When Policy, Politics, and Principles Collide: A Review of Recent Border Enforcement and Human Rights Decisions

By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L Justice

Policies work best when they are fair, consistent, and well implemented. Politics work best when they are representative and support effective policy. Principles work best when they are applied to both policy and politics to ensure just outcomes. But when these three interface, we often have tensions and challenges. That has especially been the case in the recent decisions of the Trump Administration relating to separating children from adults crossing the border and also in the recent decision to withdraw from the U.N. Human Rights Council. The following provides some perspective on each of these decisions in light of recent policy, political, and principle challenges.

“Zero Tolerance” Border Enforcement

Anyone who is crossing the U.S./Mexico border illegally undergoes a harrowing experience. Most are leaving difficult conditions in their home country and then experience hardships and risks getting to the border. What is perhaps more harrowing is when they are stopped at the border and have their children separated from them. While this has been a practice for many years particularly since the Flores Consent Decree of 1997, it has typically happened when the adult involved is under suspicion of not being the child’s parent and/or is potentially a criminal and is being prosecuted as such. That requires a process that not only separates the children, but does so for their protection.

However, in April 2018, the Trump Administration applied the practice of separating children from adults in a new “zero tolerance” policy for anyone crossing the border illegally (and potentially also including some asylum seekers). Although these individuals are crossing the border for a range of reasons, most are for economic reasons and most are not criminals, though illegal crossings are misdemeanors. While such separations have occurred under both the Obama and Bush administrations, the current zero-tolerance policy has increased the number of these separations and over a shorter period of time. It was reported that 1,995 children were separated from 1,940 adults from April 19 to May 31, 2018 while the zero-tolerance policy was in effect. Another report indicated from May 5 to June 9, 2,342 children were separated from 2,206 parents. Such numbers are troubling in many regards.

Understandably, there has been a significant outcry by the U.S. public and government officials about this wide-sweeping policy and the impact on children. As a result of this response, the Trump Administration has issued an Executive Order this week to cease this practice. On one level we can say that this is a good outcome to an otherwise bad situation. While on another level, the entire episode raises a series of issues relating to immigration laws and their enforcement — where policy, politics and principles collide.

Immigration law and policy is among the most challenging and difficult that we have in the U.S. Not only because they are complex and detailed laws, but also because the circumstances are ever changing. Enforcement of immigration laws has varied historically and who is restricted and when they are restricted from entry has also varied. What is also challenging is that the situations of migrants changes and determining who is legitimately entering or should enter this country is a concern for numerous reasons. While some advocate for open borders, as a matter of policy and practice, having completely open borders is problematic on many levels. That is why we don’t see such a policy in the U.S. or in most other countries. In fact, various other countries, such as Canada, have more strict requirements for legal/illegal immigration than the U.S.

But the recent situation of children being separated en masse is a major concern as it doesn’t take into account the current changes in migration flows. When the separation policy went into effect many years ago, most of the illegal crossings were by men. Now we see a much higher number of women, children, and families. So the implementation of the separation practice under a zero-tolerance policy should have taken into account this very different situation in border crossings. On the other hand, the public outcry needs to be tempered by the fact that the immigration concerns, especially for children, existed far longer than the current policy and will continue far beyond the current administration. Issues of safety, security, and legality persist.

It is important to note that those who are attempting to enter the U.S. (or any other country) generally fall into various categories such as asylum seekers, refugees, displaced persons, economic migrants, etc. Asylum seekers are those who have a genuine and well-founded fear of a political or other threat that necessitates them to seek asylum in a country. Asylum seekers are not illegal immigrants, but rather refugees seeking permanent asylum in a host country. But all illegal immigrants are not asylum seekers and do not have the status that asylum seekers do because they lack the sufficient threat within the asylum definition.

One of the challenges of evaluating immigration policies and their effective implementation is the confusion among the public and officials about these varying categories and how they should be dealt with differently. Zero tolerance policies need to distinguish between these categories so they are directed at illegal immigrants, particularly criminals, and not others such as refugees or asylum seekers. And the public needs to be aware that not all those crossing are refugees or asylum seekers, and even if they were, there are a myriad of administrative challenges in processing them before entry in the country.

Further, most who are refugees or asylum seekers at the U.S. border are coming from other countries. The first country where asylum seekers have entry is generally where they need to apply for asylum. If they are coming from the Mexican border and not from Mexico, under the present law they are supposed to seek asylum in Mexico as their first country of contact and not the U.S. And yet, if an asylum seeker does come to the U.S., they usually should not be turned away, despite the related complications in processing them.

But most illegal immigrants to the U.S. are coming to the U.S. for economic reasons not for asylum. They are usually attempting to leave poverty and other economic hardship in their home country. Most of the illegal immigrants entering the U.S. are from Mexico. While poverty, violence, and other hardships exist in Mexico, there is not a major context at this time for refugees or asylum seekers from that country. As such, most will need to be turned back to Mexico.

But, most illegal immigrants who are crossing for economic reasons are not a significant threat to the U.S., especially since many end up as migrant workers or serving in ways that add to the U.S. economy. A “catch and release” policy would be more effective than prosecution in these cases, especially given the hardship to the individuals involved, the challenges to enforcement officers, and the cost to the public in prosecuting is difficult.

