The facts about Trump’s policy of separating families at the border

[El]

“I hate the children being taken away. The Democrats have to change their law. That’s their law.”
— President Trump, in remarks to reporters at the White House, June 15

“We have the worst immigration laws in the entire world. Nobody has such sad, such bad and, actually, in many cases, such horrible and tough — you see about child separation, you see what’s going on there.”
— Trump, in remarks at the White House, June 18

“Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time.”
— Attorney General Jeff Sessions, in a speech in Bozeman, Mont., June 7

“It’s the law, and that’s what the law states.”
— White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14

“We do not have a policy of separating families at the border. Period.”
— Homeland Security Secretary Kirstjen Nielsen, on Twitter, June 17

The president and top administration officials say U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border.

These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This “zero-tolerance policy” applies to all adults, regardless of whether they cross alone or with their children.

The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.

The Trump administration implemented this policy by choice and could end it by choice. No law or court ruling mandates family separations. In fact, during its first 15 months, the Trump administration released nearly 100,000 immigrants who were apprehended at the U.S.-Mexico border, a total that includes more than 37,500 unaccompanied minors and more than 61,000 family members.

Children continue to be released to their relatives or to shelters. But since the zero-tolerance policy took effect, parents as a rule are being prosecuted. Any conviction in those proceedings would be grounds for deportation.

We’ve published two fact-checks about family separations, but it turns out these Trumpian claims have a zombie quality and keep popping up in new ways.

In the latest iteration, Homeland Security Secretary Kirstjen Nielsen tweeted and then said at a White House briefing that the administration does not have “a policy of separating families at the border.” This is Orwellian stuff. Granted, the administration has not written regulations or policy documents that advertise, “Hey, we’re going to separate families.” But that’s the inevitable consequence, as Nielsen and other Trump administration officials acknowledge.

“Operationally what that means is we will have to separate your family,” Nielsen told NPR in May. “That’s no different than what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.”

Although we’ve fact-checked these family-separation claims twice, we hadn’t had the opportunity to assign a Pinocchio rating yet. We’ll do so now.

The Facts
Since 2014, hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in El Salvador, Guatemala and Honduras. U.S. laws provide asylum or refugee status to qualified applicants, but the Trump administration says smugglers and bad actors are exploiting these same laws to gain entry. Nielsen says the government has detected hundreds of cases of fraud among migrants traveling with children who are not their own. Trump says he wants to close what he describes as “loopholes” in these humanitarian-relief laws.

The Central American refugee crisis developed during President Barack Obama’s administration and continues under Trump. The two administrations have taken different approaches. The Justice Department under Obama prioritized the deportation of dangerous people. Once he took office, Trump issued an executive order rolling back much of the Obama-era framework.

Obama’s guidelines prioritized the deportation of gang members, those who posed a national security risk and those who had committed felonies. Trump’s January 2017 executive order does not include a priority list for deportations and refers only to “criminal offenses,” which is broad enough to encompass serious felonies as well as misdemeanors.

Then, in April 2018, Attorney General Jeff Sessions rolled out the zero-tolerance policy.

When families or individuals are apprehended by the Border Patrol, they’re taken into DHS custody. Under the zero-tolerance policy, DHS officials refer any adult “believed to have committed any crime, including illegal entry,” to the Justice Department for prosecution. If they’re convicted, they’re usually sentenced to time served. The next step would be deportation proceedings.

Illegal entry is a misdemeanor for first-time offenders and a conviction is grounds for deportation. Because of Trump’s executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats. (A DHS fact sheet says, “Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.”)

Families essentially are put on two different tracks. One track ends with deportation. The other doesn’t.

After a holding period, DHS transfers children to the custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. They spend an average 51 days at an ORR shelter before they’re placed with a sponsor in the United States, according to HHS. The government is required to place these children with family members whenever possible, even if those family members might be undocumented immigrants. “Approximately 85 percent of sponsors are parents” who were already in the country “or close family members,” according to HHS. Some children have no relatives available, and in those cases the government may keep them in shelters for longer periods of time while suitable sponsors are identified and vetted.

Adding it all up, this means the Trump administration is operating a system in which immigrant families that are apprehended at the border get split up, because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

 

The White House
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@WhiteHouse
 ENOUGH of the misinformation. This Administration did not create a policy of separating families at the border.

6:17 PM - Jun 18, 2018
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This is a question of Trump and his Cabinet choosing to enforce some laws over others. The legal landscape did not change between the time the Trump administration released nearly 100,000 immigrants during its first 15 months and the time the zero-tolerance policy took effect in April 2018.

What changed was the administration’s handling of these cases. Undocumented immigrant families seeking asylum previously were released and went into the civil court system, but now the parents are being detained and sent to criminal courts while their kids are resettled in the United States as though they were unaccompanied minors.

The government has limited resources and cannot prosecute every crime, so setting up a system that prioritizes the prosecution of some offenses over others is a policy choice. The Supreme Court has said, “In our criminal justice system, the government retains ‘broad discretion’ as to whom to prosecute.” To charge or not to charge someone “generally rests entirely” on the prosecutor, the court has said.

Katie Waldman, a spokeswoman for Nielsen, said the administration does not have a family-separation policy. But Waldman agreed that Trump officials are exercising their prosecutorial discretion to charge more illegal-entry offenses, which in turn causes more family separations. The Obama administration also separated immigrant families, she said.

“We’re increasing the rate of what we were already doing,” Waldman said. “Instead of letting some slip through, we’re saying we’re doing it for all.”

