Trump's 'Zero Tolerance' Immigration Policy Doomed To Fail Without Enough Judges To Process Asylum Seekers, Former Obama Official Says

In a huge reversal, President Donald Trump signed an executive order on Wednesday that aims to keep families together at the U.S.-Mexico border, after facing much public pressure and outrage from many sources, including a slew of politicians and celebrities.

The Trump administration's "zero tolerance" policy, which was announced in April by Attorney General Jeff Sessions, resulted in the separation of over 2,300 children from their undocumented immigrant parents at the border. The children have been separated as their parents are held for prosecution.

"It's about keeping families together, while at the same time being sure we have a very powerful, very strong border, and border security will be equal, if not greater than previously. So we're going to have strong, very strong borders, but we're going to keep the families together," Trump said while signing the executive order. "I didn't like the sight or the feeling of families being separated."

But even with that order, Trump and his administration have an upward battle. There are still questions about how long families seeking asylum will stay in custody at the border, where they will stay and in what conditions. The order also doesn't address the zero tolerance policy and when the children who are separated from their parents will return to their families.

trump immigration executive order
President Donald Trump displays his June 20 executive order ending the practice of separating family members who are apprehended while illegally entering the United States. The order means that parents and children will now be detained together. Win McNamee/Getty Images

In an interview with Newsweek, Seth Stodder, who was appointed by President Barack Obama to serve as assistant secretary of homeland security, argues that the zero tolerance policy is doomed to fail without enough judges to process asylum seekers entering the U.S. It also, he says, leaves very few other options: either lock people up for years, costing American taxpayers millions, or let them go.

What do you make of the current administration's zero tolerance policy toward immigration?
Well, I don't think much of it. Certainly, I come from a different perspective on this. But [Trump is] continuing, as far as I understand it, the zero tolerance policy of prosecuting everybody who comes across the borders. I think it's a mistake that's going to overwhelm the system. It doesn't make any sense. I think there are other solutions to the problem that I think have not been tried, from the perspective of—these are mostly asylum seekers that are coming to the border. Some of them have a valid asylum claim; some do not. But that's why you have an immigration court system, to sort through that question as to whether people have a valid claim or not.

I think the basic problem is, the immigration court system is overwhelmed by this number of claims and you have these massive backlogs. So by a zero tolerance policy—meaning that we're going to detain people, whether separating their kids from their parents or you detain entire families—are we willing to detain people for years, conceivably until their asylum claims are resolved? I don't think we remotely have the resources and the capacity, and I don't think that's something that we want to do as a country, detain these people for all this time, and I think there are other ways that we can address this problem.

Republican commentators have argued the policy is a continuation of Obama's administration. What is your response to this?
This is a bigger problem than the border. Fundamentally, it's the problem of the breakdown of government and violence in Central America and the three Northern Triangle countries of El Salvador, Guatemala and Honduras. The right solution, I think, here is to view this as essentially a hemispheric migration and refugee problem and work with Mexico. We know that Mexico actually has removed 500,000 people over the last several years back to Guatemala and El Salvador and Honduras. So Mexico has actually deported far more people than the United States has. And what we need to do is work with Mexico and the three Central American countries to essentially establish an ability to screen people for potential humanitarian protection claims near where it's happening.

Because right now we have the worst of all worlds, in the sense that our system essentially invites people to hire human smugglers, either sending their kids on their own or going up with families of human smugglers through very dangerous territory in Mexico, gang-controlled territory in Mexico. And then when they get to our border, then essentially we have a limited range of options. We could do as the Obama administration aimed to do initially, which is to essentially treat them all as in the civil immigration process and try to detain them as families pending those claims, but then that violated a rule called Flores, essentially a court decision that didn't allow for extended detention of children. So therefore you couldn't detain entire families because you had to let the children go after 20 days.

So you've got that option. You've got an option that you can let them into society and essentially hope that they go to their immigration court hearings or try to monitor them in some way. But there's an enormous number of people who don't show up for their immigration court hearings. Or you could go down the Trump path, which is prosecuting them and actually kind of having what they call a zero tolerance policy and actually prosecuting people who are coming in. No question, it's a devil of a problem. The Trump solution to it is sort of the most brutal way of dealing with it, obviously.

