For anyone who is wondering or confused by what’s going on with the current policy of separating children from their parents at the border, you’re not alone. There has been a lot of confusion created by the policy, including the President’s own statements on why this has been happening. I’m writing to explain the situation and help articulate a response. For context, I’m an attorney who works with migrant farm workers, which includes immigration relief for victims of workplace violence or human trafficking.
As far as I know, it’s actually not a crime to be in the country without lawful status (there are more laws than anyone has been able to successfully count, but there is no specific criminal statute against being here unlawfully). However, the way many undocumented persons get here involves crossing the border illegally (which is a crime that could be committed by anyone, including U.S. citizens). This is often referred to as “entry without inspection.” For someone who has only done this once, there is a fine between $50-$250. However, they can also be charged with a misdemeanor. Repeat offenders can be charged with a felony (8 U.S.C. § 1325). Previously, prosecutors had discretion about whether or not to pursue criminal charges in addition to the civil penalty. However, recently the attorney general changed policy – all adults must be prosecuted. In practice, this means that federal agents will incarcerate each adult, separating children from their parents.
The forced separation of families is an evil thing. Sometimes it’s an unintended and undesired side effect of something that must be permitted (e.g. incarcerating a violent criminal or if necessary to protect the family members). While there are mixed messages from the White House on whose fault this policy is, forced separation appears to be an intended part of the White House strategy, as White House Chief of Staff is on record saying that family separation is a “tough deterrent”, and would have “A much faster turnaround time on asylum seekers” (by which he can only mean forcing them to abandon their claim).
And, thankfully, our Bishops have spoken up on this issues, as they consistently speak up in defense of religious liberty, the right to life, and the nature of marriage. Some of them have strongly denounced the policy. For example, Cardinal DiNardo, president of the USCCB, said:
“[We condemn] the continued use of family separation at the U.S./Mexico border as an implementation of the Administration’s zero tolerance policy. Our government has the discretion in our laws to ensure that young children are not separated from their parents and exposed to irreparable harm and trauma. Families are the foundational element of our society and they must be able to stay together. While protecting our borders is important, we can and must do better as a government, and as a society, to find other ways to ensure that safety. Separating babies from their mothers is not the answer and is immoral.”
Archbishop Aquila and Bishop Rodriguez added their own comments on to the statement from Cardinal DiNardo and said:
“We join our brother bishops around the United States in calling on the Trump administration to end its recent practice of separating children from their parents at our southern border. These children and their parents are often fleeing violence and our country should not add to the inhumanity of their situation. While we understand a desire to protect our borders, we call on all lawmakers to urgently seek an end to this immoral policy and pursue solutions that support family cohesiveness.”
Finally, in response to the attorney general justifying this change in policy with the Bible, Cardinal Dolan made his own remarks as well:
“I don’t think we should obey a law that goes against what God intends. That you would take a baby, a child from his or her mom. I mean, that’s just unjust, that’s unbiblical, that’s un-American. There could be no Bible passage that would justify that. […] I would say that if you claim to be Christian, you better read St. Matthew’s gospel when he said, “this is what Jesus is going to ask us when we stand before him on judgment day. ‘When I was a stranger, when I was an alien, when I was an immigrant, you welcomed me. Alright, so come into heaven.’ But to me, that means a lot more than any particular law that we’re debating about.”
Of course, they’re following a holy example. Pope Saint John Paul II, in his exhortation Ecclesia in America, reiterated: “the Church in America must be a vigilant advocate, defending against any unjust restriction the natural right of individual persons to move freely within their own nation and from one nation to another. Attention must be called to the rights of migrants and their families and to respect for their human dignity, even in cases of non-legal immigration” (emphasis mine).
“Every stranger who knocks at our door is an opportunity for an encounter with Jesus Christ, who identifies with the welcomed and rejected strangers of every age (Matthew 25:35-43). The Lord entrusts to the Church’s motherly love every person forced to leave their homeland in search of a better future. This solidarity must be concretely expressed at every stage of the migratory experience – from departure through journey to arrival and return. This is a great responsibility, which the Church intends to share with all believers and men and women of good will, who are called to respond to the many challenges of contemporary migration with generosity, promptness, wisdom and foresight, each according to their own abilities.”
To my knowledge, no bishop has endorsed this policy. They have been pretty clear in leading the Church in America. This is a cruel policy. It needs to stop.
But even if this doesn’t seem cruel, even if there was some way to justify it… is this the sort of government we want? This administration has decided to take on all immigration – both legal and illegal. The attorney general has removed protections from those fleeing domestic violence and gang activity (which, previously, were legal claims that someone could make to gain legal status). In the case that led up to this decision, a woman from El Salvador had been granted asylum. However, the attorney general personally intervened in the case and overturned the Court’s decision to grant asylum. The administration has ended temporary protected status for a number of countries – again, this is a program that had helped people stay here legally. And now, mandatory prosecution and the separation of families in response to a nonviolent misdemeanor. The bigger pattern isn’t one of enforcing order – the bigger pattern is a systemic opposition to humanitarian-based immigration options.
This is a war being waged on people sincerely seeking a better life – and if it wasn’t immigration, maybe the whole country would be a lot angrier. Imagine, for a moment, a different administration that uses the same tactics to say, for example, civil rights. Suppose this different administration decided that organized opposition to same-sex marriage constituted a conspiracy against rights (which would be a federal felony). Suppose this different administration knew that these people had a valid defense (e.g. the Religious Freedom Restoration Act), but still arrested everyone involved, placing their children in foster care. This is a terrifying thought, but analogous to what’s happening now.
While we might debate how to best reform the current immigration system, this specific policy is something that we should all agree needs to be changed. If we’re looking for common ground though, this should be a place to start. Our country would be a lot healthier if we learned to say “We might disagree on some aspects of immigration, but this policy is wrong.”
Benjamin O’Hearn is an attorney for migrant farmworkers. In a previous life, he taught high school theology.