http://www.dailyherald.com/news/20180530/fact-checking-immigration-spin-on-separating-families-and-1500-lost-children
The Facts
These claims mostly revolve around "catch and release," the practice by U.S. authorities of releasing children and asylum seekers into the community while they await immigration hearings. Many fail to show up for their hearings and remain in the country without legal authorization.
The Trump administration says these legal "loopholes" abet the trafficking of children while allowing smugglers and bad actors to profit. Immigration and civil rights groups say that it's misleading to portray the asylum process as a loophole and that, in recent years, thousands of people legitimately have sought refuge in the United States from the violence in El Salvador, Guatemala and Honduras.
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'We have to break up families. The Democrats gave us that law.'
Trump says his administration's policy of separating children from their families can be traced back to a Democratic immigration law. But as we've reported, catch and release is not a single law so much as a collection of policies and court rulings spanning Democratic and Republican administrations. We gave the president Three Pinocchios in April when he tweeted that catch and release was a "liberal" and "Democrat" law.
In a briefing with reporters on May 29, Stephen Miller, a senior policy adviser to Trump, explained the president's rationale for pinning these policies on Democrats. The gist of it is that these laws may or may not be Democratic creations, but Democrats own them because they don't support Trump's more-restrictive immigration agenda.
Trump tweeted "Put pressure on the Democrats to end the horrible law that separates children from there parents once they cross the Border into the U.S. Catch and Release, Lottery and Chain must also go with it and we MUST continue building the WALL! DEMOCRATS ARE PROTECTING MS-13 THUGS."
"It's a pretty straightforward issue," Miller said. "Near-unanimous Republican agreement about the need to change law and policy in order to close those loopholes, and the Democrats are opposing them."
It's quite a stretch to say there's "near-unanimous Republican agreement" on this agenda or unified opposition by Democrats. The Secure and Succeed Act, sponsored by Sen. Charles E. Grassley, R-Iowa, failed 39 to 60 in the Senate in February. The White House backed this proposal, which got 36 of 51 GOP votes and three Democratic votes, far short of passage. Three other immigration proposals, backed by broader mixes of Republicans and Democrats, each got more than 50 votes - enough to pass if there had not been a procedural vote requiring 60 votes.
Miller mentioned the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, a law signed by President George W. Bush, a Republican. The TVPRA is meant to give safe harbor to victims of human trafficking and says unaccompanied children "are exempt from prompt return to their home country," unless they come from Canada or Mexico, according to the Department of Homeland Security. Children fleeing violence in El Salvador, Guatemala and Honduras are covered by this law.
Miller also mentioned the "Flores settlement" from 1997. This legal agreement struck by President Bill Clinton's administration requires the federal government to release rather than detain undocumented immigrant children, first to their parents if possible, to other adult relatives if not, and to licensed programs willing to accept custody if no relatives are available. As a last resort, U.S. officials may place children in the "least restrictive" setting available.
A federal judge in California ruled in 2015 that the Flores settlement covered all children in immigration officials' custody, regardless of whether they were apprehended at the border alone or with family members. The judge's ruling also covered any accompanying parents. But the U.S. Court of Appeals for the 9th Circuit reversed the latter part of the ruling and said the Flores settlement required only that children, not parents, be released. Therefore, the government is required to keep immigrant children and their parents together only for a limited time.
But none of these legal developments requires the Trump administration to separate children from their families. Instead, separations are rising in large part because of a "zero tolerance" policy implemented by Attorney General Jeff Sessions. In April, Sessions directed prosecutors to charge as many illegal entry offenses as possible.
Devin O'Malley, a Justice Department spokesman, said in the May 29 briefing that people charged with these offenses often are sentenced to time served and transferred to the Department of Homeland Security for deportation.
So, on one hand, the Flores settlement and the TVPRA require that children be released. On the other, Sessions's zero-tolerance policy subjects any accompanying parents to criminal prosecution and eventual deportation.
Laying this on Democrats does not track with reality. The TVPRA was signed by Bush, and the Flores settlement is a court-approved agreement, not a law. Nothing required the Trump administration to separate children from their families until Sessions's zero-tolerance policy made it a practical necessity.
Miller also mentioned a Supreme Court ruling from 2001, Zadvydas v. Davis. The court ruled that immigrants who were under deportation orders - but whom no other country would accept - generally could not be detained by U.S. officials for more than six months.
Congress cannot pass a law that overturns this court ruling. It would require a constitutional amendment or a new Supreme Court ruling overturning Zadvydas.
Republican senators introduced legislation to narrow the scope of the ruling in 2014, allowing the Department of Homeland Security to retain custody of some individuals past the six-month deadline in special circumstances, including when the individual was deemed a threat to national security or had a highly contagious disease. Parts of this bill were folded into the Secure and Succeed Act.
The president asked Congress to allow U.S. Immigration and Customs Enforcement "to retain custody of illegal aliens whose home countries will not accept their repatriation," so long as it is "consistent with the Constitution," according to a statement of principles and policies he sent to Congress in October 2017