Here are The Washington Post’s answers to commonly asked questions about the controversy over family separation at the border:
Q: Is the White House required under law to separate families, as President Trump says?
A: No. There is no law that requires migrant children who arrive at the border to be separated from their parents. The separation practice began in earnest when Attorney General Jeff Sessions announced in early May that the departments of Justice and Homeland Security would work together to criminally prosecute everyone who crosses the border illegally — the “zero tolerance” policy.
“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” Sessions said in Scottsdale, Ariz., on May 7.
That tactic, in effect, directly leads to migrant children being separated from their parents; kids cannot be held in criminal jails alongside their mother or father. The children are deemed “unaccompanied” and are routed through a processing system that also involves the Department of Health and Human Services.
Top administration officials, including Sessions and White House Chief of Staff John F. Kelly, have said this policy is needed to deter migrants from crossing the border illegally. But Homeland Security Secretary Kirstjen Nielsen has denied that the zero-tolerance policy is meant to be a deterrent, although other administration officials continue to contradict her publicly.
“We expect that the new policy will result in a deterrence effect,” Steven Wagner, a top official at HHS’s Administration for Children and Families, said on a conference call Tuesday. “We certainly hope that parents stop bringing their kids on this dangerous journey.”
Q: Why does Trump keep blaming Democrats for family separation and calling it "their law"?
A: In briefings with reporters, administration officials — including Nielsen and White House senior policy adviser Stephen Miller — have referred to a 2008 anti-trafficking law as one of the root causes of the family separation practice. The William Wilberforce Trafficking Victims Protection Reauthorization Act bars unaccompanied migrant children from nations other than Mexico and Canada who show up at the border from being promptly sent back to their home countries.
Instead, the law requires those children be referred to Health and Human Services’ Office of Refugee Resettlement, which screens children to see if they are victims of trafficking while making arrangements to put them in one of its shelters, in foster care or with a sponsor in the United States, such as a family member.
But it’s not a Democratic law: It was passed unanimously by both chambers of Congress and signed into law in the final days of the George W. Bush administration.
Both Miller and Nielsen have also pointed to the “Flores settlement” as another genesis of the separation. The 1997 court settlement dramatically limits the detention of migrant children and calls on them to be held in the “least restrictive setting appropriate to age and special needs.” Combined, administration officials say, those factors are exacerbating the family separation practice by barring families from being detained together. But again, they aren’t Democratic policies, and neither the Bush nor Obama administrations interpreted the 2008 anti-trafficking law or the Flores settlement as requiring family separation.
Q: Which migrant families are affected? Is it all undocumented immigrants or only those seeking asylum? Are families being reunited?
A: Nielsen and other DHS officials have said that everyone who crosses the border illegally between ports of entry — designated locations that process people entering the country — will be a target of the zero-tolerance initiative. DHS statistics show that it’s already having a widespread effect: 2,342 children were separated from their parents between May 5 and June 9.
Wagner, the HHS official, could not provide statistics Tuesday on how many of the separated children had been reunited with their parents, noting that the policy is “relatively new.”
Administration officials, including Nielsen, have repeatedly stressed that people seeking asylum in the United States will not be prosecuted so long as they show up at a port of entry and don’t enter the country illegally.
“If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry,” Nielsen said at a White House news briefing on Monday.
Q: Are migrants who are seeking asylum being turned away from ports of entry?
A: The administration says no, but some appear to be, according to news reports. In a June 15 piece, NPR tracked the journey of the Berduo family, which traveled from Guatemala and arrived at an international bridge connecting to Brownsville, Tex., as they sought asylum in the United States. But the Berduo family has tried at least three times to enter the United States to claim asylum and all three times has been turned away by authorities at the border.
The Post also wrote about Serbando Pineda Hernandez and his 15-year-old son, Riquelmer, who had tried at least nine times to reach the port of entry in El Paso and apply for asylum. They were similarly blocked from making their case.
The stated reason is that there is no more room in U.S. Customs and Border Protection stations. DHS doesn’t consider that being “turned away,” however, and says the asylum seekers can return another time.
But that hasn’t satisfied a handful of Republican senators. Sens. Jeff Flake (Ariz.) and Susan Collins (Maine) pressed DHS and HHS in a letter this week on whether families who request asylum at legal ports of entry were being separated. The letter cited the case of a Honduran woman who said she was separated from her 18-month-old son in February, even though she had crossed at an international bridge in Brownsville to seek asylum. She has since been reunited with her son, and her lawsuit was detailed in a May 28 op-ed column in The Washington Post.
And immigration law experts say there is no legal requirement that asylum seekers come to a port of entry. Jeanne Butterfield, who was the executive director of the American Immigration Lawyers Association from 1993 to 2009, said immigrants have up to a year from when they left their home countries to apply for asylum, even if they’ve already been in the country without legal status.
“You don’t have to present yourself [at a port of entry]. That has never been a part of refugee and asylum law,” Butterfield said. But DHS says crossing anywhere else on the border is indeed, breaking the law.
Q: Are the chain-link-fence cages new or were they used before Trump took office?
A: Customs and Border Protection released images of migrants being processed at a center in McAllen, Tex. The photos depict people enclosed in large pens with chain-link fences for walls. Reporters who were allowed to tour the center last weekend found that as many as 20 or more young children were held in concrete-floor cages in this warehouselike facility and given foil blankets, bottled water and food as they waited to be processed.
When the migrant crisis escalated in 2014 under the Obama administration, there were similar images circulated in the news media. The Arizona Republic published photos in June 2014 depicting immigrant children in similar cages with chain-link fences at a CBP facility in Nogales, Ariz.
“The CBP agents in the building seem to be genuinely compassionate in their interactions with the children. The facility is clean and air-conditioned,” wrote Michael Kiefer, a Republic reporter. “But in essence, it is a juvenile prison camp. The children, mostly of high school and junior-high-school age, are housed behind 18-foot-high chain-link fences topped with razor wire.”
Q: What happened to the families when they crossed the border under the same circumstances during the Obama administration?
A: Trump’s predecessor had a different strategy when confronted with the rising numbers of migrant families at the border in the latter years of his administration. Typically, families from Central America who came to the border and sought asylum would be processed and given a “notice to appear” for a court date. They would then be released together into the United States after a brief stint in custody, said Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center.
The Obama administration tried detaining families together but faced furious pushback from Democratic lawmakers and immigrant rights groups. Ultimately in 2016, the U.S. Court of Appeals for the 9th Circuit upheld a ruling that expanded protections outlined in the Flores settlement, saying migrant children couldn’t be detained at length — whether they came to the United States alone or with a parent. Generally, detention of children is limited to 20 days under the Flores settlement and subsequent rulings.
The practice of briefly detaining families and then releasing migrants and requiring they appear before a judge is the “catch-and-release” policy that has been harshly criticized by Trump and congressional Republicans.
Brown said there were cases of family separation during the Obama administration if the children were being trafficked or officials couldn’t confirm that the adult was indeed the kid’s parent.
Q: Where are the girls?
A: Government officials haven’t allowed the news media to capture images at immigration centers, citing privacy concerns and instead handing out government-issued photos and videos. The images released by CBP and HHS almost exclusively show boys, prompting questions about where the migrant girls were being held.
Nielsen wasn’t able to answer that question directly on Monday, but at a briefing with reporters on Tuesday morning, DHS spokeswoman Katie Waldman said the government was working to get more footage and images of the facilities requested by news organizations.