Catch and release (immigration)

In United States immigration enforcement, "catch and release" refers to a practice of releasing a migrant to the community while he or she awaits hearings in immigration court, as an alternative to holding them in immigration detention.^[1][2] The migrants whom U.S. immigration enforcement agencies have allowed to remain in the community pending immigrant hearings have been those deemed low risk,^[3] such as children, families, and those seeking asylum.^[4]

There is no "hard-and-fast definition" of the phrase,^[2] which can be used as a pejorative.^[5][6] Rather, the phrase refers to a "collection of policies, court precedents, executive actions and federal statutes spanning more than 20 years, cobbled together throughout Democratic and Republican administrations."^[2] The Trump administration has used the phrase as a catch-all term for laws or policies preventing the holding of apprehended migrants in immigration detention.^[4]

Etymology and criticism

The phrase catch and release originated in recreational fishing over a century ago. It originally referred to releasing fish after capture.^[7] The phrase "entered the political lexicon during the George W. Bush administration."^[2]

A number of scholars and writers, such as geographer Reece Jones, media studies scholar Hector Amaya, and commentator Michelle Goldberg, regard the phrase as dehumanizing because it likens human beings to fish.^[8][9][10]

History

Under George W. Bush

In testimony to the Senate Judiciary Committee in October 2005, Secretary of Homeland Security Michael Chertoff said that the DHS would "Return every single illegal entrant – no exceptions."^[11] In his testimony, Chertoff said that in the previous fiscal year, the U.S. Border Patrol immediately returned almost 900,000 Mexicans apprehended entering the U.S. to Mexico, but that of the 160,000 non-Mexican nationals apprehended, about 30,000 were removed from the U.S. Chertoff said that most others were released pending immigration hearings and that few appeared for the hearings. He called for more beds in immigration detention.^[11] In July 2006, Chertoff indicated in House committee testimony that an infusion of funding for more immigration detention had allowed DHS to detain almost all non-Mexican illegal immigrants.^[12]

In August 2006, Chertoff said that the "'catch-and-release' practice that for years helped many illegal immigrants stay in the United States unhindered" had ended and that DHS detained 99% of apprehended non-Mexican border-crossers. (Mexican border-crossers could be subject to expedited removal.) Chertoff said that more immigration detention had helped deter illegal immigration; advocates for immigrant rights "questioned whether the border crackdown actually deters people from sneaking into the U.S., noting that some illegal immigrants may just be shifting entry points to cross at more remote and dangerous areas."^[13][14]

Under Barack Obama

In 2014, Chuck Grassley and other Republican senators introduced legislation to close what they called a "catch-and-release loophole"; the legislation would reverse the Zadvydas v. Davis decision, allowing DHS to detain "non-removable immigrants" (those whose home countries will not accept their return) for more than six months under certain circumstances.^[15]

Under Donald Trump

Donald Trump, as a presidential candidate in 2016, said that "Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came."^[16] As president, Trump has blamed "liberal Democrats" for what he called "laws like Catch & Release"; in fact, the phrase refers to a "collection of policies, court precedents, executive actions and federal statutes spanning more than 20 years, cobbled together throughout Democratic and Republican administrations."^[2]

In February 2017, Secretary of Homeland Security John Kelly, pursuant to executive orders by Trump, ordered an end to so-called "catch-and-release" policies.^[17] However, by June 2017, thousands of people apprehended by U.S. authorities were still released from detention while they await immigration hearings, in part due to limited spaces available in immigration detention and legal limits on who may be detained and for how long.^[18] For example, a court ruling prohibits detaining women and children for more than 21 days.^[18]

Trump administration officials have argued that the Victims of Trafficking and Violence Protection Act of 2000, legislation to aid victims of human trafficking, "includes a catch-and-release loophole" because "unaccompanied children 'are exempt from prompt return to their home country' unless they come from Canada or Mexico, according to the Department of Homeland Security."^[2]

