Republican lawmakers keep introducing bills that claim to address concerns about separating families at the border, but in reality will simply take away more protections for immigrants and fail to address zero tolerance policies.
The latest bill — the Keep Families Together and Enforce the Law Act — was introduced on Wednesday by Sens. Thom Tillis, Marco Rubio (R-FL), Lindsey Graham (R-SC), Ron Johnson (R-WI), Tom Cotton (R-AR), John Cornyn (R-TX), and Ted Cruz (R-TX). It was also cosponsored by Senate Majority Leader Mitch McConnell (R-KY).
The legislation is very similar to a bill introduced by Sen. Ted Cruz (R-TX) on Tuesday. It would allow the U.S. government to keep families together so long as the kids aren’t in danger, but it would also require asylum seekers to be deported at a faster pace and keep minors in detention for greater lengths of time. The Cruz bill would require the hiring of thousands of new immigration judges to hear cases 14 days after they cross the border at most and thus, give immigrants a lot less time to make their bids for asylum.
Meanwhile, Senate Democrats have introduced legislation that would tackle the issue of family separation — and no Republicans have signed on. Two other House bills tackling immigration that will be considered this week fail to address the issue of family separation or detention conditions in any meaningful way. There are also still a lot of questions about what the executive order Trump signed on Wednesday would actually do.
Although Republicans in Congress say they’re taking action to improve the experiences of immigrants, that is not really what these bills would do.
A rushed timeline to make a case for asylum
Immigration lawyers and policy experts say that by accelerating the asylum process to 14 days, as is proposed by the Cruz bill, families are being set up for failure.
Kara Lynum, immigration attorney and owner of Lynum Law Office calls it a “nightmare scenario.”
“You’re required to have all corroborating documents and your real ID at the time of the application,” she said. “Only having 14 days for someone in custody in the middle of nowhere, Texas, with only a volunteer lawyer…it’s almost impossible to put together a case like that. I think that rule will definitely lead to increased denial, create detention during appeals, and balloon out to more immigration detention.”
Philip Wolgin, managing director of Immigration Policy at Center for American Progress, said it’s “kind of insane” to have the entire process take 14 days.
“You have to marshal together a significant number of resources showing that you’re being persecuted and documentation. These are things you need to get together over time and they’re asking people to prove credible fear in 24 hours and if that doesn’t work, appeal to immigration judge who only has five days to consider your case,” Wolgin said. “There is no way that those families are going to be able to get the documentation together that they need. What this will do is ensure that even people with the strongest cases will be sent back to harm and potentially even death.”
Wolgin said that an increase in the number of judges won’t be of much help to immigrant families either if there isn’t time to put together the documentation for their case. Tillis’ bill would authorize 225 new immigration judges “to prioritize timely adjudication of family cases.”
Amalia Wille, an immigration attorney whose practice focuses on removal proceedings and detention, family-based immigration, waivers and asylum, said asylum seekers need documentations from their home country such as police reports and statements from family members, and their lawmakers need time to collect evidence. She added judges should not be put in a position to make decisions under these circumstances.
“Judges should not be rushed by political pressure to make rulings under extreme time pressure, especially when the consequences are life and death for asylum seekers,” she told ThinkProgress over email. “Our country should not be deporting asylum seekers to their death because we did not give them a fair opportunity to make their legal claims to a judge.”
Making conditions in family detention centers worse
Lynum is concerned that without Flores, conditions in family detention centers could get even worse, and they’re already pretty poor.
Flores v. Reno is a 1997 Ninth Circuit case that limits the detention of minors and was settled as a consent decree. That decree was clarified almost a decade later to say that the decree applied to both accompanied and unaccompanied minors, who can’t be held for more than 20 days. Minors in federal custody are supposed to placed in the least restrictive environment and should receive information, treatment, and services. All the GOP legislation that has been proposed so far would overrule the Flores settlement since it would keep families in Immigration and Customs Enforcement (ICE) custody for long periods of time.
Lynum said of a Dilley, Texas detention center, “It’s hard to get a doctor’s attention and once you do, you get subpar medical care. You get told to drink water or are refused medical care altogether. The food is bad. There is definitely an issue with safety in drinking water. And they’re being held in custody, so there are still children in jail but they happen to be be with their parents or their mom at least.”
In 2014, the Women’s Refugee Commission released a report called Locking Up Family Values, Again on the conditions in family immigration detention facilities that said large-scale family detention results in “egregious violations of our country’s obligations under international law, undercuts individual due process rights, and sets a poor example for the rest of the world.”
Lynum said she is concerned about anything that would chip away at or end Flores.
“My understanding is that kids would end up being held even longer because that settlement has such great language on how to get kids out of custody,” she said.
Lynum said the solution to the issue of family separation is not keeping families in custody.
“If we’re talking about getting these kids out of custody, the solution is not keeping them in custody with their parents,” she said. “The solution is saying both mom and dad and child can go fight their case in non-detention. The solution is not family detention. The solution is a notice to appear at a court date in the future and they’re on their way.”
Families will still be separated
Families will still be separated so long as the House doesn’t choose to pick this up as a cause. And House Speaker Paul Ryan (R-WI) said he doesn’t want to pursue a narrow bill addressing family separation, according to the Hill.
Wolgin said, “Under the zero tolerance policy, if you get prosecuted, kids can’t be in criminal jails so parents get sent to jail and kids get separated. Under the Ryan bill, it says okay, if you are just being prosecuted for illegal entry, so a misdemeanor under federal law, we will process [everyone] in family detention and keep kids with their parents in these completely inadequate facilities.”
Wolgin said this means Republicans are not saying they will stop prosecuting people or stop their current zero tolerance policy and families are only being kept together when they are being prosecuted for illegal entry.
“It doesn’t even end family separation because at least in the Ryan bill, the only time a family stays together is only if they’re being prosecuted for only illegal entry offenses so if they’re being prosecuted for anything else — even if its illegal re-entry and even if they]re claiming asylum — they’re still going to be separated. The bill doesn’t actually solve the problem.”
Still, House Republicans aren’t even sure what they are voting on on Thursday.