“You can’t do it through an executive order,” Trump said last Friday.
“Congress and the courts created this problem, and Congress alone can fix it,” Homeland Security Secretary Kirstjen Nielsen said Monday. The day before, she tweeted: “We do not have a policy of separating families at the border. Period.”
Well, apparently there was a policy, and Trump can apply a fix without Congress.
In any case, Trump’s executive order includes important caveats that may blunt its intended effect. The administration’s proposal is basically to keep children in immigration detention for longer than is currently allowed.
Now for some fact-checking. Trump announced the new policy during a meeting with Republican lawmakers at the White House, and we rounded up several of their claims below.
“We’re going to keep families together, but we still have to maintain toughness, or our country will be overrun by people, by crime, by all of the things that we don’t stand for, that we don’t want.”
Without more details, it’s too soon to say how Trump’s executive order will work in practice.
The order doesn’t end the Justice Department’s “zero-tolerance policy” of prosecuting all adults who are caught entering the country illegally, whether they crossed the border alone or with their children. This has been the main driver behind the family separations. Because children can’t be prosecuted with their parents, the government treats them as though they had crossed the border alone and places them in shelters or with relatives living in the United States.
Courts have ruled that the Department of Homeland Security must release undocumented immigrant children in their custody within 20 days. They must be housed in the “least restrictive setting” while their immigration claims are resolved. Trump’s executive order effectively directs the Justice Department to seek court approval to keep children detained for more than 20 days when necessary. That’s how they plan to avoid family separations, because the decision to prosecute all parents still stands.
But the courts could deny Trump’s request, which would throw a wrench into his plan. The president indicated that his order was not a long-term fix and urged Congress to act.
There’s also a huge backlog of cases at the border, not enough judges, not enough space to house families together, and limited funding to increase these resources. Without congressional action, or without Trump rescinding his “zero-tolerance policy,” these issues would pose a logistical nightmare and complicate the president’s plan.
What happens in the interim? And what about the children who have been separated already? The Department of Homeland Security said on Tuesday that 2,342 children have been separated from their parents since May. The Department of Health and Human Services said it has not received new orders on how to handle them.
“This has been going on under President Obama, under President Bush. This has been going on for many, many years. We’re going to see if we can solve it. This is not something that happened just now.”
The administrations of George W. Bush and Barack Obama explicitly rejected plans for the systematic separation of immigrant families caught at the border. Although some separations occurred during their terms, experts say these were few and generally in cases where children were suspected to be in danger or not related to their accompanying adults.
The key difference now? Under its “zero-tolerance policy,” the Trump administration is choosing to prosecute all adults for illegal-entry offenses. This is a misdemeanor for first-time offenders under the Immigration and Nationality Act of 1952. No president has chosen to enforce the INA’s illegal-entry provision with the Trump administration’s zeal, and no administration has separated families at the rates seen over the past several weeks.
“If a family shows up at the border and we let the family go into the country and say, ‘Please come back for your hearing,’ about 80 percent of the time, the adults never show up for the hearing.”
— Sen. Lindsey O. Graham (R-S.C.)
Before Trump’s zero-tolerance policy took effect, his administration and previous ones would release undocumented immigrant families into the United States while their immigration cases wound through the system. A substantial number of these immigrants did not show up for their immigration hearings and remained in the country without legal authorization. (Critics call this “catch and release.”)
But Graham’s 80 percent estimate for no-shows is way off, according to experts. The Center for Immigration Studies, a think tank that advocates for tighter border controls, found in a 2017 report that “over the past 20 years, 37 percent of all aliens free pending their trials — 918,098 out of 2,498,375 — never showed for court.”
That means 63 percent did show up for their immigration hearings, much higher than what Graham indicated.
“If you detain the parents who broke the law under the Flores decision, you have to break the family up. So there’s a 1997 … court case that we’ve got to deal with.”
Graham mischaracterizes a 1997 federal consent decree. According to a 2016 decision by the U.S. Court of Appeals for the 9th Circuit, the “Flores” consent decree 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 neither does it mandate that parents be prosecuted or that families be separated.
Past practice, including during the Trump administration’s first 15 months, was to release parents along with children. This doesn’t violate the Flores settlement’s terms or the 9th Circuit’s ruling. Indeed, the Trump administration released nearly 100,000 undocumented immigrants while Flores and the court ruling were in place.
“MS-13, they come into the country, we’re liberating towns on Long Island and other places, we’re throwing them out by the thousands. But we need laws that don’t allow them to come back in.”
As we’ve reported, there are no data to verify this claim, because no U.S. agency or private group reports how many MS-13 members are deported.
But Trump’s claim is highly implausible. Statistics from the government of El Salvador, U.S. Immigration and Customs Enforcement and the Justice Department show that Trump’s crackdown on MS-13 has had a discernible effect, though there’s nothing showing that “thousands and thousands” of the gang’s members have been “thrown out” since the president took office.
Instead, it’s in the “hundreds and hundreds” ballpark. It’s worth noting that many MS-13 members are U.S. citizens.
“Here’s what’s happened since 2012, since DACA, just talking about unaccompanied children. Prior to that, somewhere between 3- or 4,000 unaccompanied children from Central America came into this country. Then DACA was instituted in 2012, and that problem skyrocketed. The numbers on it: about 225,000 unaccompanied children just from Central America, about — almost half a million family members. So we’ve got another 750,000 individuals, very sympathetic, that we’re just incentivizing to come here, and we have to stop.”
— Sen. Ron Johnson (R-Wis.)
Johnson’s statistics mostly check out. The number of unaccompanied children from Guatemala, Honduras and El Salvador did spike in fiscal 2012. The total was just over 215,000, according to CBP figures.
Data provided by Johnson’s office show that to get to 225,000 kids, you would have to start counting from 2007, not 2012.
[Update: We had previously reported that Johnson’s numbers were off and that 157,936 unaccompanied minors had arrived since 2012. We updated this number to include data from fiscal 2017 and 2018.]
Johnson’s office did not provide data for his estimate of “almost half a million” family members. Using CBP data, 233,000 family units from Central America have entered the United States since fiscal 2015. [Update: Johnson’s office provided data from the Department of Homeland Security after this published showing 312,361 family units had migrated. Assuming a family unit is at least two people, the senator’s numbers are in the same ballpark.]
Johnson suggests that DACA, or the Deferred Action for Childhood Arrivals program, gave Central American migrants an incentive to crowd into the United States, and that may have been a factor for some. But a 2014 report by the nonpartisan Congressional Research Service found that “high violent crime rates, poor economic conditions fueled by relatively low economic growth rates, high rates of poverty, and the presence of transnational gangs” were some of the motivating factors instead.
The Office of the United Nations High Commissioner for Refugees interviewed 404 children from Mexico and Central America who entered the United States from October 2011 to 2013. It found that 48 percent had “experienced serious harm or had been threatened by organized criminal groups or state actors.”
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