Family Separation and “Enforcing the Law”

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On average, only 29% of the country supports the Trump Administration’s family separation policy at the United States’ border.  The President, apparently aware that his policies are deeply unpopular, nonetheless is forcing Congress to bail him out and prevent family separation.  Even though he can immediately rescind the policy, he is holding children children hostage so that he does not have to admit a defeat, so that he can try to extort money to build his stupid will, and so that he can say to his most rabid followers that he had no choice in the matter. That he was only enforcing the law.

That’s the crux of his supporters’ official argument: crossing the border without permission is illegal, and criminals get separated from their children every day. Therefore, enforcing the law is just.  The unofficial argument is much more nationalist in nature, and is typified by this TrumpTweet:

Using the word “infest” is not by accident, but I’m digressing a little.

Illegal Entry is Primarily a Misdemeanor

The crux of the official argument is that the Administration is simply enforcing the law. The law covering entering the United States without permission is 8 U.S.C. § 1325(a).  For first-time offenders, this crime is a Class B misdemeanor, and not a particularly harsh one at that: up to six months in custody and a fine.  Individuals convicted of subsequent commissions of unlawful entry are subject to imprisonment for up to two years, which makes it a Class E felony.  (As a note, it’s a little funny talking about punishment classification in the federal system, because we don’t really talk about things in that way.)  The punishment for hiring undocumented immigrants is likewise up to six months in custody (8 U.S.C. § 1324a(f)).

So, yes, illegal entry is a crime, and sometimes a felony.  It might be instructive, however, to consider what offenses–in both the federal and the Texas criminal justice systems–are considered more serious than illegal entry.

  • Marriage fraud — 8 U.S.C. § 1325(c) — up to 5 years imprisonment, a fine, or both.
  • Harboring or bringing aliens — 8 U.S.C. § 1324 — up to 5, 10, 20, or life imprisonment, a fine, or both, depending on how the offense was committed.
  • Immigration document fraud — 8 U.S.C. § 1324c — up to 5 years imprisonment, a fine, or both.
  • Illegal reentry — 8 U.S.C. § 1326 — up to 2, 10, or 20 years imprisonment, a fine, or both, depending on how the offense was committed.
  • Assault or simple assault of a youth — 18 U.S.C. § 113(a)(4) & (5) — up to a year in prison, a fine, or both.
  • Concealing assets while in bankruptcy proceedings — 18 U.S.C. § 152 — up to five years imprisonment, a fine, or both.
  • Failing to pay appropriate duties at the border — 18 U.S.C. § 541 — up to two years imprisonment, a fine, or both.
  • Smuggling goods out of the United States — 18 U.S.C. § 554 — up to 10 years imprisonment, a fine, or both.
  • Falsely claiming to be a member of the Red Cross — 18 U.S.C. § 917 — up to 5 years imprisonment, a fine, or both.
  • Lying to Congress, federal investigators, or on SF-86 forms– 18 U.S.C. § 1001 — up 5 years imprisonment. (This is the crime to which Michael Flynn, George Papadopolous, Rick Gates, and Alex van der Zwaan have pleaded guilty as part of the Mueller investigation, and which Jared Kushner faces for “mistakes” on his SF-86 form.)
  • Identity fraud — 18 U.S.C. § 1028 — up to 1, 5, 15, or 30 years imprisonment, a fine, or both, depending on how the offense was committed.  (This is, by the way, the offense to which Richard Pinedo pleaded guilty as part of the Mueller investigation.)
  • Making campaign contributions in the name of others — 52 U.S.C. §§ 30122 & 30109 — up to 1, 2, or 5 years in prison, a fine, or both, depending on how the offense was committed. (This, by the way, is the recodified crime to which Dinesh D’Souza, who was recently pardoned, pleaded guilty in 2014.)
  • Failure to register as a foreign agent — 22 U.S.C. §§ 612(a), 618(a)(1), and  618(a)(2) — up to 5 years imprisonment, a fine, or both. (This is one of the many charges filed against Paul Manafort as part of the Mueller investigation.)
  • Driving while intoxicated with BAC greater than .15 — Tex. Penal Code § 49.04(d) — Class A misdemeanor (up to one year in jail).
  • Driving while intoxicated with child passenger — Tex. Penal Code § 49.045 — State jail felony (six months to 2 years in state jail).
  • Unlawful carrying of firearm (i.e., without a permit) — Tex. Penal Code § 46.02 — Class A misdemeanor, unless it’s at a facility licensed to sell alcohol (3rd Degree felony (2 to 10 years in prison).
  • Possession of trace amounts of cocaine — Tex. Health & Safety Code § 481.115 — State jail felony.
  • Keeping a gambling place — Tex. Penal Code § 47.04 — Class A misdemeanor

The list of crimes which are treated far more seriously than illegal entry goes on and on, which probably explains the outrage at the Trump administration’s policies.  Separating children and

parents for what is a minor misdemeanor shocks the conscience.  This, likewise, does not even begin to address the fact that many families are presenting at the border for asylum, which is not a crime, but are being separated nonetheless.

Movement Toward Harsher Treatment

Perhaps sensing that classifying illegal entry as a mere misdemeanor creates the terrible optics, the Trump administration appears to be laying the ground work for asking Congress to penalize illegal entry more seriously.

Calling immigration laws weak and the worst in the world, and lying about the out-of-power Dems being responsible, is a signal that the United States is not draconian enough, and an indication that the Administration would much prefer to harshly penalize such activities.

Executive Action Coming on Family Separation?

At the same time, however, while I was writing this post, word surfaced that draft policy language was being put together which would theoretically end family separation, but lead to indefinite detention while claims are being processed.

This would, in all likelihood, lead to bizarro crowing that the President had ended the Democrats’ bad laws (a disingenuous claim from the get-go, since it’s Attorney General Session’s “Zero-Tolerance” prosecutorial policy that is largely causing the family separation), and, when liberals bawk about the indefinite detentions, I’m sure there will be a lot of squawking back.

Bad policies, bad laws, bad times.