Myth vs More Facts: DHS Zero-Tolerance Policy
Introduction
On June 18, 2018, the Department of Homeland Security released a Myth vs. Fact sheet regarding the commonly referred to situation of family separation. While many, if not all, facts listed are indeed true statements, single truths do not communicate whole truth, and this piece is intended to highlight additional facts that give important context to the facts DHS listed and create a more complete version of the truth. Here we present the original text of the DHS Press Release and add important contextual facts noted in italics below each statement.
DHS Press Release
In recent days, we have seen reporters, Members of Congress, and other groups mislead the public on the Department of Homeland Security’s (DHS) zero-tolerance policy.
Federal law enforcement officers have sworn duties to enforce the laws that Congress passes. Repeating intentionally untrue and unsubstantiated statements about DHS agents, officers, and procedures is irresponsible and deeply disrespectful to the men and women who risk their lives every day to secure our border and enforce our laws.
Myth
DHS has a policy to separate families at the border.
Fact
DHS does not have a blanket policy of separating families at the border. However, DHS does have a responsibility to protect all minors in our custody. This means DHS will separate adults and minors under certain circumstances. These circumstances include: 1) when DHS is unable to determine the familial relationship, 2) when DHS determines that a child may be at risk with the parent or legal guardian, or 3) when the parent or legal guardian is referred for criminal prosecution.
- Familial Relationship — If there is reason to question the claimed familial relationship between an adult and child, it is not appropriate to detain adults and children together.
- Human Trafficking and Smuggling — If there is reason to suspect the purported parent or legal guardian of human trafficking or smuggling, DHS detains the adult in an appropriate, secure detention facility, separate from the minor. DHS continues to see instances and intelligence reports indicating minors are trafficked by unrelated adults, posing as a “family” in an effort to avoid detention.
- Safety Risk — If there is reason to suspect the purported parent or legal guardian poses a safety risk to the child (e.g. suspected child abuse), it is not appropriate to maintain the adult and child together.
- Criminal Prosecution — If an adult is referred for criminal prosecution, the adult will be transferred to U.S. Marshals Service custody and any children will be classified as an unaccompanied alien child and transferred to the Department of Health and Human Services custody.
In recent months, DHS has seen a staggering increase in the number of illegal aliens using children to pose as family units to gain entry into the United States. From October 2017 to February 2018, there was a 315 percent increase in the number of cases of adults with minors fraudulently posing as “family units” to gain entry.
Context on these facts
The root cause of the sharp uptick of separated children in recent weeks is due to a new “zero-tolerance” policy announced by Attorney General Jeff Sessions on April 6, 2018, which has triggered reason #3 (listed above) for separating children from parents. Migrants crossing the border illegally as a family were historically held in family detention with ICE to be processed for deportation or asylum, where adult male family members were still separated to another facility, but mothers and children could be housed together. The zero-tolerance policy instead orders that all those entering illegally be “met with the full prosecutorial powers of the Department of Justice,” which then places every adult in criminal detention and renders the child an “unaccompanied alien child,” due to the legal restriction that children cannot be held in adult criminal detention. Criminal code does not require imprisonment for the crime of illegal entry, nor does legal code require criminal prosecution for 100 percent of crimes committed.
The US Department of Justice Code of Criminal Prosecution 9–27.220 states that “When a person has committed a federal offense, it is important that the law respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be commenced… The attorney for the government should commence or recommend federal prosecution [unless] there exists an adequate non-criminal alternative to prosecution.” Civil immigration proceedings like detention and deportation are non-criminal alternatives to prosecution.
While the explicitly stated purpose of the zero-tolerance policy is not family separation, in March of 2017, John Kelly, White House Chief of Staff (then secretary of the Department of Homeland Security) confirmed the rumor that the administration was considering a policy of family separation: “When asked by CNN in March 2017 whether the Trump administration was seriously considering separating migrant children from their parents, Kelly said, ‘Yes, I am considering an order to deter more movement along this terribly dangerous network … I am considering exactly that.’”
