Jeff Sessions tried and failed to justify splitting up migrant families

Raul A. Reyes is an attorney and member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author.

(CNN)It's hard to defend the indefensible. On Tuesday, Attorney General Jeff Sessions spoke with conservative radio host Hugh Hewitt, explaining why the Trump administration is separating migrant families at the border. "If people don't want to be separated from their children, they should not bring them with them," Sessions said. "We've got to get this message out. You're not given immunity."

The problem for Sessions is that the message is out about this policy, and Americans are not buying it. Attempting to justify splitting up families, Sessions offered several policy explanations about why it was necessary. But his rationale for family separations doesn't hold up. The practice is as inhumane as it sounds.
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Under the Trump administration's "zero tolerance" policy, people who cross the southern border illegally will now be criminally prosecuted. Past administrations sometimes prosecuted unauthorized border crossers, but it has never been uniform policy. Because children cannot be held in immigration detention for long periods, the Trump administration has taken to jailing migrant parents and then sending their children into the care of the Department of Health and Human Services. While President Barack Obama also struggled to deal with child migrants at the border, separating children from their parents was not a policy that his administration followed.
Explaining the policy to a skeptical Hewitt, Sessions likened it to how US courts treat children. "Every time somebody, Hugh, gets prosecuted in America for a crime, American citizens, and they go to jail, they're separated from their children," Sessions said. This comparison is a stretch. Children in the United States whose parents get in trouble with the law are typically assigned social workers, case workers and lawyers to monitor their progress through foster care and/or social service agencies.
    Lawbreaking US citizens are allowed regular communication with their children.
    In contrast, unauthorized migrant parents and children are not always given such privileges or protections. Unlike citizens, immigrants in immigration court do not have the right to a court-appointed lawyer. Moreover, it is difficult for migrant parents and children to obtain legal representation because detention facilities are often in remote locations. And immigrant detention facilities are notoriously lacking in transparency. Sen. Jeff Merkley, an Oregon Democrat, was recently denied access to a Texas detention center to check on how migrant children were being treated.
    In their discussion, Sessions told Hewitt, "If you come to the country, you should come through, first, through the port of entry and make a claim of asylum if you have a legitimate asylum claim." The attorney general added that people shouldn't try to get across the border at another location and not expect to be deported. But people who are coming to US ports of entry and attempting to request asylum are being turned away. Texas Monthly reports that some Border Patrol agents are telling asylum seekers that they cannot cross the border because US holding cells are at capacity. How does Sessions expect people with a claim for asylum to exercise that legal right?
    More troubling is Sessions' assertion that migrant children who are separated from their parents are "for the most part ... well taken care of." He says so despite admitting he has not visited any of the facilities where migrant children are housed.
    Meanwhile, according to The Washington Post, children are being kept in wire-link fence enclosures, like livestock. According to NBC News, hundreds of migrant children taken from their parents are stuck at overcrowded border stations. No wonder everyone from the American Academy of Pediatrics to the UN human rights office opposes this practice.
    Sessions and other administration officials have pointed to a deterrence strategy as justifying family separations. Yet there is scant evidence that such a strategy works. The Trump administration says that its new policy reduced border crossings 64% in an El Paso, Texas, sector pilot program; in fact, the crossings actually increased there by 64%, according to an investigation of US Customs and Border Protection data by Vox.
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    As the head of the Department of Justice, Sessions is the top lawyer of the US government. So it's striking that, in his talk with Hewitt, he did not cite a legal basis for splitting up families. That's because there isn't one. President Donald Trump has tried to blame this policy on a "horrible law" passed by Democrats -- but the website Politifact judged these claims to be false.
    To his credit, Hewitt pressed Sessions on the family separations, asking the attorney general if he could imagine his grandchildren being taken from their parents. Sessions responded that the United States "can't be a total guarantor that every parent who comes to this country unlawfully with a child is guaranteed ... that they will be able to have their hand on that child the entire time. That's just not the way it works." That Sessions was unwilling to acknowledge the basic human rights of children speaks volumes. Consider that those who suffer the most from family separations are the youngest, most innocent people involved -- children who likely had no say in coming to the United States.
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    Sadly, this is life for vulnerable immigrants under Trump, whether they are Deferred Action for Childhood Arrivals grantees living under a cloud of anxiety about their future, the families of undocumented workers arrested in mass immigration raids, or potential asylum seekers.
    Trump and his attorney general own the cruelty of family separations. It cannot be justified on policy or legal grounds -- and each day it continues is a stain on our nation's legacy.