Waldman sent figures from fiscal 2010 through 2016 showing that, out of 2,362,966 adults apprehended at the southern border, 492,970, or 21 percent, were referred for prosecution. These figures include all adults, not just those who crossed with minor children, so they’re not a measure of how many families were separated under Obama.

“During the Obama administration there was no policy in place that resulted in the systematic separation of families at the border, like we are now seeing under the Trump administration,” said Sarah Pierce, a policy analyst at the Migration Policy Institute. “Our understanding is that generally parents were not prosecuted for illegal entry under President Obama. There may have been some separation if there was suspicion that the children were being trafficked or a claimed parent-child relationship did not actually exist. But nothing like the levels we are seeing today.”

Trump administration officials say they’re trying to keep parents informed about their kids.

But some families instead have wound up in wrenching scenarios.

“Some of the most intense outrage at the measures has followed instances of parents deported to Central America without their children or spending weeks unable to locate their sons and daughters,” The Washington Post’s Nick Miroff reported. “In other instances, pediatricians and child advocates have reported seeing toddlers crying inconsolably for their mothers at shelters where staff are prohibited from physically comforting them.”

Administration officials have pointed to a set of laws and court rulings that they said forced their hand:

A 1997 federal consent decree that requires the government to release all children apprehended crossing the border. The “Flores” consent decree began as a class-action lawsuit. The Justice Department negotiated a settlement during President Bill Clinton’s administration. According to a 2016 decision by the U.S. Court of Appeals for the 9th Circuit, the Flores settlement requires the federal government to release rather than detain all undocumented immigrant children, whether they crossed with parents or alone. The agreement doesn’t cover any parents who might be accompanying those minors, but it doesn’t mandate that parents be prosecuted or that families be separated. Moreover, Congress could pass a law that overrides the terms of the Flores settlement. Waldman said the Flores settlement requires the government to keep immigrant families together for only 20 days, but no part of the consent decree requires that families be separated after 20 days. Courts have ruled that children must be released from detention facilities within 20 days under the Flores consent decree, but none of these legal developments prevents the government from releasing parents along with children.
A 2008 law meant to curb human trafficking called the Trafficking Victims Protection Reauthorization Act (TVPRA). This law covers children of all nationalities except Canadians and Mexicans. Central American children who are apprehended trying to enter the United States must be released rather than detained under the terms of the TVPRA, and they’re exempt from prompt return to their home countries. The law passed with wide bipartisan support and was signed by a Republican president, George W. Bush. No part of the TVPRA requires family separations.
The Immigration and Nationality Act of 1952. This comprehensive law governs U.S. immigration and citizenship and makes a person’s first illegal entry into the United States a misdemeanor. Clinton, Bush and Obama — the presidents who were in office during the immigration boom of the past few decades — never enforced the INA’s illegal-entry provision with the Trump administration’s zeal. The INA says nothing about separating families. It was sponsored by Democrats and passed by a Democratic-held Congress. President Harry Truman, also a Democrat, tried to veto the bill, describing it as a reactionary and “un-American” measure meant to keep out immigrants from Eastern Europe. Congress overrode his veto.
“What has changed is that we no longer exempt entire classes of people who break the law,” Nielsen said at a White House briefing June 18. “Everyone is subject to prosecution.”

It’s unclear whether 100 percent of adults are being prosecuted. Experts on the ground say there are not enough resources on the border to process all these cases. Trump administration officials say immigrants should show up at a port of entry to request asylum if they want to avoid prosecution, but there’s usually a big crowd and people often get turned away at these entry points, according to reporting from Texas Monthly.

It’s strange to behold Trump distancing himself from the zero-tolerance policy (“the Democrats gave us that law”) while Nielsen claims it doesn’t exist (“it’s not a policy”) and Sessions defends it in speech after speech.

“We do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry,” Sessions said in a speech on June 18 in New Orleans. “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”

In a June 7 speech, Sessions said: “I hope that we don’t have to separate any more children from any more adults. But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn.”

The attorney general also suggested on June 7 that legal developments are forcing his hand. “Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time,” Sessions said. But as we’ve explained, this is misleading. Neither the consent decree nor the court ruling forces the government to separate families. What they do provide is accommodations for children that the government could extend to parents if it wanted to.

For Trump, the family-separation policy is leverage as he seeks congressional funding for his promised border wall and other immigration priorities, according to reporting by The Washington Post. Top DHS officials have said that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the rising number of illegal crossings.

The Pinocchio Test
The doublespeak coming from Trump and top administration officials on this issue is breathtaking, not only because of the sheer audacity of these claims but also because they keep being repeated without evidence. Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.

This includes illegal-entry misdemeanors, which are being prosecuted at a rate not seen in previous administrations. Because the act of crossing itself is now being treated as an offense worthy of prosecution, any family that enters the United States illegally is likely to end up separated. Nielsen may choose not to call this a “family separation policy,” but that’s precisely the effect it has.

Sessions, who otherwise owns up to what’s happening, has suggested that the Flores settlement and a court ruling are forcing his hand. They’re not. At heart, this is an issue of prosecutorial discretion: his discretion.

The Trump administration owns this family-separation policy, and its spin deserves Four Pinocchios.

Four Pinocchios

[El]

Fact-Checking Family Separation

By Amrit Cheng, Communications Strategist, ACLU
JUNE 19, 2018 | 5:30 PM
TAGSFamily Detention Immigrants' Rights and Detention Immigrants' Rights
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Kirstjen Nielsen, Secretary of Homeland Security
With nearly 2,000 immigrant children separated from their parents in just six weeks alone, there is an unprecedented human rights disaster unfolding at our border. As public outrage mounts, members of Congress demand access to government-run facilities, and the United Nations condemns us, the Trump administration is attempting to shift the blame — fast.

