Enforcing Immigration Shouldn't Mean Sacrificing Morality

Tough on immigration doesn’t mean being tough on innocent children. The border policy must be based on efficiency and effectiveness.

Is it ethical or moral to use the laws to punish innocents in order to achieve some other legitimate objective?

That’s the question foremost on many Americans’ minds after their government began locking up children in cages as part of its strategy to tackle the problem of illegal immigration.

Thus far, more than 2300 children have been separated from their families. The media is agog with images and sounds of sobbing children at the US border. Across both sides of the political spectrum, there has been widespread condemnation of the government’s action. Many have labelled the outcomes as “un-American.”

Bucking the outrage, President Trump doubled down on his administration’s strategy of “zero tolerance”: “The United States will not be a migrant camp, and it will not be a refugee holding facility.” He contrasted the US approach with the more welcoming approach in the EU, especially Germany: “You look at what's happening in Europe, you look at what's happening in other places, we can't allow that to happen to the United States. Not on my watch.”

Trump escalated the rhetoric today, tweeting:

"Democrats are the problem. They don't care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13. They can't win on their terrible policies, so they view them as potential voters!"

Trump’s approach has been criticised internationally as well. For instance, the UN’s human rights chief condemned the US for “inflicting such abuse on children” calling it “unconscionable.” On a related note, the US withdrew today, from the UN’s Human Rights Council accusing it of being “hypocritical and self-serving” and making “a mockery of human rights.”

Why are the children being separated?

On May 7, the Justice Department commenced a policy of prosecuting illegal border-crossers. The Attorney General, Jeff Sessions, announced “if you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”

The US has a longstanding problem with illegal migrants: there are more 11 million illegal immigrants in the US. At least 4.5 million children were born of these immigrants and have become US citizens. Several presidents including Obama and Bush have tried to find a solution; the last major initiative was President Reagan’s 1986 amnesty giving legal status to about 3 million illegals. Reagan’s amnesty was predicated upon stronger enforcement and sanctions for those who violate immigration laws. However, due to implementation gaps and economic incentives, the illegal population has grown multi-fold in the last 30 years.

Trump campaigned to fix those gaps and won largely on an anti-immigration platform. The president has already instituted travel bans, aggressive ICE raids, and more prosecutions. The zero-tolerance policy is the latest step.

Previously, asylum seekers who crossed illegally were rarely prosecuted. Now, all crossers are being referred and prosecuted.

When families cross illegally, adults are detained and prosecuted whereas children are sent to Health and Human Services. They would have been together under the previous administration to be processed by an immigration judge. In contrast, prosecuting adults in federal court allows children to be separated because they cannot be detained in prison with their parents. Even though the jail time may be a few months, these ‘unaccompanied minors’ may not be reunited with their parents.

Unsurprisingly, the humanitarian consequences of the new policy have provoked outrage even amongst Trump’s supporters – especially religious groups.

A Christian cause?

The administration claims it has no choice but to enforce the law. It blames Congress for not reforming the law and some officials advanced religious bases.

Central American immigrant families take refuge at a Catholic Charities "respite center" after being released from ICE custody on June 11, 2018 in McAllen, Texas. (Image: John Moore/Getty Images)

Attorney General Sessions quoted the bible to justify the government’s policy:

“Illegal entry into the United States is a crime – as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order.”

White House spokesperson, Sarah Sanders, claimed it is “very biblical to enforce the law … actually, repeated a number of times throughout the Bible.”

U.S. Attorney General Jeff Sessions delivers remarks on immigration and law enforcement actions on  June 15, 2018. (Image: Jessica Kourkounis/Getty Images)

The religious basis for harsh immigration policies is weak. And it might backfire because there are other biblical passages counselling more humane outcomes.

For instance, Leviticus 19:33-34 states, "When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt.”

Similarly, Matthew 25:25-36: “For I was hungry and you gave me something to eat … I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me…”; and Hebrews 13:1-2: “…show hospitality to strangers, for by doing that some have entertained angels…”

Finally, there is Mark 12:30-31 “’Love your neighbour as yourself.’ No other commandment is greater than these.”

Using children as instruments is unethical

One doesn’t need to be a Kantian and believe in the categorial imperative to see that it is unethical to use children as tools to deter illegal immigration. Aside from the Kantian philosophical view that a person shouldn’t be used as a means to an end, has intrinsic worth, and is entitled to respect, there are more prosaic reasons to avoid this inhumane policy. There is simply no evidence that it will work.

A Honduran mother holds her two-year-old as U.S. Border Patrol agents review their papers near the U.S.-Mexico border on June 12, 2018 in McAllen, Texas. (Image: John Moore/Getty Images)

Moreover, there are simple alternatives that do not compromise border security. Illegal immigrants could be monitored with GPS tracking devices instead of putting them in jail. These devices cost about a fifth of jail and are equally as effective. They are also more humane and eliminate secondary risks associated with prison: recruitment into criminal gangs, socialisation into further offending, stigma, reduced life expectancy, and adverse long-term health consequences. They also eliminate horrific  consequences on innocent children from separation including, trauma, abuse, exploitation, and deprivation. The US already jails more people than any other country in history; criminalising non-violent immigrants just adds more.

Further, asylum seekers could be processed upstream before they reach the US border – working with neighbouring countries will mitigate the need for children to be caged.

These options are superior to this un-American policy. As former First Lady, Laura Bush tweeted:

"I live in a border state. I appreciate the need to enforce and protect our international boundaries, but this zero-tolerance policy is cruel. It is immoral. And it breaks my heart."

President Trump would be wise to heed this counsel. Tough on immigration doesn’t mean being tough on innocent children. The border policy must be based on efficiency and effectiveness.

Dr Sandeep Gopalan is the pro vice-chancellor for academic innovation and law professor at Deakin University. He was previously a member of the American Bar Association Commission on Immigration