Read Time: 14 min

From April – June 2018, the Trump administration pursued a “zero-tolerance” policy of enforcing immigration law in order to deter illegal immigration. The policy, which was quickly decried for “separating children from their parents,” was unpopular with the public and elicited numerous objections. Some of these protests came from Church leaders. On June 14, 2018, Attorney General Jeff Sessions addressed many of these church leaders in a speech at Fort Wayne, Indiana. Sessions’ speech helpfully overviews and outlines the problem, and describes the justification for his zero-tolerance policy. Below, I attempt to explain what I think was going on as well as address how Scripture should or should not be used in policy debates.

U.S. Asylum and Refugee Policy

One of the critical issues in this debate is that many of the immigrants who are being detained are supposedly asylum-seekers who are protected under international and U.S. law and cannot be processed the same way as illegal immigrants. The Immigration and Nationality Act (1965) treats refugees and asylum-seekers similarly: both must “demonstrate that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group” and specifically for refugees, they must be located outside the US (i.e., not at the border). Refugee ceiling numbers and regional allocation are determined each year by the President in consultation with Congress, whereas there is no annual cap on asylum seekers. This would naturally led those seeking to enter through our southern border to claim asylum. Additionally, asylum claims come in two kinds: affirmative (proactive) and defensive (in the process of being deported). The asylum claims we’re concerned about are of the latter kind.

This sounds straightforward and would seem to include many of the people currently knocking at our southern border. In addition, those who are fleeing genuine humanitarian crises in Latin and South American states (such as the Northern Triangle: El Salvador, Guatemala, and Honduras), gang violence, economic collapse, and numerous other dislocating events would seem to have prima facie merit in asylum claims. I do not deny that these humanitarian/refugee crises are in part responsible for the increase in asylum-seekers (per Sessions, from 5k in 2009 to 94k in 2016—a 1,880% increase in seven years!). However, there’s another aspect of this that’s been overlooked.

The U.S. asylum/refugee policy above hasn’t traditionally covered any and all kinds of violence or humanitarian crises (as Sessions mentions). Instead, it specifically relates to those who are specifically persecuted by states or government due to their race, religion, nationality, political organization, etc. This alone would exclude many current ‘asylum’ seekers. In other words, you can’t legitimately claim asylum status simply because you’re a victim of violence or misfortune. However, in August 2014, in the “Matter of A-R-C-G- et al., Respondents” case, the Board of Immigration Appeals within the U.S. Dept. of Justice redefined “social group” in the above refugee/asylum definition to include “victim[s] of domestic violence” in regards to married Guatemala women who were trapped in abusive relationships. This dramatically expanded the scope of what a social group was and subsequently increased those who would be eligible for asylum. Later that year in October 2014, the Obama administration issued a refugee referendum that allowed children from the Northern Triangle who already had relatives in the U.S. to be allowed entrance into the country under the legal justification that children constitute a “social group”—thus qualifying them as a persecuted group under refugee/asylum law. This was an abuse of refugee/asylum law that set a dangerous precedent.

The consequence is summarized by David Inserra:

Another consideration is the slippery slope created by granting refugee status. If the position of the U.S. government is that youths threatened by violence in the Northern Triangle are entitled to refugee status, then it also necessarily entitles all such children to asylum status if they arrive at U.S. borders. Since the legal standard for asylum and refugee is essentially the same, the individual applying for refuge from Honduras and the individual applying for asylum when picked up by a Border Patrol officer are equally entitled to protection. This is a dangerous precedent to set as it would likely encourage more illegal immigration through the asylum system by young children. Since refugee admissions are limited to 4,000 for all of Latin America and the Caribbean, dangerous travel to the U.S. border will now become the favored option—with the golden card of U.S asylum and, eventually, citizenship at the end of the journey.

It seems to me that this is exactly what happened: when combined with the real humanitarian crises, this law was exploited both by the genuinely needy and by gangs as a way to get into the U.S. as refugee/asylum seekers. In this way children became the key currency to entry into the United States and this is why there was a sudden and massive upsurge in children at our border over the past couple years. The relationship between factors that pushed children and their parents to the U.S. (e.g., violence, humanitarian crisis) and factors that pulled them here (e.g., change in U.S. law, work opportunities, relatives) are probably symbiotic: they play off each other, but the end result is a crisis at our border and an use/abuse of children to gain asylum status.

