal Conundrum

As I explained in two of my articles from earlier this week (Part 1 and Part 2 on the current immigration crisis’ legal origins), the White House, even after seeking to address the separation of families at the border, is still in a legal conundrum.

For reasons explained in my earlier piece, President Trump’s new order that families not be separated but still be prosecuted will most likely be hindered in due time by federal courts’ re-enforcing the Flores Settlement. To repeat, this settlement establishes legal requirements that families be separated after 20 days of detention and minors be placed in the custody of specific government selected care facilities while immigration proceedings carry on.

Unless the courts strike down the Flores Settlement (which is unlikely), or unless Congress simply moves to rewrite the law in a manner that makes the Flores Settlement irrelevant, the president can not both prosecute families that cross the border and keep them detained together throughout the duration of their immigration court proceedings.

Many commentators have contemplated this legal pretzel and served the White House with a choice: either stop enforcing our border laws (which, in order to be effective, very often require some form of detention) or continue to enforce the problematic policy of separating families at the border.

This, however, is a false choice.

It is entirely possible for the president to enforce our laws and do so in a way that maximizes and prioritizes compassion to the highest extent possible. How can the Executive Branch achieve this optimal solution all by itself in a legal way? How is such a solution even possible without merely going back to the ineffective policy of catch-and-release enforcement?

The answers to these questions are much more simple than one may at first think, and they are very well explained in a recent article by Alex Nowrasteh and his research team.

Alternatives To Detention

In order to avoid the controversy created by the Flores Settlement on his own, President Trump will have to minimize the number of immigrant families that he is detaining to the highest extent possible. It should go without saying that those families and asylum seekers who cross the border should not be indefinitely detained if they are not threats to public safety.

However, the typical, and rational, response to such a suggestion is that the practice of merely apprehending and then releasing those who illegally cross the border, even if they are not a safety risk, has statistically proven to be an ineffective means of enforcement, because these individuals often turn out to be a flight risk. They rarely show up to their court proceedings and thus essentially avoid the legal ramifications of their actions.

While this criticism is fair, it is only accurate if one enforces a policy of unconditional release. But based on previous immigration practices, such a zero-accountability release policy does not need to be the only substitute for detention. As Nowrasteh and his research team point out in their article, our nation’s immigration enforcement agencies have the power to enforce our laws with alternatives to both detention and unrestricted release.

For example, there is the Intensive Supervision Appearance Program (ISAP), which utilizes “electronic ankle monitors, telephone checkups that used biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants” to ensure that immigrants show up to their court proceedings when required to do so. According to Nowrasteh, this policy has been incredibly successful:

“ISAP II data in 2012, the last year for which data is reliably available, showed that 17,524 people left the program. Of those, 4.9 percent absconded and 4 percent were arrested by other law enforcement agencies. The other 91.1 percent complied with their court orders and either left the country or earned some sort of legal status. Appearance rates at immigration courts were 99.6 percent.”

There is also the possibility of enrolling immigrants in the Family Case Management Program, which “uses caseworkers to help migrants meet their legal and judicial obligations.” Although this program is expensive and could most likely only be used on a small scale, it too also has a nearly perfect enforcement record as far as court appearances are concerned. Additionally, Nowrasteh also calls attention to the sizable amount of non-profit and private organizations that can also be used to pursue these same ends and achieve similar results when utilized properly.

Given the scale and urgency of the current situation, these solutions alone would obviously not flawlessly address the ongoing crisis. However, these alternative methods can be used as initial steps toward remedying a problem that has thus far been addressed with far too much political posturing and not enough practical policy.

If such alternatives to detention were used and appropriately provided to families and asylum seekers crossing the border, large-scale separation would subside, immigration proceedings could continue in accordance with the law, tax payers may be able save large amounts of money, and the politicians who we have tasked with solving this crisis can finally prioritize negotiating a solution as opposed to merely complaining about the problem.

***

JG

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