Donald Trump is ignoring the immigration laws that protect children and families The Trump administration is selectively enforcing immigration laws at the border. It's ignoring those that protect children, families and asylum seekers.

Denise Gilman | Opinion contributor

Show Caption Hide Caption Government Plans to Reunite Parents, Older Kids A federal judge on Friday commended the Trump administration’s efforts to reunify families separated at the border but also said he planned to keep close watch as another big deadline nears. (July 13)

I teach and practice immigration law, and I am a mother. My teenage sons are my life, and they still need their mom to protect them. I am sick with worry when I think of the risks they face in adolescence.

With more reason, moms and dads fleeing the violence raging in Central America are also frantically worried about the danger their children face in their home countries. They want to provide love and safety to their babies, toddlers and teens in the United States. Instead, they face forcible family separations and imprisonment at the hands of the U.S. government.

The administration has sought to erase our commonality with asylum-seeking families, calling them invaders and frauds. Americans across the political spectrum have recoiled from this cruelty.

In response, to justify its inhumane separation and detention policies, the administration has claimed that it just follows the law. White House adviser Kellyanne Conway insisted that "nobody likes seeing babies ripped from their mothers' arms," but "we have to make sure that DHS's laws are understood." White House Chief of Staff John Kelly said that "the laws are the laws."

Don't ignore the laws you don't like

However, Trump's team is picking and choosing which laws to follow. The administration adopted a "zero tolerance" policy for prosecuting border-crossers under misdemeanor criminal laws, in order to separate children from their parents, even though such prosecutions are discretionary. The administration has also sought to use immigration detention authority to jail parents and children across the board and for prolonged periods, either separately or together.

Yet the administration is not enforcing other laws that that impose obligations to protect children, families and asylum seekers. Those laws include Immigration and Nationality Act provisions that require processing of all asylum requests, regardless of how the applicant arrived in the U.S. They also include decades-old immigration rules, which prohibit locking up children for any significant length of time. These provisions require immigration officials to release children as quickly as possible to an available care-giving parent, like those parents arriving with their children at the southern border.

There is also the constitutional law rule that immigration detention may not be used as a deterrent, but only as an administrative arrangement to ensure that individuals appear for their hearings and do not present a danger to the community. The law also includes the bedrock constitutional principle of family unity, which prevents the government from taking children or intervening in the parent/child relationship.

More: MS-13 beat me and threatened to kill me. Then the US government took my kids.

Family separation combines cruelty, incompetence

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Reading all of these legal provisions together, it becomes clear what enforcing the law actually means. The government may hold asylum-seeking families arriving in the U.S. in custody for a short period to allow for basic processing but then must release families together. Families must be allowed to live with relatives or in community-based shelters while they undergo proceedings on their asylum claims.

This is the only way to ensure that children are promptly released to and with their parents, that families remain together, and that the government obeys the constitutional limits on immigration detention. It is also the only way to guarantee full access to the asylum process, since asylum can only be pursued once in the United States — there is no means of applying from within the home country — and detention and separation impede the process and create unfair pressure to abandon asylum altogether.

Not only is release from immigration custody for families the right legal result, it is the best policy response. It prevents life-long harm to traumatized children and parents resulting from immigration detention, which pediatricians and mental health experts have decried. It minimizes the burden on taxpayers resulting from massive detention bills. It also avoids the logistical nightmare created by splitting up families, including duplicative immigration proceedings and toddlers representing themselves in already-overwhelmed immigration courts.

Families present no danger

And there exists no crisis at the border requiring a harsher response. Border crossings are at historic lows (1.6 million in 2000 compared to under 500,000 in each of the last five years), and the evidence does not show that release of families motivates increased migration. Families comply with U.S. law if released; they appear for their immigration court proceedings 96 percent of the time, according to a recent study by UCLA law professor Ingrid Eagly.

This is not surprising, because they have strong incentives to follow through on the potential for permanent safety through asylum. Families present no danger; they are often fleeing the very gangs that the government has condemned.

A rule-of-law response is needed at the border, but that response requires enforcement of all the laws. It does not require us to lose our humanity and ignore the very real plight of families seeking protection in this country.

Denise Gilman is a professor at the University of Texas-Austin School of Law and directs its Immigration Clinic.