There’s also the issue that traditionally, those seeking asylum would claim that status at legal ports of entry regardless of their immigration status. In other words, if you are truly fleeing persecution you don’t have to worry about being an illegal immigrant and neither do you have to try to sneak across the border at non-ports of entry. Instead, you simply approach a port of entry and when apprehended, you legitimately claim asylum and then proceed through the review process (see page 5). The reason Sessions suspects that the massive increase in asylum-seekers has less to do with southern humanitarian crises and more to do with abuse of the system under the new definition of “social group” that allows children to be used as one-way guaranteed tickets into the U.S., is that immigrants illegally crossing the border between legal ports of entry rose from 15,000 in 2013 to 75,000 in 2018. If all of these increases were genuine asylum cases, why did they try to sneak across the border and then only claim asylum once apprehended, instead of legally approaching ports of entry in order to claim asylum up front? Most likely because most of them weren’t genuine asylum seekers. I would suspect that this is the reality behind what Sessions says in his speech:

The number of illegal entrants has surged. Asylum claims skyrocketed, and the percentage of meritorious asylum claims— those actually granted— declined. That’s because the vast majority of the claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by during the initial screening by the U.S. Citizenship and Immigration Service.

This is why the current administration led by Sessions has returned U.S. refugee and asylum policy back to what it was before: rightly defining “social group” as someone who is being systematically persecuted by the state, not just suffering from economic collapse or domestic violence. This seems like a sane (even humane) decision that will return U.S. refugee/asylum policy back to the reasonable policy it is supposed to be in order to truly help the persecuted and prevent current abuses of the system.

Families Being Separated

When we read the news of “families being torn apart” at the border and “babies ripped from their breastfeeding mothers” by ICE agents, we are shocked and outraged. However, we have a tendency to assume that “family” means just that: blood relatives, children with their biological parents, and so forth who are genuinely seeking aid in the face of terrible human suffering or persecution. Undoubtedly many of those who seek entrance into the U.S. (legally or illegally), and those who claim asylum, truly do fit this description. I don’t mean to belittle any traumatic experience they have had in their home countries, their judgment that risking the dangerous journey to the U.S. border was worth it, and then to experience the horror of being separated from their children. This is where good policy will balance rule of law with compassion and discretion in order to process these individuals and families without causing more harm.

However, if the above analysis is correct (or approximate), then we have reason to suspect that perhaps many of the “families” that are illegally crossing the border and seeking asylum aren’t actually families after all: they are immigrants who are intent upon entering illegally and who have used their own kids or ‘borrowed’ children as bargaining chips, or perhaps gangs who are exploiting children for the same purposes. Obviously Sessions thinks this is what’s going on. If so, then this is a humanitarian crisis in and of itself, a crisis that our immigration policy is not only partly responsible for but is also currently incentivizing. So, the right and humane thing to do would be to immediately change the loophole in how immigration law is being applied (which Sessions has done), and take a hard line against “families” who are using children. If Sessions is right that only 20% of those claiming asylum are genuine claims, this means 80% are false positives and thus the DOJ and ICE are justified in being suspicious that those claiming asylum (esp. with children) are not being honest but gaming the system. Consider what Sessions says:

Under the law, we are supposed to prosecute these crimes. Accordingly, I have ordered our prosecutors to pursue 100 percent of the illegal entries on the Southwest border that DHS refers to us. If you cross the Southwest border unlawfully, then the Department of Homeland Security will arrest you and the Department of Justice will prosecute you. That is what the law calls for—and that is what we are going to do. Having children does not give you immunity from arrest and prosecution. It certainly doesn’t give immunity to American citizens. However, we are not sending children to jail with their parents. The law requires that children who cannot be with their parents be placed in custody of the Department of Health and Human Services within 72 hours.

Notice that he’s only referring to those who enter illegally—i.e., crossing the border between ports of entry. In other words, would this policy apply for genuine immigrant families who access legal and official ports of entry and claim asylum there? No. Sessions confirms this: “Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.” The reason this distinction is critical is that if you claim asylum at a port of entry there is every reason to assume that such claims are genuine; whereas, if you cross illegally at non-ports of entry and then default to asylum claims once apprehended, then there’s every reason to think you’re faking it—and using children as poker chips. Sessions is specifically referring to the later scenario, since that seems to be the kind of illegal border crossing and asylum claims that are driving the high immigration numbers. This is the correct distinction and application of the law, in my opinion (so far!).

A question arises: is there any significant evidence of an industry that connects illegal border crossers with unclaimed children who are being used as bargaining chips in false asylum claims?

I don’t know if there’s an “industry” but if there is, I suspect it’s not a cottage industry but a massive, organic network of people who work in various of capacities at moving migrants. With hundreds of thousands of people trying to cross the southern US border each year, people self-organize to make this happen, including the rapid dissemination of information about US policy changes in processing illegals. If you were a family in Honduras wanting to make the dangerous trip to the border knowing you’d have to enter illegally (i.e., if you screw up you’ll just be sent back), I bet you would talk to everyone you could and gather tons of information before making the attempt. The dangers and demands of the journey coupled with the high risk of failure require advanced planning and established networks and social hierarchies to pull it off.