In the past week, the administration has made several misleading statements, trying to justify the systematic separation of children from their parents. On Monday, DHS Secretary Kirstjen Nielsen held a press briefing where she doubled down on family separation, denying that the separation of children from their parents amounts to child abuse because, “We give them medical care. There’s videos; There’s TVs.”

All the while, horror stories are emerging: among them, Marco Antonio Muñoz, a Honduran father, who killed himself after being separated from his wife and child; three siblings taken from their parents who were told that they couldn’t hug each other in the shelter they were placed in; and parents who were deported four months ago and are still waiting for the U.S. to return their baby.

The level of cruelty is difficult to comprehend, and that’s how the administration wants it. Here’s what you need to know to understand family separation.

Is there a law that requires family separation?
Donald Trump has repeatedly blamed family separation on a law enacted by Democrats. On June 15, he told reporters, “I hate the children being taken away,” and added, “The Democrats have to change their law — that’s their law.” Secretary Nielsen repeated this falsehood at a briefing on Monday saying, “Surely it is the beginning of the unraveling of democracy when the body who makes the laws, instead of changing them, tells the enforcement body not to enforce the law.”

There is no law that requires the Trump administration to separate families.

This crisis stems from a series of policy choices the Trump administration made. In fact, reports arose as early as December 2017 that the administration was considering a plan to separate border-crossing parents from their children. In March, then-DHS Secretary John Kelly confirmed this, saying it would help deter Central Americans from coming to the United States.

Do the courts require family separation?
Absolutely not — despite the claims of GOP leadership to the contrary. Both House Speaker Paul Ryan and Senator Chuck Grassley have blamed family separation on the courts, specifically a decades-old court agreement (known as the Flores settlement) which established protections for children to prevent their indefinite detention in unlicensed facilities.

Getting rid of the protections in the Flores settlement would only further the administration’s goal of being able to indefinitely imprison families. But ending family separation doesn’t require family prisons. The Trump administration knows full well that alternatives exist — because it went out of its way to sabotage them.

In June 2017, the administration ended the Family Case Management Program, which allowed families to be placed into a program, together, that connected them with a case manager and legal orientation that ensured they understood how to apply for asylum and attend immigration court proceedings.

The program had a 99.6 percent appearance rate at immigration court hearings for those enrolled in the program. It’s not only a more humane alternative to family prisons; it’s far less costly for taxpayers.

Despite that success, the administration chose to end this program only a few months after it was first reported that Kelly — then-Secretary of Homeland Security — was considering family separation as a deterrent strategy.

Does Paul Ryan’s bill end family separation?
This week House Republicans will vote on a bill that purports to protect Dreamers and end family separation but does neither. Known as the Border Security and Immigration Reform Act of 2018, the bill would put DACA-eligible individuals on a long and convoluted path to citizenship — which is all subject to whether Trump gets his border wall. The changes in the bill would make it harder to apply for asylum and includes dangerous provisions making it easier to jail children and families.

SEPARATING FAMILIES IS INHUMANE

ACT NOWThe bill would not do anything to stop Sessions’ zero-tolerance prosecutions — which is the main driver of family separation.

Is the administration separating asylum-seeking families who enter at ports of entry?
Yes, despite claims to the contrary. On June 17, DHS Secretary Kirstjen Nielsen took to Twitter to defend family separation, saying, “For those seeking asylum at ports of entry, we have continued the policy from previous administrations and will only separate if the child is in danger, there is no custodial relationship between 'family' members, or if the adult has broken a law.”

In case Secretary Nielsen forgot, she’s currently a defendant in our class action lawsuit, where we represent families who entered at ports of entry to seek asylum and had their children taken away.

Ms. L, a Congolese mother who sought asylum at a port of entry, had her seven-year-old daughter taken away from her for four months. Immigration authorities made no meaningful attempt to verify their relationship during that time, only doing so after we filed our lawsuit.

Mirian G, a mother from Honduras, came to the U.S. with her young son on Feb. 20, 2018. She presented herself to immigration authorities and sought asylum, committing no crime. During her interview, Mirian provided immigration officers with several identification documents for her child which listed her as his mother. The next morning, Border Patrol agents took away her 18-month-old son with no explanation. She did not see him again for two months.

What is happening to people who cross the border between ports of entry?
On April 6, Attorney General Jeff Sessions instructed all U.S. Attorney’s Offices along the southwest border to adopt a new policy of “zero-tolerance” for illegal entry into the United States. On May 7, Sessions announced that the Departments of Justice and Homeland Security would partner together to prosecute anyone who crosses the border between U.S. ports of entry.

As Sessions put it, “If you don’t want your child to be separated, then don’t bring them across the border illegally.” Crossing the border without proper documentation is a misdemeanor that typically carries the penalty of a few days in jail if you’re prosecuted.

Here’s what the attorney general failed to mention: The government is not giving the kids back. Our client, Ms. C, experienced this firsthand. Ms. C, an asylum seeker, was separated from her 14-year-old son after the government chose to prosecute for entering the country illegally. She served her time, but then had to wait eight months before her son was given back to her.

In addition, both Sessions and Nielsen are avoiding another crucial point — in several cities along the border, Customs and Border Protection officers have been turning asylum seekers away, telling them that the port of entry is at capacity. Members of Congress who traveled to the border met asylum seekers who experienced just that. Secretary Nielsen spun this as well, saying that asylum seekers are not being turned away per se, they are being told come back later.

Who can end family separation?
The Trump administration is choosing to separate families. It’s a policy decision that could be stopped at any time by the president without legislation.