In regards to the claim of a “staggering increase” of 315 percent in cases of adults and children fraudulently posing together, the New York Times reported that “Katie Waldman, a spokeswoman for the Department of Homeland Security, told [the Times] that there were 46 alleged cases of fraudulent family claims in the 2017 fiscal year, which began in October 2016 and ended in September 2017. In just the first five months of the 2018 fiscal year, there were 191 alleged cases — a 315 percent increase.
“But those instances of family fraud are a tiny fraction of the total number of families apprehended at the southwestern border: 0.06 percent of nearly 76,000 families in the 2017 fiscal year and 0.6 percent of 31,000 families apprehended in the first five months of the 2018 fiscal year.”
Also important to note is that the legal definition of smuggling is to transport someone or something in an illegal way, so every parent who crosses the border outside of a port of entry with their child can technically be charged with the crime of smuggling and separated as a result.
Sources:
https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry
https://www.law.cornell.edu/uscode/text/8/1325
https://www.deseretnews.com/article/900022190/op-ed-family-detention-is-not-the-answer.html
http://www.businessinsider.com/kelly-proposed-family-separation-to-deter-illegal-immigration-in-2017-2018-6
https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution
https://www.nytimes.com/2018/06/18/us/politics/nielsen-family-separation-factcheck.html
https://www.law.cornell.edu/uscode/text/8/1324
Myth
Prior to April 2017, DHS never separated families arriving at the border.
Fact
DHS has separated families under the circumstances described above. Because of court decisions, DHS can generally no longer hold families in detention beyond 20 days.
Context on these facts
This is true that families cannot be held together longer than 20 days, specifically in ICE family detention facilities. Vox reported that in 2016 under the Obama administration “the Ninth Circuit ruled that the Flores settlement covered not just unaccompanied alien children but ‘accompanied’ ones as well. It set a general standard that the government couldn’t hold them in custody for more than 20 days.” It is important to note that in the case of this zero-tolerance policy, families have been separated before reaching this 20-day limit due to the choice to criminally prosecute every entry to the fullest extent, transferring the parents into U.S. Marshals Service custody where children cannot be held and children into the custody of HHS. In previous administrations, adults were not routinely placed into criminal proceedings but were placed into civil immigration proceedings.
Sources:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/06/15-56434.pdf
https://www.vox.com/2018/6/20/17484546/executive-order-family-separation-flores-settlement-agreement-immigration
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
https://www.nytimes.com/aponline/2018/06/14/us/politics/ap-us-immigration-fact-check.html
Myth
DHS can indefinitely detain families who cross the border illegally.
Fact
DHS generally releases families within 20 days. This creates a “get out of jail free” card for illegal alien families and encourages groups of illegal aliens to pose as families hoping to take advantage of that loophole.
In 2014, DHS increased detention facilities for arriving alien families and held families pending the outcome of immigration proceedings. However, a federal judge ruled in 2016 that under the Flores Settlement Agreement, minors detained as part of a family unit cannot be detained in unlicensed facilities for longer than a presumptively reasonable period of 20 days, at which point, such minors must be released or transferred to a licensed facility. Because most jurisdictions do not offer licensure for family residential centers, DHS rarely holds family units for longer than 20 days. The judge’s ruling made it much more difficult for the Federal government to use the detention authorities Congress gave it.
Context on these facts
The 20 day limit should in normal circumstances serve as enough time either to process a family for deportation or for them to pass a credible fear screening to move forward with an asylum claim. The 20 limit exists for important reason, due to the negative impact that any detention at all has on a child.
Alternatives to detention (ATD) have historically been used for those with lengthier court claims, particularly for those families with asylum claims who have already passed a credible fear screening. Many ATD programs have very high success rates of appearance in court and can be managed at a much lower cost to taxpayers. Though these programs are sometimes described as “catch and release” policies, the term has carried varied meanings, and those currently released are placed under intensive monitoring until their court dates.
