New Data Shows “Zero Tolerance” Policy Is Only Used Against Families, Not Other Border Crossers

(NYIC photo/Marie Lombardo)

Back in May, Jeff Sessions announced his now infamous “zero tolerance” policy for criminally prosecuting all unauthorized border crossers. New data from the Transactional Records Access Clearinghouse, a nonpartisan research center at Syracuse University, shows that that has not happened. Instead, the data shows, only the parents of children are facing “zero tolerance.”

According to the TRAC report issued this week, the Trump administration claimed that family separation “was the inevitable consequence of prosecuting everyone caught illegally entering this country. As the press widely reported, ‘[t]he Justice Department can’t prosecute children along with their parents, so the natural result of the zero tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.’”

The problem with this claim is that most border detainees are not being referred for criminal prosecution. There is significant prosecutorial discretion being exercised by the administration in exactly whom they refer to court for criminal prosecution, undermining the claim that massive family separation is somehow mandated by the law. The scenes of crying babies in the hands of the Border Patrol is the result of the Attorney General’s decisions, not the strictures of the laws.

According to TRAC, in May of this year, only 32% of border patrol apprehensions of adults were sent on for criminal prosecution. In the words of the TRAC report:

“…since less than a third of adults apprehended illegally crossing the border were actually referred for prosecution, the stated justification does not explain why this Administration chose to prosecute parents with children over prosecuting adults without children who were also apprehended in even larger numbers…[T}he total number of adults apprehended without children during May 2018 was 24,465. This is much larger than the 9,216 adults that the administration chose to prosecute that month.”

TRAC notes that the new policy “didn’t as a practical matter eliminate prosecutorial discretion.” With only a third of unauthorized border crossers being prosecuted, the Department of Homeland Security still had to choose who was being referred to be prosecuted and who was not. TRAC says that “The Administration has not explained its rationale for prosecuting parents with children when that left so many other adults without children who were not being referred for prosecution.”

Attorney General Sessions, for all of his rhetoric dressing his cruel policy of family separation as merely a response to legal mandates, was never following the requirements of the immigration or criminal laws when he ordered toddlers taken away from their parents. His policy was designed to terrorize children, not follow the letter of the law.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.