The president’s own party has been vocal about his authority to stop this — from former First Lady Laura Bush to senior Republican Senators McCain, Murkowski, Collins, and Corker. In the words of Republican Senator Lindsay Graham, Trump can end this “with a phone call.”

Mr. President, make the call.

[El]

Critics of the Trump administration’s separating of families illegally crossing the U.S. border with Mexico have characterized the practice as a distinctly cruel feature of Donald Trump’s presidency.

But some Republican commentators argue the policy is essentially a continuation of previous administrations.

"You know what's ironic? It's the same way Barack Obama did it," conservative commentator Matt Schlapp said during the June 15 broadcast of Fox News' America's Newsroom. "This is the problem with all of these things, the outrage you see coming from the left. There wasn't outrage over Barack Obama separating kids from adults."

While the Obama administration's immigration approach was not without controversy, it’s simply untrue to say he had a policy of separating families.

Trump policy
Let’s recap what the Trump administration is doing, before turning to Obama’s handling of immigration.

Attorney General Jeff Sessions in April announced a "zero-tolerance" policy, meaning every person caught crossing the border illegally would be referred for federal prosecution.

A good number of these people are adult migrants traveling with children. By law, when adults are detained and criminally prosecuted, their children cannot be housed with them in jail. Instead, kids are placed in a Department of Health and Human Services shelter until they can be released to a legal guardian.

Some 2,000 children have been separated from the adults they were traveling with across the U.S. border, according to the latest figures from the Department of Homeland Security. The children were separated from 1,940 adults from April 19 through May 31 as a result of border-crossing prosecutions.

Obama policy
Immigration experts we spoke to said Obama-era policies did lead to some family separations, but only relatively rarely, and nowhere near the rate of the Trump administration. (A Department of Homeland Security spokeswoman said the Obama administration did not count the number of families separated at the border.)

"Obama generally refrained from prosecution in cases involving adults who crossed the border with their kids," said Peter Margulies, an immigration law and national security law professor at Roger Williams University School of Law. "In contrast, the current administration has chosen to prosecute adult border-crossers, even when they have kids. That's a choice — one fundamentally different from the choice made by both Obama and previous presidents of both parties."

Denise Gilman, a law professor who directs the immigration clinic at the University of Texas School of Law, said immigration attorneys "occasionally" saw separated families under the Obama administration.

"However, these families were usually reunited quite quickly once identified," she said, "even if that meant release of a parent from adult detention."

In Trump’s case, family separations are a feature, not a bug, of the administration’s border policies, said David Fitzgerald, who co-directs the Center for Comparative Immigration Studies.

"The family separations are not the small-scale collateral consequences of a border policy, but rather, a deliberate initiative," he added.

Former Obama officials in recent interviews drew sharp distinctions between Trump’s policy and that of his predecessors.

The Trump administration's current approach is modeled after Operation Streamline, a 2005 program under the administration of George W. Bush, according to Obama spokesman Eric Schultz. The key difference, he said, is that while the 2005 program referred all illegal immigrants for prosecution, it made exceptions for adults traveling with children.

Jeh Johnson, Obama’s Homeland Security secretary from 2013 to the end of his presidency, said such separations occurred in rare cases, but never as a matter of policy.

"I can't say that it never happened. There may have been some exigent situation, some emergency," Johnson told NPR June 9. "There may have been some doubt about whether the adult accompanying the child was in fact the parent of the child. I can't say it never happened — but not as a matter of policy or practice. It's not something that I could ask our Border Patrol or our immigration enforcement personnel to do."

Obama’s top domestic policy adviser, Cecilia Muñoz, said the Obama administration briefly weighed the separation of parents from children, before deciding against it.

"I do remember looking at each other like, ‘We’re not going to do this, are we?’ We spent five minutes thinking it through and concluded that it was a bad idea," she told the New York Times. "The morality of it was clear — that’s not who we are."

Andrew Selee, president of the Migration Policy Institute, said that, as a deterrent, the Obama administration began prosecuting border-crossers who had already been deported at least once.

"But very few of those people crossed with children, so it didn’t become as visible an issue," he said. "There was some child separation and some pushback by immigrant advocacy groups around that, but the numbers were quite limited.

"The idea of prosecuting people who cross the border illegally the first time they are caught is entirely new," he added. "So we haven’t seen children separated from their parents on anything near this scale before."

The Obama administration’s immigration policy was not without controversy, to be sure.

In 2014, amid an influx of asylum seekers from Central America, the administration established large family detention centers to hold parents and children — potentially indefinitely — as a means of deterring other asylees. The practice eventually lost a legal challenge, resulting in a 2016 decision that stopped families from being detained together.

Schlapp told us that his claim referred to the fact that both Obama and Trump are bound by the same procedures prohibiting family detention.

However, Schlapp’s full comment gives the misleading impression that Trump is essentially continuing Obama’s policy, when in fact Trump’s zero tolerance policy is quite different. 

Our ruling
Schlapp said the Trump administration’s policy of separating families is "the same way Barack Obama did it."

Obama’s immigration policy specifically sought to avoid breaking up families. While some children were separated from their parents under Obama, this was relatively rare, and occurred at a far lower rate than under Trump, where the practice flows from a zero tolerance approach to illegal border-crossings.

We rate this False.

[El]

A less left-leaning source:

Fact check: Trump officials dodge blame for their policy separating families at the border

Salvador Rizzo
The Washington Post
"I hate the children being taken away. The Democrats have to change their law. That's their law."

—President Donald Trump, in remarks to reporters at the White House, June 15

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"We have the worst immigration laws in the entire world. Nobody has such sad, such bad and actually, in many cases, such horrible and tough — you see about child separation, you see what's going on there."

