A little over two months ago, Attorney General Jeff Sessions issued an order to U.S. prosecutors with the potential to break the core functions of the Department of Justice. The directive called on U.S. attorneys to criminally prosecute everybody arrested for crossing the U.S.-Mexico border between lawful ports of entry. The order made no exceptions for first-time offenders, asylum-seekers, or parents with small children. “You are the front lines of this battle,” Sessions told his attorneys, calling the new initiative a program of “zero tolerance.” As far back as last year, the administration has signaled plans to target parents who illegally cross the border with the full force of the law and separate them from their children in the process. Through wrenching stories of what zero tolerance looks like in practice, many Americans have now seen, for the first time, dramatic representations of a phenomenon more than two decades in the making — the criminalization of unauthorized migration — colliding with the agenda of an administration inflicting as much punishment as possible on undocumented immigrants as a matter of strategy.

Hundreds of children are now being separated from their parents in courts along the border every week, with little to no system in place to reconnect those families as they pass through the criminal justice and immigration systems. With shelters for children separated from their parents rapidly hitting capacity, the Trump administration is actively exploring ways to lock up immigrant kids on U.S. military bases, including, according to a recent McClatchy report, through the use of “tent cities.” As for the adults caught in the zero tolerance push, Reuters reported last week that Immigration and Customs Enforcement was beginning the transfer of roughly 1,600 detainees to a handful of federal prisons across the country. At the moment, the administration is operating nowhere near 100 percent zero tolerance. If it were to get there, the system would likely collapse. While referrals of migrants for prosecution are definitely on the rise — with 30,000 referrals from October to April, compared to 18,642 in all of fiscal year 2017 — “the current level is about one-fifth of all apprehended adult border-crossers,” Adam Isacson, director for defense oversight at the Washington Office on Latin America, noted in a column last month. By pushing to bring that level up to 100 percent, as Sessions has ordered, “the Trump administration is embarking on a course of action that could cause the federal government’s courts, ports of entry, and prisons to collapse,” Isacson argued. Hundreds of thousands of border crossers would be locked up annually in federal prisons under a fully enforced zero tolerance doctrine, he wrote, and the federal docket could be expected to balloon by 270 percent.



Jeff Sessions is introduced during the Justice Department’s Executive Office for Immigration Review Annual Legal Training Program on June 11, 2018, at the Sheraton Tysons Hotel in Tysons, Va. Photo: Alex Wong/Getty Images

Doubling Down on Failure Trumpian zero tolerance is a combination of policies new and old. The most critical new component is that, in its quest to prosecute 100 percent of all people who cross the border illegally, the administration is separating families in waves, pulling apart parents and kids who would have likely stayed together in years past. Virtually everything else the administration is doing on the border is the ramped-up version of a decadesold strategy that has consistently failed to achieve its stated objectives. The administration’s evolving crackdown has critical implications for asylum-seekers in particular. On Monday, Sessions issued a decision overturning an Obama-era precedent that will now make it exceedingly difficult for migrants to seek asylum on the basis of domestic violence and gang violence. Both are particularly common claims among Central American asylum-seekers. “This just told thousands of battered women and children that the United States will not afford them protection under the law,” a senior Department of Homeland Security immigration official told The Intercept. While Sessions and the administration take the position that most asylum-seekers are frauds undertaking perilous journeys in order to scam the government, they have said that migrants who present themselves at lawful ports of entry seeking asylum have nothing to worry about. More than a year’s worth of news stories and an ongoing class-action lawsuit suggest otherwise, with accounts from across the border describing immigration officials blocking or turning away asylum-seekers exercising their rights at U.S. ports. What’s more, as Isacson noted, if the tens of thousands of asylum-seekers who present themselves between ports of entry each year reversed course and began showing up at the nation’s 45 understaffed ports of entry, those ports would be quickly overwhelmed.

The American Civil Liberties Union is currently challenging the administration’s family separation practices as they pertain to asylum-seekers. The organization, in a class-action suit, points to the experiences of two mothers. The first, identified as Ms. L, is a citizen of the Democratic Republic of Congo who last year came to the U.S. following an exhaustive journey with her then-6-year-old daughter. According to the ACLU, Ms. L did exactly as the administration has prescribed: She presented herself at a lawful port of entry and said she was seeking asylum. Ms. L and her daughter were placed in detention, and after a few days, the two were “forcibly separated.” Ms. L’s daughter was sent to a shelter more than 1,000 miles away, where she remained for four months. The second plaintiff in the suit, identified as Ms. C., did not present herself at a lawful port entry. Instead, she and her son crossed the border in Texas between ports, flagged down a Border Patrol agent, and then asked to apply for asylum. Ms. C. was arrested, prosecuted, and served 25 days in federal custody before being handed off to immigration authorities. Ms. C’s son was taken away following her arrest and moved to a shelter hundreds of miles away in Chicago. Ms. C completed her sentence in September of last year. She was moved into immigration custody, where she successfully began the asylum process. Still, the government kept Ms. C separated from her son. The pair were finally reunited last week. While the lawsuit does not challenge the lawfulness of these prosecutions, Lee Gelernt, a veteran ACLU attorney arguing the case, says the government’s targeting of asylum-seekers who appear between ports of entry is a serious problem. “They should not be first prosecuting and then seeing whether you’re a bona fide asylum-seeker,” Gelernt told The Intercept recently. In the event that an asylum-seeker is prosecuted, however, the ACLU argues that they should be reunited with their child after their time is served, provided there is no evidence that they are unfit. “What we’re saying in the lawsuit is if you’re going to prosecute asylum-seekers and you’re going to take the children away, give the child back. You’ve got to give the child back.” As Gelernt noted, the core question being considered in the ACLU’s case is somewhat narrow: the legality of the prolonged separation of parents from their children in immigration custody absent a determination that those parents are unfit. But the broader concerns raised in the case go to the heart of the zero tolerance campaign. In the case of Ms. C, the government arrested a mother seeking asylum because she did so between lawful ports of entry — in essence, she broke a law to exercise a right. According to the Washington Post, more than 20,000 migrants sought asylum by crossing the border illegally from October through December. In the past, cases like Ms. C’s were treated inconsistently. In some sectors, the Border Patrol would turn over asylum-seekers picked up between ports, particularly those with children, to immigration authorities, rather than referring them to the Department of Justice for prosecution. Under zero tolerance, these acts of prosecutorial discretion are out. Those picked up between ports of entry, including parents and asylum-seekers, will appear in one of several courts along the border that feature mass prosecutions often facilitated through Operation Streamline, the U.S. government program designed to funnel bodies, as Border Patrol agents call them, through the criminal justice system, then out of the country, as quickly as possible. In its 13-year history, Streamline has been criticized as a ghastly example of conveyor belt justice, a mockery of due process that no decent American would ever accept for themselves, their loved ones, or their neighbors. The Trump administration sees it differently.



Border Patrol agents patrol near the area where Attorney General Jeff Sessions addresses the media during a press conference at Border Field State Park on May 7, 2018, in San Ysidro, Calif. Photo: Sandy Huffaker/Getty Images