Jurisprudence

Ted Cruz’s Proposal to Fix Child Separation Is a Cynical Ploy

The senator’s Protect Kids and Parents Act will make asylum-seekers’ lives worse.

Ted Cruz.
Ted Cruz in 2016.
Chip Somodevilla/Getty Images

On Monday, Republican Sen. Ted Cruz announced his plan to introduce a bill to “keep illegal immigrant families together” pending their asylum claims. Perhaps spooked by the response Beto O’Rourke—his Democratic opponent in November’s Senate race—received after organizing a march to protest a new tent city being erected for migrant children, Cruz now insists he’s concerned for the welfare of the thousands of children currently being held captive in the state he represents. Cruz’s proposal, however, will do little to improve those children’s welfare. Instead, it will keep families detained without limitation while undercutting their ability to retain attorneys or adequately prepare asylum claims.

Cruz says that the ironically named “Protect Kids and Parents Act” would “mandate that illegal immigrant families must be kept together” absent a threat of harm to the children. In order to keep those families together, Cruz would authorize the construction of multiple new family detention centers where children would be imprisoned alongside their families as they await asylum hearings.

The idea of “family detention” is not new. The Obama administration used multiple so-called family detention centers to house women and children in places like Dilley, Texas. These facilities, which are still in use today, house families behind barbed wire in rural areas far from legal assistance. Pro bono providers have stepped up to try to help families navigate the system, but the conditions are punishing. Women and children held in family detention often lack basic medical care, legal services, and schooling.

Legal and medical experts have long criticized family detention centers on the grounds that they are dangerous, inhumane, and limit the ability of families to prepare their cases for asylum in the United States. Immigrants who are able to prepare their immigration cases outside of detention have the opportunity to find counsel, gather documents, and steel themselves for the emotionally punishing hearing process. Those inside detention have access only to legal providers who serve that detention center, who are often few and far between, and detained families are frequently unable to gather pertinent evidence for their cases from behind bars. Health advocates have decried family detention centers as causing post-traumatic stress disorder, anxiety, depression, and behavioral problems. Cruz’s bill would allow for seemingly unlimited expansion of these types of facilities.

Additionally, because of the negative effects of detention on children, the federal government is currently bound by a 1997 agreement known as the Flores settlement. The Flores settlement requires the government to release undocumented children as soon as possible rather than keeping them in detention until their immigration hearings. Cruz’s proposed bill risks running afoul of this agreement, which Republicans have previously referred to as a “loophole” that encourages unauthorized immigration. The only way, it seems, that Cruz’s legislation wouldn’t violate Flores is if it includes a provision that eliminates the need to comply with the settlement altogether.

What’s most disturbing about Cruz’s proposal is that he’s using outrage about family separation to attempt to further dismantle our asylum system. His proposed bill would require that asylum cases be heard within 14 days.  While Cruz frames this expedited timetable as a way to limit the amount of time families spend detained in the new “temporary detention facilities” his bill would authorize, the imposition of such a time frame would be an incredibly sinister move. Even the most competent attorney needs weeks to prepare a robust asylum case. The court filings alone regularly number in the thousands of pages, and attorneys need time to gather evidence and documents from the client’s country of origin. And that is only once an attorney has been retained. Clients who are held in detention centers regularly fight their asylum cases pro se, with only the help of often-outdated legal materials that are available only in English.

The practical effect of Cruz’s bill would be a system where families are detained, held in deplorable conditions that cost taxpayers hundreds of millions of dollars per year to maintain, and deported after they are unable to develop robust asylum cases in a mere 14 days. Of course, his 14-day processing deadline doesn’t account for the nearly 300,000 pending asylum cases that have yet to be adjudicated. Cruz’s bill does propose doubling the number of immigration judges to 750 but fails to explain how these new positions would be filled. If the administration were able to find hundreds of new judges, they likely wouldn’t be impartial; the Department of Justice has been accused of discriminating on the basis of political or ideological affiliation in hiring new immigration judges.

There is one other curious omission in Cruz’s proposed bill. The Trump administration has explained family separation as a consequence of the criminal prosecution of parents who enter the country without authorization. Children cannot remain with their parents during the criminal process and any subsequent jail sentence. Cruz’s bill seems to not address this at all, leaving the question open: What will happen to these kids as their parents go through criminal hearings and potentially serve time behind bars under Attorney General Jeff Sessions’ “zero tolerance” policy?

Ted Cruz hasn’t suddenly grown a heart. His proposed bill is an attempt to convert nationwide disgust with family separation into dangerous, anti-immigrant legislation. If Cruz were really concerned with the welfare of children separated from their parents, he wouldn’t have a problem crossing the aisle to support Dianne Feinstein’s proposed bill, which would limit family separation without allowing for the detention and deportation of entire families without due process. Instead, he’s trying to undercut the already-scant legal protections currently in place for detained children and asylum-seekers. We should all be desperate to find a quick solution to the horror of child separation at the border, but Cruz’s bill is no solution at all. Rather, it’s a cynical ploy, one that uses vulnerable children as a bargaining chip.