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—Trump, in remarks at the White House, June 18

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"Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time."

—Attorney General Jeff Sessions, in a speech in Bozeman, Montana, June 7

Trump gives no preference on rival GOP immigration bills amid uproar over his family separation policy
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"It's the law, and that's what the law states."

—White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14

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"We do not have a policy of separating families at the border. Period."

—Homeland Security Secretary Kirstjen Nielsen, on Twitter, June 17

The Claims
The president and top administration officials say U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border.

These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This "zero-tolerance policy" applies to all adults, regardless of whether they cross alone or with their children.

Trump, defiant as border crisis escalates, prepares to lobby House GOP on immigration bills
The Justice Department can't prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.

The Trump administration implemented this policy by choice and could end it by choice. No law or court ruling mandates family separations. In fact, during its first 15 months, the Trump administration released nearly 100,000 immigrants who were apprehended at the U.S.-Mexico border, a total that includes more than 37,500 unaccompanied minors and more than 61,000 family members.

Children continue to be released to their relatives or to shelters. But since the zero-tolerance policy took effect, parents as a rule are being prosecuted. Any conviction in those proceedings would be grounds for deportation.

We've published two fact-checks about family separations, but it turns out these Trumpian claims have a zombie quality and keep popping up in new ways.

In the latest iteration, Homeland Security Secretary Kirstjen Nielsen tweeted and then said at a White House briefing that the administration does not have "a policy of separating families at the border." This is Orwellian stuff. Granted, the administration has not written regulations or policy documents that advertise, "Hey, we're going to separate families." But that's the inevitable consequence, as Nielsen and other Trump administration officials acknowledge.

"Operationally what that means is we will have to separate your family," Nielsen told NPR in May. "That's no different than what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We're doing the same thing at the border."

Although we've fact-checked these family-separation claims twice, we hadn't had the opportunity to assign a Pinocchio rating yet. We'll do so now.

The Facts
Since 2014, hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in El Salvador, Guatemala and Honduras. U.S. laws provide asylum or refugee status to qualified applicants, but the Trump administration says smugglers and bad actors are exploiting these same laws to gain entry. Nielsen says the government has detected hundreds of cases of fraud among migrants traveling with children who are not their own. President Trump says he wants to close what he describes as "loopholes" in these humanitarian-relief laws.

The Central American refugee crisis developed during President Barack Obama's administration and continues under Trump. The two administrations have taken different approaches. The Justice Department under Obama prioritized the deportation of dangerous people. Once he took office, Trump issued an executive order rolling back much of the Obama-era framework.

Obama's guidelines prioritized the deportation of gang members, those who posed a national security risk and those who had committed felonies. Trump's January 2017 executive order does not include a priority list for deportations and refers only to "criminal offenses," which is broad enough to encompass serious felonies as well as misdemeanors.

Then, in April 2018, Attorney General Jeff Sessions rolled out the zero-tolerance policy.

When families or individuals are apprehended by the Border Patrol, they're taken into DHS custody. Under the zero-tolerance policy, DHS officials refer any adult "believed to have committed any crime, including illegal entry," to the Justice Department for prosecution. If they're convicted, that triggers deportation proceedings.

Illegal entry is a misdemeanor for first-time offenders, and a conviction is grounds for deportation. Because of Trump's executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats. (A DHS fact sheet says, "Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.")

Families essentially are put on two different tracks. One track ends with deportation. The other doesn't.

After a holding period, DHS transfers children to the custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. They spend an average 51 days at an ORR shelter before they're placed with a sponsor in the United States, according to HHS. The government is required to place these children with family members whenever possible, even if those family members might be undocumented immigrants. "Approximately 85 percent of sponsors are parents" who were already in the country "or close family members," according to HHS. Some children have no relatives available and in those cases the government may keep them in shelters for longer periods of time while suitable sponsors are identified and vetted.

Adding it all up, this means the Trump administration is operating a system in which immigrant families that are apprehended at the border get split up, because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

The White House tweeted "ENOUGH of the misinformation. This Administration did not create a policy of separating families at the border."

This is a question of Trump and his Cabinet choosing to enforce some laws over others. The legal landscape did not change between the time the Trump administration released nearly 100,000 immigrants during its first 15 months and the time the zero-tolerance policy took effect in April 2018.

What changed was the administration's handling of these cases. Undocumented immigrant families seeking asylum previously were released and went into the civil court system, but now the parents are being detained and sent to criminal courts while their kids are resettled in the United States as though they were unaccompanied minors.

The government has limited resources and cannot prosecute every crime, so setting up a system that prioritizes the prosecution of some offenses over others is a policy choice. The Supreme Court has said, "In our criminal justice system, the government retains 'broad discretion' as to whom to prosecute." To charge or not to charge someone "generally rests entirely" on the prosecutor, the court has said.

Katie Waldman, a spokeswoman for Nielsen, said the administration does not have a family-separation policy. But Waldman agreed that Trump officials are exercising their prosecutorial discretion to charge more illegal-entry offenses, which in turn causes more family separations. The Obama administration also separated immigrant families, she said.

"We're increasing the rate of what we were already doing," Waldman said. "Instead of letting some slip through, we're saying we're doing it for all."

Waldman sent figures from fiscal 2010 through 2016 showing that, out of 2,362,966 adults apprehended at the southern border, 492,970, or 21 percent, were referred for prosecution. These figures include all adults, not just those who crossed with minor children, so they're not a measure of how many families were separated under Obama.