Sources: http://pediatrics.aappublications.org/content/early/2017/03/09/peds.2017-0483
https://bipartisanpolicy.org/blog/what-you-need-to-know-immigrant-family-detention/
https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening
https://www.csmonitor.com/USA/Foreign-Policy/2017/0609/ICE-shutters-helpful-family-management-program-amid-budget-cuts
Myth
DHS is referring for prosecution all families coming to the border.
Fact
DHS only refers to the Department of Justice those adults who violate the law by crossing the border illegally (or who have violated some other criminal law) and are amenable for prosecution. When adults, with or without children, unlawfully enter this country, there must be a consequence for breaking our laws.
DHS is not referring for prosecutions families or individuals arriving at ports of entry or attempting to enter the country through legal means. These families and individuals have not broken the law and will be processed accordingly.
Context on these facts
As stated in this fact sheet, DHS is referring for prosecution all adults who cross the US-Mexico border illegally rather than allowing cases to be handled solely by the civil immigration system, even if they are asylum seekers, which is a practice that has been called into question by many immigration attorneys and advocacy groups familiar with international treaties and federal refugee protocols.
Sara Ramey, immigration attorney and executive director at the Migrant Center for Human Rights, wrote for The Hill, “Domestic law is grounded in widely-accepted international standards, starting with Article 14 of the 1948 Universal Declaration of Human Rights and Article 27 of the 1948 American Declaration of the Rights and Duties of Man, and continuing with the 1951 U.N. Convention Relating to the Status of Refugees.
“As stated by the U.N. High Commissioner for Refugees ‘refugees should not be penalized for their illegal entry or stay… the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offenses relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.’’’
While definitive reasons can not be concretely determined as to why an asylum seeker would enter illegally rather than through a port of entry, pro-bono immigration attorney Deborah Anthony, who is working with many of these separated families, suggested to us that reasons range from a lack of understanding of the proper way to enter, long waiting periods and denials at ports of entry, and a fear of government officials, rooted in the widespread corruption in governments in Central America.
Sources:
https://www.texasmonthly.com/news/whats-really-happening-asylum-seeking-families-separated/
http://thehill.com/opinion/immigration/390743-people-fleeing-persecution-have-the-right-to-seek-asylum
https://www.humanrightsfirst.org/resource/punishing-refugees-and-migrants-trump-administrations-misuse-criminal-prosecutions
http://www.un.org/en/universal-declaration-human-rights/
https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htmhttp://www.unhcr.org/3b66c2aa10
https://www.azcentral.com/story/news/politics/immigration/2018/06/18/sessions-asylum-seekers-go-border-ports-but-its-not-easy/710796002/
https://www.cambridge.org/core/journals/latin-american-politics-and-society/article/political-corruption-in-central-america-assessment-and-explanation/15CD00385837E32DDF89E6E680246BF3
Myth
DHS is turning away asylum seekers at ports of entry.
Fact
DHS complies with Federal law with regard to processing individuals claiming asylum at ports of entry.
CBP processes all aliens arriving at all ports of entry without documents as expeditiously as possible without negatively affecting the agency’s primary mission to protect the American public from dangerous people and materials while enhancing the nation’s economic competitiveness through facilitating legitimate trade and travel.
As the number of arriving aliens determined to be inadmissible at ports of entry continues to rise, CBP must prioritize its limited resources to ensure its primary mission is being executed. Depending on port circumstances at the time of arrival, CBP officials will allocate the necessary resources to its primary mission and operate appropriate access controls and queue management procedures for those arriving aliens without proper travel documents.
Context on these facts
Ports of entry have been slow to allow asylum seekers to enter, and many migrants have been turned away and asked to try again later. AZ Central reports that the situation is getting worse, with asylum seekers waiting 12 to 13 days in Nogales to enter by the proper channels. “With a limited response from the Mexican government, the [Kino Border] initiative — along with other community groups — stepped in to coordinate food, legal aid, and shelter from the sweltering desert temperatures. The advocates even created a number system to keep order among the families.
