Immigration Attorney on the Nuts and Bolts of Migrant Child Separations

June 29, 2018

Helen Sklar is an immigration attorney with Stone, Grzegorek & Gonzalez LLP in downtown Los Angeles. An attorney for 33 years, and with a passion for tikkun olam, Sklar, 65, spoke with the Journal about the Donald Trump administration’s zero tolerance policy toward immigrant families, the president’s June 20 executive order, and why reuniting the children with their parents must be our top priority.

Jewish Journal: What drew you to immigration law?
Helen Sklar: I was drawn to it after hearing it described as the embodiment of foreign policy and its sequelae in the United States. Sequelae is when the U.S. chooses a particular foreign policy in a place like Central America that results in furthering conflict and strife. That’s precisely what happened in the ’80s. Large numbers of people came to the United States, and what we’re seeing today in the flight of people northward to safety is directly linked to that period and the policies chosen by the U.S. to avert what is described as communist takeovers in various Central American countries. 

Today, the sequelae is the children of migrant families being torn from their stability. I’ve been practicing law since the [Ronald] Reagan administration, so I have seen how immigration has been handled as a matter of policy since 1985, and I have never seen so much damage and chaos as is happening today with this administration.

JJ: When President Donald Trump signed the June 20 executive order saying he would no longer separate children from their parents, he did not abandon the zero tolerance policy and still plans to criminally prosecute those who cross the southern border. Attorneys argued it violates the Flores Settlement Agreement of 1997. What is that?
HS: It came out of a lawsuit filed by a nonprofit in Los Angeles. It was a class action that defined all minors who are detained in the legal custody of the immigration authorities. It was designed to protect noncitizen minors detained in the legal custody of what was then the Immigration and Naturalization Service (INS). It created protocols and rules for how long they could be detained and the conditions of their custody. 

JJ: Why has the Department of Justice gone to court to try to alter the Flores Settlement Agreement?
HS: In order to loosen the restrictions on the conditions that are required for the detention of minors. The exact wording of the settlement states that children must be kept in “the least restrictive setting appropriate to their age and special needs, generally in a nonsecure facility licensed to care for dependent as opposed to delinquent minors.” They must also release minors after 20 days.

If the Trump administration continues to pursue its zero tolerance policy of criminally prosecuting everyone who crosses the border and placing the families in jail-like circumstances, it violates the Flores settlement. 

Many of these people are coming to the border and asking for a credible fear interview, so this notion that it makes sense to prosecute them criminally is ludicrous. Other than a few exceptions here and there, this policy has never been pursued heretofore. This is completely a creature of this current administration — this policy to prosecute these people who are coming here to seek asylum. 

JJ: What is a credible fear interview?
HS: A person comes to the border, gets written up, photographed, fingerprinted, taken into custody and set up for a credible fear interview to explain why they are seeking asylum. Theoretically, they should be given an interview fairly quickly. These are done by trained asylum officers and they are done professionally. A transcript is made of their statement, and that’s important because it becomes part of the evidentiary record. If they are deemed to have a credible fear, many are released — paroled into the United states and advised to appear in court at a certain date and time. But now they’re being transferred to criminal custody and being prosecuted in federal district courts instead of being taken to immigration detention. 

JJ: It is not illegal to seek asylum, so how is the government able to criminally prosecute people?
HS: Because entry without inspection is a misdemeanor. That’s an irregular entry attempted at a location other than an official port of entry. This was something that was subjected to a discretionary calculation and authorities concluded it made more sense to enforce civil immigration laws than to prosecute people criminally. That’s how it’s been handled up until this administration.

 JJ: Why were they not prosecuted this way in previous administrations?
HS: There’s probably multiple reasons. Firstly, the system is not set up to engage in that sort of massive burden on the criminal justice system. More importantly, people come here because the conditions they are fleeing are unsustainable. The conditions in Honduras, El Salvador, Guatemala are horrific. 

JJ: There are those who argue this is not new and it happened under the Barack Obama administration.
HS: No. Under the Obama administration, they were sometimes detained in family detention but they were never separated. Now the children are being taken away and parents are being criminally charged, and they aren’t allowed to go forward with their asylum claim until their criminal case is heard. 

JJ: You said that entry without inspection is a violation of law, so doesn’t that mean the government has the right to pursue criminal prosecutions?
HS: There’s all kinds of things that are violations of law that don’t get prosecuted, based on a discretionary determination. To prosecute all the violators of a particular law is not in keeping with good policy. That’s what prosecutorial discretion is for. 

JJ:  Despite the executive order, there’s no clear policy in place to reunite the 2,300 children who have been separated from their parents over the last six weeks. What can people do to help?
HS: Call or write the Department of Justice and the attorney general’s office. Reuniting these children with their families should be the Trump administration’s highest priority at this point. There are so many different values at stake when it comes to the loss of a child. There are moral, religious, practical and ethical arguments to be made as well as the notion of the U.S. as a civilized society. It’s so important to [make these arguments] because if this leaves the headlines, those children will never be reunited with their families, and that’s not right.

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