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Analysis

Immigrant families have been separated despite a court injunction. The Democratic debate ignored it.

Dozens of other immigration topics also went unaddressed.

Immigrant families have been separated despite a court injunction. The Democratic debate ignored it.
Immigrant families have been separated despite a court injunction. The Democratic debate ignored it. (Photo by Justin Sullivan/Getty Images)

The second round of Democratic presidential primary debates took place this week in Detroit, Michigan.

Despite overwhelming new reports from civil rights groups on subjects like continued family separation this week, candidates were only asked a single immigration question Tuesday night.

The American Civil Liberties Union (ACLU) told a federal judge on Tuesday that the Trump administration had separated over 911 migrant families at the U.S.-Mexico border since a court ordered the government to halt the practice over a year ago.

The news came just hours before the second round debates.

According to the ACLU, approximately 20% of the new separations affected children under 5 years old, compared with just 4% last year.

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“It is shocking that the Trump administration continues to take babies from their parents,” Lee Gelernt, lead attorney in the family separation lawsuit and deputy director of the ACLU’s Immigrants’ Rights Project said in a statement. “Over 900 more families join the thousands of others previously torn apart by this cruel and illegal policy. The administration must not be allowed to circumvent the court order over infractions like minor traffic violations.”

Acting Homeland Security Secretary Kevin McAleenan has testified that family separations are “incredibly rare” and only occur in cases where the parent poses a risk to the child, or because of a communicable disease or criminal record. In a court filing, however, attorneys for the ACLU described a father who was separated from his 4-year-old child because his speech impediment made him unable to effectively answer questions posed by U.S. Customs and Border Protection agents.

Another father was separated from his daughter because CBP agents claimed he failed to change her diaper. One man, referred to in the filing as Mr. A, was separated from his 9-year-old and 11-year-old children because of alleged ties to MS-13 in Honduras — even though he had never been to the country before.

None of the Democratic candidates on stage at the first round of CNN’s presidential debate Tuesday night — the second round of debates thus far — were asked about this.

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In fact, there was only one question during the entire three hour debate on immigration, and it was very clearly meant to drive a wedge between the two existing factions in the Democratic party: “Do you believe that unauthorized border crossings should be decriminalized?”

The question refers to Section 1325 of Title 8 of the U.S. Code which makes it a criminal misdemeanor for immigrants to enter the United States without papers. It’s been on the books since 1929, but only ever really enforced in the 21st century, most notably when the Trump administration used it to justify the separation of families in the spring and summer of 2018.

The debate over decriminalizing unauthorized entry has become a point of debate within the Democratic Party largely because former Housing and Urban Development Secretary and 2020 hopeful Julián Castro made repealing Section 1325 a key part of his immigration platform.

“This shift to criminalize immigration is at the core of many of this administration’s most egregious immigration policies — from family separation to indiscriminate ICE raids to targeting asylum seekers,” Castro wrote in a Medium post, announcing his “people first” immigration policy platform. “It also underlies some of this administration’s most damaging rhetoric that vilifies immigrants and families.”

Repealing Section 1325 would, no doubt, radically alter the U.S. immigration system, just not in the ways Republicans or moderate Democrats believe it will.

Immigrants who cross the border between ports of entry and do not qualify for legal protections such as asylum would still be subject to deportation. Decriminalizing unauthorized entry is not a precursor to an open border policy. Rather, it’s a way of turning the activist slogan of “no human is illegal” into actual policy and ensuring that no immigrant be charged with a crime, immediately deported, or detained for more time than strictly necessary for simply crossing the border.

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The majority of people trapped in the chaotic cycle that is the U.S. immigration system haven’t been charged with improper entry at all and few of the over 900 recent family separations relied on Section 1325. These realities demonstrate why having the sole debate question on immigration be framed around what the right perceives to be “open borders” was a misfire. The same misguided beliefs were what prompted Ohio Congressman Tim Ryan to claim immigrants should at least “ring the doorbell” before coming to the United States.

Ringing the proverbial doorbell is impossible for most immigrants, for reasons that weren’t touched on during the debate. The majority of 2020 Democrats have reached a consensus on a pathway to citizenship for undocumented immigrants brought to the United States as children and on ending the Muslim Ban, but there were hundreds of other immigration issues equally deserving of debate time.

Where do, for example, the candidates stand on DHS signing agreements with local law enforcement agencies to help enforce immigration law? These agreements — known as 287(g) agreements — have been deputized by both the Bush and Trump administrations in order to detain and deport undocumented immigrants at rapid rates.

Or what about making the immigration court more independent? Placing the immigration court under Article I, like the tax court for example, is something immigration activists, attorneys, and judges have been advocating for for years. Because the immigration court is currently under the purview of the Department of Justice (DOJ), it is subject to the attorney general’s discretion. With attorneys general being political appointees, this in effect politicizes the immigration court and has left current AG Bill Barr to play an outsized role in deciding who qualifies for asylum.

And what about metering, the Trump administration policy that the number of asylum-seekers allowed to enter legally at ports of entry each day? Or Migrant Protection Protocols (MPP), which forces vulnerable migrants to stay in Mexico for months while their cases are adjudicated in the United States? Sen. Amy Klobuchar (D-MN) signaled Tuesday night that she would be open to letting asylum-seekers apply for protections first in their countries of origin, even though that goes against U.S. asylum law. It was a passing comment that received approximately 5 seconds of airtime, yet it touched on a policy issue currently impacting thousands of people.

Candidates like Castro, Sen. Elizabeth Warren (D-MA), Sen. Bernie Sanders (I-VT), former Gov. Jay Inslee (D-WA), and former Texas Congressman Beto O’Rourke have openly endorsed some immigration policy changes, such as ending 287(g) agreements and MPP, but these questions are still worth asking in a debate setting. It would be helpful to hear where candidates who have yet to release their immigration platform stand on such a pressing humanitarian issue.