Yesterday I attended a continuing education legal seminar sponsored by the Immigration Legal Resource Center focused on immigration law pertaining to children.  What I learned was useful, but some of it was really depressing.

Over the past three years when I’ve raised issues about immigration policy under Trump, the refrain response from right wingers and left wingers is “Obama built the cages and deported more people than Trump.”  Yes, he did.  And both are to his shame, in my view.  Some of the cage photos which have been distributed across the Internet attributed to Trump were actually shots from the Obama terms.  And yes, Obama deported more people, but that’s because his deportations were focused on criminal elements and those with the fewest defenses.  Trump is targeting everyone, including may with green cards, and this is leading to many, many more very complex cases against immigrants with much stronger legal defenses, and the policy is clogging up the courts.

Moreover, the “zero tolerance” policy mandating criminal prosecution of every single adult crossing the border at a location other than a checkpoint mandates that the defendants be jailed until bail is posted (if granted) and since children cannot be present in a criminal incarceration it mandates separation of children.   The law criminalizing such crossings dates back to the 1920s but in the past has only been used in cases where commercial human trafficking or other criminal activity has been suspected, but where the evidence was weak.  It was never intended to be used to prosecute everyone.  So this is why the family separations have expanded exponentially under Trump, and why the courts are so jammed up.

That’s not the only change which Trump initiated.   Although some of the changes are being challenged in the courts, Congress stupidly wrote laws which give or appear to give the Presidency a lot of discretion.  Among the changes, Trump’s administration has issued memos which reduce and narrow the criteria for asylum in several different categories, and narrowed other remedies.  There were also several bills in the works in Congress prior to 2018’s election which would have eliminated the special process for a green card to minor’s who had been abused by a citizen or permanent resident parent where only one parent was involved in the abuse or neglect.  Those bills died when the Democrats took over the House.  But if the Republicans retake the House next year – seems unlikely but not impossible – then they will be back.

But symbolizing it all was the revocation of an Obama administration memo to the immigration system, intended to set standards not just for administration, but also court review, of all immigration status processes involving immigrant children which read that the primary focus will be whatever is “in the best interests of the child.”  Trump’s people issued a replacement memo which omitted that language.   According to the seminar presenters, many of the judges are ignoring the change and still applying the principle, and probably at some point there will be a lawsuit as to the Presidential discretion went it comes to the independence of these courts.  What many people don’t recognize is that the immigration court system is not part of the federal judiciary.  The judges are employees of the Department of Justice.  However, there have been rulings which uphold the independence of the judges on the basis of due process, which is a fundamental right rather than a privilege extended to citizenship.   Does a change of standard of review amount to deprivation of due process to immigrants?  It’s a very complicated question as yet mostly unresolved.  There are plenty of other reasons many experts are calling for an independent immigration court system, and full integration into the federal court system.  Of course, it won’t happen with a split Congress and Trump in office.

Anyway, the “in the best interests of the child” standard is clearly not represented in the policy which has led to massive separation and imprisonment of children resulting in at least seven child deaths in the past year under a neglectful concentration camp system.  And in this latest case, the horrifying footage not only reflects the brutality of children being forced to sleep under tin foil blankets on cement surfaces, but also caught the concentration camp guards in a huge lie.  Murder should be charged as what we are watching is at minimum manslaughter, and if nobody goes to prison for this we as a nation have lost our soul.

Carlos Gregorio Hernandez Vasquez, presente.