Fact check: No law requires separating families at border
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.”