Regarding evidence, yes, for smuggling children, claiming children that aren’t yours, and incentives for families:

  • “In many instances, families have traveled together to the U.S. border to seek asylum. It’s also common to have parents entrust their children to a smuggler as a favor or for profit. Most recently, when hundreds of Central American migrants in a caravan arrived at the border, volunteer lawyers were giving parents documents swearing that the children were theirs, and asking them not to be separated.”
  • “Unfortunately, we have seen many instances where human traffickers have used children to cross the border to gain illegal entry to our country as they know they are unlikely to be detained,” said Tyler Houlton, DHS press secretary. “This is one of the very loopholes we would like to see Congress end in order to gain operational control of our border.”
  • “Jessica Vaughan, director of policy studies at the Center for Immigration Studies…said parents with children are willing to make the dangerous trip to the U.S. border because until now they have been able to avoid “major consequences.” They have “even been rewarded with release to settle where they like, and often skip out on the very generous due process we offer them, only to join the ranks of other illegal residents,” she said.”
  • “This unending surge of families has been a real problem for many American communities that have had to accommodate them. It’s been a problem for the schools, it’s been a public safety problem in some places, and it’s been a major budget drain, not to mention a cash cow for the criminal smuggling organizations,” Vaughan added.” (Source).
  • “Protecting children at the border is complicated because there have, indeed, been instances of fraud. Tens of thousands of migrants arrive there every year, and those with children in tow are often released into the United States more quickly than adults who come alone, because of restrictions on the amount of time that minors can be held in custody. Some migrants have admitted they brought their children not only to remove them from danger in such places as Central America and Africa, but because they believed it would cause the authorities to release them from custody sooner. Others have admitted to posing falsely with children who are not their own, and Border Patrol officials say that such instances of fraud are increasing.” (Source).
  • For more evidence, see “Human Smuggling Equals Grave Danger, Big Money.”

I’m not saying that every family that comes across the border illegally and claims asylum has ulterior motives or is engaged in nefarious business (although I bet there’s more of this than we think). Some are simply responding to incentives that the Obama policies gave rise to. Before 2011, almost all migrants were young men, but the demographics of migrants changed as policies like catch and release or widening the definition of refugee/asylum made it advantageous to travel with your family, especially with children. Before, they would have sent the husband or grown son to sneak across the border, get a job, and return remittances; but then it became possible to bring your family, claim asylum, and be released—de facto open borders. Even though this is a rational decision by migrants who are facing impossible situations, it still uses children and abuses the system. Personally, I think we ought to be more upset about smuggling and using children, and abusing loopholes in the system, then in Trump/Sessions trying to put a stop to this, rightly enforce the law, and stem the tidal wave of children and families illegally entering.

Additionally, headlines which report that Trump/Sessions now have a “policy of separating families” (or variant thereof) are simply false. That’s not a Trump policy, but an effect of the 1997 Flores Consent Decree. In other words, the policy being pursued by the current administration is to (a) prosecute adults who enter illegally, and (b) if they claim asylum to process that claim. However, if these adults/parents have children with them and they claim asylum the state can’t put the children in custody and they can only hold the children for so long before they are required to place them with social services. It’s a problem with the system at predates Trump by twenty years and places them in a difficult bind. For what it’s worth, Trump/Sessions want Congress to roll back Flores.

Rich Lowry explains all this clearly:

When a migrant is prosecuted for illegal entry, he or she is taken into custody by the U.S. Marshals. In no circumstance anywhere in the U.S. do the marshals care for the children of people they take into custody. The child is taken into the custody of HHS, who cares for them at temporary shelters.

The criminal proceedings are exceptionally short, assuming there is no aggravating factor such as a prior illegal entity or another crime. The migrants generally plead guilty, and they are then sentenced to time served, typically all in the same day, although practices vary along the border. After this, they are returned to the custody of ICE.

If the adult then wants to go home, in keeping with the expedited order of removal that is issued as a matter of course, it’s relatively simple. The adult should be reunited quickly with his or her child, and the family returned home as a unit. In this scenario, there’s only a very brief separation.

Where it becomes much more of an issue is if the adult files an asylum claim. In that scenario, the adults are almost certainly going to be detained longer than the government is allowed to hold their children.

That’s because of something called the Flores Consent Decree from 1997. It says that unaccompanied children can be held only 20 days. A ruling by the Ninth Circuit extended this 20-day limit to children who come as part of family units. So even if we want to hold a family unit together, we are forbidden from doing so.

