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Why the Trump administration bears the blame for separating children from their families at the border

Appearing on "Fox & Friends" on June 15 President Trump said he would not support a compromise immigration bill and said what James B. Comey did was “criminal." (Video: JM Rieger/The Washington Post)

President Trump seems to recognize that news reports about children being separated from their parents at the border don’t reflect well on his administration. He has called the separations “horrible” on Twitter and, as recently as Friday morning during an interview with “Fox and Friends,” blamed the political opposition.

“I hate the children being taken away,” he said. “The Democrats have to change their law. That’s their law.”

This has been debunked repeatedly, including by The Washington Post. There is no “Democrats’ law” that necessitates separating children from their parents. As people familiar with the rules regarding the handling of young people at the border made clear in interviews on Friday, the separation policy is a function of decisions made by Trump and his team. What’s more, the administration specifically implemented the policy to serve as a deterrent for those thinking about seeking entry to the United States.

Wendy Young is the president of Kids in Need of Defense, a nonprofit organization that provides immigrant children with pro bono legal support and that has criticized Trump’s immigration policies. Young has worked on immigration issues for 30 years, well before joining KIND, including serving for a period as chief counsel on immigration policy for the Senate Judiciary subcommittee on immigration, border security and refugees.

She walked through the evolution of treatment for children who cross the border without parents accompanying them.

“In the old days, when INS still existed” — that is, Immigration and Naturalization Service — “they filled the functions of both parent, jailer, prosecutor and deporter for these kids, and it was an inherent conflict of interest,” she said. “The kids were generally housed in county jails from which INS rented space, and the total focus was to get these kids out of the country. Very few services were going into the kids.”

In 1997, the government settled a class-action suit brought by unaccompanied minors against INS. That case, Flores v. Reno, established three mandates for the government’s handling of unaccompanied minors. First, that detention should be as brief as possible, with immediate efforts being taken to find a parent, relative or qualified adult with whom the children could live. Second, that children should be treated with dignity and respect that recognized the vulnerabilities that accompany childhood. And, third, that the detention should be in the least restrictive facility possible — a facility less like a jail than a day care.

People marched to the Metropolitan Detention Center in Los Angeles on June 14, galvanized by reports of immigrant parents being separated from their children. (Video: The Washington Post)

The terms of that settlement, though, were slow to be implemented given INS’s dual role. When the Department of Homeland Security was created after the terrorist attacks of Sept. 11, 2001, management of unaccompanied minors was transferred to the Department of Health and Human Services’ Office of Refugee Resettlement.

“The idea behind that was the Office of Refugee Resettlement had experience with unaccompanied refugee minors being resettled from overseas,” she said. “So they had some expertise, and they had no interest in the outcome of the child’s immigration case.”

In 2013, the Trafficking Victims Protection Reauthorization Act added additional services for immigrant children including appointment of a child advocate.

“Never, ever, ever a perfect system,” Young said, “but certainly a trajectory in right way over past 15 years or so.”

Children who seek entry while accompanied by a parent have traditionally been routed through the same process as an adult arriving alone, since the idea is that the adult they are with can help guide them through the process.

When we spoke to Young in May, though, she noted that the Trump administration policy was effectively creating unaccompanied minors by separating arriving children from their parents.

But: Why?

Hiroshi Motomura, Susan Westerberg Prager Professor of Law at the University of California at Los Angeles, explained by phone that those separations stem from a change in the treatment of the adults.

“The key shift here is to go to criminal prosecution of the parents that are caught, combined with the practice of not releasing them,” Motomura said. “So if they release them on bond of something like this, that would not require the separation.”

Trump has repeatedly railed against what he calls “catch-and-release,” allowing immigrants to leave detention on bond.

“You catch, you take their name, and you release. Great. Wonderful,” Trump said at a rally in Tennessee last month. “Then they are supposed to show up to a court. There’s only one problem: They never show up. So we’re working on it.”

That’s not true. A study from Syracuse University’s TRAC found that more than 80 percent of those granted bond for the first 10 months of 2016 returned for their hearings.

For a family, being released on bond allows parents and children to stay together. If no bond is granted, the child is separated from a parent because the parent goes into criminal detention. Because Flores means that children can’t be detained in such facilities, the Trump administration has argued that Flores necessitates that children and parents be separated.

Flores “doesn’t come close to saying what the administration says it says,” Motomura said. There have always been some criminal prosecutions for people who are crossing the border illegally, he added. “I just never heard that this resulted in a blanket policy of family separation in this way.”

“The reality is, even though theoretically they have the authority to do that, through the immigration laws, to prosecute the parent, in the past that was truly the exception to the rule,” Young said. “The administration stating that they’re required to do this law flies in the face of a long-standing history of treating families like families and recognizing that the children, whether attached to a family or arriving unaccompanied, have particular vulnerabilities that need to be addressed.”

Motomura also noted that key administration officials have themselves argued that the separation policy is meant to be a deterrent. That is, by mandating that children be taken away from parents upon arriving at the border, the hope is that fewer parents will even try to enter the United States. (So far, there doesn’t appear to be a deterrent effect.)

Some of those who would have sought asylum in the United States may have had valid claims, “but now we’ll never know because of the policy of deterrence,” he said. “People are fleeing dire conditions, and they have to make extremely hard choices about how they’re going to survive. Some of the calculations that one might make about what might deter people in an office building in D.C. are not necessarily going to translate to people’s behavior who feel that they’re in dire straits.”

Neither Young nor Motomura indicated that policies advanced by Democratic lawmakers played a role in the new administration policy.

Young blamed the administration directly.

“They are imploding the system themselves,” she said. “It doesn’t have to happen.”