What is going on with children being separated from their parents at the border? Let’s take a closer look.
There are two ways to enter the United States, at a designated border crossing and not at a designated border crossing. Entering the US anywhere other than at a designated border crossing is illegal. It is a federal misdemeanor. 8 US Code § 1325[i]. An attempt to improperly cross the border by an Alien is punishable by a fine or no more than 6 months imprisonment. Clearly Congress has decided that this is not a crime worthy of a big punishment. It is not a felony.
In order to apply for asylum protection, the person (and their children) must enter the United States and then request asylum. It cannot be sought from outside the country. The person can apply for asylum regardless of how they entered the United States and their immigration status. The person would file the form I-589. While the application is being reviewed, the person is entitled to remain in the United States. If the application is denied, it is then sent to an immigration judge. While waiting for the Judge’s determination, the person is entitled to stay in the United States.
Asylum is available to people who meet certain criteria. They can seek asylum because they fear persecution due to Race, Religion, Nationality, Membership in a certain social group or Political Opinion. They can also request asylum if they meet the definition of refugee.
Aliens who enter at a proper border crossing and request asylum have not committed a crime. In fact they have followed the law. They are entitled to make the application for asylum and have that application considered. It has never been the law or policy of the United States to separate children from their families when seeking asylum by presenting themselves at a border crossing.
When a family enters the country illegally they are liable for arrest and deportation. However, they can also apply for asylum if they meet the requirements.
While Aliens who have otherwise gained entrance to the United States illegally may have committed a misdemeanor, they are still entitled by law to seek asylum. It has never been the law of the United States to separate children from their parents in this situation.
The current administration has taken the position that legitimate asylum seekers are a threat to the United States. To discourage the practice they have decided to begin separating children from their parents at the border. Even when the family arrives following the law. They believe the threat of separation will stop people from seeking asylum.
President Trump has since signed an executive order stopping the practice of separating families. However, many families remain separated.
On June 26, 2018, US District Judge Dana M. Sabraw order the government to cease the separation policy and reunited separated families within 30 days and for those children under 5 years of age, by July 10, 2018.[ii] The government identified about 100 children under 5 and as of July 9, 2018, forty had still not been reunited.
The government is asking for more time to complete the process.[iii]
[i] https://www.law.cornell.edu/uscode/text/8/1325
[ii] https://assets.documentcloud.org/documents/4561262/Ms-L-v-ICE-Order-062618.pdf
[iii] https://www.documentcloud.org/documents/4577730-7-5-18-Ms-L-US-Notice-of-Compliance.html
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.