The clock ticking on the time the government can hold a child will almost always run out before an asylum claim is settled. The migrant is allowed ten days to seek an attorney, and there may be continuances or other complications.

This creates the choice of either releasing the adults and children together into the country pending the ajudication of the asylum claim, or holding the adults and releasing the children. [This is what separates Obama from Trump: Obama pursued the former policy (i.e., catch and release), Trump the latter.] If the adult is held, HHS places the child with a responsible party in the U.S., ideally a relative (migrants are likely to have family and friends here).

Even if Flores didn’t exist, the government would be very constrained in how many family units it can accommodate. ICE has only about 3,000 family spaces in shelters. It is also limited in its overall space at the border, which is overwhelmed by the ongoing influx. This means that — whatever the Trump administration would prefer to do — many adults are still swiftly released.

Why try to hold adults at all? First of all, if an asylum-seeker is detained, it means that the claim goes through the process much more quickly, a couple of months or less rather than years. Second, if an adult is released while the claim is pending, the chances of ever finding that person again once he or she is in the country are dicey, to say the least. It is tantamount to allowing the migrant to live here, no matter what the merits of the case.

In the world of realpolitik, what other options are there? If you’re going to uphold the law and rightly prosecute those who enter illegally, but you cannot (by law) detain the children with their parents, then your only option seems to be to separate the minors from their parents and place them with social services. The Obama administration’s approach was to simply forego immigration law enforcement and effectuate a ‘catch-and-release’ policy without any guarantee that individuals or families would show up for their asylum court hearing. Again, de facto open borders for those willing to abuse our asylum system. Do we resort to ankle brackets or other tracking devices to keep tabs on asylum-seekers who are released? Detaining illegal entries is not wrong, even if it leads to family separation. If, however, the Trump administration is separating parents and children in inhumane ways, this absolutely must be amended. But it must be emphasized: it is the immigrant adults who are not true asylum-seekers who use children to illegally enter and then claim asylum who are reponsible for their own families being separated, not U.S. policy.

I know this whole policy seems severe, and I highly suspect that more discretion could be used and more humane approaches taken (such as allowing communication among families), but I wonder if a severe policy is necessary to address a severe issue. In other words, if you’re bleeding to death, apply pressure—and lots of it. I know that we could address the intake system, processing policies, green cards, visas, border security, and the rest. Some will say that’s the “immigration reform” that is necessary—I agree. But Sessions would argue that what he’s doing is also genuine reform: taking a serious and no-nonsense approach to immigration law in order to communicate to those who are considering illegal entry that this will not be tolerated under the Trump administration (unlike under Obama), and that only once that hard line is taken will the stresses on the system relax enough for us to address the other issues. I don’t really know, and I don’t want to suggest an either-or approach. We can work on many things at once. However, I am not against taking a hard line since the immigration system is hemorrhaging illegal immigrants (many who are abusing the current laws) and there’s no end in sight.

Applying Romans 13

I’ll try not to drone on about this. In general, I don’t think U.S. officials ought to invoke Scripture in justifying public policies. That’s the role of natural law ethics in my opinion. However, since Sessions is speaking to Christian leaders who addressed their complaints to him on the basis of divine revelation, he responds in kind. I think that’s reasonable. Sessions says,

Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law. First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order. Orderly and lawful processes are good in themselves and protect the weak and lawful.

Obviously this is a highly abbreviated theological summary. It’s always dangerous to invoke Scripture in the name of “obeying the law,” so I think everything rests upon Sessions’s case that (a) the U.S. is within its rights to be sovereign over its borders and who it allows in, and (b) that this current iteration of immigration law/implementation is actually just and good. If both of these are true, then in the most general way Romans 13 supports his position. Sessions certainly believes this, and perhaps the best demonstration of this is that he gave a detailed and elaborate explanation and defense of his policies. If he had simply showed up, cited Romans 13, and told them to obey the law on that basis, that would be far more abusive of biblical authority. I wish, of course, that he had set forth a more systematic biblical and ethical justification (OT/NT) for immigration restriction, but we can’t expect too much from the AG. I guess that’s our job.

Finally, the clickbait articles about how Sessions was quoting biblical texts used to justify slavery are simply asinine. Pro-slavery Christians used TONS of texts to justify the evil of enslavement of blacks. If Sessions is guilty of this, then that makes anyone who ever cites Romans 13 in favor of any government policy or structural governance akin to slaveholders—and that’s absurd. This is simply poisoning the well, or the association fallacy.

I know all this was a lot. Thanks for hanging in. I might swing around again to think through a couple other issues.