When President Barack Obama announced Deferred Action for Childhood Arrivals, his administration’s policy of pushing young unauthorized migrants to the bottom of the immigration law-enforcement priority list, Republicans complained that focusing on some legal violations over others was equivalent to not enforcing the law. When Obama used his discretion to extend similar protections to parents of U.S. citizens, Republican legislators successfully took to the courts to block him.
Within days of entering the White House, President Donald Trump issued an executive order proclaiming, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.” To Republicans, prosecutorial discretion subverts the rule of law. Or so they say.
Government data about the Trump administration’s zero tolerance policy toward border crossers reveal that it, too, is picking and choosing whom to target. In May, at the height of its policy of tossing parents into criminal proceedings while their children were hauled to government-run prisons, Border Patrol agents sent 9,216 people to prosecutors. That is about 1,000 more than in April and over 5,000 more than the same month a year earlier. The increase was especially noticeable in the family separation epicenter of McAllen, Texas, where I was born and where my law firm is based. Lawyers in my hometown saw 841 prosecutions in April jump to 2,079 in May.
The important question is why law enforcement officers choose to target some people over others.
That is a lot of people, but it’s not everyone. In May, Border Patrol agents stationed across the southwest border caught almost 29,000 adults clandestinely entering the United States. Eighty-five percent had no children; the rest are the parents whose anguish has been heard across the world.
Of all the adults apprehended that month, most were not prosecuted criminally. Only one-third were charged with a federal immigration crime. The rest presumably ended up in the civil immigration court system or in fast-track legal proceedings in which immigration officials deport people without taking them in front of a judge. Zero tolerance apparently didn’t mean zero exceptions.
It makes complete sense that the government did not go after everyone. The federal courts can’t handle that many cases. Picking and choosing is a part of every big law enforcement system. The important question isn’t whether that happens ― despite Republican insistence, it always does. The important question is why law enforcement officers choose to target some people over others.
Under Obama, it was easy enough to see why federal immigration officials chose as they did. Young people brought to the United States as children, the so-called Dreamers, are blameless. As they get an education and enter the workforce, they contribute to the economy and pour vital energy into communities nationwide. DACA was intended to let them remain in the United States and let the rest of us benefit from their presence.
Understanding the Trump administration’s decision to go after families is not so obvious. Defending the family-separation policy in May, Attorney General Jeff Sessions said, “We are not going to let this country be invaded. We will not be stampeded. We will not capitulate to lawlessness.” On the ground, resisting the invasion that the attorney general imagined meant taking children from their parents. Despite the passing of Thursday’s court-ordered deadline for the government to reunify families, more than a third of the 2,500 children remain separated. Almost 500 parents have been deported without their kids.
It did not have to be this way.
For many years, federal officials have used the power of criminal law to punish migrants who come to the United States without the government’s permission. President Trump and Attorney General Sessions like to talk as if they were overseeing tough, innovative policies, but the government’s own statistics reveal that at times Obama and his predecessor George W. Bush used a heavier hand. In September 2008, prosecutors charged 9,893 people with immigration crimes and in December 2012 they targeted 9,268, both higher than the Trump administration’s May 2018 record. All of these individuals were identified as criminals. They were prosecuted, convicted and sentenced—all before they were removed from the country.
The Trump administration’s family separation policy is an especially vicious twist to a longstanding policy of criminalizing migration. Top officials can no longer deny that it’s happening, as Secretary of Homeland Security Kirstjen Nielsen tried in June. Nor can they claim that everyone is an equal priority, as Sessions did when he said, “If you cross this border unlawfully, then we will prosecute you. It’s that simple.”
When it comes to taking a child from her parent, nothing is simple. And when it comes to prosecuting immigration laws, it’s never not a choice.
César Cuauhtémoc García Hernández is an associate professor of law at the University of Denver, publisher of the blog crimmigration.com, and of counsel to García & García Attorneys at Law.