A Civil Rights Commissioner Weighs In On Children at the Border

On Friday, U.S. Civil Rights Commissioner Peter Kirsanow wrote to Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen on the subject of separating families who enter the country illegally at the southern border. Peter’s letter is as clear an explanation of the issue as I have seen. It is so cogent that I am duplicating it here, as well as embedding it below via Scribd:

Dear Attorney General Sessions and Secretary Nielsen:

I write as one member of the U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. The majority of the U.S. Commission on Civil Rights has issued a statement condemning the Department of Justice and Department of Homeland Security for separating parents and children who cross the border illegally.1 The reason parents and children are separated is the law: When an adult illegal alien is prosecuted for unlawful entry, that person is taken into the custody of the U.S. Marshals and the children are taken into custody by HHS. Nonetheless, unless the adult applies for asylum, the unlawful entry is resolved relatively quickly and the separation is brief. But if the adult applies for asylum, the process–-and separation–is lengthier. That is because the 1997 Flores Consent Decree (and the Ninth Circuit’s interpretation thereof) stipulates that children may be held no more than twenty days. The asylum process is much longer.

If the U.S. were detaining the children with their parents, the Commission majority would surely issue a statement condemning the Departments for detaining children. Thus, the only way to avoid separating children from illegal alien parents that would be acceptable to the Commission majority would be to release both parents and children into the U.S., contrary to law. The bottom line is that the Commission majority is opposed to enforcing almost any immigration laws pertaining to illegal entry.

People who have potentially valid claims for asylum can present themselves at ports of entry and request asylum. They will be processed normally and will not be separated from their children because they are following the law.2

It is unwise to release detained individuals into the United States, because they are then very likely to abscond into the interior and fail to appear for their immigration hearing. “Over the past 20 years, 37 percent of all aliens free pending their trials – 918,098 out of 2,498,375 – never showed for court.”3 (Aliens who are detained are almost certain to appear at court, because they do not have the ability to abscond). And individuals who have claimed asylum also are likely to fail to appear for their court proceedings – “[o]n average, 46,000 people each year vanished from proceedings created specifically for those claiming persecution in the lands they called home.”4 This suggests that quite a few of these claims are weak, if not false, and that the individual’s goal was simply to make it into the United States and then disappear.

Separating children from their parents is regrettable. It is not, however, unique. American parents are separated from their children every day when they are arrested or incarcerated. According to HHS, during Fiscal Year 2016, 20,939 American children entered foster care because their parent is incarcerated.5 This is more than ten times the number of children who have been separated from their parents due to entering the United States illegally.6 People who cross the border illegally have committed a crime, and one of the consequences of being arrested and detained is, unfortunately, that their children cannot stay with them.

Among the principal reasons people immigrate to this country is the primacy we give to the rule of law and the benefits that flow therefrom. Despite what my colleagues seem to think, there is no super-statute that decrees that aliens must be treated better than Americans. If Congress decides to change the law, that is its prerogative. But until such time as Congress changes the law, the Department of Justice should continue enforcing existing law and prosecute every case of illegal entry.


Peter Kirsanow Commissioner

1) U.S. Commission on Civil Rights, “The U.S. Commission on Civil Rights Issues Letter to the Departments of Justice and Homeland Security Denouncing Separation of Immigrant Families,” June 15, 2018, http://www.usccr.gov/press/2018/06-15-18-PR.pdf.
2) Tal Kopan, “New DHS policy could separate families caught crossing the border illegally,” CNN, May 7, 2018, https://www.cnn.com/2018/05/07/politics/illegal-immigration-border-prosecutions-families-separated/index.html.
3) Mark Metcalf: “Courting Disaster: Absent attendance and absent enforcement in America’s immigration courts,” Center for Immigration Studies, March 19, 2017, https://cis.org/Report/Courting-Disaster.
4) Id.
5) U.S. Department of Health and Human Services, The AFCARS Report, Oct. 20, 2017, https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport24.pdf.
6) Colleen Long, “DHS reports about 2,000 minors separated from families,” Associated Press, June 15, 2018, https://apnews.com/3361a7d5fa714ea4b028f0a29db1cabc?utm_campaign=SocialFlow&utm_medium=AP&utm_source=Twitter&__twitter_impression=true.

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