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President Trump’s claim that Democrats created ‘catch and release’ policies

The president blamed Democratic policies for what he believes are weak immigration laws. But he's missing some key history. (Video: Meg Kelly/The Washington Post)

“Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release. Getting more dangerous. ‘Caravans’ coming. Republicans must go to Nuclear Option to pass tough laws NOW. NO MORE DACA DEAL!”
— President Trump, in a tweet, April 1, 2018

What caught our eye in this tweet was Trump’s claim that “catch and release” is a Democratic policy.

There’s no hard and fast definition, but “catch and release” usually refers to U.S. immigration authorities’ practice of releasing unauthorized immigrants while they await immigration hearings, rather than keeping them in custody.

With some exceptions, only children and asylum-seekers are eligible for this kind of release. They often stay in the United States for months or years while their cases wind through the courts. Many of them do not show up for court dates and end up settling in the country without authorization.

Trump argues catch-and-release “loopholes” are heavily exploited and open a back door to smugglers and bad actors. (This claim is also fact-checkable, but it’s not our focus today.)

The president’s tweet suggests that Democrats saddled him with catch and release. Did Democrats really come up with these policies?

The Facts

“Catch and release” entered the political lexicon during the George W. Bush administration.

Immigration rose sharply from 2000 to 2010, as 14 million new legal and undocumented immigrants settled in the United States, according to census data. At the same time, U.S. Immigration and Customs Enforcement did not have enough space to house all the undocumented immigrants being apprehended.

So the Bush administration would release many of these immigrants under their own recognizance — and many of them would then fail to report for their immigration hearings.

Michael Chertoff, who was secretary of homeland security under Bush, testified before the Senate Judiciary Committee in 2005 that immigration officials would send back hundreds of thousands of Mexicans immediately after apprehending them at the border, “but other parts of the system have nearly collapsed under the weight of numbers.”

Chertoff later told lawmakers that the Bush administration ended catch and release in 2006. Some experts say the change was cosmetic, because in many cases immigrants who were repatriated faced few consequences and would keep attempting to cross the border.

The Trump administration argues that another Bush-era policy, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, includes a catch-and-release loophole. Under this law, which is meant to give safe harbor to victims of human trafficking, 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.

There’s more. During the Bush administration, the Supreme Court ruled in 2001 that immigrants who were under deportation orders — but whom no other country would accept — generally could not be detained by U.S. officials for more than six months.

The case was Zadvydas v. Davis. Republican senators introduced legislation to narrow the scope of this ruling in 2014, complaining that the Barack Obama administration was relying on it as a basis for releasing deportable immigrants.

In a separate case, the courts approved what’s known as the “Flores settlement” in 1997. This agreement struck by Bill Clinton’s administration requires the federal government to release rather than detain undocumented immigrant children, first to their parents if possible, to other adult relatives if not, and to licensed programs willing to accept custody if no relatives are available. As a last resort, U.S. officials may place children in the “least restrictive” setting available.

A federal judge in California ruled in 2015 that the Flores settlement covered all children in immigration officials’ custody, regardless of whether they were apprehended crossing the border alone or with family. The judge’s ruling also covered any accompanying parents. But the U.S. Court of Appeals for the 9th Circuit reversed this part of the ruling and said the Flores settlement required only that children be released, not parents.

The same basic arithmetic that confronted Bush — lots of undocumented immigrants, not enough space to house them pending immigration hearings — has continued under Obama and Trump.

In 2014, the Obama administration issued deportation guidelines that prioritized gang members, felons and individuals who posed security threats. This led to a renewed catch-and-release regime, although some argue it never really ended under Bush.

“In 2016, 39 percent of aliens who were free pending trial failed to show up for their hearings,” Mark H. Metcalf, a former immigration judge in Miami, and Hans von Spakovsky wrote in 2017. “In 2015, 43 percent did the same. Over the past 21 years, 37 percent of all aliens the U.S. permitted to remain free before trial — some 952,000 people — were ordered removed for dodging court.”

One study found that ICE was releasing immigrants with criminal records before Obama’s 2014 guidelines were announced.

“ICE released 68,000 criminal aliens in 2013, or 35 percent of the criminal aliens encountered by officers,” wrote Jessica M. Vaughan, director of policy studies at the Center for Immigration Studies, which advocates for more restrictions on legal immigration. “The vast majority of these releases occurred because of the Obama administration’s prosecutorial discretion policies, not because the aliens were not deportable.” (Her figures were later questioned.)

