Bishop: Justice Isn’t Made at the Borders

Friday, June 22, 2018

Brian Bishop, GoLocalProv Guest MINDSETTER™

"A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt, uncle, or grandparent);

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D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish(es) to the satisfaction of the INS, in its discretion, the affiant's paternity or guardianship;

E. a licensed program willing to accept legal custody; or

F. an adult individual or entity seeking custody, in the discretion of the INS, when it appears that there is no other likely alternative to long-term detention and family reunification does not appear to be a reasonable possibility."

This is the list, in order of preference, to whom a minor in the custody of immigration officials is to be released expeditiously. It is part of the settlement of Flores v Reno between the Clinton administration and immigrant minors who sued as a class over their detention. Following disagreement over whether the settlement applied to minors who arrived with their parents and implied a duty to release parents to take custody of their children, the 9th circuit recognized the class had in fact argued somewhat to the contrary, that “release to adults other than their parents was preferable to remaining in custody until their parents could come get them”. That argument can thus be imputed neither to the Obama administration, nor the Trump administration, both of whom instituted that practice, but to those representing immigrant children.

If nothing else, this episode cautions against the way in which the class action suits ultimately compromise the future rights of the class. The arguments, in that case, were motivated by an explicit recognition of the difficulties for unaccompanied minors. Yet the class certified was “all minors apprehended by the INS [now ICE]”. This demonstrates that unintended consequences flow from court settlements just as readily as from legislation and regulation.

Poetic Justice and ‘Popetic’ Justice

Rhode Island has its own history demonstrating how administration through court orders is classically fighting the last war, not the next one. After a long harangue with the state over a large mill pond that he owned but was effectively required to make available for public use, former State Representative Vincent Mesolella opened the dam, which he also owned, draining the pond. DEM rushed to court for an order to make him close the dam. He did just that and then it rained 2 inches the following weekend . . . The same cottage owners who were amongst those egging DEM on to force the dam closed were suddenly faced with an imminent flood. But the court order DEM had obtained was for Mesolella to close the dam and he refused to open it.

Besides justice, sometimes there is poetic justice. It’s not clear that either is on display at our southern border, but there is a sober caution against counting on various pontifications on principle to administer the real world. Speaking of pontiffs, the Catholic Church has been consistent in its views on immigration and Pope Francis was paying special attention to the troubles of immigrant children long before the Trump administration – who knew they had trouble before the Trump administration. This is not to join in the clamor from Trump’s supporters who insist that the Obama administration kept children in ‘cages’ too. Rather it is to focus on a the detention of children at a scale that dwarf’s the 2000 plus who have been separated from parents in the last two months during the ‘busy season’ for illegal border crossing.

Indeed, ICE officials are housing 10,000 other children. The vast majority of this broader wave of minors were “unaccompanied” – at least by any adults who would qualify for their custody under the court settlement. And those detained represent but a small part of the flow of such minors that reached over 60,000 in 2014. It was in 2014 that Pope Francis wrote: “This humanitarian emergency requires, as a first urgent measure, these children be welcomed and protected. These measures, however, will not be sufficient, unless they are accompanied by policies that inform people about the dangers of such a journey and, above all, that promote development in their countries of origin.”

The Pope at least was measured in recognizing that the unstable societies in Central America were the root of the problem leading to family separation and dangerous trafficking of children on a scale that makes the recent foibles of Homeland Security at the border pale by comparison. Some have pointed out fairly that Americans can feel more compunction to decry separations carried out by our government in our name. While that is true, it retains a focus on “moral perfection by proximity” (credit Lant Pritchett) that confounds our immigration policy. If you make it to our border we spend a lot of time wringing our hands over what to do, but if you are stuck in a hell hole you are on your own.

The real relation of immigration to family separation

Bishop: Justice Isn’t Made at the Borders

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