WASHINGTON (Circa) — The latest reports about families being torn apart at the border and unaccompanied children getting lost in the refugee resettlement process have added confusion to an already complicated and emotional issue.
Over the weekend, President Donald Trump claimed Democrats were responsible for a law causing then separation of families at the border as Trump's critics blamed the current administration for "losing" nearly 1,500 children in the immigration system.
There is plenty of blame to go around. For decades, both Republican and Democratic administrations and congresses have failed to fix America's immigration system even as both parties agree it is in need of reform.
While spectacular headlines and partisan blame fuel outrage, they end up conflating separate issues and facts, underscoring both how broken and poorly understood the U.S. immigration system is.
The latest chaos essentially boils down to three separate but interconnected issues: 1. the separation of families trying to enter the country illegally, 2. the separation of families seeking asylum in the United States, and 3. the treatment of migrant children in the U.S. foster care system.
FAMILIES ARE BEING SEPARATED AT THE BORDER
On Saturday, Trump issued a call to "Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border into the U.S."
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.— Donald J. Trump (@realDonaldTrump) May 26, 2018
According to immigration policy experts, there is no existing law that requires family separations. However, a new Trump administration policy will likely increase the number family separations.
"As usual with the president, this is a mix of fact and political calculation," said Mark Krikorian the executive director of the Center for Immigration Studies, noting the laws Trump is following have not changed since the Obama or Bush administration.
"The policy on what to do with illegal alien minors is no different, its just that because the administration is pursuing a 100 percent prosecution policy they are being confronted with the issue more frequently," he said.
In the first weeks of May, 638 adults were separated from 658 minor children at the U.S. southwest border, according to estimates from Customs and Border Protection (CBP). Those separations were almost entirely the result of adults being taken into federal criminal custody on charges of illegally crossing the border.
Under the Trump administration's "zero-tolerance" policy enacted in April, all adults attempting to cross the border illegally must be referred for criminal prosecution. A first-time conviction is a misdemeanor, a second attempt can result in felony charges.
Attorney General Jeff Sessions described the stricter enforcement policy last month as a "caravan" of migrants from Central America arrived at the U.S.-Mexico border. "If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border," Sessions warned.
For human rights and legal reasons, children cannot be detained with adults in federal prison facilities, so minors are handed over to the Department of Health and Human Services' Office of Refugee Resettlement (ORR). Unaccompanied children must be transferred from DHS to HHS within 72 hours.
Once they are transferred, ORR tries to connect immigrant children with relatives living in the United States. If a relative cannot be found, they are resettled in the U.S. foster care system while their parent or guardian is tied up in the U.S. criminal justice system.
According to Department of Homeland Security officials, the policy change was the result of a surge of activity at the southwest border including a growing number of families and unaccompanied children. In April, CBP encountered 9,647 families at the border, an uptick of more than 760 percent over the same time in 2017.
Former president of the American Immigration Lawyers Association, William Stock explained the administration's policy is "the new way of trying to deter" parents from seeking asylum in the United States.
"That's the strategy here, to threaten families with separation to make them more afraid of America than they are of MS-13," he warned.
Members of the Trump administration have suggested the threat of family separations could be a "tough deterrent" against future attempts to bring children across the border illegally.
Both DHS Secretary Kirstjen Nielsen and Director of Immigration and Customs Enforcement Thomas Homan denied U.S. immigration officers are intentionally separating families as a deterrent.
DHS officials have also separated family units when they believe the child is potentially a victim of trafficking.
FAMILY DETENTIONS, SEPARATIONS OCCURRED UNDER OBAMA
While Trump's "zero-tolerance" policy is driving the number of criminal justice-related family separations, previous administrations also had to contend with the difficult issue of keeping families together.
In his weekend tweet, the "horrible law" President Trump was most likely referring to was originally passed under President George W. Bush and revisited under Barack Obama.
