LAND OF THE NOT SO BRAVE & NOT SO WISE: AS USUAL, TRUMP’S CLUMSY EXECUTIVE ORDER ON DETAINING FAMILIES LIKELY TO CAUSE MORE PROBLEMS THAN IT SOLVES — Strategy Appears Designed To Fail & (Dishonestly) Shift Blame Elsewhere!

“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:

Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.

Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP”

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• Section 1 maintains the abusive policy of prosecuting every misdemeanor illegal entry case (“zero-tolerance,” a/k/a “zero common sense,” a/k/a “zero humanity”). Most of those duressed into pleading guilty in assembly line Federal criminal courts are sentenced to “time served,” thus illustrating the absurd wastefulness of this policy and how it detracts from real law enforcement. Trump also throws in a gratuitous and totally disingenuous jab at Congress and the courts for causing the problem that he & Sessions actually created.
• Section 3(a) directs the detention of families throughout criminal proceedings and until the end of Immigration Court proceedings (which often takes many months or even years), an abominable, costly, inhumane, unnecessary, and unsustainable policy originally developed during the Obama Administration. The Government lacks adequate family detention facilities, which are supposed to be non-secure facilities licensed by a child welfare agency. Additionally, asylum applicants in Removal Proceedings generally have a right to bond. In most cases, there would be no legitimate reason to deny  bond. Contrary to the Administration’s bogus suggestions and intentionally misleading statistics, studies show that those who are represented by counsel and understand the asylum process show up for their hearings more than 90% of the time. I found it was close to 100%. This suggests that a “saner” policy would be to help individuals find lawyers and then release them.
• Section 3(c) makes the Secretary of Defense, an official without any qualifications whatsoever, responsible for providing family jails on military bases. It shouldn’t take the courts too long to find these facilities unsuitable for family immigration detention.
• Section 3(e) recognizes that this order is largely illegal in that it contravenes the order of the U.S. District Court in Flores v. Sessions which was affirmed by the Ninth Circuit.  Flores orders the release of juveniles from immigration detention within 20 days unless they present a significant public safety risk or are likely to abscond. Where juveniles don’t meet the release criteria, they must be held in the least restrictive setting appropriate to age and special needs. While Trump orders the Attorney General to seek a modification of Flores, there is no legal rationale for that action. In fact, the abusive “fake emergency” situation that Trump & Sessions have created, shows exactly why Flores is needed, now more than ever. It also makes a compelling case for Congress to enact Flores protections into law, thereby making them permanent and avoiding future abuses by the Executive.
• Section 4 basically orders the Attorney General to engage in more “Aimless Docket Reshuffling” (“ADR”) in the U.S. Immigration Courts by prioritizing cases of recently arrived families, many of whom have not had a chance to obtain lawyers and document applications, at the expense of cases that are already on the docket and ready for final hearings. That’s why the Immigration Court backlog is 720,000 cases and continuing to grow. It also shows why the Immigration Courts are a facade of Due Process, totally mismanaged by politicos, and must be removed from the DOJ and become  a truly independent court system that establishes court priorities and procedures without Executive interference.
• The order is silent on whether it applies to those families who have already been separated and how those families might be reunited.

In summary, this “Temporary Executive Order” is not a credible attempt to solve the problem of family separation. Rather, it is another “designed to fail” charade intended to provoke litigation so that the predictable mess can be blamed on the courts, Congress, the asylum applicants and their families (“blaming the victims”), and their courageous lawyers. In other words, anyone except Trump and his cronies who are responsible for the problem.

It’s a prime example of what life in a Kakistocracy is and will continue to be until there is “regime change.”

What would a “real solution” to this issue look like. Well, I’ve said it before:

The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments. 

Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.

Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks really want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.

My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.

Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.

Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.

Don’t hold your breath! But, eventually the New Due Process Army will win the war and enough elections to finally bring sanity, humanity, and reality to the U.S. immigration system.