“In response to these situations, Customs and Border Protection has said it has insufficient space and services, but that the agency is working ‘as expeditiously’ as possible to process everyone.”
Sources:
https://www.theatlantic.com/video/index/563084/us-border-asylum/
https://www.azcentral.com/story/news/politics/immigration/2018/06/18/sessions-asylum-seekers-go-border-ports-but-its-not-easy/710796002/
Myth
DHS separates families who entered at the ports of entry and who are seeking asylum — even though they have not broken the law.
Fact
If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry. DHS does have a responsibility to protect minors we apprehend and will separate in three circumstances:1) when DHS is unable to determine the familial relationship, 2) when DHS determines that a child may be at risk with the parent or legal guardian, or 3) when the parent or legal guardian is referred for criminal prosecution.
Context on these facts
There have been many reports of separations occurring when an asylum seeker has come to a port of entry, but specific reasons have not been released to the public for these cases. In a lawsuit brought by the ACLU, a Congolese woman only referred to as “Ms. L” was separated from her 7-year-old daughter for five months. According to the Chicago Tribune, “Ms. L. followed all the laws this country has established for asylum seekers. But for reasons that remain unexplained, she was separated from her daughter and incarcerated at an Immigration and Customs Enforcement facility in San Diego.”
Other news outlets have shared similar stories.
From the ACLU: “Mirian G, a mother from Honduras, came to the U.S. with her young son on Feb. 20, 2018. She presented herself to immigration authorities and sought asylum, committing no crime. During her interview, Mirian provided immigration officers with several identification documents for her child which listed her as his mother. The next morning, Border Patrol agents took away her 18-month-old son with no explanation. She did not see him again for two months.”
From Portland-based Willamette Week: “Luis Garcia, a lawyer for Marandas Sinlapasai, P.C. in Lake Oswego, says that he met with five detainees from Mexico on a visit to the prison with members of the Mexican consulate. Garcia says all five men said they had submitted themselves to U.S. Customs and Border Patrol officers at a legal port of entry but were immediately separated from their family members and detained.”
Sources:
http://www.chicagotribune.com/news/opinion/huppke/ct-met-family-separation-aclu-trump-asylum-huppke-20180316-story.html
https://www.cnn.com/2018/05/29/opinions/immigration-separation-mother-son-mirian/index.html
https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/fact-checking-family-separation
http://www.wweek.com/news/courts/2018/06/19/border-patrol-agents-may-have-separated-families-at-legal-ports-of-entry-despite-promises-not-to/
Myth
Once separated, arriving alien adults cannot contact minors and are not told where the minors are being held by the Department of Health and Human Services (HHS).
Fact
DHS is committed to and has procedures in place to connect family members after separation so adults know the location of minors and have regular communication with them.
HHS and DHS work to facilitate communication between detained adults and minors (in HHS custody) in a number of ways to include telephone and/or video conferencing. Additionally, ICE has posted information in all over 72-hour facilities advising detained adults who are trying to locate, and/or communicate with a child in the custody of HHS to call the Detention Reporting and Information Line (DRIL) for assistance. This posted information includes:
- HHS Adult Hotline (24 hours a day, 7 days a week, in both English and Spanish):
- If calling from outside an ICE detention facility, call 1–800–203–7001.
- If calling from an ICE detention facility, dial 699# on the free call platform.
- Please note that you will need to provide the child’s full name, date of birth, and country of origin. It is also helpful to provide the child’s alien registration number, if you know it.
- HHS Email: information@ORRNCC.com
Individuals may also obtain information about a particular immigration case (including their child’s), or information about reunifying with minors, through the following methods:
- ICE Call Center (Monday-Friday, 8 am-8 pm EST):
- If calling from outside an ICE detention facility, call 1–888–351–4024.
