Soon, open border advocates will step up their agitprop against the new Trump Administration for alleged migrant family separation at the U.S. border.  A number of broader points about the family separation phenomenon are worth remembering.

1. The overwhelming majority of migrant family separation decisions are not made at the U.S. border by DHS.   They are made by parents or others — including cartel criminals — in home countries.
2. Daily, thousands of border violators abandon some or all of their children in their home countries to make the trek into the U.S. illegally to find work.  Thousands of others send their children to the U.S. alone or with cartel coyotes, and follow them later.
3. Daily, biological parents already illegally present in the U.S. refuse to come to the border to take custody of their children when the children are encountered at the border after illegal entry.  To avoid immigration consequences to themselves, such parents would rather see their children turned over to shelters instead of meeting them at the border after their dangerous trek across Mexico alone or with a cartel coyote.
4. Leading incentives for migrant family separation in the home country include the astonishing cornucopia of U.S. work permits available to border violators, and lawless programs established by U.S. executive fiat.  Examples of the latter are CBP One and Biden/Mayorkas/Garland blanket schemes to terminate removal proceedings for tens of thousands of border violators.  These and other incentives are powerful magnets that encourage border violations and migrant family separation in home countries.
5. Congress enacted now fraud-riddled programs for border violator juveniles that promote migrant family separation long before the children reach our border.  Cartels, foreign officials, and non-government organizations in source countries and along the way understand the programs and urge violators to leverage them upon arrival at our border.
6. For example, cartels, non-government organizations, and foreign officials encourage parents to separate themselves from their children at the border and send their children into the U.S. alone to surrender to DHS and leverage U.S. legal advantages afforded to unaccompanied migrant children.
7. Another contributor to migrant family separation in the home country is the border-killing “non-return” principle (also called non-refoulement) contained in the 1951 UN Refugee Convention (or treaty).  The principle was imposed on our nation by our own government.  The Senate accepted the principle in 1968 when it approved a 1967 amendment (now known as the 1967 Protocol) to the 1951 UN treaty.  A decade later, President Jimmy Carter unwisely enshrined the non-return principle in a bill he signed on March 17, 1980, to incorporate the 1967 Protocol and the principle into our law.  Thus, Carter opened the way for job-seeking migrants who boldly assert sham asylum claims at our border with no concern about immediate return to foreign territory.
8. The non-return principle encourages migrant family separation by rewarding asylum cheaters with U.S. work permits and a place in eVerify, as they await removals that take years to accomplish, if ever.  To stop incentivizing migrant family separation, our new president should denounce the 1967 Protocol and repudiate the non-return principle.  Sham asylum claimants should be turned away at the border.
9. Another enabler of family separation in home countries and here is U.S. failure to observe its obligations under another treaty — the Hague Convention on the Civil Aspects of International Child Abduction.  Some U.S. immigration judges forbid ICE lawyers from even attempting to determine whether a child in removal proceedings was unlawfully removed from the home country.  Such inquiries should be mandatory and recorded in each transcript of proceedings.  Today, our nation’s broken asylum and immigration systems have made U.S. immigration courts and state family courts silent partners in international child abduction and fraud.
10. Finally, another family separation enabler is the lack of DNA testing.  There is no general verification of biological links between purported family members in immigration or visa proceedings.  This is because DNA testing is not yet part of U.S. biometrics protocols at Applicant Service Centers in the U.S. or at American visa posts abroad.  This Biden/Mayorkas gap should be remedied.

The author, a Texas lawyer, was a Foreign Service officer at the U.S. Consulate General in Ciudad Juarez, Mexico during the 1980s.  He later served as Senate Foreign Relations Committee counsel for Senator Jesse Helms (R-NC) and as Deputy Assistant Secretary of Defense for Counternarcotics.  He is a Navy veteran of submarines and Iraq.

Image: Public domain.