In April 2018, Trump signed an executive memorandum directs federal officials to report to him on measures to "expeditiously end 'catch and release' practices"; the memorandum directed officials to produce reports on facilities (such as military bases) that could be used for immigration detention.^[19] The memorandum did not establish any concrete policy changes.^[19] The memo did not provide a way to fund additional detentions; appropriations would have to be made by Congress and mandatory detention at the border would be costly (the Center for American Progress think tank estimated a cost of $9 billion over a decade).^[3] Democratic U.S. Representative Henry Cuellar said that the directive was "more show, more salesmanship, than anything else" since congressional approval would be needed to pay for expanding detention capabilities.^[3]

On April 6, 2018, Attorney General Jeff Sessions directed federal prosecutors "to adopt immediately a zero tolerance policy for all offenses" related to the misdemeanor of improper entry into the United States, and that this "zero-tolerance policy shall supersede any existing policies". This would aim to criminally convict first-time offenders that would previously have faced civil and administrative proceedings, with criminal convictions previously usually reserved for those who committed the felony of illegal re-entry after removal.^[20][21]

Under a 1997 settlement agreement and consent decree, the children of detained parents charged with immigration violations could not be held in immigration detention for more than 20 days, and a 2016 ruling by the Ninth Circuit Court of Appeals in the case Flores v. Lynch upheld this requirement while saying that this did not that imply that the adults accompanying such children must be released. The Obama administration had complied with the ruling by detaining and releasing the parents together with the children, while the "zero tolerance" directive led in practice to separation of these children from their parents.^[22][23] No system was established for reuniting families or keeping track of family associations.^[24]

On June 20, 2018, Trump bowed to intense political pressure and signed an executive order to reverse the policy^[25] while still maintaining "zero tolerance" border control by detaining entire families together.^[26][27] When it became clear that this could not be sustained within the scope of court rulings, Customs and Border Protection Commissioner Kevin McAleenan announced on June 25, 2018, that the agency would cease referring every person accused of crossing the border illegally for prosecution, effectively ending the "zero tolerance" policy.^[28] McAleenan said that the policy presented enormous operational and logistical challenges for Border Patrol agents, including overcrowding of children in Border Patrol holding cells while their parents were processed in court and held in immigration detention; federal agents complained of spending "more time processing immigrants than guarding the border".^[28]

On April 16, 2019, Attorney General Barr announced a new policy to deny bail to asylum seekers in an effort to end the catch and release policy.^[29] On July 2, 2019, the Western District Court of Washington issued a class-wide ruling to require bond hearings for noncitizens who have showed a credible fear of persecution in their home country and are currently held separate from their families.^[30] On March 27, 2020, the Ninth Circuit Court of Appeals upheld the ruling, saying that even though Congress has barred lower courts from issuing injunctions restraining the operation of immigration removal proceedings "other than with respect ... to an individual alien", individual alien just means it cannot be an organization, and the class is filled with individual aliens. A dissenting opinion said that such a reading renders "individual" superfluous.^[31][32]

See also

• Own recognizance
• Trump administration family separation policy
• Operation Streamline
• Family detention
• Jennings v. Rodriguez

