“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.
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.
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. 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.
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.
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