However, some illegal immigrants are coming for criminal reasons such as human or drug trafficking, smuggling, and other illegal activity. As the numbers of criminals increase, the more difficult it is for immigration laws to easily identify those with economic hardship from those that are criminals. But it is the criminals that we need to be most concerned about prosecuting. The zero tolerance should be applied to them. But politically we need to understand that is also not easy to process and may include some difficulties in implementing related policies.

According to existing law, the separation of children generally happens if the adult is falsely claiming to be the child’s parent, is a threat to the child, or is put into criminal proceedings. But that still raises concerns for the children that are with them. Further, once a migrant is prosecuted for illegally entering the U.S., they are taken by the U.S. Marshals. The Marshals do not have responsibility for the care of their children, so they are taken into the custody of Health and Human Services. But if either criminals or asylum seekers are released in order to reunite with children, then the likelihood of these individuals disappearing and not returning for official process is high. This policy situation creates a conundrum — strong enforcement ensures limited illegal entry particularly for criminals, but strong enforcement can also result in concerns for the care of children and even violations of certain basic human rights.

So where does this entire ordeal leave our government and our nation as it relates to illegal immigration and related border enforcement concerns? Certainly, a more compassionate and humane process that better protects human rights, retains family unification, and considers the circumstances is important. But how do we protect our borders and our immigration laws from bending and/or breaking when they also have a reason for applying? The answers are as complex as the questions, but would need to include the following:

*Legislative Action: Executive Orders are not law and are temporary. Congress must act to create immigration reforms that are more permanent. Such reforms need to take into account the particular concerns of children and vulnerable populations in the context of both legal and illegal immigration. Immigration laws also need to create both safeguards and incentives for legal immigration as opposed to illegal attempts to cross the border.

*Support Services: Establishing not only systems but services (social and legal) in the event that families need to be processed, detained, or separated for any reasons at the border. These may not necessarily come directly from the government but may be contracted with other legal and service providers. But making the care of children a high priority is essential.

* Maintaining the Rule of Law and Human Rights: Fundamental to any laws that are passed or enforced is that they are in support of basic human rights. While no person has a right to illegally enter a country, all people have a basic human right to move, and especially when present conditions are dire. And while not every migrant has immediate rights to various services, from a human rights perspective, we need to prioritize basic care in how we process and provide services for either legal or illegal immigrants.

U.N. Human Rights Council

As someone who has worked both in and around the United Nations as a human rights advocate for many years, I can attest to the fact that the U.N. has both tremendous significance and tremendous problems. The U.N. is far from effective in many respects when it comes to international policies and human rights advocacy. But the U.N. Human Rights Council remains the main international human rights body with responsibility over the major international human rights treaties. That means, despite its flaws, the U.N. Human Rights Council still has significance and arguable also value in monitoring human rights concerns worldwide.

This week the Trump Administration announced a withdrawal from the U.N. Human Rights Council as a matter of principle and policy. In its decision, the Trump Administration is attempting to hold the U.N. Human Rights Council accountable for their practices of “turning a blind eye” to many violations of human rights worldwide, especially in regard to member states, and in opposition to the U.S. stance on Israel.

As a political matter, however, this decision raises a number of concerns. Most notably the U.S. is or should be the international leader on human rights. As one of the world’s most significant democracies with one of the world’s most enduring constitutions and civil rights protections, other countries look to the U.S. as a guide on human rights issues. Without the U.S. presence at the U.N. Human Rights Council, it increases the likelihood that this body will become more ineffective. And what’s worse, where the U.S. was positioned to influence, in its absence, other countries who are less inclined to support human rights may now influence this body and the U.N. in general. By making the decision to withdraw, the Trump Administration is certainly highlighting its concerns about the U.N. Human Rights Council, but it is also demonstrating that engaging in international cooperation and diplomacy is not a priority. And that demonstration may have far-reaching consequences for the U.S. and other countries.

While the matter of the U.N. Human Rights Council is still unfolding, this decision coupled with the border enforcement policy points to a couple of key considerations about the interplay between policy, politics, and principles in these contexts:

*The nation and the world are watching. It’s not just what the Trump Administration does but how it does it that will have a bearing on how the public responds to policies and decisions that are made. Granted there is a contingent, particularly on the left, that absolutely dislike Trump and are unlikely to support any of his policies. But a broader cross-section of the U.S. is willing to support certain policies depending on the purpose, approach, and results. And while public responses to policy decisions should be supported by facts and study rather than emotion and partisanship, both emotion and partisanship play a role in how these policies are received and how they are conveyed to the broader public, particularly through the media. On the issue of border enforcement, it’s likely more would have supported a zero-tolerance policy or some variation had it not been so far-reaching in its implementation and abhorrent to normal sensibilities, especially in regard to separating children from families.

*Political interaction and cooperation are important both within and outside the U.S. The more hard lined the U.S. becomes on various policy matters, the more likely the Trump Administration will get support from hard-liners, but less likely support from anyone else. That is problematic in that the U.S. needs to relate on some level with a range of stakeholders, both nationally and internationally. Especially as the Trump Administration and the U.S., in general, is under intense scrutiny internally and externally, political conflicts regarding human rights, cooperation, and diplomacy may impact the effectiveness of the administration and its position in the global community, especially as a leader in human rights.

Ultimately, the challenges and related policies that the U.S. pursues in these or other fronts would be best addressed with bi-partisan support and international cooperation. But that is not always possible. However, even in contexts of conflict and discord, an understanding of how policies, politics, and principles interrelate and how they impact relationships can assist this and other administrations in navigating national and international interests and the pursuit of human rights.