References

1. Salvador Rizzo, Fact-checking immigration spin on separating families and 1,500 'lost' children, Washington Post (May 30, 2018).
2. Salvador Rizzo, President Trump's claim that Democrats created 'catch and release’ policies, Washington Post (April 4, 2018).
3. Trump vowed to end 'catch and release,' but on the border, it's business as usual, Los Angeles Times (February 6, 2017).
4. Dara Lind, "Catch and release," explained: the heart of Trump's new border agenda, Vox (April 9, 2018).
5. Jonathan Blitzer, The Border Patrol Was Primed for President Trump, New York Times (February 17, 2017).
6. S. C. Gwynne, Walled Off, Texas Monthly (May 2006).
7. Geurink, Denny (April 1991). "Catch-and-release Trout: Every year, more anglers are abandoning creel weight as a measure of the day's success". Field & Stream. Retrieved June 20, 2018.
8. Reece Jones, Border Walls: Security and the War on Terror in the United States, India, and Israel (Zed Books, 2012), p. 42.
9. Hector Amaya, Citizenship Excess: Latino/as, Media, and the Nation (New York University Press, 2013), p. 102.
10. Michelle Goldberg, The Trump Apologists and the Crying Children, New York Times (June 18, 2018).
11. "Chertoff: End 'Catch and Release' at Borders". Associated Press via Fox News. October 18, 2005. Retrieved July 18, 2015.
12. "Chertoff hails end of let-go policy". Washington Times. July 28, 2006. Retrieved July 18, 2015.
13. Jordan, Lara Jakes (August 23, 2006). "U.S. Ends 'Catch-And-Release' at Border". The Washington Post. Retrieved June 17, 2015.
14. "Testimony of The Honorable Michael Chertoff" (PDF). February 28, 2007. Retrieved July 18, 2015. As of August 2006, all removable aliens caught at the border are detained until returned to their home countries.
15. "Senators Introduce Bill to Close Catch-and-Release Loophole" (Press release). Senator Chuck Grassley's Senate website. June 11, 2014. Retrieved July 18, 2015.
16. Bump, Philip (August 31, 2016). "Here's what Donald Trump said in his big immigration speech, annotated". Washington Post.
17. Berger, Judson (February 21, 2017). "DHS secretary orders immigration agent hiring surge, end to 'catch-and-release'". Fox News. Retrieved April 1, 2018.
18. Julia Edwards Ainsley (June 6, 2017). "Despite Trump vow to end catch and release, he is still freeing thousands of migrants". Reuters. Retrieved April 2, 2018.
19. Julie Hirschfeld Davis, Trump Signs Memo Ordering End to 'Catch and Release' Immigration Policy, New York Times (April 6, 2018)
20. Farivar, Masood. "Sessions Announces 'Zero-Tolerance' Policy on Illegal Border Crossings". Voice of America. Retrieved June 19, 2018.
21. "Did President Trump Order Detained Immigrants to Wear Yellow Bracelets?". Snopes. 28 May 2018. Retrieved June 19, 2018.
22. Ainsley, Julia (March 3, 2017). "Exclusive: Trump administration considering separating women, children at Mexico border". Reuters. Retrieved June 26, 2018.
23. Mallonee, Mary (March 3, 2017). "DHS considering proposal to separate children from adults at border". CNN. Retrieved June 26, 2018. Fresco also said the impetus for the change is the Flores v. Lynch court case, which held that the government is required to release minors from detention expeditiously even if they are accompanied by their parents, not just if they're unaccompanied
24. Lisa Riordan Seville & Hannah Rappleye (June 29, 2018). "Trump admin ran 'pilot program' for separating migrant families in 2017". NBC News.
25. Shear, Michael D.; Goodnough, Abby; Haberman, Maggie (20 June 2018). "Trump Retreats on Separating Families, Signing Order to Detain Them Together". The New York Times. Retrieved 20 June 2018.
26. "Trump Ends Family Separations by Detaining Whole Families Indefinitely". Truthout. Retrieved 2018-06-20.
27. Wagner M, Rocha V, Ries B, Wills A (22 June 2018). "What's Happening at the US Border?". CNN. Retrieved 26 June 2018.
28. Burnett, John (26 June 2018). "Overwhelmed Customs And Border Protection Halts 'Zero Tolerance' For Migrants". NPR. Retrieved 26 June 2018.
29. Shear, Michael D.; Benner, Katie (2019-04-16). "In New Effort to Deter Migrants, Barr Withholds Bail to Asylum Seekers". The New York Times. ISSN 0362-4331. Retrieved 2020-05-14.
30. "Federal Court Blocks Trump Administration Policy of Arbitrarily Jailing Asylum Seekers". American Civil Liberties Union. Retrieved 2020-05-14.
31. "Federal Appeals Court Upholds Block on Trump Policy That Arbitrarily Jails Asylum Seekers". American Civil Liberties Union. Retrieved 2020-05-14.
32. . Institute for Justice. Archived from the original on 2020-08-01. Retrieved 2020-05-14.