In 2016, the Center for Immigration Studies alleged that unaccompanied or separated children alongside Mexico's southern border were being inappropriately classified as refugees, or victims of human trafficking, to dilute actual numbers. How can these exact figures be determined?
The main figures I would go for is the overall apprehension numbers for Border Patrol. I think that section is the most edifying statistic. Let's, again, go back to the year 2000. You had 1.6 million people apprehended by the Border Patrol in the U.S.-Mexico border, of which about 95 percent were Mexicans. Fast-forward to 2014, 2015, 2016. The numbers were about 400,000 to 300,000 people apprehended by the Border Patrol—so, dramatic drop in apprehensions; so, far fewer people coming across the border. And of those 300 or 400,000, half of them were from these three Central American countries.

So illegal immigration is down by less than 10 percent of what it was before. There's very little undocumented migration coming from Mexico to these three countries. Over the last couple of years of the Obama administration, the general clip was 30 to 40 to 50,000 people a month apprehended by the Border Patrol, of which some quantity were Mexicans, some quantity Central Americans. In fiscal 2017, which includes the last few months of Obama and the first six months or so of Trump, it dropped significantly. So under the first few months of Trump, you had a spike at the very end of Obama. People were trying to get into the country before Trump took power, and then right after Trump took power he had a real drop for the first six months, seven months or so.

Now what you're seeing is numbers that are back up to the way they were in the last year of Obama. So basically, it's back to the historical norm over the last several years.

Struggling Border City Of Brownsville Straddles Two Cultures
Mexican residents wait to make the daily crossing into the border city of Brownsville, Texas, on June 22. Spencer Platt/Getty Images

How is Obama's enforcement of the law ultimately different from Trump's?
The change in policy from Obama to Trump has been "No, we're going to prosecute asylum seekers who are coming in [at the border]." That's the main change. Everything flows from that. Because once you start prosecuting people, then you can't put kids in the criminal justice system. You're putting the adults there, and then you have two different legal processes.

The other thing is that the claims that people are making from El Salvador, Honduras and Guatemala—this isn't like Syria. It's not an obvious claim where you're being persecuted by ISIS or chased by Assad or avoiding barrel bombs or chemical weapons. The claims that people are making from these Central American countries are, generally speaking: We are avoiding gang violence or domestic violence. The governments in these places are unable to or unwilling to protect us. And that's actually a subtle asylum claim under the law. You're basically saying, "I'm a member of a social group." So to get asylum, you have to have a well-founded fear of persecution on the basis of race, religion political opinion or membership in a social group, and so people are claiming, "Well, I'm a Guatemalan avoiding gang violence." That's a social group. That's oversimplifying.

So under the Obama administration we actually recognized that as a potential asylum. You'd have to prove it. You go to the immigration courts, and it's litigation. Sessions, though, has just issued an order essentially saying, "No, I'm going to narrow the basis for which people get asylum. You got to be a member of some other social group with an immutable characteristic to qualify for asylum. You can't just come here saying, 'I'm avoiding gang violence.' You got to say, 'I'm avoiding gang violence and the gangs are after me because I'm left-handed'"...or whatever that social group is.

How should Homeland Security improve facilities without costing taxpayers billions?
The answer is, there's no good way of doing that. If you're going to detain people, that costs money. I think ICE is budgeted for holding X number of people a month or a year, and ICE in the last years of Obama was blowing through that budget very, very quickly. They were burning through an enormous amount of money, and holding a kid by him or herself, I think it's much more expensive. I think the number was like $770 a day or something like that to hold a kid.

If you're going to build detention facilities, you're going to contract out to companies like GEO or CCA or something like that. That's very, very, very expensive. We've under-resourced the immigration system. There's no way around it. We almost tripled the size of the Border Patrol since 9/11 and dramatically increased the number of deportation officers and all that, but we haven't made the same kinds of investments in the immigration courts. And so you can spend all you like on detention and more border agents and more planes and drones and whatever else.

But if you don't have enough judges to actually process people through the system—and most of these people are claiming asylum—then you're going to have these backlogs, and you have a choice: Do you hold people for several years or do you let them go. It's a stark choice.