"During the Obama administration there was no policy in place that resulted in the systematic separation of families at the border, like we are now seeing under the Trump administration," said Sarah Pierce, a policy analyst at the Migration Policy Institute. "Our understanding is that generally parents were not prosecuted for illegal entry under President Obama. There may have been some separation if there was suspicion that the children were being trafficked or a claimed parent-child relationship did not actually exist. But nothing like the levels we are seeing today."

Trump administration officials say they're trying to keep parents informed about their kids.

But some families instead have wound up in wrenching scenarios.

"Some of the most intense outrage at the measures has followed instances of parents deported to Central America without their children or spending weeks unable to locate their sons and daughters," The Washington Post's Nick Miroff reported. "In other instances, pediatricians and child advocates have reported seeing toddlers crying inconsolably for their mothers at shelters where staff are prohibited from physically comforting them."

Administration officials have pointed to a set of laws and court rulings that they said forced their hand:

A 1997 federal consent decree that requires the government to release all children apprehended crossing the border. The "Flores" consent decree began as a class-action lawsuit. The Justice Department negotiated a settlement during President Bill Clinton's administration. According to a 2016 decision by the U.S. Court of Appeals for the 9th Circuit, the Flores settlement requires the federal government to release rather than detain all undocumented immigrant children, whether they crossed with parents or alone. The agreement doesn't cover any parents who might be accompanying those minors, but it doesn't mandate that parents be prosecuted or that families be separated. Moreover, Congress could pass a law that overrides the terms of the Flores settlement. Waldman said the Flores settlement requires the government to keep immigrant families together for only 20 days, but no part of the consent decree requires that families be separated after 20 days. Courts have ruled that children must be released from detention facilities within 20 days under the Flores consent decree, but none of these legal developments prevents the government from releasing parents along with children.
A 2008 law meant to curb human trafficking called the Trafficking Victims Protection Reauthorization Act (TVPRA). This law covers children of all nationalities except Canadians and Mexicans. Central American children who are apprehended trying to enter the United States must be released rather than detained under the terms of the TVPRA, and they're exempt from prompt return to their home countries. The law passed with wide bipartisan support and was signed by a Republican president, George W. Bush. No part of the TVPRA requires family separations.
The Immigration and Nationality Act of 1952. This comprehensive law governs U.S. immigration and citizenship and makes a person's first illegal entry into the United States a misdemeanor. Clinton, Bush and Obama - the presidents who were in office during the immigration boom of the past few decades - never enforced the INA's illegal-entry provision with the Trump administration's zeal. The INA says nothing about separating families. It was sponsored by Democrats and passed by a Democratic-held Congress. President Harry Truman, also a Democrat, tried to veto the bill, describing it as a reactionary and "un-American" measure meant to keep out immigrants from Eastern Europe. Congress overrode his veto.
"What has changed is that we no longer exempt entire classes of people who break the law," Nielsen said at a White House briefing June 18. "Everyone is subject to prosecution."

It's unclear whether 100 percent of adults are being prosecuted. Experts on the ground say there are not enough resources on the border to process all these cases. Trump administration officials say immigrants should show up at a port of entry to request asylum if they want to avoid prosecution, but there's usually a big crowd and people often get turned away at these entry points, according to reporting from Texas Monthly.

It's strange to behold Trump distancing himself from the zero-tolerance policy ("the Democrats gave us that law") while Nielsen claims it doesn't exist ("it's not a policy") and Sessions defends it in speech after speech.

"We do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry," Sessions said in a speech on June 18 in New Orleans. "We cannot and will not encourage people to bring children by giving them blanket immunity from our laws."

In a June 7 speech, he said: "I hope that we don't have to separate any more children from any more adults. But there's only one way to ensure that is the case: it's for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn."

The attorney general also suggested on June 7 that legal developments are forcing his hand. "Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time," he said. But as we've explained, this is misleading. Neither the consent decree nor the court ruling forces the government to separate families. What they do provide is accommodations for children that the government could extend to parents if it wanted to.

For Trump, the family-separation policy is leverage as he seeks congressional funding for his promised border wall and other immigration priorities, according to reporting by The Washington Post. Top DHS officials have said that threatening adults with criminal charges and prison time would be the "most effective" way to reverse the rising number of illegal crossings.

The Verdict
The doublespeak coming from Trump and top administration officials on this issue is breathtaking, not only because of the sheer audacity of these claims but because they keep being repeated without evidence. Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as Trump insists. They're being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.

This includes illegal-entry misdemeanors, which are being prosecuted at a rate not seen in previous administrations. Because the act of crossing itself is now being treated as an offense worthy of prosecution, any family that enters the United States illegally is likely to end up separated. Nielsen may choose not to call this a "family separation policy," but that's precisely the effect it has.

Sessions, who otherwise owns up to what's happening, has suggested that the Flores settlement and a court ruling are forcing his hand. They're not. At heart, this is an issue of prosecutorial discretion: his discretion.

The Trump administration owns this family-separation policy and its spin deserves Four Pinocchios.

[El]

Another more middle-of-the-road source:

Q&A on Border Detention of Children
By Angelo Fichera

Posted on June 19, 2018 | Updated on June 20, 2018

10.1K
The controversy surrounding family separations at the U.S. Southern border has prompted outrage, opinions and finger-pointing. It has also raised a number of questions, including from our readers.

“Are there really children being separated from their parents at the border and being kept in cages?” one reader asked.

We answer that and other questions here.

Background
In April, Attorney General Jeff Sessions announced a “zero-tolerance policy” regarding illegal immigration at the Southwest border. That was followed by a reported May directive by Department of Homeland Security Secretary Kirstjen Nielsen instructing her department to refer all unauthorized immigrants who cross the U.S. border to federal prosecutors for criminal prosecution. Such prosecution has resulted in the separation of parents and children who were apprehended illegally entering the country.

