Zero-Tolerance and Immigrant Detention in the United States

The forcible separation of more than 2000 children from their parents has been justified by the Trump administration as a “zero-tolerance” policy against a “crisis” of unauthorized entrants at the US-Mexico border.  In fact, there is no border crisis—at least not as imagined by most politicians—and there hasn’t been for some time.  Despite yearly increases in budget appropriations for border militarization, apprehensions along the border are at the lowest rate since 1971, reflecting an overall decrease in the flow of unauthorized entrants into the United States. The resident unauthorized population has also remained relatively stable since 2009.

The administration’s crackdown on unauthorized immigration affects three distinct populations.  The first are those who entered the US without authorization and in places other than ports of entry.  Today, this group—the target of a proposed border wall—constitutes the smallest portion of annual entrants to the United States.  Unauthorized presence in the United States is not a crime, although some immigration violations are criminal matters (e.g., entry without inspection, re-entry after removal). First time entry without inspection is a misdemeanor, similar to public intoxication or trespassing.

The second group are those who—for a variety of reasons—overstayed or otherwise violated the terms of their visas (e.g., by working while on a tourist visa).  This group also includes those who are awaiting a renewal or alteration to their visa application.

The third group are those who have applied for asylum in the United States and are awaiting a hearing.  According to US Customs and Border Protection, about 80 percent of families apprehended on the border and 90 percent of unaccompanied minors are from El Salvador, Guatemala, and Honduras.  These migrants are fleeing political instability and gang violence in countries where murder rates are 14 times that of the United States.

Many families who were recently separated under the Trump administration’s zero-tolerance policy actually reported to a port of entry to apply for asylum. Since immigrant children, by law, must be held in the least restrictive setting possible, children have been separated from their parents and housed in group shelters. As family separation has drawn national condemnation, the administration has sought to expand family detention and modify restrictions to prolonged detention of minors.

The Supreme Court has consistently held that immigrant detention and deportation are civil matters; thus, immigrants in detention and deportation proceedings do not have the same constitutional rights to legal representation as people in the criminal justice system.  This determination has been upheld even for very young children and despite the fact that immigration outcomes often have serious consequences.

Detention presents a host of challenges for detainees and their families. Adult immigrants may be detained for lengthy periods of time, often in the absence of a criminal conviction. Detention facilities have been complicit in the systematic abuse and punishment of immigrant detainees, including forced labor, physical and sexual assaults, denial of adequate and timely medical services, prolonged solitary confinement, and death. (Recent lawsuits indicate that children’s shelters, too, are implicated in abuses against children, including denial of water and medical care.) Detention facilities are often far removed from immigrant communities, making it impractical for family members—even those who are US citizens—to visit. Children may be left behind with relatives or placed in shelters or foster care when parents are detained or deported.

Although the Trump administration’s zero-tolerance policy put a cruel face on family separation at the border, it is important to remember that most policies and practices that lead to the separation of immigrant families are largely unnoticed. Immigration and Customs Enforcement (ICE) operates quietly in the interior of the country, where agents engage in targeted enforcement of “immigration violators” and “criminal offenders,” as well as “collateral arrests” of those who happen to be in the vicinity. Police-ICE collaboration, whereby local law enforcement agencies assist with immigration enforcement, means that unauthorized immigrants who are jailed on minor offenses, such as driving without a license, may face detention and deportation, sometimes with lethal consequences.

Of course, immigrant detention is not unique to the current administration. Past administrations have detained unauthorized immigrants and asylum seekers—including youth and families—who they believed would not appear for their asylum hearings or who they suspected of having criminal backgrounds.  However, the Trump administration’s willingness to target asylum seekers, as well as its renewed focus on interior enforcement of unauthorized residents, show that communities across the United States will be impacted by immigrant detention, deportation, and family separation.

How can social workers help?

  •  Educate yourself about immigration and immigration issues.  Much of the public discourse on immigration is false or misleading.  Find reputable sources for information and beware of anti-immigrant groups passing themselves off as non-profit research centers.
  • Don’t ask clients about their immigration status or the statuses of family members; your clients may interpret such questions as an implicit threat, such as a blanket denial of services or a willingness to report them to authorities.  These fears keep them from pursuing needed help.

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