KINDER, GENTLER FAMILY SEPARATION?

• Author: Binion, Billy
• Position: IMMIGRATION

IMMEDIATELY AFTER PRESIDENT Joe Biden took office, he instructed acting Attorney General Monty Wilkinson to rescind former President Donald Trump's "zero tolerance" immigration policy, which separated thousands of migrant parents from their children at the U.S.-Mexico border. Buried in the news coverage of Biden's gesture was the fact that the updated guidance did not stop family separations. It just told prosecutors to use their discretion.

Wilkinson said federal prosecutors should not rule out charging border crossers with misdemeanors, which requires family separation when parents are taken into custody. But prosecutors should "take into account other individualized factors," he wrote, "including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction."

That certainly represents an improvement on Trump's approach, which required that federal prosecutors charge every single adult immigrant who crossed the border illegally. But while that policy was without nuance or mercy, it had already lost some of its teeth by summer 2018, thanks to a court injunction.

With Biden in charge, federal policy at the border remains a mess. "It's still difficult to ask for asylum at ports of entry," says Alex Nowrasteh, director of immigration studies at the Cato Institute's Center for Global Liberty and Prosperity. "You have to basically try to sneak into the country illegally and ask a Border Patrol agent. But by doing that, you commit a federal crime." What's more, Biden announced in April that he would maintain...