As a conservative, I understand Americans who are tired of our immigration laws being violated with impunity. As a parent, I also share the visceral reaction to a child being torn from the arms of her parent. We need levelheaded immigration solutions from Congress – far more than we need the moral outrage and political blame-games we’ve seen from our elected officials so far.
President Barack Obama might not have found the answer on immigration policy, but he wasn’t a pushover, either. From 2008 to 2016, the United States formally removed almost 3.5 million  deportable or inadmissible aliens. Other presidents may have seen more inadmissible immigrants leave on their watch, but none used the legal process to remove more aliens than Obama.
The real issue here, therefore, is not the law itself, but how administrations prioritize resources in prosecuting immigration laws.
Federal immigration law is clear about what constitutes illegal entry into the United States – and how it is punished. The first offense is a misdemeanor, and subsequent offenses are felonies. The misdemeanor carries a lengthy prohibition on re-entry, and subsequent offenses may result in a permanent ban. Such violations also carry civil penalties – a major reason for the confusion about whether immigration laws are criminal or civil in nature.
In April, Attorney General Jeff Sessions instructed federal prosecutors to adopt a “zero-tolerance” posture toward referred violations of immigration laws Under this policy, adults charged with criminal immigration-law violations are detained in federal jails. Children aren’t referred for prosecution, so they are separated from their parents and usually end up in the custody of the Office for Refugee Resettlement.
In other words, federal law hasn’t changed; prosecutorial posture has.
President Obama’s prioritization of immigration offenses differed from that of President Trump. Obama’s U.S. Immigration and Customs Enforcement Director John Morton issued guidance in March 2011 articulating  the administration’s perspective that, absent “extraordinary circumstances” or legal mandates to the contrary, field officers “should not expend detention resources on aliens who are … primary caretakers of children.” The guidance outlined categories of offenders to prioritize but afforded a large degree of discretion to federal officials in making prosecution and release decisions.
Under President Trump, Sessions’ rigid enforcement of the criminal provisions of immigration law means many family members crossing the border illegally may well be separated from one another for some length of time. For first-time offenses without aggravating factors, this process is usually only a matter of days, at which point the family should be reunited and deported.
The situation becomes more complicated when parents claim asylum. ICE guidance provides that a “decision should be made on the asylum application within 180 days after the date the application is filed.” A federal consent decree, however, prohibits the government from holding children for more than 20 days when their parents are detained. As a result, the only option for keeping families intact pending an asylum claim – at least under the “zero tolerance” posture – is to release them into the interior of the United States.
That might stem the outrage over dividing families, but it isn’t an ideal solution. We shouldn’t have to choose between enforcing the law, properly adjudicating asylum claims and keeping families together.
Congress is the only option for developing a permanent solution. Otherwise, our immigration policies may continue to swing wildly from one administration to the next. Even with different approaches to immigration policy, both Obama and Trump have called for congressional action to no avail.
Legislators should permit ICE to hold families together pending asylum claims. Streamlining deportation provisions for minors from Central American nations also makes sense.
Most importantly, Congress should allocate the judicial and administrative resources to efficiently enforce immigration laws and decide asylum claims. In truth, a robust immigration reform debate and open legislative process might go a long way in addressing the issues that currently have so many of us up in arms.
We’re a nation of laws. We shelter the persecuted. We protect children. We shouldn’t surrender any of these aspirations as we seek to improve our immigration system. Congress must find a solution which accommodates each of them. If not, we must elect better leaders who will.
Cameron Smith is a regular columnist for AL.com and vice president for the R Street Institute, a think tank in Washington, D.C. He previously served as counsel for Sen. Jeff Sessions on the Senate Judiciary Committee.
- “3.5 million”: https://www.dhs.gov/immigration-statistics/yearbook/2016/table39
- “ issued guidance in March 2011 articulating”: https://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf