Fact-checking immigration spin on separating families and 1500 'lost' children
May 30 at 3:00 AM Email the author
âWe have to break up families. The Democrats gave us that law. Itâs a horrible thing where you have to break up families. The Democrats gave us that law and they donât want to do anything about it.â
â" President Trump, in a round table on sanctuary cities in California, May 16, 2018
âYet this administration is separating kids from their parents and unable to account for 1,500 lost children! Shame.â
â" Sen. Tim Kaine (D-Va.), on Twitter, May 27, 2018
Trump blames Democrats for a law that separates undocumented immigrant children from their families. Some Democrats blame Trumpâs administration for losing track of nearly 1,500 immigrant kids.
None of this is accurate.
Weâve fact-checked many claims about the border, and itâs clear that the latest spin from both sides deserves a turn under the microscope. However, since this is a roundup of multiple claims, we wonât be giving Pinocchio ratings.
Letâs dig in.
These claims mostly revolve around âcatch and release,â 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 âloopholesâ abet the trafficking of children while allowing smugglers and bad actors to profit. Immigration and civil rights groups say that itâs 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.
âWe have to break up families. The Democrats gav e us that law.â
Trump says his administrationâs policy of separating children from their families can be traced back to a Democratic immigration law. But as weâve 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 âliberalâ and âDemocratâ law.
In a briefing with reporters on May 29, Stephen Miller, a senior policy adviser to Trump, explained the presidentâs 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 donât support Trumpâs more-restrictive immigration agenda.
âItâs a pretty straightforward issue,â Miller said. âNear-unanimous Republican agreement about the need to change law and policy in order to clo se those loopholes, and the Democrats are opposing them.â
Itâs quite a stretch to say thereâs ânear-unanimous Republican agreementâ 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 â" 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 âare exempt from prompt return to their home country,â 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 âFlores settlementâ from 1997. This legal agreement struck by President Bill Clintonâs 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 âleast restrictiveâ setting available.
A federal judge in California ruled in 2015 that the Flores settlement covered all children in immigration officialsâ custody, regardless of whether they were apprehended at the border alone or with family members. The judgeâs ruling also covered any accompanying parents. But the U.S. Court of Appeals for the 9th Circuit reversed the latter part of the r uling 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 âzero toleranceâ policy implemented by Attorney General Jeff Sessions. In April, Sessions directed prosecutors to charge as many illegal entry offenses as possible.
Devin OâMalley, 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, Sessionsâs zero-tolerance policy subjects any accompanying parents to criminal prosecuti on 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 Sessionsâs 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 â" but whom no other country would accept â" 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 deadli ne 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 âto retain custody of illegal aliens whose home countries will not accept their repatriation,â so long as it is âconsistent with the Constitution,â according to a statement of principles and policies he sent to Congress in October 2017.
âThe administration has repeatedly advocated for the closure to federal immigration loopholes that would allow for the swift, safe, and expeditious return of illegal alien minors, adults, and families at the southern border,â White House deputy press secretary Hogan Gidley said. âHowever, the Democratic Party has repeatedly opposed these loophole closures in favor of preserving âcatch-and-releaseâ policies that make a mockery of national soverei gnty.â
A White House official said that âfrom October 2017 to this February, DHS saw a staggering 315 percent increase in illegal aliens using children to pose as family units to gain entry into the country, compared to the same time frame the previous year.â
The official also pointed to a column in the National Review by Rich Lowry.
âSeparation happens only if officials find that the adult is falsely claiming to be the childâs parent, or is a threat to the child, or is put into criminal proceedings,â Lowry wrote. âItâs the last that is operative here. The past practice had been to give a free pass to an adult who is part of a family unit. The new Trump policy is to prosecute all adults.â
âThis administration is separating kids from their parents and unable to account for 1,500 lost children!â
This startling claim has spread like wildfire online; Kaine is not alone in tweeting it. Di d the government suddenly lose track of 1,500 children?
In a word, no.
The Department of Health and Human Services resettled 7,635 children in the United States from October 2017 through December 2017, most of whom were fleeing violence in El Salvador, Guatemala and Honduras.
As we noted, the Flores settlement requires that these children be placed with parents if theyâre available, with other relatives if not, then in licensed programs or âleast restrictiveâ settings if all else fails.
The HHS Office of Refugee Resettlement will place these children even with family members who themselves may be undocumented. âWeâre not able to deny placement just because parents or family members are in the country illegally,â Steven Wagner, the acting assistant secretary of the Administration for Children and Families at HHS, told reporters in the May 29 briefing.
All 7,635 children were resettled by HHS. After 30 days, the department called the parents or guardians to check up on things. But these calls were not required by law, and in 1,475 cases, the parents or guardians did not respond, perhaps because they feared being targeted for deportation, Wagner said.
Wagner testified in April to a Senate subcommittee that, of the 7,635 children, 6,075 remained where they were placed, 52 had moved, 28 had run away and five were deported. That left 1,475 migrant children. Just because their parents or guardians did not return HHSâs phone calls after 30 days does not mean the children are missing, he said.
âWe are not in custody of the children at that point,â Wagner said. âIf you call a friend and they donât answer the phone, you donât assume that theyâve been kidnapped.â
Kaineâs tweet suggests that the 1,500 kids were separated from their families and then lost. Thatâs not what happened, since all 7,635 children were unaccompanied minors when they crossed the border and were resettled.
âSenator Kaine has serious concerns about the Trump administrationâs policies that threaten to put kids in harmâs way, including the separation of parents and children at the border, the widely reported failure to account for nearly 1,500 children who came to the U.S. as unaccompanied minors, and the lack of protections for kids in the U.S. whose parents are arrested or detained by immigration authorities,â a Kaine representative said.
Itâs not the first time the government lost track of children in these situations. According to Wagner, in the past fiscal year, covering the tail end of Obamaâs term and most of Trumpâs first year, 14 percent of HHS calls were not returned.
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