THE SEPARATION OF parents and their children as they try to enter America from the southern border with Mexico is drawing international headlines and condemnation.
This has been largely attributed to a “zero tolerance” policy instigated by President Donald Trump aimed at deterring the thousands of people who cross the border illegally into the US each and every month.
This zero tolerance sees any adult crossing the border illegally subject to arrest and federal prosecution. In cases where these adults are with children, families have been separated.
This at odds with previous Obama and Bush-era policies that were tough on immigration in a number of ways but stopped short of separating children from their parents.
Democrats have been lining up to attack the Republican president for this policy, with former presidential candidate Bernie Sanders calling it “inhumane” and “cruel”, while Senator Jeff Markey said that the “Statue of Liberty under the Trump policy is not carrying a torch, it’s carrying a pair of handcuffs”.
Trump, however, is pinning the blame for family separations on “bad legislation” that was actually passed by the Democrats and that what is happening now is an example of the law being enforced, rather than a policy.
So, is he right?
The claim
Here’s what Trump said via his preferred medium of Twitter: “Separating families at the border is the fault of bad legislation passed by the Democrats. Border security laws should be changed but the Dems can’t get their act together. Started the wall.”
He’d gone even further in an earlier tweet last month, saying: “Put pressure on the Democrats to end the horrible law that separates children from there(sic) parents once they cross the border into the US.”
He’s repeated that on a number of occasions, citing the “bad laws that the Democrats gave us” that meant “we have to break up families”.
It’s also a claim that has been repeated by his spokesperson Sarah Huckabee Sanders, and House speaker Paul Ryan.
So, the crux of his argument is that the policy of separating children and their families has been caused by laws passed by the Democrats.
There isn’t actually any federal law in the US that mandates the separation of children and parents at the border.
Over a recent six-week period, however, the number of children separated from their parents after crossing the border illegally stood at almost 2,000, the BBC reported.
The children are put in the care of the Department of Health and Human Services, and can be placed in a foster home or a shelter. Their parents, meanwhile, are prosecuted for illegally entering the US.
The current policy of separating families has come on the back of the “zero tolerance” approach recently announced by US Attorney General Jeff Sessions.
Under the measure, adults who illegally cross the border will be arrested on criminal charges.
For those who come with families, their children are removed from them. Sessions said this policy aimed to deter others from arriving.
He said: “You can’t be giving immunity to people who bring children with them, recklessly, and improperly, and illegally.
If you cross this border unlawfully, then we will prosecute you. If you are smuggling a child, we will prosecute you and that child will be separated from you as required by law.
Sessions has long taken a hardline – even extreme for some Republicans – stance on immigration, which was flagged when he was announced as Trump’s Attorney General.
But what law?
Entering the US without the proper visa to be granted entry has, of course, always been illegal.
But, as law professor Seth Abramson has explained in this Twitter thread, illegal entry was for many years a “civil – non-criminal – infraction”.
He said: “[This means] even if you were found after a hearing to have illegally entered the country, you wouldn’t be considered a “criminal.” You would have committed a non-violent, non-criminal status offense.
The Trump Administration has decided—they have *chosen*—to treat illegal entry as a “crime.” This means it is now on par with “criminal trespass”—one of the least serious non-violent offenses in the United States, and one for which almost no one would be held on bail pretrial.
Abramson also points out that pretrial detention wouldn’t usually occur in cases such as this, reflecting the “policy” stance of President Trump.
Those entering the US come from Mexico, as well as Central American countries such as Guatemala, Honduras and El Salvador. Many, including almost all of the families and unaccompanied children arriving, request asylum, claiming a “credible fear” of persecution or torture if they return to their country.
However, there currently is a backlog of 600,000 cases for those seeking asylum.
The policy had previously been to not refer adults directly for prosecution, and instead allow them to submit an asylum application.
In 2005, a policy from George W Bush called Operation Streamline took a hard approach to illegal immigrants which took also prosecuted these people. Exceptions were made for those travelling with children, however, and those who had illnesses.
Responding to an influx of illegal immigrants in 2014, then-President Barack Obama and his administration put whole families in immigration detention but that was short-lived in favour of families being released while their asylum cases were pending.
Critics of Obama said that this “catch and release” policy led to thousands of illegal immigrants gaining access to America – as they would never turn up for their asylum hearings and become lost in the system.
The Trump administration differs from that of Obama, and Bush, in treating all those who’ve crossed the border illegally as subject to criminal prosecution, despite any claims to asylum.
This new policy announced by Sessions recommends those caught for criminal trial and separates them from their children while criminal proceedings follow.
In a statement from the Department of Homeland Security – perhaps pre-empting the policy – in February of this year, it said that due to “legal loopholes and court backlogs” even “apprehended illegal aliens are released and become part of the temporary, illegal population of people that we cannot remove”.
In terms of legal loopholes, it cites two legal precedents – a 1997 legal settlement and a 2008 law passed by the Bush administration.
The first one allows the Department of Homeland Security to detain unaccompanied children crossing the border for 20 days before releasing them to foster families, shelters or sponsors, pending the resolution of their immigration cases.
This was later expanded to also include accompanied children but did not legislate for the separation of families.
The New York Times has reported that the government has three options under this so-called Flores Settlement – release whole families together, pass a law to allow for families to be detained together or break them up.
The 2008 law – which was co-sponsored by three Republicans and three Democrats – required unaccompanied children from Mexico and Canada to be placed in the care of the Office of Refugee Settlement.
In both cases, it does not require for the detainment of parents which is resulting in family separations.
Sarah Pierce, a policy analyst at the Migration Policy Institute, told FactCheck.org that the laws require the government to release children from custody after a certain period of detainment but don’t require the parents to be held too.
“The government absolutely has the option to release the parents,” as well, Pierce said.
Without the “zero tolerance” policy currently being enforced, the current legal precedents do not require children to be separated from their parents.
So, the policy announced by the Trump administration that has resulted in the separation of thousands of families is not required by federal laws, and certainly not ones implemented by the Democrats.
As a result, we rate this claim as FALSE.
TheJournal.ie’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here. For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here. You can read about the team of editors and reporters who work on the factchecks here.
To embed this post, copy the code below on your site
have your say