Trump’s Abusive Immigration Policies Defy Decency—and International Law

This story was originally published in May of 2019. It was updated August 21. Roxy Szal contributed reporting.

The newest addition to the Trump administration reign of terror came Wednesday, when the White House announced a new rule that would dismantle migrant protections and extend the detention of children and their families indefinitely. The rule is scheduled to take effect in 60 days.

The new regulation will erase the guidelines set by the 1997 Flores Settlement Agreement, a court order that required the government to keep migrant children in the least restrictive setting possible. Most recently, a federal judge interpreted Flores to mean the government was forbidden from keeping migrant families with children in detention for more than 20 days.

Migrant and human rights groups said they would challenge the abrogation of Flores and accused the government of mistreating migrants.

“This is yet another cruel attack on children,” said Madhuri Grewal, an American Civil Liberties Union official, “who the Trump administration has targeted again and again with its anti-immigrant policies. The government should not be jailing kids, and certainly shouldn’t be seeking to put more kids in jail for longer.”

Protestors gathered outside of Otay Mesa Detention Center to protest the Trump administration’s immigration policies. But despite pushback, his attacks on migrant women and children have continued to escalate. (Alicia Kay)

These policies make it clear that the Trump administration is hellbent on implementing harsh policies at the southern border between U.S. and Mexico—including cutting off refuge for women fleeing relationship violence, family separation and encouraging border patrol officers to adopt a more “skeptical and confrontational” approach to relating with migrants.

These efforts at deterrence are failing to stop the flow of people seeking safety in the U.S. from violence—and they defy international law.

Let’s not mince words: It is totally legal to seek asylum. Under international law, a person with what is called “credible fear” can apply for asylum in another country. When they enter another country, the legal process to obtain asylum starts. The asylum seeker is granted protections under international law.

These protections were created after the Holocaust—a period of time in which Jews fleeing Nazi Germany and seeking asylum in countries like the U.S. were, too often, turned away and sent to their deaths. Under the 1951 Refugee Convention, the U.S. joined the United Nations in vowing to never again let that happen.

It is a long and dangerous journey north for migrants coming to the southern U.S. border, many of whom are women and children fleeing violence in Central America. Families can apply for asylum at ports of entry—but after coming all that way, many discover that the port of entry they’ve arrived at is hardly letting anyone through. Because the Trump administration’s policies have limited legal access to asylum-seekers, people are trying to cross into the U.S. in whatever way they can; smugglers encourage families to enter illegally, but if they are caught, they can be charged with illegal entry, a misdemeanor crime. 

Our country has routinely and humanely processed thousands of immigrants through the southern border for decades by first allowing them to enter—assigning them a “credible fear” interview and scheduling an opportunity for them to appear before a judge to have their case determined. But since the 1970’s, the flow of traffic has changed. Those arriving at the southern border now aren’t just young men seeking work. More and more often, they’re women, children and families fleeing dangerous gangs, widespread violence and government corruption.

When Barack Obama was president, the systems at the border were not without flaws—but the process functioned reasonably well, and certainly much more efficiently and humanely than it does today. The administration’s system allowed asylum-seekers to await their hearing while wearing an ankle monitor to track and insure that they showed up. Ninety-nine percent of them did.

President Trump, instead, has manufactured a crisis at the border—stirring up racist and xenophobic sentiment toward immigrants. Last year, President Trump’s so-called Zero Tolerance Policy separated thousands of children from their parents and guardians without plans to reunite them. Parents were not given any identifying information that would help them relocate their children, and migrants as young as two years old were held in separate residential wards away from their family members. 

Trump was forced to change his policy after lawsuits brought by the ACLU; in an earlier decision that predates the Trump administration, a judge also ruled that children cannot be held in detention for more than 20 days even if their mother is being held pending an asylum resolution claim. That legal decision has frustrated the Trump administration because it requires that these children cannot be kept in custody with their mothers in detention for longer than 20 days, and many hearings are being delayed well beyond 20 days.

Despite court orders mandating their reunions, thousands of families remain separated today by the administration.

The Trump administration also tried to have asylum-seekers kept in Mexico pending their hearings, but a federal judge issued a temporary bar to that order. Furious about the continued flow of migrants at the border and court rulings that thwart his policies, Trump also fired the heads of the Department of Homeland Security and other departments and is planning to bring in new people who will undoubtedly be even more hardline and heartless.     

Trump’s callous policies, designed to be cruel to deter asylum seekers, are not working. They are not stemming the flow of asylum seekers. The more Trump threatens to close the border and build a wall, the more people from Northern Triangle Central American countries get worried and try to pre-empt the impact of such plans. They migrate north to the U.S. border seeking asylum because they don’t want to be left without the option to. They join “caravans” for the sake of safety—because by journeying together, they can help each other out along the way.  

Nonetheless, Trump persists—trying to find ways to get around the court rulings to reinstate his fear-mongering and de-humanizing policies and perpetuating a manufactured crisis at the border with very real and cruel consequences for those seeking safety in the U.S. from gang violence and domestic violence.

For many years, the U.S. has been a beacon of light and hope for people who are seeking asylum. Domestic and international law mandates that we live up to that image.


Sheila Markin Nielsen is a former Assistant U.S. Attorney and author of The Markin Report, a blog on the right side of history and the left side of politics making sense of a world turned upside down.