- If calling from an ICE detention facility, dial 9116# on the free call platform.
- ICE Email: Parental.Interests@ice.dhs.gov
Additionally, CBP has developed and distributed bilingual documents outlining the separation and reunification process.
Context on these claims
While this is the current process, it appears to have been put into place after the zero-tolerance policy was first implemented. On June 20, the AP reported that Steven Wagner, an acting assistant secretary at the Department of Health and Human Services stated that “This policy is relatively new… [and] we’re still working through the experience of reunifying kids with their parents after adjudication.”
Director of migrant rights and justice at the Women’s Refugee Commission, Michelle Brané says “I cannot convey enough how much utter chaos there is…. The government does not have a proper system in place to track families and coordinate.”
The New York Times reports that “The processing and detention of migrant families can involve three Homeland Security agencies — Customs and Border Protection, Immigration and Customs Enforcement and Citizenship and Immigration Services — as well as the departments of Justice and Health and Human Services. Poor coordination among them has made it hard to track children and parents once their paths diverge in the labyrinthine system.”
From an Assistant Federal Public Defender in El Paso, TX: “I have to explain to these parents that I might never be able to answer their questions. I can’t promise that they’ll be able to speak to their children, or know their whereabouts or who is taking care of them, or whether they’ll be sent back home without their kids.”
There have also been numerous reports of parents or children being deported separately.
From Reuters: “The advocacy group Kids In Need of Defense (KIND) said of the 40 case referrals involving family separation they have received since July 2017 through their child migrant return and reintegration project, 32 involved parents deported before their children, and 15 of those cases involved children who were five years old or younger.”
Separate deportations can have serious consequences. Federal public defender Darren Ligon said, “The terrible thing is that the thing my client was attempting most to avoid has actually happened. Immigration authorities handed her daughter back over to the abusive father at the international bridge. They contacted him in Juárez, and he came to pick up his daughter.”
John Sandweg, who was acting director of ICE during the Obama administration, describes another issue with reunification efforts. “Once the parent and child are apart, they are on separate legal tracks. In federal court, parents typically plead guilty to the misdemeanour offence of illegal entry. Many are then likely to accept ‘expedited removal’ from the country, in the hope of being reunited quickly with their children. But children cannot be subject to expedited removal; they are automatically entitled to a full hearing before an immigration judge, and their cases take longer to resolve.”
Sources:
https://apnews.com/8c3d79185d904b2abcc6f3debb9eb870/No-clear-plan-yet-on-how-to-reunite-parents-with-children
https://www.reuters.com/article/us-usa-immigration-reunification-explain/hurdles-facing-parents-and-children-separated-at-us-border-idUSKBN1JF39I
https://www.washingtonpost.com/outlook/families-will-no-longer-be-separated-at-the-border-but-where-are-my-clients-kids/2018/06/20/9d9e59a0-74b6-11e8-805c-4b67019fcfe4_story.html?utm_term=.699b382217b3
https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html
https://www.theguardian.com/us-news/2018/jun/18/us-immigration-court-parents-separated-children-families
https://www.independent.co.uk/news/world/americas/us-border-mexico-trump-mother-separate-family-ice-son-guatemala-texas-children-a8407381.html
Myth
Language barriers prevent aliens apprehended at the border, and subject to prosecution, from receiving adequate information.
Fact
All US Border Patrol trainees are required to take Spanish language training while at the Border Patrol Academy, and achieve proficiency in Spanish. All Border Patrol personnel on the Southwest Border are bilingual.
CBP apprehends illegal aliens from numerous countries that speak many languages other than Spanish. Should an agent ever have a language or communication issue, they are required to find another Agent who speaks the language or to utilize contract interpreters.
All Border Patrol personnel at the border are directed to clearly explain the relevant process to apprehended individuals. CBP provides detainees with written documentation (in Spanish and English) that lays out the process — to include the appropriate phone numbers to contact.
