I did something the other morning that I had not done in years — I read through the Immigration and Naturalization Act (https://www.uscis.gov/laws/immigration-and-nationality-act). I wanted to see if there have been any glaring changes since I took an Immigration Law course in law school.
There have been changes in the law, but, as I suspected, the immigration system and the criminal justice system are still separate.
What does this mean? American immigration law is complicated, but for the population of asylum seekers in the news right now are, it must be emphasized that when they arrive at an American border without legal status or visas, they will be processed through the immigration courts system. Inarguably, they are subject to “immigration court,” which is governed by immigration law.
Separate from that is “criminal court,” governed by criminal statutes, both state and federal, pursuant to which it is, in fact, a crime to enter the United States of America illegally.
But as with any crime, there is discretion as to whether to charge someone. For example, if you get pulled over for speeding, you may not get a ticket because an officer may, in his or her discretion, decide that a verbal warning will do. Jaywalking is a crime. Depending on where you are, drinking in public is a crime. We all know that not everyone who commits a crime will be charged and prosecuted in criminal courts. In addition, everyone who is arrested is not detained. Many are released and they later return to court on scheduled court dates.
I wanted to explain all of this because President Trump’s policy is not just an immigration policy. He is advocating aggressive use of the criminal justice system against the weakest amongst us. There is no change in whether those who seek legal status in this country, for any reason, need to be processed through the immigration system. The difference is that now, pursuant to the policy of this presidential administration, in addition to immigration court dates and processing, asylum and other visa seekers will have a criminal case and criminal court dates as well.
To blame this policy change on any written immigration law is to punt the issue. Nothing in the asylum sections of the INA says that each applicant for asylum must also be charged and prosecuted in the federal criminal courts. Families were being separated because parents are facing criminal charges and being detained, not simply because parents were undocumented and in court.
Jeff Sessions’ words echo in my head: “a zero-tolerance policy for illegal entry on our southwest border.” A policy specifically for those who come from South and Central America!
This is painful and shameful to watch. Especially for a country that advertises, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.” I know that America never really meant those words — not for everyone, anyway.
As we hear the sounds of panicked and frightened children, one might interpret Lady Liberty’s words as some sort of cruel joke.
Khara Coleman is a Chicago attorney and an Oak Park resident.