How the law does – and doesn’t – apply

The law

There is no federal law requiring that adults crossing illegally over U.S. borders with their children be separated from them. Congress, which creates immigration laws, has never passed such legislation.

Immigrants crossing illegally into the country may be prosecuted criminally, resulting in their children being separated from them because children cannot be held in federal detention centers with their parents. Such prosecutions and separations have occurred for decades.

But criminal prosecutions are not required: Past administrations have chosen to charge most people crossing the southern border with misdemeanors or to release them under supervision; either way, parents could remain with their children.

A 1997 federal court case ended in what is referred to as the “Flores settlement,” which required that unaccompanied children crossing the border be released to a parent, relative or other qualifying guardian rather than being detained. A 2016 court ruling expanded the application to the Flores settlement to include children who were separated from their parents after crossing the border due to their parents’ arrest.

The application

In March 2017, then-Secretary of Homeland Security John Kelly — now President Trump’s chief of staff — said in news interviews that the administration planned to begin prosecuting more people crossing into the country because the resulting separation from their children would serve as a deterrent to illegal immigration.

In April the Trump administration began carrying out a “zero tolerance” policy for border crossings, criminally prosecuting all adults who cross the border, including those seeking to make asylum requests.

The result

Since April there has been a dramatic uptick in the number of children being detained by Health and Human Services officials due to the increase in border crossing arrests and child separations. Since then, more than 2,000 children have been separated from their parents after crossing the border.