There’s debate about the proper way to count catch-and-release cases, as our friends at PolitiFact found in 2016. The number appears to be somewhere in the hundreds of thousands.

When Trump came into the picture, he quickly issued an executive order in January 2017 rolling back much of the Obama-era framework. But Trump’s administration continues to release children and asylum-seekers pending immigration hearings.

Trump’s executive order directs Secretary of Homeland Security Kirstjen Nielsen to build more detention facilities “to detain aliens at or near the land border with Mexico,” and it directs Attorney General Jeff Sessions to increase the number of immigration judges hearing cases.

According to NPR, ICE is exploring options for five new detention facilities in Chicago; Detroit; Salt Lake City; St. Paul, Minn.; and South Texas. The administration also is directing immigration judges to clear at least 700 cases a year in order to receive “satisfactory” performance ratings.

The Obama guidelines prioritized deportation cases involving gang members or national security threats, but Trump’s order does not include a priority list. Obama’s guidelines prioritized those who had committed felonies; Trump’s order refers only to “criminal offenses.” This could include anything from high crimes to immigration violations to misdemeanors such as traffic offenses.

In an analysis breaking down the differences, the Bipartisan Policy Center concluded that Trump’s changes “will likely mean that who is in line for removal will be determined only by whom ICE can practically and easily apprehend (‘low hanging fruit’) and the discretion of individual ICE officers.”

Sarah Pierce, a policy analyst at the Migration Policy Institute, a think tank that researches immigration policies, said there are two types of removal proceedings for unauthorized immigrants, “expedited” or “long-term.”

“The only individuals who are placed in the long-term removal proceedings are asylum-seekers” and children, she said. An expedited deportation proceeding might take a few days, whereas a long-term case could take months to work its way through the judicial system, she added.

Asked about Trump’s tweet, a White House official said that the Flores settlement “allows the U.S. to detain family units for 20 days” and that the “agreement was signed during the Clinton administration in 1997.”

More recently, the official added, “Democrats fought us on bed space, which means we have to release people before their hearings are complete [and] they disappear.” Democrats also have declined to work with Trump on closing loopholes in the human trafficking law and the Flores agreement, the official said.

Vaughan, of the Center for Immigration Studies, said catch and release “has meant different things in different times.”

“Under Bush it meant the practice of catching someone and repatriating them with few consequences, only to catch them again a few hours later trying to cross again,” she said.

“Under Obama it mainly referred to the practice of identifying and arresting a deportable or criminal alien and then releasing them without pursuing deportation or under ‘supervision,’ and they often failed to appear at hearings. Later, also under Obama, it also meant the practice at the border of apprehending aliens but releasing them if they had claimed to have arrived before 2014, even if they appeared to have crossed a few minutes ago.”

She continued: “It also was used to describe the way the Obama administration handled the influx of Central Americans and asylum seekers, where they were apprehended and then released after a credible fear determination. Trump has discontinued all of those policies except for how Central American minors and family units are handled. I believe they also still release some asylum seekers.”

The Pinocchio Test

Trump described catch and release as a liberal Democratic law. But the history shows it’s a collection of policies, court precedents, executive actions and federal statutes spanning more than 20 years, cobbled together throughout Democratic and Republican administrations, including his own.

The practice of releasing immigrants came to prominence while Bush was in the White House, not out of ideological conviction so much as practical necessity — there was no space to house all the people awaiting immigration hearings. That Democrats may support parts of catch and release is not evidence that they came up with these policies in the first place.

A White House official pointed out that the Flores settlement came about during Clinton’s administration, but that’s only one piece of the puzzle. Catch and release encompasses more than just children. And it should be noted that Trump’s administration says a human trafficking prevention law also requires undocumented immigrant children from most countries to be released. That law was signed by Bush, a Republican.

Perhaps the strongest evidence that Trump’s claim is false comes from his own administration. A White House summary says catch and release policies “are the result of statutory and judicial obstacles.”

The president’s attempt to lay this all on Democrats fails to account for the significant contributions Republicans have made to catch and release, so his tweet earns Three Pinocchios.

Three Pinocchios

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"Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release."
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Sunday, April 1, 2018