What Exactly Is the Trump Administration's Family Separation Policy?

| JUN 20, 2018 | 4:47 PM

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President Donald Trump’s administration has been heavily criticized in the last few weeks due to its zero-tolerance policy of separating children and families at the border if the parent is believed to have committed a crime, including illegal entry into the U.S.

Audio of children sobbing and calling out for their parents and stories of parents killing themselves after being separated from their children have made the rounds on social media and many news websites, leading large numbers of American voters — as many as two-thirds, according to recent polling numbers — to question why such a policy exists in the first place, how it originated, and why it is being allowed to continue.

So far, very few politicians have stepped up to answer these questions and are instead attempting to distance themselves from the policy as the American public largely continues to view it unfavorably. Those who have spoken out, including the president himself, have left voters with more questions than answers.

Here, IJR has attempted to answer a few of the most pressing questions related to the policy.

What is the family separation policy?

In April 2018, Attorney General Jeff Sessions announced the zero-tolerance policy as the U.S. response to “the recent increase in aliens illegally crossing our Southwest Border.”

Under it, adults “believed to have committed any crime, including illegal entry,” are referred to the Justice Department from prosecution. Migrants referred for criminal prosecution are sent to a federal jail and must stand before a federal judge. Because children cannot join their parents in federal jail, they are separated from the adults who accompanied them and designated as “unaccompanied alien children” before being sent to the Office of Refugee Resettlement (ORR).

According to figures reported by ORR, children spend an average of 57 days at a shelter before they are placed with a sponsor in the U.S. The Department of Health and Human Services (HHS) has stated that approximately 85 percent of sponsors are parents or close family members already in the country. In cases where family members are not available to care for children, they may be kept in ORR shelters for extended periods while sponsors are identified.

Approximately 1,995 children were taken from 1,940 adults from April 18 to May 31 under this policy, according to statistics reported by the Department of Homeland Security in June.

That number is not exhaustive, however. The New York Times previously reported that 700 families were separated by the Trump administration from October 2017 to April 20, 2018, while Reuters reported that nearly 1,800 families were split between October 2016 and February 2018.

It is important to note that the large discrepancy between the number of children separated from their families during the first leg of Trump's presidency and those separated from their families since April was caused largely by policy decisions and not due to a change in law. 

The combination of Sessions' zero-tolerance policy and President Trump's Jan. 2017 executive order shifted policy in such a way that it became the administration's practice to prosecute all criminal offenses, including misdemeanors like illegal entry, rather than for more serious offenses as had been the practice of prior administrations. 

That executive order also put an official end to the practice commonly referred to as “catch and release,” through which immigrants were routinely released into a local community while waiting for their case to be heard in court. Ending these kinds of programs meant more people crossing the border would be kept in detention and for longer periods of time. 

Is the family separation policy a law?

President Trump has said frequently claimed that the family separation policy is a “Democratic law” and has said that if Congress does not like the law, it must be changed through legislation. This is not true. There is no law that requires immigrant families to be separated.

In fact, the Trump administration released nearly 100,000 immigrants who were caught at the U.S.-Mexico border during its first 15 months — 37,500 of these immigrants were unaccompanied minors, while more than 61,000 were family members.

The reality is that the Trump administration independently made the decision to charge everyone crossing the border with illegal entry and to charge asylum seekers in criminal court, rather than wait to see if they qualify for asylum when it chose to make the policy one of “zero-tolerance.”

Were families split under Obama?

In short, yes, though not at rates comparable to current numbers.

The Obama administration did share the policy of prosecuting migrants crossing the border into the U.S. illegally; however, it did not have a record of separating families. Instead, under President Obama, family detention centers were established to keep families together while cases were being processed and adults with families were often released under close supervision through the Alternatives to Detention program.

Obama’s administration also prioritized gang members and others who committed felonies or posed a national security risk for deportation, while Trump's Jan. 2017 executive order did not include a priority list for those being deported. Instead, it refers only to “criminal offenses,” which is broad enough to include misdemeanors (which includes illegal entry) as well as more serious offenses.

This shift in policy meant that Trump officials would charge more illegal-entry offenses, which would naturally lead to more family separations.

“Obama generally refrained from prosecution in cases involving adults who crossed the border with their kids,” Peter Margulies, an immigration law and national security law professor at Roger Williams University School of Law, said. “In contrast, the current administration has chosen to prosecute adult border-crossers, even when they have kids. That’s a choice — one fundamentally different from the choice made by both Obama and previous presidents of both parties.”

Where are we on the issue currently?

Congressional attempts to end the forced separation of migrant children from their parents at the border have gained traction in the last few weeks as public outrage continues to pour in from both sides of the aisle.

All 49 Senate Democrats and independents have backed a measure introduced by Sen. Dianne Feinstein (D-Calif.) intended to stop the practice, but no Republicans have signed on to the bill. Many have called it too broad or even a “get-radical, extreme open-borders” bill.

Sen. Ted Cruz (R-Texas) has also introduced a bill to address forced separation. Under it, most children would be kept with their families during immigration proceedings. It would also create an “expedited process” for handling immigrants’ asylum claims, authorize new temporary shelters for families to live in together, and double the number of federal immigration judges.

Fox News Chief White House Correspondent John Roberts also reported on Wednesday that the president is considering signing an executive action to allow children to stay with their parents throughout the entirety of the immigration process.