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UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

June 15, 2018

The Honorable Jeff Sessions


Attorney General
U.S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530-0001

The Honorable Kirstjen M. Nielsen


Secretary of Homeland Security
U.S. Department of Homeland Security
Washington, DC 20528

Re: Separation of Detainee Families

Dear Attorney General Sessions and Secretary Nielsen:


I write as one member of the U.S. Commission on Civil Rights, and not on behalf of the Commission
as a whole. The majority of the U.S. Commission on Civil Rights has issued a statement condemning
the Department of Justice and Department of Homeland Security for separating parents and children
who cross the border illegally.1 The reason parents and children are separated is the law: When an
adult illegal alien is prosecuted for unlawful entry, that person is taken into the custody of the U.S.
Marshals and the children are taken into custody by HHS. Nonetheless, unless the adult applies for
asylum, the unlawful entry is resolved relatively quickly and the separation is brief. But if the adult
applies for asylum, the process –and separation--is lengthier. That is because the 1997 Flores Consent
Decree (and the Ninth Circuit’s interpretation thereof) stipulates that children may be held no more
than twenty days. The asylum process is much longer.

If the U.S. were detaining the children with their parents, the Commission majority would surely issue
a statement condemning the Departments for detaining children. Thus, the only way to avoid
separating children from illegal alien parents that would be acceptable to the Commission majority
would be to release both parents and children into the U.S., contrary to law. The bottom line is that the
Commission majority is opposed to enforcing almost any immigration laws pertaining to illegal entry.

People who have potentially valid claims for asylum can present themselves at ports of entry and
request asylum. They will be processed normally and will not be separated from their children because
they are following the law.2

1
U.S. Commission on Civil Rights, “The U.S. Commission on Civil Rights Issues Letter to the Departments of Justice and
Homeland Security Denouncing Separation of Immigrant Families,” June 15, 2018, http://www.usccr.gov/press/2018/06-
15-18-PR.pdf.
2
Tal Kopan, “New DHS policy could separate families caught crossing the border illegally,” CNN, May 7, 2018,
https://www.cnn.com/2018/05/07/politics/illegal-immigration-border-prosecutions-families-separated/index.html.
UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

It is unwise to release detained individuals into the United States, because they are then very likely to
abscond into the interior and fail to appear for their immigration hearing. “Over the past 20 years, 37
percent of all aliens free pending their trials – 918,098 out of 2,498,375 – never showed for court.”3
(Aliens who are detained are almost certain to appear at court, because they do not have the ability to
abscond). And individuals who have claimed asylum also are likely to fail to appear for their court
proceedings – “[o]n average, 46,000 people each year vanished from proceedings created specifically
for those claiming persecution in the lands they called home.”4 This suggests that quite a few of these
claims are weak, if not false, and that the individual’s goal was simply to make it into the United States
and then disappear.

Separating children from their parents is regrettable. It is not, however, unique. American parents are
separated from their children every day when they are arrested or incarcerated. According to HHS,
during Fiscal Year 2016, 20,939 American children entered foster care because their parent is
incarcerated.5 This is more than ten times the number of children who have been separated from their
parents due to entering the United States illegally.6 People who cross the border illegally have
committed a crime, and one of the consequences of being arrested and detained is, unfortunately, that
their children cannot stay with them.

Among the principal reasons people immigrate to this country is the primacy we give to the rule of law
and the benefits that flow therefrom. Despite what my colleagues seem to think, there is no super-
statute that decrees that aliens must be treated better than Americans. If Congress decides to change the
law, that is its prerogative. But until such time as Congress changes the law, the Department of Justice
should continue enforcing existing law and prosecute every case of illegal entry.

Sincerely,

Peter Kirsanow
Commissioner

3
Mark Metcalf: “Courting Disaster: Absent attendance and absent enforcement in America’s immigration courts,” Center
for Immigration Studies, March 19, 2017, https://cis.org/Report/Courting-Disaster.
4
Id.
5
U.S. Department of Health and Human Services, The AFCARS Report, Oct. 20, 2017,
https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport24.pdf.
6
Colleen Long, “DHS reports about 2,000 minors separated from families,” Associated Press, June 15, 2018,
https://apnews.com/3361a7d5fa714ea4b028f0a29db1cabc?utm_campaign=SocialFlow&utm_medium=AP&utm_source=T
witter&__twitter_impression=true.

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