Context on these facts
While Border Patrol agents are all bilingual, language barriers still exist in courtrooms, federal detention facilities, and in shelters where children are placed.
Another layer of difficulty arises with migrants who speak indigenous languages like Q’anjob’al, Mam, K’iché and Kaqchikel. Many of them are assumed to speak Spanish and have limited access to accurate information as a result.
Also at issue is that separated migrant children are placed on a separate legal track from the parents. Children get their own case in immigration court and are entitled to a full hearing by an immigration judge, regardless of the age of the child.
Other challenges present because of illiteracy, preventing migrants from spelling their own children’s names.
Sources:
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-3
https://theintercept.com/2018/05/29/zero-tolerance-border-policy-immigration-mass-trials-children/
https://www.correctionsone.com/treatment/articles/7112288-Why-you-need-bilingual-corrections-officers/
https://www.voiceofsandiego.org/topics/news/morning-report-mundanity-and-humanity-in-immigration-court/
https://www.huffingtonpost.com/entry/asylum-central-americans_us_57c85ebde4b0e60d31ddb9d9
https://www.reuters.com/article/us-usa-immigration-reunification-explain/hurdles-facing-parents-and-children-separated-at-us-border-idUSKBN1JF39I
https://apnews.com/8c3d79185d904b2abcc6f3debb9eb870/No-clear-plan-yet-on-how-to-reunite-parents-with-children
Myth
CBP and ICE officers are not properly trained to separate minors from their custodians.
Fact
The safety of CBP employees, detainees, and the public is paramount during all aspects of CBP operations. CBP treats all individuals in its custody with dignity and respect, and complies will all laws and policy, including CBP’s National Standards on Transport, Escort, Detention, and Search (TEDS). TEDS reinforces/reiterates the need to consider the best interest of children and mandates adherence to established protocols to protect at-risk populations, to include standards for the transport and treatment of minors in CBP custody.
All ICE facility staff who interact with adults receive trauma-informed care training. ICE is augmenting mental health care staffing, to include trained clinical staff, to provide mental health services to detained adults.
Context on these claims
Factual data is not available to verify or contextualize the claim that “CBP treats all individuals in its custody with dignity and respect” or that protocol and training is always followed. We will note that several media outlets have reported mistreatment or deceptive practices in order to separate children from parents, and list several of those sources below for readers to make their own judgments.
Reliable data suggests that abuses were occurring under the Obama administration, and there is not data on what corrective action or systems have been put in place since that point.
Sources:
https://www.independent.co.uk/news/world/americas/us-border-patrol-immigrants-family-separation-ice-children-separation-a8394326.html
https://www.npr.org/2018/06/19/621065383/what-we-know-family-separation-and-zero-tolerance-at-the-border
https://www.washingtonpost.com/news/monkey-cage/wp/2018/05/30/this-is-whats-really-happening-to-kids-at-the-border/?utm_term=.e44aeb0d864a
Myth
DHS detention facilities are in poor condition and do not provide clean drinking water.
Fact
DHS facilities are safe and sanitary, and adults and minors are provided access to food and drinking water, medical care as needed, and adequate temperature control and ventilation.
Context on these claims
This is another set of claims that cannot adequately be verified with facts or hard data, so we again will provide sources below of the accounts that DHS appears to be responding to and allow readers to make their own judgements. Reports of freezing cold holding rooms and poor conditions are not new to this administration and many complaints date back several years.
Sources:
https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells
https://www.aljazeera.com/news/2018/02/women-children-detained-freezing-cells-border-hrw-180227200843255.html
https://www.hrw.org/report/2018/06/20/code-red/fatal-consequences-dangerously-substandard-medical-care-immigration
https://www.theguardian.com/us-news/2016/mar/27/pennsylvania-immigration-center-detainees-child-illness
https://www.washingtonpost.com/news/monkey-cage/wp/2018/05/30/this-is-whats-really-happening-to-kids-at-the-border/?utm_term=.e44aeb0d864a
https://www.aclusandiego.org/civil-rights-civil-liberties/
Myth
DHS and HHS houses migrants in “inhumane fenced cages” or in an “ice box.”
