The detention situation along the southern border is fraying the nation’s moral authority and detracting from the cause of secure borders. Fortunately, there’s a far better alternative to the present situation. It begins with President Trump ordering Attorney General Jeff Sessions to end immediate criminal referrals for those who cross borders with children.
But that’s just one side of the strategy. Because simultaneous with that order, Trump should direct the Justice Department’s Executive Office for Immigration Review, or EOIR, to prioritize asylum hearings in relation to those who bring children across the border. But with a caveat: Courts under EOIR authority should be instructed to regard those taking children illegally across the border as an aggravating factor against their asylum applications.
To reassure Americans that he takes his duty to protect the border seriously, Trump should rapidly increase the number of federal immigration judges assigned to the EOIR (Sen. Ted Cruz, R-Texas, introduced a bill to double the number of these judges). Sessions has made some increases in this regard, but nowhere near enough. If necessary, Trump should transfer judges and their supporting staff from other federal courts including criminal courts.
But if he adopts this course, Trump would find two very positive near-term results.
First, he would end the morally unpleasant scene of young children crying as they wonder where their parents are. This nation should not be detaining children in camps along a hot desert border. The difference between detaining illegal immigrant parents and the U.S. parents convicted of crimes is that the children of the latter normally have family who can provide for them. The former do not. This change would reunite families.
Yet it would also rightly punish those who take their children on arduous journeys to break American law. If those who do so quickly realize that their choice will immediately stamp a black mark against their potential of being given asylum, fewer will do so going forwards. That doesn’t mean that all such asylum applicants will be rejected: It is possible, for example, to see a police officer escaping MS-13 threats being given asylum. The Trump administration could also clarify that successful applicants for asylum will be entitled to have children under 18 years of age join them as soon as they are given the right to remain.
The present situation, however, is intolerable. It matches bureaucratic inertia to bureaucratic brutality and in so doing harms children who have committed no crimes against the United States. Trump is right to push back against a growing voice of open-border-sympathetic Democrats. But there is a better way to do so and Trump should reach for it.