As we’ve explained before, parents are sent to federal court under the custody of the U.S. Marshals Service and then placed in a detention center, according to Homeland Security. In turn, their children — minors who cannot be housed in detention centers for adults — are transferred to the U.S. Department of Health and Human Services for placement in a juvenile facility or foster care if they can’t be placed with another adult relative in the U.S. Those children, as well as those who cross without adults, are considered “unaccompanied” and become the responsibility of HHS’ Office of Refugee Resettlement.

White House Chief of Staff John Kelly told NPR last month that family separation “could be a tough deterrent” for others considering immigrating illegally.

The criminal prosecution and subsequent separations do not apply to those who seek asylum at a legal port of entry, administration officials have said. But Nielsen has acknowledged “limited resources” at the border that have resulted in the U.S. telling some who arrive at the ports that they have to “come back.” Some immigrant advocates told the Arizona Republic that the backlog could exacerbate illegal crossings.

How many children are currently being detained?
Between April 19 and the end of May, 1,995 minors were separated from adults at the border, the Department of Homeland Security confirmed to FactCheck.org on June 18. When we asked for updated numbers a few days later, DHS told us the “zero-tolerance” policy went into effect on May 5, and between May 5 and June 9, there had been 2,342 children separated from their parents.

And, as of June 15, there were 11,517 minors in the “Unaccompanied Children’s Program,” according to the Department of Health and Human Services’ Administration for Children and Families. (That figure doesn’t distinguish between those who crossed the border with their parents and those who did so alone.)

Health and Human Services uses about 100 shelters in 14 states. In congressional testimony in May, Steven Wagner, acting assistant secretary for the Administration for Children and Families, told a Senate subcommittee that children have spent an average of 57 days in custody during fiscal year 2018. After that, minors are placed with a sponsor, who could be a parent, another relative or a non-family member.

Does the U.S. use “cages” to detain children?
The government has rejected the idea that it uses “cages” in its facilities. But that’s the term used by activists and others who oppose the administration’s immigration policy. Also, news organizations have used that term, including the Associated Press, which used the word to refer to the fencing enclosures at one Texas facility.

We have included pictures of that facility with this story, so readers can make their own determinations on what to call the enclosures.

The issue was highlighted earlier this month when Democratic Sen. Jeff Merkley of Oregon visited the central processing facility in McAllen, Texas, where those trying to enter the United States are separated. “Unaccompanied” minors, except in select cases, are to be transferred from the processing facility to a juvenile facility or other care under Health and Human Services within 72 hours.

“Yesterday morning at the McAllen Border Station, at the processing center, they have big cages made out of fencing and wire and nets stretched across the top of them so people can’t climb out of them,” he told CNN on June 4. “Every time I probed yesterday on the circumstances (of why they were held this way) the response was just basically a generic, ‘That is what’s required for security, this is what is required for control.'” (Merkley also likened the enclosures to a “dog kennel.”)

The Department of Justice disputed Merkley’s characterization of the structures.


The central processing center in McAllen, Texas, as photographed during a media tour June 17. | Courtesy U.S. Customs and Border Protection
“Before being transferred to HHS custody, DHS houses unaccompanied minors in short-term facilities,” it said in a June 4 statement. “These short-term facilities do not employ the use of ‘cages’ to house UACs, but portions of the facility makes use of barriers in order to separate minors of different genders and age groups. This is for the safety and security of all minors in the custody of the United States government.”

Much of the media coverage of Merkley focused on his attempt to visit a shelter in Brownsville, Texas, that houses immigrant children after they’re processed. He was rebuffed (though in recent days he did visit the facility).


The central processing center in McAllen, Texas, as photographed during a media tour June 17. | Courtesy U.S. Customs and Border Protection
News outlets got a glimpse of life inside that shelter, called Casa Padre, during a tour last week. There were no reports of cages being used.

NBC News described the conditions at the nonprofit shelter as “more like incarceration than temporary shelter.” The report detailed “dorm-style rooms” that were designed to sleep four but accommodate five because of overcrowding.

The former Walmart houses almost 1,500 boys, ages 10 to 17, for an average of 52 days. According to the New York Times, whose reporter visited the shelter, it offers classroom instruction, recreational activities and other services. The minors are allowed outside two hours per day.

So what about that image of a young boy in a cage?
The photo in question depicts a boy in distress as he looks out of a cage he is grasping with his hands. It has been turned into a meme that asks, “Are you Trump fans really OK with this?”

Journalist and activist Jose Antonio Vargas included the photo in a June 11 tweet that said: “This is what happens when a government believes people are ‘illegal.’ Kids in cages.” (Vargas openly discusses his own status as an immigrant living in the country illegally.)

In a subsequent tweet, Vargas acknowledged he wasn’t sure where the photo originated, but many others also shared the image, including the actor Ron Perlman.

View image on Twitter
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 Trump, Sessions, McConnell, Ryan, this is on YOU!

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But the image was actually taken during a June 10 rally in Dallas, Texas.

Leroy Pena, the prime minister of the Dallas-Fort Worth chapter of the Brown Berets of Cemanahuac, said he took the photo during the demonstration. The pro-Mexican-American group’s rally was meant to call attention to the conditions where young immigrants are kept, he said. Pena added that the young boy in the photograph, the son of a friend, had wandered into the cage where older children were demonstrating and became upset when he saw his mother on the other side of the structure. The child was promptly taken out of the cage, he said.

