I’m excited to share an article by a friend of mine who is an attorney for migrant farmworkers (and who used to be a theology teacher). Ben O’Hearn has a better grasp than most on the nuances of these recent immigration policies and the nuances of Catholic Social Teaching.
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).