The Trafficking Victims Protection Act limits the amount of time a child can be held in an immigration detention center to 21 days while their asylum claim is being processed. It was also designed to guarantee the most humane and least restrictive conditions for detaining children.
After three weeks, they must be resettled through ORR with a relative in the United States or put into the U.S. foster care system, a practice that effectively separates families.
"There was a lot of discussion about children being detained and families being detained under the Obama administration because that's when we first saw that initial surge of unaccompanied child migrants," explained Sarah Pierce, a policy analyst at the Migration Policy Institute.
Faced with the 2014 surge of unaccompanied minors and families, the Obama administration opened makeshift family detention centers on military bases, ICE facilities and law enforcement training facilities across the southwest. During that time, immigration officials worked to process a backlog of asylum claims, which have continued piling up in the hundreds of thousands.
At that time, images began circulating of children and mothers with small children being confined in holding areas that resembled cages. Human rights activists lashed out at Obama for the inhumane conditions.
Over the weekend, the images reemerged on social media with pro-immigration activists claiming the conditions were the result of Trump's "zero-tolerance" policy. The president shot back at critics, rightly saying the horrible conditions were part of the Obama administration's handling of the 2014 wave of young immigrants.
Early Tuesday morning, Trump tweeted, "Democrats mistakenly tweet 2014 pictures from Obama’s term showing children from the Border in steel cages. They thought it was recent pictures in order to make us look bad, but backfires."
Democrats mistakenly tweet 2014 pictures from Obama’s term showing children from the Border in steel cages. They thought it was recent pictures in order to make us look bad, but backfires. Dems must agree to Wall and new Border Protection for good of country...Bipartisan Bill!— Donald J. Trump (@realDonaldTrump) May 29, 2018
In response to the mass migration and a Ninth Circuit Court ruling, the Obama administration updated the law in 2015 to ensure the least restrictive conditions for unaccompanied minors and extended those protections to parents traveling with minors.
The policy change under the so-called Flores Settlement Agreement guaranteed children and their guardians would be released to U.S. relatives or into the interior after three weeks in detention, and ordered to report back to immigration services to process their asylum request later. The court settlement also prevented future administrations from summarily detaining families as a deterrent.
President Trump has criticized that policy as "catch and release" and recently called on Congress to end the legal loophole and "terminate the Flores Settlement Agreement."
Krikorian explained that the Obama-era policy sent a message to Central American migrants to create the current conditions at the border where CBP is encountering even more unaccompanied children and families.
"They were told if they had a kid in tow they would be let go," he said. "It was Obama's decision to let adults who brought kids with them into the United States basically without consequence. And that created this flow."
FAMILY SEPARATIONS ARE DIFFERENT FROM CLAIMS OF 'LOST' CHILDREN
Over the weekend, reports emerged that HHS lost track of 1,475 undocumented immigrant children. The allegation swept social media under the hashtags #WhereAreTheChildren and #MissingChildren.
The report emerged in the same context as reports of families being separated at the border, creating a narrative that Pierce described as "misleading."
In short, the Office of Refugee Resettlement did not lose track of children. ORR is authorized to follow-up with the sponsors of unaccompanied minors 30 days after releasing the children into their custody. The agency is not legally responsible for the children after they are resettled.
At the end of 2017, the agency conducted a survey based on its attempts to follow up with the sponsor of 7,635 unaccompanied minors.
The overwhelming majority responded to the call from government officials and agreed to speak to them over the phone. "ORR was able to reach and 86 percent of those sponsors, which is actually a pretty high number," Pierce explained.
The number is also significant because many of the unaccompanied children were taken in by relatives living in the U.S. without documentation. "They're incentivized, especially under this administration, to not communicate with the government," Pierce added, referring to the president's policy instructing ICE to target all undocumented immigrants.
Of the remaining 1,475 minors, approximately 1,000 could not be reached on the phone or the family did not consent to participate in a follow-up call. Approximately 400 sponsors were contacted but unable to account for the whereabouts of the minor released into their care.