Fact
DHS and HHS utilize short-term facilities in order to process and temporarily hold migrants that have been apprehended. These short-term facilities do not employ the use of ‘cages’ to house minors. Certain facilities make use of barriers in order to separate minors of different genders and age groups — for the safety of those who are being held. Additionally, CBP facilities have adequate temperature control and ventilation. ICE facilities are designed for longer-term detention of adults and, in some cases, families.
DHS takes seriously our responsibility for the safety and security of all migrants in the custody of the United States government.
Please refer to commentary and sources on previous Myth/Fact/Context.
Myth
DHS has never separated families for prosecutions before — this is a new policy in this Administration.
Fact
Illegal border crossers, including family units, were referred for prosecutions, as appropriates, under the previous Administration. The average referral rate for amenable adults from FY10 — FY16 was 21 percent.
Context on these facts
Although family separation did occur under previous administrations, “Bush and Obama did not have policies that resulted in the mass separation of parents and children like we’re seeing under the current administration,” said Sarah Pierce, a policy analyst with the Migration Policy Institute.
There has been a clear and significant increase in the number of parents and children separated under the Trump administration before and after the announcement of the zero-tolerance policy. In a six-month period from October 2017 to April 2018, roughly 700 children were separated. After the zero-tolerance policy’s implementation, in a six-week period, 1,995 children were separated, according to a spokesman for the Department of Homeland Security.
In reference to the 21 percent of adults referred for prosecution under the previous administration, those figures include all adults and is not isolated to those who were traveling with children. There is no breakdown available on how many children may have been separated from their parents, so we do not have that data.
Sources: https://www.factcheck.org/2018/06/did-the-obama-administration-separate-families/
https://www.nytimes.com/2018/06/15/us/politics/trump-immigration-separation-border.html
https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
Myth
By choice, DHS refuses to keep families together through the immigration adjudication and removal process.
Fact
Court decisions interpreting the Flores Settlement Agreement (FSA), which has been in existence for over 20 years but was significantly broadened in 2016, limits the government’s ability to detain family units. Pursuant to these court decisions, minors detained as part of a family unit cannot be detained in unlicensed facilities for longer than a presumptively reasonable period of 20 days, at which point, minors must be released or transferred to a licensed facility. Because most jurisdictions do not offer licensure for family residential centers, DHS can rarely detain a family for longer than 20 days.
The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) requires unaccompanied alien children (other than those from contiguous countries — Mexico and Canada — who are eligible to withdraw their application for admission) be transferred from DHS to the Department of Health and Human Services within 72 hours, absent exceptional circumstances.
Context on these facts
While these laws and court rulings are accurately stated, the rise in family separation is not due to these rulings and laws, but rather due to the administration’s choice to implement the zero tolerance policy. As stated earlier in this fact sheet, “If an adult is referred for criminal prosecution, the adult will be transferred to U.S. Marshals Service custody and any children will be classified as an unaccompanied alien child and transferred to the Department of Health and Human Services custody.”
DHS has the ability to detain families together, albeit for a limited time frame, but U.S. Marshals Service does not. President Trump’s recent executive order authorizes DHS to maintain custody of those criminally prosecuted, rather than transferring them to the U.S. Marshals Service, which should halt the immediate family separations.
The Trump administration made a deliberate choice to implement a policy that caused over 2,300 children to be separated from their parents, and the administration has at all times held the power to stop family separation by rescinding the zero-tolerance policy. There was no legal requirement compelling the administration to begin or continue that policy.
Sources:
https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-tolerance-policy
https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/
https://nypost.com/2018/06/22/about-500-kids-reunited-with-families-since-being-separated-at-border-official/
https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution
