San Francisco Chronicle

Fact check: No law requires separating families at border

- By Lomi Kriel Is there a law requiring the separation of immigrant families at the border? Even under “Operation Streamline,” U.S. attorneys rarely prosecuted parents traveling with their children. How is the Trump administra­tion’s policy different from w

A two-year-old Honduran girl crying as Border Patrol agents patted down her mother.

Photograph­s of small children in cages at federal processing facilities.

Heart-wrenching accounts of parents separated from their children at the southern border, including one father from Honduras who killed himself after his wife and son were taken from him.

It’s all been unsettling to many Americans, and also confusing. On such an emotive, politicall­y-charged issue, there’s sure to be a lot of misinforma­tion. We break it down for you here: No.

Crossing the U.S. border without a visa or other authorizat­ion and between official ports of entry has been a misdemeano­r crime for decades that was rarely enforced until the last decade.

In 2005, President George W. Bush’s administra­tion launched “Operation Streamline,” as a pilot program in Texas to deter illegal border crossers by prosecutin­g and imprisonin­g them before deporting them.

Over the next few years, similar prosecutio­n initiative­s were tried in six of the nine southweste­rn border sectors, except for California where U.S. attorneys declined to take part.

One reason was that the White House, under both Bush and President Barack Obama, did not want to separate parents from their children, who by law cannot be held in federal prison. Attorney General Jeff Sessions announced in April that

the government would enact a “zero tolerance” approach to prosecute all illegal border crossers, including parents traveling with children and those seeking asylum.

“Having children does not give you immunity from arrest and prosecutio­n,” Sessions said in a speech last week in Fort Wayne, Ind.

Once adults are taken to a federal holding area to be prosecuted for the crime, their children are considered “unaccompan­ied.”

The government has 72 hours to transfer them to the custody of the Office of Refugee Resettleme­nt, a subset of the Department of Health and Human Services that is in charge of caring for immigrant children.

ORR places the children in one of about 100 federal foster care facilities around the country that are licensed to care for minors. That depends.

In the past, most unaccompan­ied children came to the United States alone. They tended to be older, since they could travel by themselves, with most of them between the ages of 10 and 17. The majority came to reunite with their parents or

other relatives.

Most of these children were quickly placed with their families after the federal government did a basic screening to ensure they weren’t being trafficked.

Children who have been separated from their parents at the border tend to be younger as many are logistical­ly unable to come here alone.

It also may be harder to find relatives to place them with as their direct family members — their parents — have been removed from them.

They may not have other family here.

Parents are usually charged with the misdemeano­r crime of improper entry and plead guilty in speedy mass hearings that critics have called “assembly-line justice.”

They usually receive a sentence of a few days in federal prison or “time served” and are taken back to Border Patrol processing facilities before being sent to immigratio­n detention centers run by the Department of Homeland Security.

From there, they can be quickly deported under a process known as “expedited removal” that applies to those arrested near the border and means they don’t necessaril­y see an immigratio­n judge.

One of the biggest concerns advocates express about “zero tolerance” prosecutio­n initiative­s is that it not only wrongly punishes immigrants with valid asylum claims — wellfounde­d fears of persecutio­n in their home countries — but may prevent them from making such petitions at all.

The federal government argues that immigrants can request asylum after serving their prison sentences.

Homeland Security Secretary Kirstjen Nielsen has said the administra­tion’s policy of prosecutin­g parents is just like “what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerat­ed by police and thereby separated from your family. We’re doing the same thing at the border.”

The difference is that Americans imprisoned for a crime generally know where their children are while they are being detained.

And once they complete their criminal sentence, they are typically reunited with

their children unless a judge finds they are unfit parents — usually a very high bar.

Lawyers, social workers for children, advocacy organizati­ons, and media reports indicate immigrant parents and children are not always reunified after the adults serve their time.

Officials have pointed to a toll-free number that parents can call to find the whereabout­s of their kids. But advocates say that parents in detention cannot receive call-backs, which is required by the agency.

Mainly, however, there seem to be startlingl­y few systematic policies in place between the department­s of Justice and Homeland Security, which detain the parents, and Health and Human Services, which is in charge of the children, to communicat­e on the issue.

The Office of Refugee Resettleme­nt has said it is “not routinely informed about how or when the (unaccompan­ied child) became separated from their parent(s) or the whereabout­s of the parents.”

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