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Would The Justice Department Have Prosecuted Anne Frank's Father?

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Imagine your child faces death or enslavement at the hands of predators and all legal avenues of escape and refuge have been blocked. Would you attempt to enter another country unlawfully and seek asylum? Found hiding in an attic, Anne Frank died in the Holocaust after her father exhausted all legal means of escape, including being unable to get a visa to America. If her father had entered the United States without papers and asked for asylum should he have been prosecuted for illegal entry? Should he have been prosecuted for “smuggling” his own child?

“The Anne Frank analogy to the current Department of Justice policy is appropriate,” Stephen Yale-Loehr, a Cornell Law School professor and an advisor to the National Foundation for American Policy, told me in an interview. “The 1948 Universal Declaration of Human Rights recognizes the right of persons to seek asylum. It defeats that purpose to prosecute them instead for illegal entry or smuggling.”

At the same time Donald Trump and other members of the administration have warned families not to seek refuge from gangs in Central America, they have described MS-13, which operates in El Salvador, Guatemala and Honduras, as worthy of fear. “They kidnap. They extort. They rape and they rob,” said Trump in a July 28, 2017 speech. “They stomp on their victims. They beat them with clubs, they slash them with machetes, and they stab them with knives.”

Human rights groups agree that Central Americans should be afraid. “El Salvador’s high rate of gender-based violence continued to make it one of the most dangerous countries to be a woman,” according to Amnesty International.

Young people face a particular threat. “We’re seeing more and more girls pulled into the gangs for the purpose of sexual slavery,” according to Silvia Juárez, a researcher at the Salvadoran Women’s Organization for Peace in San Salvador. “Now we’re seeing girls as young as 9 years old being harassed.”

The Washington Post explains: “Those who resist gang rape or prostitution are often killed. Thousands have fled.”

However, Attorney General Jeff Sessions said in a May 7, 2018 speech that instead of seeking safety for their children in a place of refuge, parents should apply for legal visas to the United States – visas that do not exist. “So if you’re going to come to this country, come here legally,” he said, and later reiterated the point: “Immigrants should ask to apply lawfully before they enter our country.”

This sounds reasonable – except Sessions must know that a mother or father with a teenage son or daughter threatened by a gang has no way to apply legally to enter the United States. Such individuals would never be approved for a tourist visa. Temporary work visas, such as H-2B and H-2A, do not allow family members. Only U.S. citizens or lawful permanent residents can sponsor family members for immigration.

The Trump administration ended a program started by the Obama administration to allow individuals to apply for refugee status from their home country, rather than perhaps entering the U.S. unlawfully. “Children are particularly vulnerable, which led to the creation of the Central American Minors (CAM) program a few years ago, an effort to identify and assess at-risk minors in their own country,” said Mary Giovagnoli, executive director of Refugee Council USA (RCUSA). “The cancellation of that program has left thousands of children stranded who had applied for help. Without lifelines like CAM, we make it even more difficult to deter migration to the United States because we are offering no alternatives.”

In his speech, Sessions said the Department of Homeland Security would refer “100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution.” He is sending 35 prosecutors and 18 immigration judges to take up the new caseload. Sessions declared, “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”

It is unclear whether parents are now facing charges for “smuggling” for traveling with their child across the border unlawfully but the threat is there. Attorneys have told me there already are many cases of parents being prosecuted for illegal entry even if they apply for asylum. Moreover, if parents come to a lawful port of entry and request asylum, many parents are being separated from their children and held in detention facilities.

In other words, if mothers or fathers approach a lawful port of entry and request asylum, even if they are not prosecuted for unlawful entry, they will still be separated from their child. Not only can this be traumatic for both parent and child, attorneys argue doing so as a deterrent may be unlawful. Dara Lind of Vox questions whether it is even an actual deterrent.

“The United States should not be separating small children from their parents, and to be clear, the administration is separating families even where they do not enter illegally,” Lee Gelernt of the American Civil Liberties Union (ACLU) said in an interview. He is the lead attorney in the ACLU’s family separation lawsuit in San Diego against the Department of Homeland Security.

Those following this issue concede the main reason for all the activity at the border – the National Guard, the policy pronouncements, the prosecutors – is Donald Trump became angry after seeing on TV a “caravan” in Mexico that included many women and children planning to come to the U.S. border. Sessions said so himself, just not in those exact words. After earlier referring to a “caravan” in his speech, Sessions talked about border security and said, “Donald Trump ran for office on that idea. I believe that is a big reason why he won. He is on fire about this. This entire government knows it.”

Some may argue that a parent with children fleeing from deadly gangs in Central America is not analogous to the situation of Anne Frank. Her family had no legal way to enter America, just like the girls fleeing today from Honduras and El Salvador. However, unlike them, Anne Frank did not attempt to enter the United States illegally. She died in the Bergen-Belsen concentration camp.