“I posted it to my personal page — I wasn’t trying to deceive anybody,” Pena told FactCheck.org in an interview. “I think people just started sharing the picture without the narrative that I added. It wasn’t done intentionally but … it brought a lot of attention with what’s really going on.”

Debra Mendoza, national prime minister of the Brown Berets of Cemanahuac, confirmed Pena’s account to us. She decried photos of facilities using fencing similar to “cages,” and said the structures were reminiscent of a “jail.”

Mendoza also mentioned the recently resurfaced images from a 2014 Arizona Republicreport on an immigrant holding facility for juveniles in Nogales, Arizona. Those 2014 pictures, taken by the Associated Press, were shared by some online as if they were current — including by Jon Favreau, a former speechwriter for President Barack Obama.

The 2014 story was about the surge in children from Central America — largely from Honduras, El Salvador and Guatemala — trying to cross the border illegally on their own.

The mistake became fodder for Trump’s Twitter feed.

Is the government using military camps to hold the minors?
Health and Human Services is indeed eyeing several military bases “for potential use as temporary shelters for unaccompanied alien children at some point in the future,” the Administration for Children and Families confirmed for us. On June 13, McClatchy reported that Fort Bliss in Texas could be used as a “tent city to hold between 1,000 and 5,000 children.”

In addition to Fort Bliss, officials are evaluating Dyess Air Force Base and Goodfellow Air Force Base, which are also in Texas.

If that happens, it wouldn’t be the first time military bases were used to accommodate immigrants. Under the Obama administration, bases served as such facilities, including in 2014 during the influx of unaccompanied children illegally entering the country.

In his testimony last month, Wagner said the last “temporary” facility at a Department of Defense site closed in February 2017.

Update, June 20: We have updated this story with new numbers from DHS on children separated from their parents.

[Yuri Bezmenov]

The ACLU is hit or miss when it comes to issues like this.

It's is the law in the US that when parents are taken into custody, that you can't arrest the kids too.

You can make a case about how they are handling the kids after the parents are taken into custody but the issue of separating the kids from parents is a losing argument.

[El]

The ACLU is hit or miss when it comes to issues like this.

I cited more sources than just the ACLU.

[mdagli1]

I agree. Should stick with the facts that they were born illegally in the first place. Landless people are scum that deserve to be incarcerated from life and buried with their own kind.

[El]

I wanted to look at a spectrum of fact-check sources, myself, as it looked to me like what I was generally seeing on either side was so biased and/or selective as to be questionable.  I feel like I better understand now what's been going on, and what makes now different.

I will say, it's seemed bizarre to me that the immediate right-leaning response hasn't so much been to say this was OK, as to immediately jump to "OBAMA STARTED IT," without acknowledging that regardless of how accurate that is or isn't, it's a legitimate problem.  (Is the assumption that invoking obama's name is like invoking god's name or something?  I think it's pretty obvious that I'm pretty liberal, but I was really upset at plenty of stuff that happened under him, too.  Invoking his name doesn't suddenly make me think something bad is good.) 

And it does look like the press coverage was different because the situation up until a couple of months ago was different, but even if biased coverage were more blatant here, why would that be a reason to totally drop the human rights aspect???  Like, if the argument is that the press is just straight-up lying about the whole thing, that's one argument, but then you lose the "but obama" part of it, too.  A friend of mine who I'd expect to be more compassionate posted a right-leaning article (from the dailywire, sadly) with the "obama did it too" argument and I was really confused about whether she'd missed the point or just felt like she needed to be a counter to all the liberal people in her feed or what.

I should really no longer be surprised by anything anyone says in the political arena.

[Icequeen]

The pictures and the audio being leaked from this are gut-wrenching.


Then you have his supporters yelling..."if they didn't want their children taken away they shouldn't have entered the country."

While they cozy up on the sofa watching Fox News while shoveling in their snacks.

I hate what this world is becoming. 

[mdagli1]

Then maybe you should stop fucking each other and live within your means. If you can't afford kids without debt, then just maybe your lives are simply not worth saving. This world is not for you to consume but for us to save from you. Deal with it.


And for the record, my apathy for humanity is fully justified for I tread upon thee with disdain of what you have become. Existential terrorists causing misery for billions.

[Gopher Gary]

And for the record, my apathy for humanity is fully justified for I tread upon thee with disdain of what you have become.

You can't be both apathy and distain. 

[mdagli1]

Emotional disdain and cognitive apathy can happen at the same time. And I can do what I like with it. So be quite, gary

[rock hound]

The pictures and the audio being leaked from this are gut-wrenching.


Then you have his supporters yelling..."if they didn't want their children taken away they shouldn't have entered the country."

While they cozy up on the sofa watching Fox News while shoveling in their snacks.

I hate what this world is becoming.

Agreed!   

[Al Swearegen]

The ACLU is hit or miss when it comes to issues like this.

I cited more sources than just the ACLU.

Which non-Left sources have you used to fact check? No honestly. Washington Post is clearly Leftist. Snopes and Politifact is Left and whilst claiming to be neutral, has been anything but. I believe Snopes is at least partially funded by George Soros. ACLU has been the bastion of impartiality and whilst similar organisations like Southern Poverty Law Centre have pretended impartiality, ACLU has been pretty consistent....until recently. Now they too have recently caved to the Progressive line about hate speech and no longer are they of the view that I hate what you say but I will defend your right to say things i disagree with. They were always Classically Liberal which I always applauded. Now they are moderate Progressives. Better than some and not frothing at the mouth Progressive ideologues like SPLC but hardly unbiased and neutral.

So....you cited a lot of source which of these were not Left leaning?