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Zero Tolerance, Zero Sense 

Noncitizens have the same constitutional rights as anyone else to not have their children ripped away.

click to enlarge U.S. Border Patrol agents detain illegal border crossers at the Central Processing Center in McAllen, Texas, on June 17.

U.S. Customs and Border Protection

U.S. Border Patrol agents detain illegal border crossers at the Central Processing Center in McAllen, Texas, on June 17.

In the past few weeks, we've seen the culmination of a president and administration rising to power despite, and partially because of, charged rhetoric. This president maintains support by being tragically successful in keeping campaign promises with regard to immigration.

By using the term illegals — assigning criminality to a person rather than an action — our government has slowly whittled away the rights of our fellow human beings. Once a group is dismissed this way, it becomes all too easy to treat its people without the most basic human kindness and decency and to strip them of the most fundamental rights. The dehumanization of noncitizens was sadly foreseeable, as I recently wrote in an article for the University of Richmond Law School's Public Interest Journal, predicting the deleterious effect of inflammatory terminology on current immigration policy.

Case in point: On April 6, the Donald Trump administration made it the official policy of the United States to forcibly remove children from their parents attempting to enter the country and to hold children in glorified cages while their parents are incarcerated in either immigration detention or federal criminal custody. The alleged crime? Entry into this country without proper paperwork — an offense that, while not a newly created crime, is being pursued with an unbridled zeal. The offense often is precipitated by flight from mass violence, war, or poverty. This journey is compounded by the administration obstructing attempts at lawful passage.

The zero-tolerance policy posits that the parents, by committing this crime, created the situation and the consequence is having their children taken away while the parent is punished. Even if we accept the premise, then the discussion should begin with how we treat those charged with a crime in the criminal justice system. In this context the offense is a misdemeanor, a fairly minor offense punishable by a maximum of six months in custody but typically by time served.
In Virginia, the equivalent severity of crime is a class-two misdemeanor, which is not even the most serious misdemeanor and includes offenses such as driving without a license. For most misdemeanors, the accused is released on a promise to return to court or required to pay a nominal bond. This is especially true for people without criminal records. They are afforded the full trial rights guaranteed by the Constitution to contest their criminal charge.

At no point in a typical misdemeanor criminal case is the defendant's child summarily taken by the government. Rather, if a person is arrested with their child nearby, or if the child is somehow in danger based on the parent's conduct, the child is usually permitted to stay with family or friends until the accused is released from jail in a few days.

Noncitizens are guaranteed those same constitutional rights. Under zero tolerance, most noncitizens are charged with the misdemeanor crime of illegal entry. Yet their children are forcibly removed from their care and placed in government custody as the first and only option. This happens in many cases without any information as to where the children are going or how to find them. This is an unfathomable and immoral consequence for a misdemeanor offense which carries a less severe penalty than a trespass charge in Virginia.
What happens to these children who are separated? Typically, they are eventually transferred to juvenile shelters and detention centers across the country that are designed to house unaccompanied minors and refugees. Virginia has such centers, in Staunton and Alexandria. The Staunton facility is currently under investigation for allegations of physically abusing children, subjecting them to solitary confinement and leaving them naked in freezing cold concrete cells.

In Alexandria, Mayor Allison Silderberg opposed the administration's policy by refusing to renew a contract with the federal government that would have allowed children separated from their parents at the border to be shipped there. Where the children will be sent is anyone's guess. One plan to house the unaccompanied children, who either came alone or were forcibly separated from their parents, is to ask the military to open barracks for 20,000 children. Another plan working through Congress includes $7 billion to pay for family detention centers for those not separated. It is inevitable that under this policy, children and families in Virginia will be impacted, not the least through taxpayer funding by footing the bill.

Last week, after an expansive media and political backlash from the horrific scene at the border — crying children screaming for their parents, stories of breastfeeding babies ripped away from their mothers, almost 2,500 children in less than two months housed in cages — the president finally acknowledged the tragedy.

Trump declared the United States would stop separating children from their parents at the border, arguably its own human rights violation, coincidentally one day after the administration withdrew from the United Nations Council on Human Rights. Families will now be incarcerated together while the Justice Department continues to prosecute the parents for illegal entry under zero-tolerance. The children will be with their families, but detained in jail indefinitely — a violation of legal precedent. The executive order did not fix the devastating situation, and while it may be the lesser of two evils, both policies still allow for the incarceration of children, an avoidable evil this administration refuses to remedy.

It's easy to feel helpless in this climate, but you can make your voice heard and help these children and families. First and foremost, contact your representatives in Congress. Demand action. Second, make your vote count in November — do not support candidates who refuse to stand up to this policy. Third, donate to organizations seeking to help immigrants at the border. Some suggestions: The Refugee and Immigrant Center for Education and Legal Services contributes money to allow parents to bond out and return to their children, the Texas Civil Rights Project litigates for the civil rights of immigrants, and the Legal Aid Justice Center and the American Civil Liberties Union litigate and challenge this administration. Finally, sign petitions and attend protests.

Most importantly, stand up and fight for the rights of those who cannot fight for themselves. S

Ashley Shapiro is the immigration resource attorney for the Virginia Indigent Defense Commission and a former public defender. Opinions expressed in this Back Page are those of the writer and not necessarily those of Style Weekly or the commission.

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